On April 22, a panel of the Fourth Circuit reversed the E.D. Va. in an employment case called Peters v. Jenney. The opinion was by Judge Karen Williams, joined by Judge Motz, with Judge Widener dissenting. On the Title VI claim, the majority concluded that there is a private right of action for retaliation in accordance with regulations implementing Title VI. The opinion instructs the trial court on remand to consider these elements: "To make a claim for Title VI retaliation, Peters must show (1) that she engaged in protected activity; (2) that Appellees took a material adverse employment action against her, and (3) that a causal connection existed between the protected activity and the adverse action," and "to show 'protected activity,' the plaintiff in a Title VI retaliation case need 'only . . . prove that he opposed an unlawful employment practice which he reasonably believed had occurred or was occurring.'" On the First Amendment claim, the district court had held that no such claim was in the complaint, and there was no proof of causation.
The majority opinion strikes me as too much, too much in the way of advisory opinions. The appellees and the district court ought to be able to go back and start over on the evidence, since the first ruling was essentially that there were no claims stated. There might be some other and better issues on which to litigate these claims, in particular the First Amendment claim. I don't see how the director of the gifted program has a whole lot of latitude to argue about whether the gifted program should be doing this, that, or the other thing - that sounds like the kind of policy differences that even Judge Murnaghan said were not protected in McVey v. Stacy. The Pickering balance of the disruptive effect versus the value of the speech has yet to be weighed. It's not all that clear to me to what the speech is, and whether it can be separated from the plaintiff's own employment, as opposed to a matter of public concern under the Connick test. In other words, there's a lot left unsaid on the defense side of this case, and it appears it was not said because the trial court felt there was no First Amendment claim in the complaint.
In Wade v. Robinson, the Fourth Circuit affirmed Judge Turk of the W.D. Va. in a habeas corpus case, where the issues were whether the one-year limitations period of 28 U.S.C. 2244 applied, and if so, when did it begin to run. The court concluded that the petition was untimely, although they did not agree with how Judge Turk arrived at that conclusion. Judge Gregory wrote a concurring opinion explaining why he had signed off on a certificate of appealability in the case, without which the panel would not have taken on the merits of the appeal.
In Williams v. Hansen, the defendant Hansen had brought a collateral order appeal on the issue of qualified immunity in a section 1983 case where the plaintiffs claimed defendants had violated their rights under the Equal Protection clause. By 2-1 vote, the panel decided that the defendant is entitled to qualified immunity, because there was no clearly established law against him. Judge King dissented, concluding that the law was clearly established against what the defendant is alleged to have done.
I don't know what to make of this case, it seems like some elements of what the defendant did were pretty obviously wrong, but I can't quite get my mind around what is the nature of the claim. There were complaints of racism in the police department. The defendant ordered interviews of all the black officers to get information about discrimination, but did not order interviews of any white officers. That seems like an odd thing to do, and the district court ruled that even if the defendant's stated purpose was his real purpose, he had made a racial classification which could not be justified. But then, somehow race has to be considered in an investigation of racism, or as the court noted, "until such time as the black officers were questioned Hansen could not know which officers felt that there was a discrimination problem."
The majority opinion describes the issue as this: "whether when there are allegations that a discrete racial group has been subjected to discrimination, it is lawful to conduct interviews in the first instance only of members of that group to ascertain their experiences and perceptions with respect to the discrimination." The issue, so defined, is not one that has been litigated over and over. The majority concluded that there was no claim, and even if there was a claim, it was not clearly established and so the defendant was entitled to qualified immunity. Ambiguity in the law weighs in favor of qualified immunity, so if the precise nature of the claim is a bit muddled, then qualified immunity is probably the right result.
The opinion is chock full of interesting and important issues - how does qualified immunity apply when motive is at issue, how does a government official avoid discrimination in investigating claims of discrimination. The employer has to investigate claims of discrimination or risk strict liability and/or punitive damages under Title VII. It is a troubling case, perhaps it will be reheard, and even more conflicting opinions generated.