Tuesday, May 18, 2010
Ind. Decisions - 7th Circuit decides one Indiana case today
In Paul K. Ogden v. James Atterholt (SD Ind., Magnus-Stinson, Magistrate Judge), a 12-page opinion, Judge Sykes writes:
Oral argument has narrowed this appeal to a single issue: Did the Commissioner of the Indiana Department of Insurance and his Chief Deputy violate Paul Ogden’s free-speech rights when they required him to resign as manager of the Department’s Title Insurance Division? Ogden was forced out of his position after writing a memo to the Commissioner criticizing the performance of his Chief Deputy and asking that the Title Insurance Division be removed from her control. He then sued the Commissioner, the Chief Deputy, and the Department of Insurance claiming that his memo was protected speech and his forced resignation violated his rights under the First Amendment. The district court entered summary judgment for the defendants and Ogden appealed.
We affirm. Ogden’s complaints about the Deputy Commissioner and his request for a departmental reorganization were made in the performance of his professional duties as manager of the Title Insurance Division. Because he was speaking as a governmental employee and not a citizen when he wrote the memo, under Garcetti v. Ceballos, 547 U.S. 410 (2006), the protections of the First Amendment are not implicated.* * *
We are left with one final housekeeping item. On appeal Ogden has expressed a concern that the magistrate judge’s resolution of the due-process claim in favor of the defendants might foreclose litigation of that claim in the Indiana courts. As we have noted, Ogden clarified in his reply brief and at oral argument that his dueprocess claim is based entirely on state law; as such, once the federal free-speech claim was resolved against him, the due-process claim should have been included in the order remanding the state claims to the Indiana court. The magistrate judge should not have taken up and resolved the due-process claim as if it arose under federal law—though it was understandable why she did so given the confusion in the pleadings. That claim now returns to state court along with Ogden’s other state claims.
With this clarification, the judgment of the district court is AFFIRMED.
Posted by Marcia Oddi on May 18, 2010 02:44 PM
Posted to Ind. (7th Cir.) Decisions