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Alberto Fernandez v. School Board of Miami-Dade County, Florida

Paid petition · United States Court of Appeals for the Eleventh Circuit, No. 17-14319-HH · judgment August 10, 2018


Certiorari denied · March 18, 2019
Pre-decision estimate: 5% cert probability

Before the decision, modestly above the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, a dissent in the court below (flagged in the petition), and an Eleventh Circuit decision below.

Questions presented

  1. For purposes of First Amendment freedom of speech for public employees, whether scope of employment is a threshold question to be resolved before consideration of what speech constitutes an ordinary job duty, and if so, whether scope of employment is to be determined in accordance with precedent consisting of this Court’s decisions in Garcetti v. Ceballos,1 and Lane v. Franks,2 plus Restatement (Third) of Agency, Scope of Employment principles and the federal appellate decisions applying these principles in this context, Anderson v. Valdez3 and CBS Corp. v. F.C.C.,4 or whether scope of employment should be decided in accordance with a new and different analytical framework propounded by the Eleventh Circuit.

  2. Related thereto is the question whether the lower courts have defied this Court’s warning in Garcetti against undermining the constitutional right to freedom of speech by crediting an overly-broad job description of leadership as bringing the employee speech here at issue within the employer’s control. 1 Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006). 2 Lane v. Franks, 573 U.S. ___, 134 S. Ct. 2369 (2014). 3 No. 15-40836 at 2 (5th Cir. 2016). 4 535 F.3d 167, 189 (3d Cir. 2008).

Counsel of record

For petitioner
Thomas E. Elfers
Law Office ofThomas E. Elfers

For respondent
Walter James Harvey
Office of the General Counsel - School Board MDC

Case

Conference history
Distributed for 1 conference

Proceedings

  1. Mar 18 2019
    Petition DENIED.
  2. Feb 27 2019
    DISTRIBUTED for Conference of 3/15/2019.
  3. Feb 21 2019
    Waiver of right of respondent The School Board of Miami-Dade County, Florida to respond filed.
  4. Jan 18 2019
    Petition for a writ of certiorari filed. (Response due February 22, 2019)