Yesterday, the 9th Circuit decided a case involving a claim of First Amendment retaliation in favor of a city. The facts are really pretty interesting. The Finance Director of a city believed an accountant was overbilling and filed a complaint with the licensing board. The City Manager told her to withdraw the complaint which she refused to do. She was suspended and then ultimately fired based on an unfiled shoplifting complaint following an investigation by the city. Naturally, she sued. While that suit was progressing the position of Finance Director opened again in the city under a new City Manager. She applied and was told that based on her previous termination from employment she was not eligible for re-hire. Her suit goes to trial and she wins. She recovers economic, non-economic and punitive damages. During the course of the trial she tries to introduce the city's more recent action to deny her the open position of Finance Director and over objection by the city, the court allows the evidence. Shortly after winning that action, she brings a retaliation complaint claiming the city denied her employment based on her suit - a violation of her First Amendment rights. The lower court says - wait a minute, claim preclusion applies but even if it didn't you can't recover for the same damages twice. The panel of the 9th Circuit reached a different conclusion finding that claim preclusion didn't apply, but insofar as economic damages issue preclusion applied. As to non-economic damages and punitives, the court concluded that a reasonable jury could only conclude that under a different City Manager and under facts where up until her win at trial (which was after the denial of employment) the city had been vindicated at every step, thus it was not required to review her previous termination when it denied her employment based on ineligibility due to the prior termination. (There were a couple of nice notes on this issue if you need them in a case.) The Court was asked to construe the Oregon whistleblower law and determined that because she was no longer an employee for purposes of this complaint, the law did not extend to her as a plain reading of the law addressed only employees. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/25/14-35506.pdf Charles W. Thompson, Jr. Executive Director and General Counsel International Municipal Lawyers Association, Inc. 51 Monroe Street Suite 404 Rockville, Maryland 20850 202-466-5424 x7110 Direct: 202-742-1016 Cell: 240-876-6790 Plan ahead: IMLA's Annual Conference October 14- October 18, 2017 - Niagara, Ontario, Canada (Passport required) To register, go to: http://imla.org/events/conferences#registration IMLA's Annual Seminar and Section 1983 Defense Conference - April 20- April 23, 2018 Washington, DC