Government Liability Update

"Public Concern" and Pickering Tests Apply to Public Employee First Amendment Petition Claims

In Bureau of Durnyea v. Guarniari, published June 20, 2011, the U.S. Supreme Court resolved a split between the Third Circuit and every other circuit to have considered the issue by ruling that the same "public concern" test and Pickering v. Board of Education balancing test that apply to First Amendment retaliation claims arising out of free-speech protection apply to allegations that retaliation for pursuing employee grievances violates the right to petition government for redress of grievances.  If the grievance involves a purely private concern, he has no First Amendment retaliation claim.  If the grievance is a petition as a private citizen on a matter of public concern, then the employee's First Amendment interests are balanced against the employer's countervailing interest in the effective and efficient management of its internal affairs.  If the balance favors the employer, the First Amendment claim fails.

Speculative Expert Testimony Did Not Amount to Substantial Evidence of Negligence in Suit against SWAT Officers for Infant Hostage's Death

In Lopez v. City of Los Angeles, published June 13, 2011, the 2nd District Court of Appeal, Division 8, upheld nonsuit granted to the City in a wrongful death suit arising from a SWAT assault on a man who was under the influence of alcohol and drugs and who used his 19-month-old daughter as a human shield as he shot at the officers.  During the assault, one of the officers' bullets hit and killed the infant.  The appellate court concluded that the officers' conduct in this tense situation was objectively reasonable as a matter of law; and that the plaintiffs' tactics expert's testimony that the officers failed to follow guidelines and were negligent was speculation that did not amount to substantial evidence.

When ALJ Fails to Render Decision, Agency Cannot Retain Law Firm to Take ALJ's Place

Absmeier v. Simi Valley USD, published June 7, 2011, addressed an agency's options when the agency's administrative law judge fails to render a proposed decision after an administrative hearing.  After hearing the evidence in this employment dispute, the ALJ failed to render a decision within the 10 days required by the agency's rules; and eventually declined to render a decision.  The agency retained a law firm to review the transcripts of the hearing and render a proposed decision.  The agency then adopted the law firm's proposal as the agency's decision.

The 2nd District Court of Appeal upheld the agency's decision to remove the ALJ from the case.  But it reversed the agency's decision.  The agency should have held a new hearing in front of a new ALJ, rather than retain a law firm to render a proposed decision.  The participants in the case have a right to know who will render the proposed decision; and the decisionmaker should be able to view the witnesses before deciding credibility. 

Prevailing Defendant in Section 1983 Case May Recover Only Fees Incurred Solely Because of Frivolous Claims

In Fox v. Vice, published June 6, 2011, the U.S. Supreme Court resolved a split between the circuits concerning the standard for awarding a defendant attorney fees under 42 USC section 1988 for defending a 42 USC section 1983 civil rights suit in which some, but not all, of the claims are frivolous.  In a unanimous opinion, the court concluded that "a defendant may recover the reasonable attorney's fees he expended solely because of the frivolous allegations.  And that is all."  If the defendant would have paid any of the fees in the absence of the frivolous claims, the defendant cannot recover those fees.

The opinion also urged courts to do "rough justice" by taking into account their overall sense of a suit, and using estimates, in calculating attorney fees, rather than becoming "green-eyeshade accountants."