Matthew LeFande v. DC , 841 F.3d 485 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2016 Decided November 8, 2016
No. 15-7055
MATTHEW AUGUST LEFANDE,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00217)
Matthew August LeFande, pro se, argued the cause and
filed the briefs for appellant.
Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellee. With him on the brief were Karl A.
Racine, Attorney General, Todd S. Kim, Solicitor General,
and Loren L. AliKhan, Deputy Solicitor General.
Before: TATEL and KAVANAUGH, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
2
TATEL, Circuit Judge: Matthew LeFande served as a
police reserve officer with the Metropolitan Police
Department for fifteen years until the department fired him
for making harsh and accusatory statements to his superiors in
emails with his co-workers cc’d. Alleging that the emails
constitute protected speech, LeFande argues that his
termination violated the First Amendment. The district court
disagreed, as do we. Under Pickering v. Board of Education,
391 U.S. 563 (1968), LeFande’s emails enjoy no First
Amendment protection because his interest in sending them is
outweighed by the police department’s interest in promoting
office harmony and efficiency.
I.
The Metropolitan Police Department (MPD) is fortified
by a corps of volunteers, called police reserve officers
(PROs), who assist full-time officers with their law-
enforcement duties. See D.C. Code § 5-129.51. Appellant
Matthew LeFande served as a PRO for fifteen sometimes
tumultuous years from 1993 until 2008, when the MPD fired
him.
For our purposes, the relevant events begin in 2006, when
LeFande, who holds a law license, represented a class of
PROs in a suit against the District of Columbia. In that suit,
known as the Griffith suit, plaintiffs alleged that an MPD
regulation infringed on PRO collective-bargaining rights and
violated principles of procedural due process in disciplinary
actions. Griffith v. Lanier, No. 06-01223, 2007 WL 950087(D.D.C. Mar. 28, 2007). The district court dismissed that case,
id. at *4, and we affirmed, Griffith v. Lanier, 521 F.3d 398,
404 (D.C. Cir. 2008).
In January 2008, just before LeFande appeared before
this court for oral argument in Griffith, the MPD fired him. In
3
response, LeFande again sued the District, this time under 42
U.S.C. § 1983, alleging, as relevant here, that the MPD
terminated him for prosecuting the Griffith suit in violation of
his First Amendment rights. The district court granted the
District’s motion to dismiss, ruling that LeFande’s speech—
his prosecution of the Griffith suit—did not relate to a matter
of public concern and therefore merited no First Amendment
protection. LeFande v. District of Columbia, No. 09-00217,
2009 WL 8747515, at *4 (D.D.C. June 25, 2009). Reversing,
we concluded that the Griffith suit did implicate a matter of
public concern and remanded for the district court to conduct
the remaining First Amendment analysis. LeFande v. District
of Columbia, 613 F.3d 1155, 1161–62 (D.C. Cir. 2010).
On remand, the District moved for summary judgment,
arguing that the MPD would have fired LeFande even absent
his prosecution of the Griffith suit because of a series of
emails he sent to his superiors with his co-workers cc’d. The
relevant emails—their precise language is central to the issue
before us—can be grouped into three sets.
First, on March 26, 2007, LeFande sent three emails
pertaining to the PRO leadership’s response to a disturbance
in Georgetown. In the initial email, LeFande wrote that the
PRO force would “be better off knocking Officer Plante [a
sergeant] over on his side and rolling him towards the crowd
than asking him to lead us as a unit.” In the next email,
LeFande proclaimed that his superiors were “suffering from
full-blown delusions of adequacy.” And in his last email of
the day, LeFande wrote that his superiors were “planning on .
. . standing around there until the crowd thins out in
Georgetown” and suggested that they “write [themselves] a
nice after action report [and] [m]aybe even give [themselves]
some medals.” LeFande sent the first email directly to certain
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superiors and circulated it to a listserv of PROs. The record
does not indicate who received the other two emails.
LeFande sent a second set of two emails on January 18
and 19, 2008, each of which concerned PRO Commander
Charles Brown’s request for a list of PRO members who were
also serving as Conservators of the Peace in Virginia (another
volunteer law-enforcement position). In his first of the two
emails, LeFande wrote:
Please explain why you want this information and
what you intend to do with it. Absent some special
authority that MPD will confer to these people by
virtue of the office they hold in Virginia, or this
information being used to advocate for same, I can’t
understand why it is any of your business. It doesn’t
appear you have done anything with this information
since the last time you asked. Why should we
continue to provide it to you?
