In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 1791 KATHLEEN HAGAN, et al., Plaintiffs Appellants, v. PATRICK J. QUINN, et al., Defendants Appellees. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 13 3357 — Sue E. Myerscough, Judge. ____________________ SUBMITTED FEBRUARY 2, 2016* — DECIDED AUGUST 14, 2017 ____________________ Before FLAUM, MANION, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Plaintiffs are former arbitrators for the Illinois Workers’ Compensation Commission. In 2011, plaintiffs and another arbitrator brought a due process action * This appeal is successive to No. 14 2746 and has been submitted to the original panel under Operating Procedure 6(b). We have agreed to de cide the case without oral argument because argument would not signifi cantly aid our decision making process. See Fed. R. App. P. 34(a)(2)(C). 2 No. 15 1791 challenging the implementation of House Bill 1698, a workers’ compensation reform statute that had terminated their six year appointments under prior law. The district court granted summary judgment for defendants, and we affirmed, con cluding that plaintiffs failed to demonstrate a clearly estab lished right that was violated by legislation ending their six year terms as arbitrators. Dibble v. Quinn, 793 F.3d 803, 814 (7th Cir. 2015) (the “Due Process Suit”).1 In October 2011, while the Due Process Suit was pending, the Illinois governor declined to reappoint plaintiffs, which ended their employment. Two years later, plaintiffs filed this action against the governor and two of his advisors in their individual and official capacities. Plaintiffs alleged that the defendants had retaliated against them for filing the prior suit and that the retaliation violated the First Amendment to the United States Constitution and Illinois state law. Plaintiffs sought damages and an injunction providing either reinstate ment or comparable state employment. The district court dismissed plaintiffs’ First Amendment claims, holding that the Due Process Suit was not protected speech under the Connick–Pickering line of cases. See Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968). The 1 Plaintiffs here did not participate in the appeal of the Due Process Suit. Former arbitrator Peter Akemann (not a party here) pursued that ap peal pro se, and we consolidated his action with an appeal in a related case brought by former arbitrator John Dibble, No. 14 2328. No. 15 1791 3 court declined to exercise supplemental jurisdiction over plaintiffs’ state law claims.2 We affirm, but by a different path. We need not and do not decide whether the Due Process Suit was speech on a matter of public concern as is required for a government employee to show retaliation in violation of the First Amendment. Plain tiffs’ claims fail for a more fundamental reason. Plaintiffs were policymakers who could be terminated—or, more precisely, not reappointed—for engaging in “speech on a matter of pub lic concern in a manner that is critical of superiors or their stated policies.” Kiddy Brown v. Blagojevich, 408 F.3d 346, 358 (7th Cir. 2005) (citations omitted). A logical outgrowth of the Elrod–Branti line of cases, see Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980), this policy maker corollary to the standard Pickering analysis allows 2 The district court did not address plaintiffs’ demand for injunctive relief. In Dibble, however, we rejected as moot a similar claim for reinstate ment. By the time that case reached us, plaintiffs’ six year terms would have expired even apart from House Bill 1698. 793 F.3d at 807. Likewise here, even if Governor Quinn had renewed plaintiffs’ appointments in Oc tober 2011, those appointments would have expired years ago. Under the Workers’ Compensation Act as amended, arbitrators are generally ap pointed to three year terms, with initial appointments having expired in July of 2012, 2013, and 2014. See 820 Ill. Comp. Stat. 305/14. In the best case scenario for plaintiffs, then, even if the governor had renewed their appointments, those appointments would have expired over three years ago. Because plaintiffs’ claim for injunctive relief is moot, they have no claim against defendants in their official capacities, and we need not substitute the current office holders for the named defendants under Federal Rule of Civil Procedure 25(d). This action is now only against the defendants in their individual capacities for damages. 4 No. 15 1791 elected officials to replace high level and confidential em ployees not only when those employees merely belong to the “wrong” political party or faction but also when they engage in speech or other First Amendment activity that could un dermine the policy or political goals of the officials accused of the retaliation. In this case, plaintiffs publicly challenged the implementation of House Bill 1698 as unconstitutional. They had a constitutional right to do so, but their exercise of that right came with consequences for their positions in state gov ernment that the Constitution also permits. In filing their law suit, plaintiffs sought to undercut a key component of the ad ministration’s workers’ compensation reform initiative. That was reason enough for the governor to choose not to reap point them as arbitrators. Given their positions in govern ment, the First Amendment offers them no redress for the governor’s choice. I. Factual and Procedural Background We review de novo the district court’s dismissal of plain tiffs’ First Amendment claims, accepting as true plaintiffs’ well pled factual allegations and drawing reasonable infer ences in their favor. E.g., Simpson v. Brown County, 860 F.3d 1001, 1005 (7th Cir. 2017); Jakupovic v. Curran, 850 F.3d 898, 901 (7th Cir. 2017). We review for abuse of discretion the district court’s decision under 28 U.S.C. § 1367(c)(3) not to exercise supplemental jurisdiction over plaintiffs’ state law claims. Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015). A. The Due Process Suit Plaintiffs were employed as arbitrators with the Illinois Workers’ Compensation Commission from 1989 (plaintiffs Kathleen Hagan and Gilberto Galicia), 1990 (plaintiff Joseph No. 15 1791 5 Prieto), and 2003 (plaintiff Richard Peterson), until October 14, 2011. Plaintiffs allege that during the spring and early summer of 2011, articles published by Illinois media outlets drew public attention to problems with the state workers’ compensation scheme. The legislature responded to these concerns. On June 28, 2011, then–Governor Quinn signed House Bill 1698 (as enacted, Public Act 97–18), amending the Workers’ Compensation Act. See 820 Ill. Comp. Stat. 305/1 et seq. A press release issued by the governor’s office (and ap pended as an exhibit to plaintiffs’ complaint) highlighted some of the key changes in the law. These included a substan tial reduction in the medical fee schedule, implementation of new provider networks, enhanced enforcement mechanisms, and an electronic billing system. Most relevant here, the new legislation also changed the appointment scheme for arbitra tors who decide employer/employee disputes. Notwithstand ing prior law that established six year terms for arbitrators and protected them from early discharge except for cause, the amended Act terminated all appointments effective July 1, 2011, but with the proviso that incumbents would “continue to exercise all of their duties until they are reappointed or their successors are appointed.” 820 Ill. Comp. Stat. 305/14. Going forward, appointments were to be made by the gover nor with the advice and consent of the state senate. Initial ap pointments would last for one, two, or three years to set up classes of arbitrators with staggered terms. Thereafter, arbi trators would be appointed to three year terms. Unhappy with some of these changes—including the ab rupt dissolution of their six year terms—plaintiffs here and 6 No. 15 1791 fellow arbitrator Peter Akemann sued the governor and mem bers of the Workers’ Compensation Commission. In their Due Process Suit, plaintiffs alleged principally that the amended law unconstitutionally deprived them of their property inter est in their employment. Plaintiffs sought damages, a decla ration that House Bill 1698 was unconstitutional as applied to them, and an injunction prohibiting defendants from remov ing them from office or “taking any other action in retaliation for the Plaintiffs’ protection of their civil rights.” The district court granted summary judgment for defend ants, rejecting plaintiffs’ due process claim on its merits. Ha gan v. Quinn, No. 11 CV 3213, 2014 WL 3052631, at *3 (C.D. Ill. July 7, 2014). We affirmed on alternative grounds, holding that plaintiffs “failed to demonstrate a clearly established right that was violated by legislation ending their six year terms as arbitrators” and that defendants were thus entitled to qualified immunity. Dibble, 793 F.3d at 814. B. The Retaliation Suit On October 14, 2011, after plaintiffs filed the Due Process Suit but long before that case was decided, Governor Quinn decided which arbitrators would continue with their employ ment and which would be terminated. Plaintiffs were among those who were not reappointed. Two years later, plaintiffs filed this action alleging retaliation in violation of the First Amendment and the Illinois State Officials and Employees Ethics Act, 5 Ill. Comp. Stat. 430/1 1 et seq. Plaintiffs sued Gov ernor Quinn; his chief of staff, Jerome Stermer; and an advi sor, Velisha Haddox, in their individual and official capaci ties. No. 15 1791 7 In their retaliation complaint, plaintiffs allege that their participation in the Due Process Suit was the “sole reason” they were not reappointed as arbitrators. Though plaintiffs concede that they each had a “personal motivation” in bring ing the Due Process Suit, they insist that “their justifications for doing so were not limited to their personal interest.” Ra ther, they felt it was “important to, in a public forum, hash out concerns … regarding the workers’ compensation reforms and to outline that the governor of the State of Illinois had vi olated the United States Constitution.” According to plain tiffs, their speech/petitioning was their way of participating in a “significant public debate on an issue of importance to the people of the State of Illinois.” The district court disagreed. In granting defendants’ mo tion to dismiss, the court held that, as a “matter of law, Plain tiffs’ lawsuit to protect their jobs was not constitutionally pro tected speech.” Hagan v. Quinn, 84 F. Supp. 3d 826, 827 (C.D. Ill. 2015). Applying the Connick–Pickering framework for as sessing First Amendment claims by government employees, the district court concluded that the Due Process Suit was not speech on a matter of public concern. Citing the admonition in Connick that courts must take account of the “content, form, and context” of an employee’s speech, 461 U.S. at 147–48, the district court reasoned that the Due Process Suit “cannot fairly be said to be about worker’s compensation reform from a public view standpoint” but was instead a “purely per sonal” attempt by plaintiffs to “protect their jobs and reputa tions.” Hagan, 84 F. Supp. 3d at 831–32. The court held in the alternative that defendants were entitled to qualified immun ity. Id. at 832–33. 8 No. 15 1791 The district court dismissed plaintiffs’ First Amendment claims with prejudice. The court dismissed their state Ethics Act claims without prejudice, declining to exercise supple mental jurisdiction over those state law claims. Id. at 833. Plaintiffs have appealed both dismissals.3 II. Analysis A. First Amendment Retaliation Doctrine Employees do not give up all First Amendment rights when they accept government employment. See Lalowski v. City of Des Plaines, 789 F.3d 784, 790 (7th Cir. 2015). Rather, the First Amendment “protects a public employee’s right, in cer tain circumstances, to speak as a citizen about matters of pub lic concern. Whether the First Amendment protects the speech is a question of law that we review de novo.” Matrisci ano v. Randle, 569 F.3d 723, 730 (7th Cir. 2009) (citations omit ted), abrogated in part on other grounds by Gross v. FBL Fi nancial Services, Inc., 557 U.S. 167 (2009). To establish a First Amendment retaliation claim, a public employee must show that “(1) she engaged in constitutionally protected speech; (2) she suffered a deprivation because of her 3 Oddly, the judgment order entered by the clerk states that the case was dismissed without prejudice. That was plainly a clerical error. While the district judge declined to exercise supplemental jurisdiction over the Ethics Act claims and thus dismissed that count without prejudice, she held that the First Amendment count was dismissed “for failure to state a federal claim.” Hagan, 84 F. Supp. 3d at 