This week, the Court addresses the scope of the expressive association right and the definition of a protected disclosure under the Defense Contractor Whistleblower Protection Act.
SULLIVAN ET AL. V. UNIVERSITY OF WASHINGTON ET AL.
The Court holds that the First Amendment right of expressive association does not apply to members of a public university’s committee who are appointed to that committee solely to ensure compliance with federal requirements regarding diverse representation.
The panel: Judges Ikuta, Collins, and Fitzwater (N.D. Tex.), with Judge Ikuta writing the opinion and Judge Fitzwater concurring.
Key highlight: “Individuals engage in expressive association when they join with others to pursue a wide variety of political, religious, cultural, or social purposes, including the advocacy of both public and private points of view, the advancement of beliefs and ideas, and the transmission of a system of values. Members involved in such endeavors are generally protected in expressing the views that brought them together. . . . The Committee is not akin to a private association where members choose their own purposes and decide how to advance them; here, federal law prescribes both the Committee’s purpose and its functions. Because, in performing their work on the Committee, the members are not engaged in an association deemed to be expressive under Supreme Court or our precedent, the First Amendment right of expressive association does not protect them.” (Internal quotation marks and citations omitted.)
Background: The University of Washington’s Institutional Animal Care and Use Committee ensures that the University’s research facility complies with the Animal Welfare Act when using live animals in research, tests, or experiments. Certain members of the Committee prefer to remain anonymous because of concerns about their personal safety and the safety of their families and pets if their names were released. PETA, which opposes the use of animals in research, filed a public records request for the letters appointing Committee members. Those letters contain Committee members’ names, work addresses, and email addresses. The University informed Committee members that it would release the appointment letters.
In response, a proposed class of current, former, and alternate Committee members sued the University and University employees under 42 U.S.C. § 1983 and the Public Records Act. Plaintiffs alleged releasing the appointment letters would violate their First Amendment right of expressive association. The district court granted Plaintiffs’ motion for a preliminary injunction and enjoined the University from disclosing the appointment letters.
Result: The Ninth Circuit reversed, holding that Plaintiffs had not shown serious questions on the merits of their First Amendment claim.
The right to expressive association “protects the right of those who join together to advance shared beliefs, goals, and ideas, which, if pursued individually, would be protected by the First Amendment.” That right may be infringed through compelled disclosure of membership in a group, because anonymous association is often “indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).
This right was inapplicable to Plaintiffs because they were not engaged in expressive association through their work on the Committee. Individuals engage in expressive association when they join a group to pursue political, religious, cultural, or social purposes, “including the advocacy of both public and private points of view, the advancement of beliefs and ideas, and the transmission of a system of values.” Plaintiffs, by contrast, did not join the Committee for such expressive purposes. They were instead appointed “according to statutory and regulatory criteria to ensure diverse representation.” Moreover, federal law prescribed the Committee’s purpose and function. Plaintiffs’ association was thus not intended to “enhance effective advocacy of their views or to pursue their lawful private interests.”
Accordingly, Plaintiffs had no First Amendment right against the disclosure of their personal identifying information in the appointment letters. The panel explained that its holding was consistent with cases holding that the First Amendment does not protect the speech of public employees who are speaking pursuant to official duties—a rule that applies also to government volunteers.
Judge Fitzwater wrote separately to emphasize that the panel did not hold the University was obligated through the Public Records Act to disclose personal information that might threaten the safety of committee members, their families, or their pets. Rather, the state had the authority to adopt statutory exemptions aimed at avoiding that result.
KAPPOUTA V. VALIANT INTEGRATED SERVS., LLC
The Court holds that the Defense Contractor Whistleblower Protection Act protects whistleblowers for disclosures about a violation of law related to a Department of Defense contract only when the violation is related to the purpose of the contract or the services provided by the contractor.
The panel: Judges Kelly (10th Cir.) Ikuta, and Christen, with Judge Kelly writing the opinion.
Key highlight: “In the context of a defense contract, we conclude a violation of law is related to the contract if it is related to the purpose of the contract or affects the services provided by the defense contractor to the [Department of Defense]. And a disclosure is protected if a disinterested observer with knowledge of the operative facts would reasonably conclude that the disclosure evidences a violation of law related to a defense contractor in this manner.” (Citation omitted.)
Background: Plaintiff Sana Kappouta was employed as a linguist for Defendant Valiant Integrated Services, LLC (“Valiant”) pursuant to a U.S. Department of Defense contract. Kappouta worked at the U.S. Embassy in Baghdad. Kappouta alleges that, one evening after hours at the Embassy bar, she was shoved by a co-worker. At the request of the Embassy’s Regional Security Officers, Kappouta reported the incident. Valiant decided to transfer Kappouta to Basra, Iraq because of her report. After Kappouta inquired with U.S. Army personnel about the transfer, Valiant terminated her for refusing to accept the transfer and for complaining to Army personnel.
Kappouta sued Valiant under the Defense Contractor Whistleblower Protection Act (DCWPA). She alleged that she was wrongfully terminated in retaliation for making disclosures that were protected under the DCWPA. The DCWPA provides that “[a]n employee of a contractor . . . may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body . . . information that the employee reasonably believes is evidence of . . . a violation of law, rule, or regulation related to a Department contract (including the competition for or negotiation of a contract) or grant.” 10 U.S.C. § 4701(a)(1)(A). The district court dismissed Kappouta’s complaint for failure to state a claim.
Result: The Ninth Circuit affirmed, holding that Kappouta had failed to allege that she had made a disclosure that she reasonably believed was evidence of a violation of law related to a Department contract. The Ninth Circuit held that a violation of law is related to a Department contract “if it is related to the purpose of the contract or affects the services provided by the defense contractor to the [Department.” In this case, the Ninth Circuit concluded that the shove, even if it was a criminal assault in violation of the law, was only tenuously related to a defense contract. The Ninth Circuit reasoned that the incident at the bar was unrelated to Kappouta’s everyday job duties to perform linguist services. It concluded that the incident was instead a personal dispute occurring outside of work hours. The Ninth Circuit rejected Kappouta’s arguments that, because the shove was a criminal assault, it was therefore necessarily related to the clauses in the Department’s contract with Valiant requiring, e.g., an ethical code of conduct and a system for reporting crimes and other improper conduct. The Ninth Circuit stated that Kappouta’s reasoning would make every violation of the law and every dispute between employees of a contractor actionable under the DCWPA. The Ninth Circuit concluded that such a broad interpretation was plainly not contemplated by the DCWPA.
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