Brown responded that the list would allow him to “better
handle problems that may arise” and has “helped [him] stop
or minimize disciplinary actions against Reserve Officers.”
LeFande shot back:
Your track record demonstrates to the contrary. You
are, more often than not, the most immediate cause
of arbitrary and unwarranted disciplinary actions
against Reserve Officers. You certainly are
responsible for the recent arbitrary promotions
process in which you promoted a cadre of persons to
your personal liking regardless of their lack of
qualifications. You failed to utilize the promotion
exams and merit selection process required under
law so that you could capriciously exclude those
5
critical of your perpetual incompetence. Similarly,
you are personally responsible for the arming of
certain Reserve Officers, including yourself, who
are wholly unfit to carry firearms or who are in fact,
legally disqualified from doing so. It appears to me
that you are now on the hunt for more reasons to
discredit and prejudice those more capable than you.
You do not need a list of conservators. Instead, the
police department needs a written policy in place that
reflects these conservators’ status as duly appointed
law enforcement officers for Virginia and identifies
them as exempt from firearms regulations both under
District of Columbia and Federal law. If there is any
question as to a conservator’s status, their state
issued identification credentials will give cursory
confirmation of their status, which can be further
confirmed by queries to the appropriate agencies.
Absent any other cause for you having this
information, I believe it is inappropriate for you to
maintain any such list.
LeFande copied the full PRO listserv on these emails.
LeFande sent and cc’d his final email on January 25,
2008, in response to Brown’s request that the PROs submit
questions in advance of a meeting with an MPD Assistant
Chief, so that he could “be properly briefed.” LeFande wrote:
Briefed by who? You? Why even bother? You must
be pretty nervous about this meeting for you to do
something as contrived and clumsy as try to filter out
the questions ahead of time. The whole point of this
process is to spring on him all the dumb stuff you
have been doing to the Corps all these years and
make him squirm. Hopefully he will be embarrassed
6
enough to finally force you to resign. Come to think
of it, let’s forward this little email to him. [email
address omitted] . . . Oh yeah, you suspended me
without cause for doing that nine months ago and
haven’t reinstated me since. Let’s add that to the
email too.
As evidence that it fired LeFande because of these
emails, the District pointed to the MPD’s memorandum
requesting his termination, which stated that the emails
“dismiss[] authority and undermine[] the credits of official[s’]
rank and deter[] the cohesive working relationships of
[Reserve Corps] members.” The memo also emphasized that,
“[a]s the tone, tenor, content, and distribution of Reserve
Officer LeFande’s e-mails make[] clear, he is a disruptive
force within the Reserve Corps, and his blatantly
insubordinate behavior cannot help but to diminish respect for
Reserve Corps officials and undermine morale within the
Corps.”
The district court denied the District’s summary-
judgment motion, concluding that the District had failed to
prove as a matter of law that the MPD would have fired
LeFande even absent his prosecution of the Griffith suit.
While a jury could “find that the MPD terminated LeFande
for his tendency to air complaints to the entire listserv[], or for
the tone of the emails,” the court explained, it could also
deem these justifications pretextual. LeFande v. District of
Columbia, No. 09-217, slip op. at 10 (D.D.C. Feb. 11, 2014)
(order denying defendant’s motion for summary judgment).
And because LeFande’s emails “likely constitute protected
speech,” the court thought summary judgment particularly
inappropriate. Id. at 11.
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In response to that ruling, LeFande moved for summary
judgment, asserting that his emails warranted First
Amendment protection as a matter of law. The district court,
despite its previous statement that LeFande’s emails “likely
constitute protected speech,” denied that motion. Relying on
Garcetti v. Ceballos, 547 U.S. 410 (2006), the court
concluded that LeFande’s emails were unprotected because he
sent them “pursuant to his official duties.” LeFande v. District
of Columbia, No. 09-217, slip op. at 1–2 (D.D.C. Nov. 14,
2014) (order denying plaintiff’s motion for summary
judgment).