833. She added that the “case is closed,” and she directed the clerk to enter a judgment pursuant to Federal Rule of Civil Procedure 58. Id. Perhaps the clerk simply misread the order appended to the district judge’s opinion, but it is the district judge’s re sponsibility to ensure that the judgment accurately reflects the judge’s in tentions. In any event, our appellate jurisdiction is secure. No. 15 1791 9 employer’s action; and (3) her protected speech was a but for cause of the employer’s action.” Diadenko v. Folino, 741 F.3d 751, 755 (7th Cir. 2013); see also Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012) (“Initially, to establish a prima facie case of retaliation, the plaintiff must produce evidence that his speech was at least a motivating factor … of the employer’s decision to take retaliatory action against him. Then, the bur den shifts to the employer to rebut the causal inference raised by the plaintiff’s evidence. If the employer fails to counter the plaintiff’s evidence, then … the plaintiff has established the but for causation needed to succeed on his claim.”) (citations omitted). While the speech at issue in government employment cases often involves controversial remarks by employees in the workplace or directed to the media, the First Amendment reaches many forms of expression. In Borough of Duryea v. Guarnieri, 564 U.S. 379, 383 (2011), a former police chief filed a union grievance challenging his termination. An arbitrator ordered the chief reinstated. The borough council then issued a series of directives that the chief considered unfair (and that the arbitrator later ordered the council to modify or rescind). Id. at 383–84. The chief filed a federal § 1983 action claiming that his union grievance was protected under the First Amendment’s Petition Clause and that the directives were re taliation for that protected activity. After the chief filed his suit, the borough council denied his request for overtime com pensation, and he amended his complaint to allege that the § 1983 suit was itself protected under the Petition Clause and that the overtime denial was another instance of unconstitu tional retaliation. Id. at 384. 10 No. 15 1791 In reviewing the chief’s First Amendment claims, the Su preme Court recognized that he “just as easily could have al leged that his employer retaliated against him for the speech contained within his grievances and lawsuit.” Id. at 387. The Court held that the ordinary framework for assessing retalia tion claims applies with equal force when the speech at issue is conveyed through a lawsuit or other petition. Id. at 398; see Gibson v. Kilpatrick, 838 F.3d 476, 481 (5th Cir. 2016) (retaliation claims brought by government employees under the Speech Clause and the Petition Clause are “analyzed in the same way”). It makes good sense to take the same approach to retalia tion claims arising under the Speech and Petition Clauses. “Petitions, no less than speech, can interfere with the efficient and effective operation of government.” Borough of Duryea, 564 U.S. at 389. Yet petitions such as lawsuits are important mechanisms for citizens (including government employees) to make their voices heard and to seek to hold public officials accountable. See id. at 395–97 (tracing the history of the right to petition from the Magna Carta through the founding era and the modern civil rights movement).4 4 In an analogous context of First Amendment retaliation claims by prisoners, we apply the same test whether the expressive activity is in the nature of a petition or some other form of speech. E.g., Bridges v. Gilbert, 557 F.3d 541, 551–52 (7th Cir. 2009) (inmate stated First Amendment claim for retaliation in response to his submission of an affidavit in a separate suit filed by fellow inmate’s mother); Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006) (inmate may state valid First Amendment claim for retalia tion in response to grievance regardless whether inmate reduced his com plaints “to writing on an official grievance form” or expressed them orally). In the prison context, “we examine whether the prisoner engaged in speech in a manner consistent with legitimate penological interests,” No. 15 1791 11 As this discussion shows, for purposes of assessing these plaintiffs’ First Amendment retaliation claims, it makes no difference that plaintiffs’ expressive activity took the form of a complaint in federal court rather than a conversation in the workplace, a press conference, a Facebook post, or a tweet on Twitter. Plaintiffs can prevail if, but only if, they can demon strate that the Due Process Suit was protected speech/peti tioning activity and that defendants took an adverse action against them because of that protected activity. As we explain below, plaintiffs cannot carry their burden. B. The Policymaker Corollary to the Pickering Analysis In evaluating plaintiffs’ retaliation claims, the district court focused on the first element of the claims, i.e., whether the Due Process Suit was constitutionally protected speech on a matter of public concern. We also consider whether plaintiffs’ speech/petition was constitutionally protected, but our ap proach differs from the district court’s. Because we conclude that plaintiffs were “policymakers” and that the governor could lawfully decline to reappoint them for speaking out against his administration’s workers’ compensation reform though we do not require the prisoner to show that he spoke on a matter of public concern (even if the prisoner was employed by the prison, as many inmates are), and in that respect prisoner claims are analyzed some what differently than public employee claims. See Watkins v. Kasper, 599 F.3d 791, 795 (7th Cir. 2010). Compare Herron v. Meyer, 820 F.3d 860, 864 (7th Cir. 2016) (observing that “decisions in the prison grievance line do not explain why the First Amendment offers greater protection to prison ers than to public employees”), with Ogurek v. Gabor, 827 F.3d 567, 569 (7th Cir. 2016) (citing Watkins, 599 F.3d at 795, for proposition that “the dynam ics of the government’s relationships with prisoner employees and with public employees are too dissimilar to transfer the public concern test to the prison context”). 