Appellate Panel Rewards Delaying Tactics In First Amendment Case
Appellate Panel Rewards Delaying Tactics In First Amendment Case
My valid free speech claim languished in court for a decade against a hiring officer at the Social Security Administration. It was dismissed this week because of a 2022 U.S. Supreme Court ruling.
Federal agencies have bottomless pockets, courtesy of the U.S. taxpayer.
This is an incalculable advantage in litigation, especially against a plaintiff like me who is forced to go it alone because she can’t afford to pay an attorney a $25,000 retainer and $350 an hour.
The Social Security Administration (SSA), represented by successive legal teams at the U.S. Attorney’s Office and their own in-house counsel, showed exceptional expertise in delaying the resolution of my First Amendment claim. I alleged that SSA hiring officer Jimmy Elkins retaliated against me for my exercise of free speech in 2011.
The SSA managed to delay U.S. Equal Employment Opportunity Commission proceedings for six years, and then stymied federal court proceedings for seven years.
The First Amendment claim this week was dismissed by a panel of three judges for the U.S. Circuit Court of Appeals for the Ninth Circuit in Pasadena, CA, who said it was foreclosed by a 2022 U.S. Supreme Court ruling, Egbert v. Boule, holding that federal employees could not be sued for violating citizens’ rights to free speech. Too bad the case wasn’t decided in 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021 or a week prior to the Egbert decision in 2022.
That Egbert decision, written by Justice Clarence Thomas, is one of the worst opinions ever issued by the Court. It literally creates a First Amendment exemption for federal employees (including, no doubt, Justice Thomas) and it creates a class of victims with no legal remedy for First Amendment violations (like me).
It is never the plaintiff’s choice to have a case drag on for 13 years. Delay only ever benefits the defendant.
The Pasadena panel’s ruling means that all a federal agency need do to escape accountability is delay. The law may change. Judges may be appointed who are stupid, have an ax to grind, or be free thinkers who don’t honor precedent. You could even hit the jackpot - the plaintiff could die.
In my case, SSA attorneys for years ignored legitimate requests for information (discovery), thus requiring a Magistrate to schedule multiple hearings on my motions to compel. I still never got most of the information.
Of course, the SSA had help. Chief U.S. District Court Judge Miranda M. Du of Nevada took a hands-off approach when the case was transferred from Arizona to Nevada in 2018. The SSA literally didn’t answer my complaint for more than a year. She apparently didn’t notice.
Moreover, every time Du issued a deadline, the SSA applied for and Du approved an extension of time - always over my objections.
I waited impatiently while SSA attorneys recovered from minor traffic accidents. Went to family funerals. Worked on more pressing matters. Quit and were replaced by attorneys who had to get up to speed. The federal court system effectively shut down for a year during the pandemic. The Magistrate retired. Etc. Etc.
The years rolled on.
Justice delayed is justice denied - William Gladstone (1868)
Elkins, testified under oath that one reason he didn’t hire me was because I wrote a blog in 2011 on worker rights called, When the Abuser Goes To Work.
Elkins said he ignored objective qualifications and hired candidates based solely on his perception of their personality and “cultural fit”. He said the blog signaled I would be an inappropriate hire because I might criticize him some day. It wasn’t clear whether I failed on the personality or cultural fit front.
My practice experience was superior to other candidates, some of whom had just graduated from law school. But that wasn’t a consideration.
Elkins found a willing audience in Chief Judge Miranda M. Du of the U.S. District Court of Nevada. Somewhat incredibly, she concluded my blog “led” Elkins not to hire me, and that Elkins’s concern abut my blog ”undermine(d) any viable claim of discrimination or even reprisal based on protected activity because of age.”
Du also found that Eklins had an “innocent motive” for not hiring me - because he said I wasn’t sufficiently enthusiastic about the position. This reflected a gross misinterpretation of the only legal authority she cited Hartman v. Moore. But the Pasadena appellate judges ignored this.
Here Today: Gone Tomorrow
The Pasadena panel had others options to dismissal but chose not to pursue them.
First, there was the option of avoiding injustice. They could have decided not to penalize me for extraordinary delays caused by the SSA and Judge Du.
The panel could have recognized that it is unconstitutional to deny a citizen a legal remedy for a clear violation of their fundamental right to free speech.
The U.S. Supreme Court has ruled several times that there can be no Constitutional violation without a remedy. In U.S. v. Leon, the Court said failure to provide a remedy for a constitutional violation turns the Bill of Rights “into an unenforced honor code… The Constitution requires more; it requires a remedy.”
I filed the First Amendment claim after the earlier 9th Circuit panel ruled I could not sue the SSA under the retaliation provisions of the Age Discrimination in Employment Act and and Title VII of the Civil Rights Act.
Now that my free speech claim also has been denied, I literally have no legal remedy for Elkins’ admitted violation of my right to free speech.
But the Pasadena panel didn’t bother with pesky details. It dismissed my claim in a pithy phrase.
Why Does It Matter?
If an attorney can legally be blackballed from being hired by the federal government for writing about worker rights, it is quite likely that few attorneys will write about worker rights. That is significant. It means there will be a lot more content on social media that is sanctioned by the U.S. Chamber of Commerce, which already has an enormous advantage in terms of public relations and social media exposure. Workers, on the other hand, will be denied access to critical information.
Elkins characterized the blog as being about “horrible bosses.”
In reality, it was carried by the American Bar Association and the articles were cited in books and law reviews. Since 2011, bullying has become recognized as a form of violence at work by the Occupational Health and Safety Administration. I like to think my work contributed to that.
My interest in workplace bullying stemmed from a series of three books on domestic violence I edited in the 1990s for a scholarly press. I noticed that workplace bullies use many of the same tactics used by abusers against partners in cases of spousal abuse. The blog was a pro bono (free) effort to help workers and employers avoid emotional harassment in the workplace.
Not Too Dumb After-All
Elkins’ worked diligently to hire only recent law school graduates, whom he thought were too dumb to question his management style. He publicly advertised the job vacancies in only two places - a law school and an office of outgoing Peace Corps volunteers. Both have average populations well under the age of 40.
The earlier 9th Circuit panel said it was “common sense” that publicly advertising vacancies at two institutions with mostly younger people would have a disparate impact on older people. However, the Pasadena panel dismissed that claim after adopting false facts and disregarding legal precedent.
Elkins was hoping young workers would be too dumb to complain about his management style. But his strategy failed. Two of Elkins’s five hires subsequently filed complaints accusing him of race and sex discrimination, respectively.
But despite my complaint and the other other complaints, Elkins has enjoyed the past 13 years as a highly paid Hearing Office Director at an SSA office in Albuquerque, NM. And for the SSA, it’s been business as usual for 13 years.