Having denied the parties’ summary-judgment motions,
the district court held a pretrial conference. There, LeFande
explained that he had no evidence to present at trial and
maintained that the only remaining issue was a legal one, i.e.,
whether his emails merit First Amendment protection.
Because the District agreed, the district court instructed it to
move to dismiss, which it did. Although LeFande never
opposed the motion, he expressly reserved his right to appeal.
The district court accordingly dismissed the case with
prejudice, and LeFande filed this appeal.
II.
Before addressing the merits, we must consider the
District’s argument that we lack appellate jurisdiction. See
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
94–95 (1998) (“The requirement that jurisdiction be
established as a threshold matter ‘spring[s] from the nature
and limits of the judicial power of the United States’ and is
‘inflexible and without exception.’” (quoting Mansfield, C. &
L. M. Railway Co. v. Swan, 111 U.S. 379, 382 (1884))).
Under 28 U.S.C. § 1291, appellate courts have jurisdiction to
review the final decisions of district courts. And when
reviewing a final decision, they have authority to review the
8
interlocutory orders that preceded it based on the principle
that such orders merge into the final decision. See Ciralsky v.
CIA, 355 F.3d 661, 668 (D.C. Cir. 2004) (“Our jurisdiction
over [the] final decision extends as well to the interlocutory
rulings that preceded it . . . .”).
The District insists that we lack jurisdiction to review the
denial of LeFande’s summary-judgment motion because the
district court dismissed LeFande’s case for failure to
prosecute. See FED. R. CIV. P. 41(b) (allowing dismissal “[i]f
the plaintiff fails to prosecute or to comply with these rules or
a court order”). Despite the general rule that interlocutory
orders merge into the final decision, our sister circuits
disagree about whether they can review interlocutory orders
after a dismissal for failure to prosecute. Compare, e.g.,
John’s Insulation, Inc. v. L. Addison & Associates, 156 F.3d
101, 105–07 (1st Cir. 1998) (declining review), with Gary
Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 903 F.2d 176, 179 (2d Cir. 1990) (permitting
review). This circuit has yet to weigh in on the question, and
we need not do so now since we reject the District’s premise
that the dismissal here was triggered by a failure to prosecute.
Although the district court failed to ground its order in a
Federal Rule of Civil Procedure, the circumstances
surrounding the dismissal—specifically, the pretrial
conference—convince us that it rested not on Rule 41(b), but
rather Rule 41(a)(2), which allows a court to dismiss an action
“at the plaintiff’s request . . . on terms that the court considers
proper.” FED. R. CIV. P. 41(a)(2). At the pretrial conference,
LeFande took the position that only legal issues remained at
stake and accordingly asked the district court to dismiss the
case so he could seek immediate review of the summary-
judgment denial. See Pretrial Conference Tr. 3 (Apr. 28,
2015) (“We’re only left with the matter of law of whether
9
[LeFande’s] speech was protected speech.”); id. at 6 (“We
agree to [the case] being dismissed. We just want to reserve
our rights for appeal.”). The district court agreed to facilitate
this request, saying it would try to “tee [the case] up properly
for plaintiff to take [his] appeal.” Id. at 6. Though the District
ultimately moved for dismissal, it was LeFande who initially
“request[ed]” the dismissal, which the district court granted
on “terms [it] consider[ed] proper.” See FED. R. CIV. P.
41(a)(2). The dismissal therefore qualifies as a Rule 41(a)(2)
voluntary dismissal.
The District nonetheless contends that LeFande bears
sole responsibility for the case not going to trial, assuring us
that it had “intended to proceed with the trial and present its
own evidence.” Appellee’s Br. 17. This is an odd assertion
given what actually transpired at the pretrial conference. Not
only did the District agree that no factual issues remained
contested, see Pretrial Conference Tr. 5 (responding “[n]o”
when asked by the district court whether any facts were in
dispute), but, as noted above, it also moved to dismiss the
case, id. at 6 (“We move to dismiss.”). The District’s
argument, moreover, completely ignores that the dismissal
here bears no resemblance to dismissals for failure to
prosecute, which are prompted by plaintiffs’ egregious and
dilatory conduct, such as flouting court orders. See Bristol
Petroleum Corp. v. Harris, 901 F.2d 165, 167–68 (D.C. Cir.