12 No. 15 1791 initiative, we need not and do not decide whether the Due Process Suit was speech on a matter of public concern. In Elrod v. Burns and Branti v. Finkel, the Supreme Court prohibited government employers from dismissing most public employees on the basis of partisan affiliation, holding that the age old practice of patronage firings violated the First Amendment. At the same time, the Court recognized an ex ception for employees who occupy policymaking or confiden tial positions. Elected officials may require political loyalty from such employees so that representative government is not “undercut by tactics obstructing the implementation of poli cies … presumably sanctioned by the electorate.” Elrod, 427 U.S. at 367 (plurality opinion); see also Branti, 445 U.S. at 517 (“[I]f an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.”); cf. Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1990) (ex tending Elrod and Branti to hold that “promotions, transfers, and recalls after layoffs based on political affiliation or sup port are an impermissible infringement on the First Amend ment rights of public employees”). While acknowledging that “[n]o clear line can be drawn between policymaking and nonpolicymaking positions,” the plurality in Elrod emphasized that the “nature of the respon sibilities is critical,” and that an employee whose responsibil ities are broad in scope, who acts as an adviser, and/or who “formulates plans for the implementation of broad goals” likely occupies a policymaking role. 427 U.S. at 367–68 (plu rality opinion). In Branti, the Court said again that it is “not always easy to determine whether a position is one in which No. 15 1791 13 political affiliation is a legitimate factor to be considered.” 445 U.S. at 518. The Court reasoned that under some circum stances, a job “may be appropriately considered political even though it is neither confidential nor policymaking in charac ter” (e.g., an election judge hired pursuant to a state law re quiring one Republican and one Democrat to monitor each precinct). Id. Conversely, “party affiliation is not necessarily relevant to every policymaking or confidential position” (e.g., a university football coach). Id. The ultimate inquiry, the Court concluded, is “whether the hiring authority can demonstrate that party affiliation is an appropriate require ment for the effective performance of the public office in volved.” Id. The policymaker label is thus shorthand for a broad category of public employees whose work is politically sensitive and who exercise significant discretion in the perfor mance of their duties. Despite the unusual cases contemplated in Branti and the Supreme Court’s emphasis on a functional rather than a defi nitional approach to assessing patronage dismissals, this court has “recognized that the terms ‘[p]olicymaking’ and ‘confidential’ do accurately describe the vast majority of of fices that fall within the realm of legitimate patronage under the Branti formulation.” Kiddy Brown, 408 F.3d at 355 (altera tions in original; internal quotation marks omitted), quoting Meeks v. Grimes, 779 F.2d 417, 420 (7th Cir. 1985); accord, Davis v. Ockomon, 668 F.3d 473, 477 (7th Cir. 2012); Matlock v. Barnes, 932 F.2d 658, 662 (7th Cir. 1991). We have held that the “test for whether a position involves policymaking is ‘whether the position authorizes, either di rectly or indirectly, meaningful input into government deci 14 No. 15 1791 sionmaking on issues where there is room for principled dis agreement on goals or their implementation.’” Kiddy Brown, 408 F.3d at 355, quoting Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981). To make this determination, we consider the “powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office.” Id., quot ing Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir. 1985); see also Embry v. City of Calumet City, 701 F.3d 231, 236 (7th Cir. 2012) (“We examine the powers inherent in the office … even if the employee never actually exercises those powers.”). “We further ask whether the position entails the exercise of a substantial amount of political (as distinct from profes sional) discretion.” Powers v. Richards, 549 F.3d 505, 510 (7th Cir. 2008). This inquiry is not always straightforward. See Ri ley v. Blagojevich, 425 F.3d 357, 360 (7th Cir. 2005) (“In general … employees whose discretion is channeled by professional rather than political norms … are not within the exception for policymakers. But the line between professional and policy judgment is often blurred; for example, is the physician who runs a county hospital making a professional judgment or a policy judgment if he decides to authorize the hospital’s phy sicians to assist suicides, prescribe ‘medical marijuana,’ or perform abortions?”). In this case, of course, we may not assume that the plaintiff arbitrators were terminated because of their partisan affilia tion. Rather, plaintiffs allege that the “sole reason” for their termination was their participation in the Due Process Suit, i.e., their speech/petition. Taking that allegation as true, we nonetheless conclude that the policymaker exception bars plaintiffs from pursuing their First Amendment retaliation claim. No. 15 1791 15 In Wilbur v. Mahan, 3 F.3d 214, 215 (7th Cir. 1993), we con sidered the “intersection” between the Connick–Pickering cases that concern the rights of public officials to “discipline an employee who speaks out on a matter of public signifi cance in a way displeasing to them” and the Elrod–Branti cases that concern the rights of such officials to “hire or fire an em ployee on the basis of his affiliation with a political party or faction.” Wilbur was a deputy sheriff, which is deemed a policy making position in Illinois. He suffered an adverse employ ment action not because of his political affiliation (he and the sheriff were both Democrats) but because of his political speech and activity. 