Virginia Lawyers Weekly VA Lawyers Weekly
A former magistrate judge’s First Amendment retaliation claim against her employers in their official capacities has survived dismissal in the Eastern District of Virginia.
Elizabeth Fuller was fired after she made comments on the city’s bail practices in a local newspaper.
Judge Patricia Tolliver Giles said Fuller’s “statements are ‘not the kind of “individualized” internal workplace complaints “significant chiefly to the parties involved” that we have declined to find implicate matters of public concern.’”
“While there are serious governmental interests in, for example, ensuring the public’s confidence in a fair and impartial judicial system, the Court is unable to say, at this early stage of litigation, that Plaintiff will be unable to show that her interest in First Amendment expression outweighs Defendants’ interest in the operation of the judicial system,” the judge added.
However, qualified immunity barred Fuller’s First Amendment claims against the defendants in their personal capacities, and her 14th Amendment claim was dismissed because she “lacked a protectible property interest in continued employment and thus the requirements of procedural due process do not apply.”
The decision is Fuller v. Hade (VLW 023-3-098).
Complaint filed
Elizabeth Fuller was hired as a magistrate judge for the Eighteenth Judicial District in Alexandria. As an at-will employee bound by the Canons of Conduct for Virginia Magistrates, she was to “abstain from public comment about a pending, impending or concluded proceeding in any court or magistrate’s office.”
Fuller issued an arrest warrant for Ibrahim Bouaichi in 2019 for an alleged rape and refused bail. Another judge released Bouaichi and ordered him to stay at his parents’ home in Maryland. Bouaichi later murdered his intended victim and then died of a self-inflicted gunshot wound.
In August 2020, Fuller filed a complaint with Virginia’s Department of Criminal Justice, or DCJS, claiming a bondsman named Man Nguyen violated rules and regulations of his license when he bailed out Bouaichi.
After the murder, Fuller learned from a police officer that the gun and vehicle Bouaichi used belonged to Nguyen. The officer said Nguyen had bailed out and brought Bouaichi home to live with him. Bouaichi then used Nguyen’s car and unlocked guns to commit the murder.
Potential violation
The Bouaichi murder fueled public debate about Virginia’s bail practices. In 2021, the Alexandria Times published an article about Bouaichi and later interviewed Fuller.
The judge criticized her city’s bail system saying, “How did everybody in this whole process drop the ball?”
In the article, Fuller also said “[t]here’s no justice in this. It was something that was entirely preventable if anybody in the process had been doing their job effectively.… Every step along the way, the system completely failed this woman.”
Days later, the chief magistrate placed Fuller on administrative leave because her statements to the newspaper potentially violated the Canons of Conduct, namely Canon 3(B)(6) . After she was fired, Fuller filed a grievance but it was denied.
Fuller filed a complaint alleging that three of her employers retaliated against her for exercising free speech and denied her due process in violation of the First and 14th Amendments.
She sued the defendants in their individual capacities for retaliation and in their official capacities for her due process claims. The defendants moved to dismiss.
Official capacity
Determining whether a restriction on a public employee’s speech violates the First Amendment requires “‘a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees,’” Giles explained.
Courts have to look at the “content, form, and context of a given statement, as revealed by the whole record” when assessing if an employee’s speech addresses a matter of public concern. Matters of “personal interest” aren’t protected by the First Amendment.
“Courts must assess whether an employee’s speech is ‘intended “to evaluate the performance of the office” — which would merit constitutional protection — or merely “to gather ammunition for another round of controversy” with superiors — which would not,’” Giles wrote.
Fuller’s statements, according to the defendants, were best described as her speaking as an employee on a matter of personal interest.
“Making statements to the press does not fall under plaintiff’s official duties as a magistrate. Thus, Plaintiff’s limited prior involvement in Bouaichi’s case does not cause this court to conclude that Plaintiff was speaking within the scope of her duties when she provided comments to the Alexandria Times.”
— U.S. District Judge Patricia Tolliver Giles
But Giles found that while Fuller was identified in the newspaper as “Alexandria Magistrate Elizabeth Fuller,” there was no evidence she intentionally used the title in making her statements.
The judge also said that neither Fuller’s use of the pronoun “we” nor the fact that she was involved with Bouaichi’s arrest supported an inference that she was speaking to the newspaper on behalf of her employer or in her official capacity.
“This is because ‘[t]he critical question … is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties,” she said.
And even though Fuller’s prior duties involving Bouachi might make her statements inappropriate, Giles pointed out that Fuller wasn’t involved with Bouaichi’s release or with any pending matters related to him or Nguyen.
“Moreover, making statements to the press does not fall under plaintiff’s official duties as a magistrate,” she wrote. “Thus, Plaintiff’s limited prior involvement in Bouaichi’s case does not cause this court to conclude that Plaintiff was speaking within the scope of her duties when she provided comments to the Alexandria Times.”
Giles also rejected the defendants’ argument that Fuller’s comments were based on a matter of “personal interest.”
“It is clear from the newspaper article that her statements extended beyond the factual information included in the DCJS complaint,” the judge wrote. “Nevertheless, accepting all facts from the Complaint as true, Plaintiff’s comments to the Alexandria Times facially concern a matter of public interest.”
Accepting the allegations as true, Giles said Fuller’s statements are “not the kind of ‘individualized’ internal workplace complaints ‘significant chiefly to the parties involved’ that we have declined to find implicate matters of public concern.’”
As such, Giles found Fuller’s comments credibly raised concerns in the public interest, rather than her private interest.