1990). LeFande did nothing of the sort, as he merely voiced
his preference to appeal immediately rather than proceed to
trial.
For these reasons, we shall construe the district court’s
order as a Rule 41(a)(2) voluntary dismissal with prejudice—
an appealable final decision under 28 U.S.C. § 1291 because
it completely ends the litigation on the merits. See Blue v.
District of Columbia Public Schools, 764 F.3d 11, 17 (D.C.
10
Cir. 2014). And since the denial of LeFande’s summary-
judgment motion merges into that final decision, it too is
reviewable. See Public Citizen v. United States District Court
for the District of Columbia, 486 F.3d 1342, 1345 (D.C. Cir.
2007) (holding that a summary-judgment denial may be
reviewed “where it is accompanied by a final order disposing
of all issues before the district court” (quoting Jones-
Hamilton Co. v. Beazer Materials & Services, Inc., 973 F.2d
688, 694 n.2 (9th Cir. 1992))).
With our statutory jurisdiction established, the only
remaining question is whether we have Article III jurisdiction.
Although the parties never address this issue, courts must
always assure themselves that they have constitutional
jurisdiction. See Steel Co., 523 U.S. at 101–02. Article III
appellate jurisdiction over voluntary dismissals with prejudice
is a largely uncharted doctrinal area, though the Supreme
Court will soon hear a case concerning the issue. See
Microsoft Corp. v. Baker, 136 S. Ct. 890, 890–91 (2016)
(mem.) (granting certiorari). In that case, the parties disagree
about whether appellate courts can review a denial of class
certification after the named plaintiffs voluntarily dismiss
their claims with prejudice given Article III’s requirement that
the plaintiff remain adverse to the defendant “at all stages of
review, not merely at the time the complaint is filed.”
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016)
(quoting Arizonans for Official English v. Arizona, 520 U.S.
43, 67 (1997)). Without speaking to the unique context of
class actions—which is unnecessary in this case—we think
that Article III jurisdiction exists to review the voluntary
dismissal with prejudice here.
The Supreme Court last addressed the reviewability of
voluntary dismissals in United States v. Procter & Gamble
Co., 356 U.S. 677 (1958). There, the Court held that the
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plaintiff, the government in that case, could obtain review of
an interlocutory ruling by voluntarily dismissing the case with
prejudice because “[w]hen the Government proposed
dismissal . . ., it had lost on the merits [due to the
interlocutory ruling] and was only seeking an expeditious
review.” Id. at 680–81. In other words, the government had
never “consent[ed] to a judgment against [it], but only that, if
there was to be such a judgment, it should be final in form
instead of interlocutory.” Id. at 681 (quoting Thomsen v.
Cayser, 243 U.S. 66, 83 (1917)). The same is true here. When
the district court denied LeFande’s summary-judgment
motion and concluded that his emails deserve no First
Amendment protection, LeFande effectively lost on the
merits: after all, he claimed only that firing him based on
those emails violated the First Amendment. LeFande’s
voluntary dismissal with prejudice, then, served solely as a
means to facilitate immediate review of a case-dispositive
interlocutory ruling.
Procter & Gamble therefore governs and, although the
Court there did not speak in terms of Article III adverseness,
it necessarily found Article III’s strictures satisfied because it
reviewed the plaintiff’s appeal. Accordingly, because
LeFande’s voluntary dismissal with prejudice followed a
case-dispositive interlocutory ruling, we have Article III
jurisdiction. Accord OFS Fitel, LLC v. Epstein, Becker and
Green, P.C., 549 F.3d 1344, 1356–58 (11th Cir. 2008)
(holding that voluntary dismissals with prejudice following
case-dispositive rulings are reviewable); Laczay v. Ross
Adhesives, 855 F.2d 351, 354–55 (6th Cir. 1988) (same). And
as a result, the broader question whether Article III appellate
jurisdiction exists over all voluntary dismissals with
prejudice, even those that do not follow case-dispositive
interlocutory rulings, is not implicated.
12
We can easily dispose of the District’s final two
jurisdictional objections. First, our holding poses no threat to
“the longstanding policy against piecemeal litigation.”