3 F.3d at 215. After the sheriff decided to run for re election, Wilbur announced his own candidacy. The sheriff then amended office regulations to provide that any employee who ran for sheriff could be placed on unpaid leave. According to Wilbur, the sheriff’s actions not only harmed him financially but crippled his campaign. We recognized that, at “first blush the facts … present[ed] a blatant case of retaliation for the exercise of the right of free speech,” id., but we concluded that the district court rightly dismissed Wilbur’s First Amendment claim. Id. at 217. Wil bur’s expressive conduct (campaigning against his boss) brought him within the “scope of the concern that gave rise to the exceptions in the patronage cases.” Id. The concern “is with the effects on the operations of government of forcing a public official to hire, or retain, in a confidential or policymak ing job, persons who are not his political friends.” Id. at 217– 18. It would be a strange rule, we reasoned, that “gave more job protection to policymaking employees who vociferously attack their superiors than to policymaking employees who 16 No. 15 1791 do their best to serve … but have the misfortune to belong to the wrong party.” Id. at 219. In effect, the policymaker excep tion to the Elrod–Branti line of cases protects elected officials from the risk that employees politically opposed to them might undermine their policies. The policymaker corollary to the Connick–Pickering line of cases allows those elected offi cials to respond to actual political attacks from those employ ees, at least as a matter of First Amendment law. In Warzon v. Drew, 60 F.3d 1234, 1235, 1237 (7th Cir. 1995), we extended the reasoning of Wilbur to a case in which a county controller, who was responsible for the “financial management and administration” of the county healthcare plan, was fired after speaking out publicly against the county’s healthcare policy. Noting again that the goals under lying the Connick–Pickering and Elrod–Branti cases are “really very closely linked,” we held that “if Warzon was a confiden tial or policymaking employee, her superiors could, con sistent with the First Amendment, fire her for advocating po sitions in conflict with their stated policies.” Id. at 1238–39. Finding that Warzon’s pleadings were “replete with infor mation showing that she had significant input into and au thority over” the healthcare plan, we concluded that she was a policymaker and affirmed dismissal of her First Amend ment claim. Id. at 1239–40. Following Wilbur and Warzon, we have recognized that “in cases involving the dismissal of an employee in a policymak ing position, ‘there is no need for a fact specific analysis of the circumstances of each case’ mandated by Pickering.” Kiddy Brown, 408 F.3d at 358 (citation omitted). Instead, under the “policy maker corollary to the Pickering analysis, the First No. 15 1791 17 Amendment does not prohibit the discharge of a policy mak ing employee when that individual has engaged in speech on a matter of public concern in a manner that is critical of supe riors or their stated policies.” Id. (citations and internal quota tion marks omitted). Accord, e.g., Embry, 701 F.3d at 235 (“Connick–Pickering does not apply [where policymaker] iden tifies no statement of public concern unconnected to political affiliation or policy views that led to his dismissal.”); Vargas Harrison v. Racine Unified School District, 272 F.3d 964, 971 (7th Cir. 2001) (“In essence, we have determined that, with respect to [policymaking] employees, the Pickering analysis regularly will result in a determination that ‘the government em ployer’s need for political allegiance from its policymaking employee outweighs the employee’s freedom of expression to such a degree that it obviates Pickering balancing.’”), quoting Bonds v. Milwaukee County, 207 F.3d 969, 977 (7th Cir. 2000); cf. Matrisciano, 569 F.3d at 731 (“We have not limited th[e] ‘pol icy maker corollary’ to instances where the plaintiff’s political views led to the adverse action.”) (citations omitted). C. Application Plaintiffs’ First Amendment retaliation claims are barred by the policymaker corollary to the Pickering analysis. In ap plying the policymaker corollary, we consider two criteria: “First, the employee must have occupied a policy making po sition. If so, his speech must have been of the kind that falls within the scope of the corollary.” Matrisciano, 569 F.3d at 731 (citations omitted). Plaintiffs’ complaint shows that both cri teria are satisfied here. First, the plaintiffs were policymakers for First Amend ment purposes. As noted above, the test for determining 18 No. 15 1791 whether a position involves policymaking is “whether the po sition authorizes … meaningful input into government deci sionmaking on issues where there is room for principled dis agreement on goals or their implementation.” Kiddy Brown, 408 F.3d at 355 (citation omitted); see also Allen v. Martin, 460 F.3d 939, 944 (7th Cir. 2006) (finding informative the “degree of discretion and responsibility exercised in the position”). The test is flexible, and we have recognized a variety of roles, not all at the highest levels of management hierarchies or at the center of the political limelight, that qualify as poli cymaking positions or otherwise fall within the scope of the Elrod–Branti patronage exception. E.g., Embry, 701 F.3d at 236 (city commissioner of streets and alleys); Davis, 668 F.3d at 480 (senior humane officer for city board of public safety); Allen, 460 F.3d at 945–46 (accounting bureau chief for state transpor tation department); Vargas Harrison, 272 F.3d at 973 (elemen tary school principal); Bonds, 207 F.3d at 977 (senior fiscal an alyst for city block grant committee); Selch v. Letts, 5 F.3d 1040, 1047 (7th Cir. 1993) (subdistrict superintendent for state high way department); Heck v. City of Freeport, 985 F.2d 305, 310 (7th Cir. 1993) (general inspector for local health department); Up ton v. Thompson, 930 F.2d 1209, 1218 (7th Cir. 1991) (deputy sheriff); Bicanic v. McDermott, 867 F.2d 391, 395 (7th Cir. 1989) (administrator of city parks and recreation); Livas v. Petka, 711 F.2d 798, 801 (7th Cir. 1983) (assistant state’s attorney). At the Rule 12(b)(6) stage, we do not have materials such as an employment manual or a detailed job description listing the tasks plaintiffs were required to perform while employed as arbitrators. However, we do have the statutes establishing and governing these positions, and where a statute estab No. 15 1791 19 lishes a position, the statute is likely to provide the best foun dation for classifying it for these First Amendment purposes. See Davis, 668 F.3d at 478 (“The starting point of our inquiry should be the ordinances, and not the job description, because ‘[u]nlike job descriptions, which may bear little resemblance to a position’s actual duties, the ordinance’s terms are not open to contest.’”) (alteration in original) (citation omitted); Vargas Harrison, 272 F.3d at 972 (“[W]hen the duties and re sponsibilities of a particular position are clearly defined by law and regulations, a court may resolve this [policymaker] issue without the aid of a finder of fact.”); Pleva v. Norquist, 195 F.3d 905, 912 (7th Cir. 1999) (“Because [plaintiff’s] position … was clearly defined by state statute and city ordinance … the district court’s determination as a matter of law of the pol icymaking status of [plaintiff’s] position was proper … .”). The statutes here confirm that plaintiffs were policymak ers. Under both the current version of the Workers’ Compen sation Act and the version in effect when Governor Quinn de clined to reappoint the plaintiffs, arbitrators are selected by the governor with the advice and consent of the state senate. 