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Guffey v. Duff

United States District Court, District of Columbia

August 22, 2018

JAMES C. DUFF, Director, Administrative Office of the U.S. Courts, Defendant.



         This case requires the Court to balance two constitutional imperatives: the independence of the federal judiciary on the one hand and the rights of citizens, including government employees, to engage in the political process on the other. The setting is the Administrative Office of the U.S. Courts, an agency in Washington, D.C. that provides centralized support to the federal judiciary. Earlier this year, the Office's Director revised the Code of Conduct that applies to its employees. The Code had always contained some prohibitions on employees' partisan political activity outside the workplace, but the revised Code is much stricter. For example, an employee may no longer express an opinion about a legislative candidate on Facebook. She cannot put a sign in her yard supporting that candidate. And she may not contribute funds to the candidate or his party or attend a party fundraiser.

         The plaintiffs are two Administrative Office employees who wish to take part in political activity prohibited under the Code. They believe that some of the Code's restrictions violate their rights of free speech under the First Amendment and ask this Court to enjoin the Administrative Office from enforcing those restrictions against them. The Office admits that the Code limits the plaintiffs' protected speech. But it insists that the new rules are “necessary to maintain the public's confidence in the Judiciary's work.” The question is whether that very legitimate concern outweighs the Code's significant burden on the employees' speech. The Court concludes that, for most of the challenged restrictions, it does not. It will therefore grant the plaintiffs' motion for a preliminary injunction and prohibit the enforcement of those restrict ions.

         I. Factual Background

         The Administrative Office (or “AO”) provides “legislative, legal, financial, technology, management, administrative, and program support services to federal courts.” Judicial Administration, U.S. Courts, (last visited August 2, 2018). The agency is housed in an office building about a half mile from the Supreme Court and has some 1, 200 employees. Most are divided between three departments: Technology Services; Administrative Services; and Program Services. Technology Services helps implement the judiciary's IT policies. Administrative Services is responsible for human resources, finance, and facilities. Program Services performs a broader range of functions-from coordinating judges' travel, to evaluating case-management systems, to overseeing the operations of the federal probation and pretrial services offices.

         The plaintiffs both work in Program Services, specifically its Defender Services Office. Lisa Guffey is an attorney-advisor who oversees the operation of federal-defender offices and court-appointed attorney programs around the country. Decl. of Lisa Guffey Supp. Mot. Prelim. Inj. (“Guffey Decl.”) ¶ 2. Christine Smith evaluates the IT and cybersecurity needs of defender offices. Decl. of Christine Smith Supp. Mot. Prelim. Inj. (“Smith Decl.”) ¶ 2. Both interact with federal judges and their staffs a handful of times per year, but neither plays any role in managing or deciding individual cases. Id. ¶ 3-4; Guffey Decl. ¶ 3.

         Prior to March 2018, nearly all AO employees (besides a few high-level “designated employees”) could engage in certain off-duty “partisan activity”-that is, activity related to political parties, and to elections and candidates affiliated with those parties. These permissible activities included publicly expressing views about candidates, displaying political signs and badges, joining political parties, contributing to parties and candidates, and attending political fundraisers. With respect to state and local (but not federal) offices, employees could also endorse or oppose partisan candidates for office, drive voters to polls on behalf of parties or candidates, and organize fundraisers. Guffey Decl. Ex. D § 260(a)-(f) (AO Code of Conduct, 2016 version).

         The plaintiffs engaged in activities permitted under the old policy. Ms. Guffey, an AO employee since 2010, has donated to the Democratic National Committee and to individual candidates, posted yard signs for local candidates, attended partisan fundraisers, and posted opinions about candidates on social media. Guffey Decl. ¶ 13. Ms. Smith, with the AO since 2016, has participated similarly and has also volunteered for local candidates. Smith Decl. ¶¶ 5- 8.

