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Harnishfeger v. United States

United States Court of Appeals, Seventh Circuit

December 3, 2019

Amy Harnishfeger, Plaintiff-Appellant,
United States of America, et al., Defendants-Appellees.

          Argued November 28, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:16-cv-03035-TWP-DLP - Tanya Walton Pratt, Judge.

          Before Rovner, Hamilton, and Brennan, Circuit Judges.


         This appeal deals with First Amendment protection for public employees when they engage in speech that is not related or tied to their work. Plaintiff Amy Harnishfeger authored a short book, published under a pseudonym, about her time as a phone-sex operator called Conversations with Monsters: 5 Chilling, Depraved and Deviant Phone Sex Conversations. A month after publishing Conversations, Harnishfeger began what was to have been a one-year stint with the Indiana Army National Guard as a member of the Volunteers in Service to America (VISTA) program, a federal antipoverty program administered by the Corporation for National and Community Service (CNCS).

         But when Harnishfeger's National Guard supervisor discovered Conversations and identified Harnishfeger as its author, she demanded that CNCS remove Harnishfeger from her position. CNCS complied. Harnishfeger was unable to find another suitable placement for the remainder of her VISTA service, so, three months after she started, CNCS cut her from the program entirely. Harnishfeger filed this suit alleging violations of her rights under the First Amendment and the Administrative Procedure Act (APA). The district court granted the defendants' motions for summary judgment. Harnishfeger v. United States, 2018 WL1532691 (S.D. Ind. March 29, 2018). Harnishfeger appeals.

         We reverse in part and affirm in part. Conversations with Monsters is clearly protected speech, and on this record, a jury could find that Harnishfeger's National Guard supervisor, Lieutenant Colonel Lisa Kopczynski, infringed her free-speech rights by removing her from her placement because of it. We find no basis, however, for holding CNCS or its employees liable, so we affirm the judgment in favor of the federal defendants.

         I. Factual Background

         A. Conversations with Monsters

         Because this appeal is from a grant of summary judgment, we state the facts and the inferences from them in the light most favorable to Harnishfeger. A little more than a decade ago, Harnishfeger found herself unemployed and "disgruntled with the thought of working for 'the man' any longer/' as she wrote in the introduction to Conversations. She decided to try phone-sex work, but quickly discovered it was not the "flirty fun" the phone-sex industry held it out to be. Harnishfeger was horrified to hear what some of the callers would fantasize to her about, including sexual abuse of children.

         These "vile, unrepentant, disgusting poor excuses for men" (and one woman) are the "monsters" of whom she wrote in Conversations. Harnishfeger did not mince words: "if you're getting off at the thought of hurting a child . . ., there is something clearly unfit for this world in you and you need to end things once and for all." Conversations recounted five of Harnishfeger's most horrifying phone-sex calls and meditated on the social role of phone-sex operators and on her own experiences as one of them.

         Harnishfeger published Conversations with Monsters in May 2016 by making it available for sale in electronic form on Amazon, an online marketplace. On June 2, 2016 Harnishfeger announced publication of her book on her page on Face-book, a social networking website, with a link to the book's page on Amazon. Harnishfeger's Facebook page was "set to private," meaning that only Facebook users whom Harnishfeger designated as her "friends" could view what she posted there. Others viewing Harnishfeger's Facebook page would see only very general information about her.

         Because Conversations was published pseudonymously, only Harnishfeger's Facebook "friends" could tie her to it. Even they, however, would have had to do a bit of hunting to find a reference to it unless they had seen the publication announcement soon after it was posted. A Facebook user's posts appear on her page chronologically from most recent to least recent, so Harnishfeger's "quite frequent" Facebook activity would have buried the publication announcement under flurries of more recent posts "as little as a week or two" after it was made.

         B. VISTA

         Shortly after publishing Conversations with Monsters, Harnishfeger was selected to participate in the VISTA program. The VISTA program is a part of AmeriCorps, a federal network of hundreds of programs across the nation. It is sometimes called "the domestic Peace Corps." VISTA members serve full-time for a year at non-profit organizations or local government agencies to help them carry out programs to alleviate poverty. AmeriCorps is administered by CNCS, a federal agency that leads service, volunteering, and grant-making efforts in the United States.[1]

         Prospective VISTA members apply directly to CNCS. If selected to participate in the program, members apply separately to work with a sponsoring organization pre-approved by CNCS. In Indiana, for example, the twenty-three organizations approved for VISTA sponsorship in 2016 included various charities, the Indianapolis Public Schools, and the Indiana Army National Guard. VISTA members/volunteers do not receive a salary, but they do receive a number of benefits, including a small monthly living allowance.

         C. Harnishfeger's Short VISTA Career

         Harnishfeger had applied to and been accepted by CNCS as a VISTA volunteer sponsored by the Indiana Army National Guard. She began her VISTA service with the Guard's Family Program Office in Indianapolis on June 24, 2016. Harnishfeger was responsible for maintaining a database of information on service providers to whom veterans and their families could turn for help. Much of the underlying information had already been gathered by the Guard's previous VISTA volunteer. If it had not been, Harnishfeger would glean the information herself from public sources. She would then enter it into the database. The information was made publicly available on the Guard's website.

