Whistleblower Protections Under the First Amendment and the Civil Rights Act of 1871

Whistleblower Protections Under the First Amendment and the Civil Rights Act of 1871

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First Amendment “Freedom of Speech”

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Pickering v. Board of Education, 391 U.S. 563 (1968) (First Amendment protected teacher who complained about school budget to newspaper).

Sanjour v. United States EPA, 56 F.3d 85 (D.C. Cir. 1995) (en banc); Swartzwedler v. McNeill, 297 F. 3d 228 (3rd Cir. 2002) (injunctive relief blocking implementation of anti-whistleblower rules).

Harlow v. Fitzgerald, 457 U.S. 367 (1982) (immunity defense).

Bush v. Lucas, 462 U.S. 367 (1983) and Weaver v. USIA, 87 F.3d 1429 (D.C> CIr.) (requirement to use administrative remedies in federal cases).

Garcetti v. Ceballos, 547 U.S. 410 (2006) (limiting application of First Amendment protections when speech is part of “official duties”)

Carey v. Piphus, 435 U.S. 247, 253 (1978) (§ 1983 creates tort-like liability).

Mt Healthy v. Doyle, 429 U.S. 274 (1977) (burden of proof).

Wil v. Michigan, 491 U.S. 58 (1989) (immunity defenses and requirement to name individual government managers as defendants).

Heck v. Humphrey, 512 U.S. 477, 483 (1994) (no requirement to exhaust state administrative remedies when filing claim under § 1983)

Owens v. Okure, 488 U.S. 235 (1989) (because §1983 does not have a statute of limitationss, the deadline for filing claims is controlled by the local statute of limitations for personal injury cases).

Civil Rights Act of 1871,

42 U.S.C. § 1983 – 1988

§ 1983 and 1985 provide a right to sue for the deprivation of constitutional rights, including freedom of speech. § 1985 provides for federal witness protection. § 1988(b) and (c) provides that the court may award reasonable attorney’s and expert’s fees for a prevailing party in a civil rights case.

§ 1985 (2) – Witness Protection

Haddle v. Garrison, 525 U.S. 121 (1998) (“at-will” employees fired for obeying a grand jury subpoena stated claim).

§ 1988 (b) and (c)

Perdue v. Kenny, 130 S. Ct. 1662 (2010) (awarding attorney fees “serves importnat public purpose of making it possible for persons without means to bring suit to vindicate their rights) (permitting enhancement of fee award under “extraordinary circumstances”).

Hensley v. Eckerhart, 461 U.S. 424 (1983) (fees paid at market rates to ensure the enforcement of federal right)(fees paid even if employee was only partially successful).

Missouri v. Jenkins, 491 U.S. 274 (1989) (fees paid at current rates to compensate for delay in payment).

Blanchard v. Bergeron, 489 U.S. 87, 96 (1989) (attorney fees are not limited by contractual fee agreement or controlled by a contingency fee agreement . The for determining the fee is the reasonable market rate for similar services).

City of Riverside v. Rivera, 477 U.S. 561 (1986) (attorney fee  payment may be larger than judgment obtained by client).

Pennsylvania v. Delaware Valley, 478 U.S. 546 (1986) (“lodestar” method basis for calculating reasonable fee). Blum v. Stenson, 465 U.S> 886 (1984) (attorneys paid at market rates).

Johnson v. Georgia Highway, 488 F. 2d 714, 717-19 (5th Cir. 1974) (setting forth twelve factors used in setting reasonable attorney fee rate).