820 Ill. Comp. Stat. 305/14. Newly appointed arbitrators are subject to an extensive professional training program cover ing substantive and procedural aspects of their position, and all arbitrators are required to complete twenty hours of train ing every two years. Id. Arbitrators are required to “dispose of all Workers’ Com pensation matters promptly, officially and fairly, without bias or prejudice,” and to “be faithful to the law and maintain pro fessional competence in it.” 820 Ill. Comp. Stat. 305/1.1(a). Ar bitrators are empowered to make findings of fact “based on inquiries, investigations, examinations, or inspections” and to 20 No. 15 1791 enter those findings into the record of the proceeding. 305/1.1(e). Arbitrators may be assigned to serve as acting members of the Workers’ Compensation Commission when ever a duly appointed commissioner is unavailable. 305/14. In that substitute capacity, arbitrators serve alongside other com missioners in administering the Act, promulgating proce dural rules, and hearing cases en banc. 820 Ill. Comp. Stat. 305/13. Arbitrators also may be elected by a vote of their fel low arbitrators to serve on the Commission Review Board, an advisory body designated to review complaints brought against commissioners and arbitrators. 820 Ill. Comp. Stat. 305/14.1. In “matters of serious concern to the State,” the re view board may “recommend that the Governor: 1) dismiss any Arbitrator who is found unfit to serve; or 2) not reappoint a Commissioner who it finds unfit to serve.” Id.5 Illinois workers’ compensation arbitrators are not and never have been ministerial employees. They exercise sub stantial discretion in adjudicating employer/employee dis putes and may participate in rulemaking to the extent they serve on the Workers’ Compensation Commission. As adjudi cators, they are also gatekeepers. While the Illinois legislature enacted the state’s workers’ compensation scheme, as a prac tical matter it is the arbitrators who resolve conflicts over which employees should and should not benefit from this im portant state program. Over time, the decisions of the arbitra tors, which are appealable to the Workers’ Compensation 5 Many of these statutory provisions were in effect even prior to en actment of House Bill 1698. No. 15 1791 21 Commission and ultimately to the state courts, shape the di rection of Illinois policy as it relates to workers’ and employ ers’ rights. Treating these plaintiffs as policymakers is consistent with a series of our decisions recognizing that judges and hearing officers typically occupy policymaking roles for First Amend ment purposes. Compare Kurowski v. Krajewski, 848 F.2d 767, 770 (7th Cir. 1988) (“A judge both makes and implements gov ernmental policy. … Holders of the appointing authority may seek to ensure that judges agree with them on important ju risprudential questions.”), with Walsh v. Heilmann, 472 F.3d 504, 505 (7th Cir. 2006) (“Neither the judge nor the hearing officer operates in a zone where decisions are mechanical. That’s why we held in Kurowski … that politics is a permissible consideration for judicial positions (even those held for just a short time); the same is true of hearing officers who possess discretion over which laws receive how much enforcement.”); see also Thompson v. Illinois Dep’t of Professional Regulation, 300 F.3d 750, 757 (7th Cir. 2002) (chief administrative law judge in state department of professional regulation was policy maker); Pleva, 195 F.3d at 913 (member of city board of zoning appeals was policymaker). As gubernatorial appointees, the arbitrators are the face of the administration in the workers’ compensation arena. As the governor’s 2011 press release emphasized, enhanced re quirements for arbitrator performance and accountability were among the key changes implemented by House Bill 1698. The restructuring of the arbitrator corps was a central feature of the reform initiative. In the spirit of the exception to the Elrod and Branti principles, the governor is entitled to ap 22 No. 15 1791 point and retain only those arbitrators in whom he has confi dence and who he believes will faithfully carry out their offi cial mission. Turning to the second criterion of the policymaker corol lary, we conclude that plaintiffs’ speech/petitioning activity (through the Due Process Suit) fits comfortably within the scope of the corollary. In their underlying due process com plaint, plaintiffs accused the governor of “an arbitrary and ca pricious act allowing him to take the protected property rights of plaintiffs without due process.” They sought to en join the governor and other state defendants from removing them from office or appointing any other person to fill their remaining terms, and they asked the court to declare the re form legislation unconstitutional as applied to them. Plaintiffs also sought substantial damages. In their retaliation complaint, plaintiffs confirmed that their goal had been to “hash out concerns that they had re garding the workers’ compensation reforms and to outline that the governor of the State of Illinois had violated the United States Constitution.” Building on that theme in their appellate brief, plaintiffs argue that the “underlying lawsuit … had it been successful, would have had the practical impact of protecting not only the plaintiffs but also … all of the arbi trators in the state.” Plaintiffs, in other words, “engaged in speech … in a manner that is critical of superiors or their stated policies,” Kiddy Brown, 408 F.3d at 358 (citations omit ted), exactly the type of speech to which the policymaker cor ollary applies. This case is strikingly similar to Warzon v. Drew. In finding that the county controller in that case could be fired for speak ing out against healthcare policy, we reasoned that “[n]o one No. 15 1791 23 could argue … that the seriousness of and the appropriate remedy for [a] perceived crisis in government provided med ical care are not political issues.” 