         Occasionally-perhaps a dozen times over the course of three months-Harnishfeger was unable to find an item of information she needed, such as a service provider's telephone number or physical address. In those cases, Harnishfeger contacted the service provider directly, usually by telephone or email.

         In two cases, Harnishfeger could find no contact information for the service provider at all, so, using her own Face-book account, she posted a comment to the provider's Face-book page asking for the information she needed. For example, on August 26, she posted a message to the Facebook page of an organization called PACT-Hoosier Hills asking for an office email address. The comment identified Harnishfeger as a "VISTA volunteer."

          To post these comments requesting information, Harnish-feger was not required to, and did not, designate the service providers as her Facebook "friends." Because her Facebook account was private, neither the provider's Facebook account manager nor any other members of the public viewing her comments were able to view Harnishfeger's posts to her own Facebook page, including her earlier post about Conversations.

         During her three months of VISTA service with the Guard, these dozen contacts were the only occasions on which Harnishfeger interacted with members of the public on the Guard's behalf. Otherwise, she sat at a computer and entered data. She performed her duties to the Guard's satisfaction.

         D. Harnishfeger's Termination from VISTA

         That likely would have been the story of Harnishfeger's entire year with the Guard. But then Noelle Butler, Harnishfeger's direct supervisor, asked to become her Facebook "friend." Harnishfeger felt she could not reject this request from her quasi-employer. She accepted Butler's "friend request" and thereby gave Butler access to all of her "friends-only" Facebook activity.

         In mid- to late September, Butler explored Harnishfeger's Facebook history deeply enough-through "many dozens, if not hundreds" of posts-to come upon her post of June 2 announcing the publication of Conversations with Monsters. Over her lunch break one day, "[o]ut of curiosity about this bizarre title," Butler and another Guard employee followed the Amazon link and purchased a copy of the book. On September 27, Butler and the other employee brought the book's contents to the attention of Lieutenant Colonel Lisa Kopczynski, the Guard's State Family Program Director.

         On September 28, Lt. Col. Kopczynski wrote a letter to Emily Kubiszewski, a State Program Officer for CNCS who was Harnishfeger's point of contact with the VISTA program. Kopczynski requested that Harnishfeger be removed from the VISTA placement or be terminated early for cause. Referring to Conversations, Kopczynski explained that "activities and conduct found" on Harnishfeger's Facebook page did not "favorably represent" the Guard's Family Program Office.

         The next day, September 29, Harnishf eger met with Butler and Kopczynski. Kopczynski told her that Conversations with Monsters was "really horrible," that she was not presenting the Guard "in a favorable light," and that the Guard could not "have anyone find out about" her authorship of Conversations. Harnishfeger would therefore be removed from her VISTA placement with the Guard.

         The same day, Harnishfeger received a letter from Louis Lopez, Indiana State Program Director for CNCS, informing her that she had been removed from her VISTA placement and put on "Administrative Hold status" for up to 30 days, effective immediately. A week or so later, in early October, Kubiszewski told Harnishfeger that, although she would not be readmitted to her placement with the Guard, if she deactivated her Facebook account, she would be permitted to seek another sponsor where she could complete her term of VISTA service. Harnishfeger accordingly deactivated her account.

         On October 6, Kubiszewski sent Harnishfeger a letter spelling out her prospects with the VISTA program. She gave Harnishfeger a list of approved VISTA sponsors in Indiana and nineteen days, until October 25, to find a new sponsor. If Harnishfeger could not secure reassignment before October 25, her VISTA participation would be terminated entirely, effective October 26.

         Harnishfeger contacted five of the twenty-two potential sponsors available to her. One responded, but it was too far from Indianapolis to be feasible on Harnishfeger's limited means. Harnishfeger thus failed to secure reassignment by the October 25 deadline. On that day, she received a second letter from Lopez informing her that her VISTA membership had been finally terminated "for lack of suitable assignment."

         E. This Lawsuit

         Within two weeks, Harnishfeger sued Lopez, Kubiszewski, Kopczynski, and Butler in their personal and official capacities, as well as the United States government, for violating her rights under the First and Fourteenth Amendments and the Administrative Procedure Act, 5 U.S.C. § 706. The district court had jurisdiction of the case under 28 U.S.C. § 1331 and § 1346.

         The personal-capacity defendants (except Butler, who was later dismissed on Harnishfeger's motion) moved to dismiss the complaint. The United States, as a named defendant and as the real target of official-capacity claims against federal actors, Hafer v. Melo,502 U.S. 21, 25-26 (1991), moved separately to dismiss the complaint or in the alternative for summary judgment. After converting the defendants' motions to dismiss to motions for summary judgment, see ...

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