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Whistleblower Lane, After SCOTUS, to Get Shot at Reinstatement

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By William Peacock, Esq. on October 14, 2014 3:06 PM

Earlier this year, we picked Lane v. Franks as our "SCOTUS sleeper" -- a case nobody was talking about, but one that was extremely important for whistleblowers and workers' speech rights. Edward Lane, the director of a state program for at-risk youth, noticed that a politician held a no-show gig at the local community college and fired her. He was subpoenaed to give testimony in her criminal trial.

Lane was then laid off. Fortunately for him, the Supreme Court came to his rescue somewhat, by holding that his speech was protected. Now that he's been vindicated in the eyes of the law, all that is left is to get his job back, assuming the courts even have the power to issue such an order.

But here's the punch line: The program Lane worked for doesn't even exist anymore.

Previously at SCOTUS

The Supreme Court's holding in Lane's favor was clear, yet limited: "[T]he First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities." A short concurrence by Justice Scalia noted that the opinion does not address compelled testimony that is part of one's job duties, such as that of a police officer.

11th Cir.: Immunity Doesn't Apply

While generally, suits against the state are barred by sovereign immunity, the Supreme Court carved out an exception in Ex Parte Young 28 S.Ct. 441 (1908): when the plaintiff seeks "prospective equitable relief to end continuing violations of federal law."

And, well, Lane's lack of employment with the state is certainly continuing. The Eleventh Circuit noted as much before holding that immunity didn't bar Lane's request for equitable relief (a court order to get his job back).

Footnote: Good Luck With That

In a footnote on the final page of the court's short opinion, the panel wrote:

We acknowledge that the C.I.T.Y. Program for which Lane served as Director is no longer in existence. We are unconvinced that this fact, in and of itself, renders Lane's request for reinstatement moot, particularly where Lane has alleged that the program was merely reorganized and renamed. But we suggest that it might be necessary for the district court to engage in additional factfinding on this issue to determine what form of equitable relief is available to Lane.

Yes, after a trip to the Supreme Court, a remand to the Eleventh Circuit, and possibly even more back-and-forth in the district court, there's a chance it could mean nothing, job-wise, for Lane.

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