60 F.3d at 1239; see also Var gas Harrison, 272 F.3d at 974 (school district could punish prin cipal for speaking out against grant proposal where her stance “placed her in square opposition to the stated goals and poli cies of her superiors”). Likewise, workers’ compensation reform, which plaintiffs themselves have characterized as a “significant issue of public concern” and “the upper echelon of matters of public policy,” is inherently political and intertwined with plaintiffs’ duties as arbitrators. Through their lawsuit, plaintiffs aimed to un dercut the governor’s policy. They wanted it declared uncon stitutional. A lawsuit, at least as much as public criticism or statements to the media, could unravel a policy agenda. See Borough of Duryea, 564 U.S. at 389–90 (“Petitions, no less than speech, can interfere with the efficient and effective operation of government. … When a petition takes the form of a lawsuit against the government employer, it may be particularly dis ruptive.”). Assuming, as plaintiffs have alleged, that Gover nor Quinn chose not to reappoint them because of the Due Process Suit, he acted within constitutional bounds in making that choice.6 6 In their brief in opposition to the defendants’ motion to dismiss (but not in their appellate brief), plaintiffs urged that if the district court should “conclude that the complaint is factually lacking,” the court should afford them an “opportunity to file an amended complaint.” However, plaintiffs offered no explanation as to any revisions they might include in such an amended complaint, nor did they submit a proposed amended complaint or file a motion for leave to amend. While we “ordinarily hesitate before affirming a final judgment of dismissal when the plaintiff seeks leave to amend,” in this case, any amendment with respect to plaintiffs’ federal 24 No. 15 1791 D. State Law Claims We close with a brief word on plaintiffs’ claims under the state Ethics Act. The district court declined to exercise supple mental jurisdiction over these claims, as is expressly permit ted under 28 U.S.C. § 1367(c) (“The district courts may decline to exercise supplemental jurisdiction over a claim … if … (3) the district court has dismissed all claims over which it has original jurisdiction[.]”). The usual practice in this circuit is for district courts to “dismiss without prejudice state supplemental claims when ever all federal claims have been dismissed prior to trial.” Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); see also Al’s Service Center v. BP Products North America, Inc., 599 F.3d 720, 727 (7th Cir. 2010) (“When all federal claims in a suit in federal court are dismissed before trial, the presumption is that the court will relinquish federal jurisdiction over any supplemental state law claims, which the plaintiff can then prosecute in state court.”) (citations omitted). Plaintiffs offer no argument in their appellate brief to jus tify a departure from this usual course, and they certainly do not show that the district court abused its discretion. On the contrary, the court might well have abused its discretion if it had retained jurisdiction over a strictly state law claim in an area where important state policy goals may conflict. Whether a lawsuit like the Due Process Suit, filed by state policymak claim would be futile. See Doermer v. Callen, 847 F.3d 522, 528 (7th Cir. 2017); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (despite liberal pleading standard of Federal Rule of Civil Procedure 15(a), courts may deny leave to amend where amendment would be futile). No. 15 1791 25 ers, should qualify as protected activity under the Illinois Eth ics Act, and whether these policymakers should be entitled to recover for their allegedly retaliatory discharge, are questions better left for Illinois courts to resolve. See § 1367(c)(1) (providing that district courts may decline to exercise supple mental jurisdiction over a claim that raises a “novel or com plex issue of State law”). The judgment of dismissal is AFFIRMED.


After Jorge L. Molina-Gomez was indicted for “possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S. Code § 841(a)(1) & (b)(1)(A)(i)”, he filed a motion to suppress the heroin. U.S. v. Molina-Gomez, 781 F.3d 13 (U.S. Court of Appeals for the 1st Circuit 2015).
On August 6, 2012, at approximately 11:00 p.m., Molina arrived at the Luis Muñoz Marín International Airport in San Juan, Puerto Rico, via Panama, after a five-day trip to Colombia. This was the third time in four months in which Molina had taken a short trip to Colombia, a known source of illegal narcotics. As a result, the [Customs and Border Protection (“CBP”)] computer system flagged Molina for questioning.
Upon deplaning, Molina was referred to secondary inspection, where he claimed one carry-on bag, one computer case holding an ACER laptop computer, and one small bag containing a Sony Playstation. The carry-on bag contained personal belongings, three cell phones, and a Western Union money gram in the amount of one million Colombian pesos (approximately $560) sent to Molina at the Hotel Galaxy the day after he arrived in Colombia by a Colombian man named Rodolfo Trochez Sardí.
In response to the CBP officers' questions, Molina explained he traveled to Cartagena, Colombia, for four days to visit a friend, `Camilo,’ whom he met through another friend named Cynthia. He stated that he purchased his ticket for $500 on the COPA Airlines website using a credit card, but that he did not have the credit card with him. Molina told the CBP officers that while in Colombia he stayed at the Hotel Galaxy and did not leave his hotel room, but rather just ate and played games on his Playstation.
answers raised the CBP officers' suspicions, and further questioning and investigation revealed problems with Molina's story. For example, Molina did not know either Camilo or Cynthia's last name. And, contrary to his assertion, Molina did not purchase his plane ticket online via credit card, but rather it was purchased in cash at a Cali, Colombia travel agency. Indeed, all three of Molina's Colombian trips were booked with cash through this travel agency.