         The AO is led by a Director, who is appointed by the Chief Justice of the United States following consultation with the Judicial Conference (a group of judges responsible for policymaking in the federal courts). See 28 U.S.C. § 601. The Director has power to make rules “prescribing standards of conduct for Administrative Office employees.” Id. § 604(f).

         When James C. Duff became the AO's Director in 2015, he and his Deputy Director began reviewing the agency's policies and procedures. They decided that the Code of Conduct, which had not been updated in about 20 years, should be revised to make it more consistent with the code that applies to the judicial-branch employees who work in federal courthouses around the country. Decl. of Gary A. Bowden Supp. Def.'s Opp'n ¶¶ 2-3. They drafted new restrictions on partisan activity to mirror those that apply to courthouse staff (like employees in the Clerk's Office, in payroll, or in the IT department). These restrictions are somewhat less stringent than those that apply to judges and their immediate staffs (like judicial law clerks and court reporters assigned to a particular judge). Id.; see also 2 Guide to Judiciary Policy, pt. A, ch. 3, at 3, (Code of Conduct for Judicial Employees).

         Director Duff announced the revised Code in a July 2017 memorandum addressed to all AO employees. He explained that the AO's Code was “out of step” with the court-wide code of conduct. Guffey Decl. Ex. A, at 1. This “failure to keep pace, ” he suggested, “conflicts with our significant and important efforts to communicate with the courts about the unity of purpose between the AO and the courts, and that the AO is very much an integral part of the Judicial Branch and not an independent, isolated agency in Washington, DC.” Id. The memorandum included a chart summarizing the important changes in the Code's restrictions. Id. at 19. The gist was that the revised Code added a few new restrictions on partisan activity in connection with federal offices (which, again, was previously regulated), and a host of new restrictions on activity in connection with state and local offices (which before was mostly unregulated). Id. at 19-21. Employees were told that violations would lead to discipline. Guffey Decl. ¶¶ 15-17; Smith Decl. ¶¶ 12-14.

         The revised Code took effect on March 1, 2018. Soon after, counsel for the plaintiffs sent a letter to Director Duff protesting the application of the Code to his clients. Director Duff's reply reiterated his statement from the July 2017 memorandum that the Code was updated “to achieve consistency with the Judicial Code of Conduct . . . that applies to all employees of the federal Judiciary.” Guffey Decl. Ex. B, at 1. He further explained that the AO Code, like the code for courthouse employees on which it was modeled, sought to protect “[t]he government's interest in preserving public confidence in the integrity of its Judiciary”-an interest even weightier than that of preventing “the appearance of corruption in the Legislative and Executive Branches.” Id. The letter concluded:

By limiting only partisan political activities of employees while allowing for their nonpartisan and civic engagement, the revised AO Code of Conduct appropriately balances the First Amendment right of employees to comment on matters of public concern with the compelling public interest in preserving the public's confidence in the integrity of the federal Judiciary, as does the branch-wide Code from which it is adopted. The public's perception of judicial integrity is a government interest of the highest order.

Id. at 2.

         On May 31, 2018, the plaintiffs filed a complaint and a motion for a preliminary injunction. They claim that the following nine restrictions violate their rights under the First Amendment:

a. expressing opinions publicly, including on social media or via articles or letters to the editor, regarding a political party or partisan candidate for office;
b. wearing or displaying partisan political badges, signs, or buttons;
c. driving voters to polls on behalf of a political party or partisan candidate for office;
d. contributing funds to a political part y, political action committee, or partisan candidate for office;
e. attending partisan fundraisers;
f. being a member of a partisan political organization; g. attending events for a partisan candidate for office;
h. organizing events for a partisan candidate for office; and
i. attending party conventions, rallies, or meetings.

         Mot. Prelim. Inj. at 1-2.[1] They seek to halt enforcement of those restrictions with respect to all AO staff except the six high-level “designated employees.” The Court held a hearing on July 16, 2018.

         II. Legal Framework for Government-Employee ...

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