Appellee’s Br. 18 (quoting Franklin v. District of Columbia,
163 F.3d 625, 629 (D.C. Cir. 1998)). Of course, reviewing
cases that plaintiffs have voluntarily dismissed without
prejudice could jeopardize that policy given that plaintiffs
would suffer no adverse consequences from dismissing after
an interlocutory ruling and pursuing an appeal. See Robinson-
Reeder v. American Council on Education, 571 F.3d 1333,
1340 (D.C. Cir. 2009) (discussing how permitting dismissals
without prejudice to “generate an appealable judgment”
would “weaken the policy against ‘piecemeal appeals’”). But
where, as here, the plaintiff voluntarily dismisses the case
with prejudice, he wagers his entire case on prevailing on
appeal—thereby creating a disincentive against this practice.
See, e.g., Walton v. Bayer Corp., 643 F.3d 994, 998 (7th Cir.
2011) (“[When a] plaintiff wager[s] her entire claim on being
proved right about [an interlocutory ruling], considerations of
judicial economy justif[y] immediate appellate review.”).
Second, the District claims that because “we are
powerless to review a challenge to the legal sufficiency of
evidence that was rejected at summary judgment and not
brought again in a [post-trial] Rule 50 motion,” see Feld v.
Feld, 688 F.3d 779, 781 (D.C. Cir. 2012), we also lack
authority to review the summary-judgment denial here. We
disagree. Where a case proceeds to trial, the trial record
supersedes the earlier summary-judgment record and renders
the summary-judgment denial moot. Id. at 782. But where, as
here, no trial takes place—and hence no further facts are
developed—nothing has superseded the summary-judgment
record and therefore nothing prevents our review.
13
Having confirmed our constitutional and statutory
jurisdiction to review the district court’s voluntary dismissal
with prejudice, as well as the summary-judgment denial that
preceded it, we turn to the merits.
III.
The district court denied LeFande’s summary-judgment
motion, concluding that his emails enjoy no First Amendment
protection. We review this summary-judgment denial de
novo, drawing all inferences in favor of the District as the
nonmovant. See Public Citizen, 486 F.3d at 1345. Summary
judgment is proper only when there is “no genuine issue of
any material fact,” or when “the movant is clearly entitled to
prevail as a matter of law.” Id. (quoting Pomerantz v. County
of Los Angeles, 674 F.2d 1288, 1290 (9th Cir. 1982)).
We use a four-element test to determine whether a public
employee has established a claim of retaliation in violation of
his First Amendment rights. For the employee to prevail: (1)
he must have spoken as a citizen on a matter of public
concern; (2) his interest in speaking on matters of public
concern must outweigh the government’s interest in
promoting efficiency; (3) his protected speech must have been
a substantial or motivating factor in prompting the retaliation;
and (4) the government must be unable to show that it would
have reached the same decision absent the protected speech.
Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007).
The first two elements involve questions of law; the second
two implicate questions of fact. Id.The parties spill much ink debating whether LeFande
spoke “pursuant to his official duties.” See Garcetti, 547 U.S.
at 421 (“[W]hen public employees make statements pursuant
to their official duties, the employees are not speaking as
citizens for First Amendment purposes . . . .”). We need not
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decide this question, however, because even if LeFande spoke
as a citizen on a matter of public concern, his claim falters on
the second element. See, e.g., Rock v. Levinski, 791 F.3d
1215, 1219 (10th Cir. 2015) (skipping the first element of the
employee-speech analysis and resolving the claim based on
the Pickering balancing test); see also Bowyer v. District of
Columbia, 793 F.3d 49, 53 (D.C. Cir. 2015) (“On de novo
review, we may affirm the district court’s judgment on a
different theory than used by the district court.”).
That element, according to Pickering v. Board of
Education, 391 U.S. 563 (1968), requires weighing LeFande’s
interest “as a citizen, in commenting upon matters of public
concern” against the MPD’s interest “as an employer, in
promoting the efficiency of the public services it performs
through its employees.” Id. at 568. The Supreme Court has set
forth several factors to consider in conducting this test, such
as “whether the statement impairs discipline by superiors or
harmony among co-workers, has a detrimental impact on
close working relationships for which personal loyalty and
confidence are necessary, or impedes the performance of the
speaker’s duties or interferes with the regular operation of the
enterprise.” Rankin v. McPherson, 483 U.S. 378, 388 (1987).
