Cooley v. Eng

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that public employees’ speech is not protected by the First Amendment if it was made pursuant to their official duties. In this case, David Eng, a Deputy District Attorney in L.A., sued his supervisors for retaliating against him for concluding that no environmental crimes had been committed in building the L.A. school district’s Belmont Learning Complex; for complaining about one of his supervisors allegedly leaking information to the IRS; and for his attorney complaining in an L.A. Times article that the subsequent prosecution against Eng was in retaliation for his speech. The supervisors moved for summary judgment based in part on qualified immunity, which was denied in part by the district court on the ground that there was a genuine issue of material fact over whether or not some of Eng’s speech was made pursuant to Eng’s official duties.

The court of appeals affirmed, and the defendants filed a petition for certiorari in the Supreme Court. The questions presented in the petition were:

1. Does the inquiry into whether a public employee’s speech was within the scope of his or her “official duties” under Garcetti v. Ceballos, 547 U.S. 410 (2006) present a pure question of law for the court, as determined by a majority of circuits, or a mixed question of fact and law to be submitted in the first instance to a jury, as determined by the Ninth Circuit?
2. What criteria must be applied in determining whether a public employee’s speech was within the scope of his or her official duties?
3. Absent specific criteria for determining when public employee speech is pursuant to an official duty, are supervisors shielded by qualified immunity for allegedly concluding they could discipline a deputy district attorney for comments made during a meeting with the District Attorney and his executive staff on matters relating to a task force investigation of which he was a part, although the comments were not within the scope of his particular assignment?
4. What is the scope of the First Amendment interest a public employee may have, if any, in an interview given by his or her attorney to the press about the public employee’s dispute with his employer?

Public Citizen represented David Eng in filing a brief in opposition to certiorari. On January 10, 2010, the petition for certiorari was denied.