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July 5, 2006

The Most Dangerous Decision

hanks to Eric for the welcome, and for the opportunity to guest-blog. As he mentioned, my novel In the Shadow of the Law is just out in paperback, and I’m going to post about that, and a couple of other books that I’ve written or am researching. But before this Supreme Court Term fades too far into the past, I wanted to say something about a couple of the decisions. Hamdan is the one everyone was waiting for, and I was generally pleased with it, although I confess I haven’t had the time to read the whole thing carefully. I was equally interested in two other decisions, Garcetti v. Ceballos and Woodford v. Ngo.

Garcetti received a lot more attention than Ngo. Garcetti, you may remember, featured an employee of the L.A. County district attorney’s office who was allegedly disciplined for, among other things, the content of a memo he wrote recommending dismissal of a prosecution. The Court said that public employee speech that was part of the employee’s official duties was not constitutionally protected.

There was a fair amount of outcry over this decision, and several people raised the concern that it would allow employers to craft broad job descriptions in order to effectively strip protection from most employee speech. I didn’t think the decision was so bad, for reasons I explain in more detail here. To recap briefly, I argued that intragovernmental speech is not particularly important from the First Amendment perspective—it may be essential to governmental efficiency, but its contribution to effective self-governance is minor. So the Court is not wrong to think that when job performance happens to take the form of speech, it can still be evaluated as job performance and form the basis for termination without raising constitutional issues. What we should be worried about is speech from employees to the public, and there I do think the Court has struck the wrong balance by failing to give public employees some sort of safe harbor within which their speech can be fully protected, rather than protected only by the quite deferential Connick-Pickering balancing test. Garcetti is neither a terrible decision nor the worst thing about the Court's employee speech jurisprudence.

In Ngo, the Court interpreted the exhaustion requirement of the Prison Litigation Reform Act (PLRA). The PLRA requires, among other things, that inmates not bring civil rights suits “until such administrative remedies as are available are exhausted.” So an inmate wanting to file a section 1983 suit alleging a violation of his constitutional rights must first invoke whatever grievance system the prison has. The question in Ngo was what should happen if the inmate’s grievance is rejected on procedural grounds, because he has missed a filing deadline, or failed to be sufficiently specific in his allegations, or included more than one grievance in a single complaint. The Court’s conclusion was that the rejection of a grievance on procedural grounds should create a bar to a subsequent civil rights suit.

I think I’ll wait until next time to give my views on the merits of the decision—this is an issue that I’ve been chasing for for five years, and it’s a long story. My point here is that Ngo didn’t get nearly as much press as Garcetti, and I’m not sure why. I think that Garcetti is a very narrow decision, which applies only to cases in which the employee’s work product is speech. I don’t think that allowing employers to fire him because that work product is deemed unsatisfactory is such a terrible outcome, since First Amendment values are implicated much more by employee speech directed to the public, outside their official duties. And I don’t think that there’s a substantial possibility for employers to manipulate job descriptions to deprive important speech of protection.

Ngo, by contrast, is really apocalyptic for inmate civil rights suits. Prison administrators set the requirements and deadlines of their grievance systems. They have now been told that they can immunize themselves and their employees by constructing a system that is sufficiently procedurally complex and unforgiving to trip up inmates. Of course that’s what they’re going to do—prison grievance systems are going to become the first line of litigation defense, and a very effective one. And, as I will try to show next time, it doesn't make much sense, either logically or in terms of any policy aim other than keeping inmates out of court regardless of the merits of their claims.

So where’s the outcry over Ngo?

Posted by at July 5, 2006 2:54 PM

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Comments

Posted by: Doug B. at July 5, 2006 6:43 PM

Posted by: Mojo at July 5, 2006 7:45 PM

Posted by: Alain at July 5, 2006 9:05 PM