In Connick v. Myers, 461 U.S. 138 (1983), moreover, the
Court made clear that a government employer can intervene
before an employee’s speech actually disrupts the functioning
of an office. “[W]e do not see the necessity,” the Court
explained, “for an employer to allow events to unfold to the
extent that the disruption of the office and the destruction of
working relationships is manifest before taking action.” Id. at
152.
The facts of Connick are instructive in balancing the
interests in this case. There, the government fired an Assistant
District Attorney who had distributed a “questionnaire
15
soliciting the views of her fellow staff members concerning
office transfer policy, office morale, the need for a grievance
committee, the level of confidence in supervisors, and
whether employees felt pressured to work in political
campaigns.” Id. at 141. In sustaining the employee’s
termination, the Court explained that it owed “a wide degree
of deference to the employer’s judgment” that the employee
had committed “an act of insubordination which interfered
with working relationships.” Id. at 151–52. That said, the
Court acknowledged that a “stronger showing” of interference
with the employer’s operation “may be necessary if the
employee’s speech more substantially involved matters of
public concern.” Id. at 152.
Here, as explained above, the MPD set forth its rationale
for terminating LeFande in its “Request for Removal”
memorandum. That document states that LeFande’s emails
“dismiss[] authority and undermine[] the credits of official[s’]
rank and deter[] the cohesive working relationships of
[Reserve Corps] members.” It concludes that, “[a]s the tone,
tenor, content, and distribution of . . . LeFande’s e-mails
makes clear, he is a disruptive force within the Reserve Corps,
and his blatantly insubordinate behavior cannot help but to
diminish respect for Reserve Corps officials and undermine
morale within the Corps.” Under Connick, we must afford
such determinations “a wide degree of deference.” 461 U.S. at
152. Moreover, as we have emphasized, “there may be a
stronger governmental interest in regulating the speech of
police officers than in regulating the speech of other
governmental employees,” in light of the “special degree of
trust and discipline required in a police force.” O’Donnell v.
Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998). With this
deferential framework in mind, and viewing the facts in the
light most favorable to the District as the nonmovant, we now
16
subject each of LeFande’s emails to the Pickering balancing
test.
In LeFande’s March 26, 2007 emails, he ridiculed his
superiors’ handling of a disturbance in Georgetown, writing
that the department would be better off “knocking [a sergeant]
over on his side and rolling him towards the crowd than
asking him to lead [the PRO] unit,” and that his superiors
“suffer[ed] from full-blown delusions of adequacy” and
should “give [themselves] some medals.” In our view, these
statements about the inadequacy of office leadership, like the
survey question in Connick relating to employees’ confidence
in their supervisors, have the “likely result [of] . . .
precipitat[ing] a vote of no confidence” in LeFande’s
superiors. As such, LeFande’s statements “carr[y] the clear
potential for undermining office relations.” Connick, 461 U.S.
at 152. In addition, because those statements expressly
disrespect LeFande’s superiors, they go further to “impair[]
discipline,” Rankin, 483 U.S. at 388, than did the implicitly
derisive survey questions in Connick. To be sure, LeFande’s
March 26 emails may implicate matters of public concern to a
greater extent than the questionnaire in Connick since they
relate to public safety as opposed to matters of internal office
policy. But given the “special degree of trust and discipline
required in a police force,” O’Donnell, 148 F.3d at 1135,
LeFande’s speech-related interests in sending these emails
cannot outweigh the fact that their “disruptive force” (the
MPD’s description) threatens workplace efficiency.
LeFande’s January 18 and 19, 2008 emails must be read
together since they amount to a single response to
Commander Brown’s request for a list of PROs also serving
as Virginia Conservators of the Peace. In his January 18
email, LeFande wrote that he failed to “understand why [the
requested information] is any of your business,” demanding to
17
know “[w]hy should we continue to provide it to you . . .
[given that] [i]t doesn’t appear you have done anything with
[it] since the last time you asked[?]” After Brown explained
why he needed the information, LeFande still refused to
comply. Instead, in his January 19 email, he launched a slew
of attacks against Brown, charging, among other things:
“[y]ou certainly are responsible for the recent arbitrary
promotions process in which you promoted a cadre of persons
to your personal liking regardless of their lack of
qualifications”; “you . . . capriciously exclude those critical of
your perpetual incompetence”; “you are personally
responsible for the arming of certain Reserve Officers,
including yourself, who are wholly unfit to carry firearms”;
and “you are now on the hunt for more reasons to discredit
and prejudice those more capable than you.” LeFande cc’d the
PRO listserv.
