For Judge Merrick Garland, life goes on in the U.S. Court of Appeals for the D.C. Circuit, where he took his seat on the bench today for his last hearing before the end of the court's spring term.
One case had been removed from the docket—a suit filed by former District of Columbia administrative law judge Roy Pearson Jr., who claims city officials denied him reappointment as a judge for, among other reasons, his multimillion-dollar suit over a lost pair of pants. The court decided last week to rule on the briefs, denying Pearson a chance to argue his side before the appeals court.
That left one case still on the calendar today, a suit from another attorney, Arlington solo practitioner Matthew LeFande, against the District of Columbia. Garland grabbed his seat on the bench in Courtroom 31, the fifth-floor spot with the continually broken clock on one wall and 20 portraits of circuit judges, including Justice Ruth Bader Ginsburg and Kenneth Starr, the former solicitor general. Judges Douglas Ginsburg and Karen LeCraft Henderson were also on the panel.
LeFande’s suit claims, among other things, that the District violated his First Amendment speech rights in firing him in 2008 after more than a decade as a volunteer Metropolitan Police Department reserve officer. He says he was kicked out in retaliation for his role in representing two reserve officers in a federal suit against the police department. That suit, filed in 2006, challenged a MPD general order that said reserves serve at the discretion of the police chief and can be terminated without administrative review.
Judge Henry Kennedy Jr. of the U.S. District Court for the District of Columbia dismissed LeFande’s personal suit against the city, finding that the earlier case filed by the two reserve officers—LeFande was their counsel—did not address a matter of public concern. As such, LeFande’s speech was unprotected by the First Amendment, the judge ruled.
Today in the D.C. Circuit, the panel judges were tasked with examining the extent to which the underlying suit involving the reserve officers did address an issue of public concern.
Ginsburg largely took a negative position, questioning LeFande about why the underlying suit wasn’t just a personnel grievance that did not have broad implications. “I’m still waiting for you to tell us why this is a matter of public concern,” Ginsburg said at one point.
Garland was not as vocal in questioning LeFande, who argued pro se. But when it came time for the District’s lawyer to argue on behalf of the city, Garland stepped up—engaging in an one-on-one dialogue with the lawyer, Carl Schifferle, that kept him at the podium beyond his allotted ten minutes.
Schifferle argued that nothing in the underlying suit supports it being a matter of public concern. Garland brought up press coverage of cases. Garland asked Schifferle whether it would matter, in terms of assessing public concern, if the suit appeared on the front page of The Washington Post or Legal Times. Schifferle said press reports don’t define public concern.
Garland posed a series of hypothetical involving public officials who acquired the ability to fire civil servants at will. One involved the attorney general firing career employees at will. Schifferle said the examples still don’t amount to matters of public concern.
LeFande got the last word in, urging the court to vacate the trial judge’s ruling that dismissed his suit.
At the end of the hearing, Ginsburg, Henderson and Garland scooped up their court papers and left. The D.C. Circuit's spring term ends May 18, and Garland isn't scheduled to sit on any panels before then.
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