It goes without saying that resisting a superior’s routine
request for information both “impairs discipline” and
“interferes with the regular operation of the enterprise.”
Rankin, 483 U.S. at 388. Viewing the record in the District’s
favor, as we must, we do not think that the requested
information was particularly sensitive or that the request was
unwarranted or burdensome. If police department leadership
faced opposition from employees after every routine request,
the machinery of law enforcement would grind to a halt.
More fundamentally, when we consider the “manner”
and “context” of these emails, id., they read more as personal
attacks on Brown than as proposals for improving
departmental policy. LeFande’s repeated use of the word
“you” in reference to Brown himself, as well as his harsh and
accusatory tone—“perpetual incompetence,” “capriciously
exclude,” “wholly unfit”—scapegoat Brown instead of
targeting general policies in a way that might foster
18
meaningful reform. Not only are such personal attacks on
supervisors likely to jeopardize employee confidence in office
leadership and impair overall discipline, but they are also just
the type of “act of insubordination” (the MPD called it
“blatantly insubordinate behavior”) that employers have wide
latitude to address before actual office disruption occurs. See
Connick, 461 U.S. at 151–52; Graziosi v. City of Greenville,
775 F.3d 731, 740–41 (5th Cir. 2015) (holding that a police
officer’s posts on the local Mayor’s public Facebook page
criticizing departmental leadership failed the balancing test
because they “smack[ed] of insubordination” (quoting Nixon
v. City of Houston, 511 F.3d 494, 499 (5th Cir. 2007))).
It is true that, on a more general level, the subject of these
emails—police personnel policy and public safety—is one of
public concern. See LeFande, 613 F.3d at 1161 (“[W]e reject
the proposition that a personnel matter per se cannot be a
matter of public concern, even if it may seriously affect the
public welfare.”). But “[w]hen a government employee
personally confronts his immediate superior,” the Court has
emphasized, “the [employer’s] institutional efficiency may be
threatened not only by the content of the employee’s message
but also by the manner, time, and place in which it is
delivered.” Givhan v. Western Line Consolidated School
District, 439 U.S. 410, 415 n.4 (1979). Here, LeFande’s
personal and inflammatory confrontation of Brown, combined
with the visibility of the emails, could well frustrate the police
department’s ability to ensure a functional force.
A similar analysis applies to LeFande’s January 25, 2008
email. There, LeFande responded to Brown’s request for
questions in advance of a briefing with the Assistant Chief as
follows: “Briefed by who? You? Why even bother? You must
be pretty nervous about this meeting for you to do something
as contrived and clumsy as try to filter out the questions ahead
19
of time. The whole point of this process is to spring on [the
Assistant Chief] all the dumb stuff you have been doing to the
Corps all these years and make him squirm. Hopefully he will
be embarrassed enough to finally force you to resign.”
LeFande’s caustic words—“clumsy,” “dumb,” “contrived”—
undercut Brown’s authority by flouting his request and
ridiculing him in an open forum. For the reasons just
mentioned, such personal attacks hurled at a superior can
subvert office discipline and efficiency. LeFande assures us
that he was seeking to blow the whistle on an official
obfuscating his wrongdoings. See Oral Arg. Rec. 5:50–:59.
Perhaps so. But, and again viewing the facts most favorably to
the District, we see nothing in Brown’s request for
questions—which he justified as necessary to allow for more
thorough and timely answers—that even hints at an illicit
motive. As a result, this email falls far short of cutting to the
heart of “public concern,” Pickering, 391 U.S. at 568, and the
MPD’s interest in containing overt hostility toward its
leadership outweighs any speech-related interest LeFande had
in sending the email.
In conclusion, none of LeFande’s emails survives the
Pickering balancing test. The First Amendment protects
public-employee speech only so much. In this case, it does not
require the MPD to tolerate LeFande’s hostile and accusatory
words.
IV.
For the foregoing reasons, we affirm the district court’s
dismissal of the case and denial of LeFande’s summary-
judgment motion.
So ordered.