Molina was then escorted to a small (approximately ten-foot-by-ten-foot), windowless room containing one desk where he was patted down and subjected to further secondary questioning. He was in this room for approximately two hours and was asked about his trip to Colombia, his intentions upon reentry, and drug trafficking generally. The record is unclear as to what specifically the CBP officers asked and what Molina's responses were. He did, however, tell the officers that he had to work the following morning at 8:00 a.m., and he denied any involvement in drug trafficking.
While this questioning was ongoing, other CBP officers were inspecting Molina's belongings. They X-rayed his laptop, Playstation, and three cell phones and saw no contraband. They also confirmed that the electronics were all operational, but noted that while the laptop turned on, it contained no data despite being an older model.
A review of the three cell phones showed text messages from Camilo, Sardí, and numerous unidentified others. These text messages involved money transactions totaling approximately $8,000 and referenced money Molina had already received and money he would receive once he arrived in New York. The phones also revealed a confirmed plane ticket from San Juan to New York for 9:35 the following morning, contradicting Molina's statement to CBP officers that he would be working in San Juan at 8:00 a.m.
[g]iven all of these red flags, the officers suspected Molina was smuggling narcotics. Because the pat-down yielded no results and the X-ray of Molina's electronics came back negative, the officers were concerned that Molina was carrying drugs internally.
They explained the situation to Molina, and he voluntarily consented to a medical exam. At around 1:45 a.m., Molina was taken, in shackles, to San Gerardo Hospital. An X-ray exam was inconclusive, so a CT scan was performed and his bowel-movements were monitored. These tests confirmed that there were no foreign objects inside Molina's body. Later that day, at around 6:00 p.m., he was released from the hospital and transported back to the airport.
Upon returning to the airport, Molina was released by CBP and allowed to enter the United States. He was given all of his belongings except for the laptop and Playstation, which were detained for further examination by the CBP Forensics Laboratory because a dog-sniff `showed interest’ in the laptop. Molina was given a pamphlet explaining the electronic-device detention process and whom to contact to inquire about the property.
the laptop and Playstation were received by the CBP Forensic Lab. The detention ticket indicated that the detention was for `data extraction’ but this was in error, as the electronics were detained in order to be searched for hidden contraband. Indeed, no data extraction was ever conducted. Beginning on August 11, Molina started calling the CBP to inquire about the status of his electronics and when they would be returned. On August 24, a CBP forensic chemist disassembled the electronics and found black bags hidden inside sophisticated compartments of both the laptop and Playstation. The bags' contents tested positive for heroin -- 511 grams in the laptop and 1.05 kilograms in the Playstation.
CBP, in coordination with ICE, called Molina to inform him that his electronics could be picked up at the airport. When Molina arrived later that day, he was arrested by ICE agents. The agents read Molina his rights, which Molina subsequently waived. He confirmed that he owned both the laptop and the Playstation, that he took them to Colombia and intended to return with them, that he had planned to travel to New York the morning after he returned to Puerto Rico but never did so, and that his trip to Colombia and New York were paid for by Sardí.
U.S. v. Molina-Gomez, supra (quoting U.S. Const. amendment IV).
well established . . . that `the 4th Amendment's balance of reasonableness is qualitatively different at the international border than in the interior’ due to the `longstanding concern for the protection of the integrity of the border.’ U.S. v. Montoya de Hernández, 473 U.S. 531 (1985). This concern is, `if anything, heightened by the veritable national crisis in law enforcement caused by smuggling of illicit narcotics.’ U.S. v. Montoya de Hernández, supra. As a result, there is a recognized `border search exception’ to the warrant requirement. See U.S. v. Ramsey, 431 U.S. 606 (1977). . . . International airports such as the Luis Muñoz Marín International Airport are the `functional equivalent’ of an international border and are thus subject to this exception. U.S. v. Robles, 45 F.3d 1 (U.S. Court of Appeals for the 1st Circuit 1995).
`[r]outine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.’ U.S. v. Montoya de Hernández, supra. . . . These searches `are reasonable simply by virtue of the fact they occur at the border.’ U.S. v. Flores–Montano, 541 U.S. 149 (2004) (quoting U.S. v. Ramsey, supra). Non-routine searches, by contrast, require reasonable suspicion. U.S. v. Montoya de Hernández, supra. . . .
Though there is no hard-and-fast rule, and the Supreme Court has cautioned against `[c]omplex balancing tests,’ U.S. v. Flores-Montano, supra, whether a search qualifies as `routine’ or `not routine’ often depends on the `degree of invasiveness or intrusiveness associated with’ the search. U.S. v. Braks, 842 F.2d 509 (U.S. Court of Appeals for the 1st Circuit 1988) (listing numerous factors to consider). For example, searches that are `highly intrusive searches of the person,’ U.S. v. Flores–Montano, supra, such as strip searches and body cavity searches, have been deemed to be non-routine. . . .
So have searches of property that are `destructive,’ U.S. v. Flores–Montano, supra, such as drilling a hole in a metal cylinder. U.S. v. Robles, supra. By contrast, pat-downs, searching luggage inside an aircraft's cargo hold, opening bottles of liquor and testing the contents, and removing, disassembling, and reassembling a fuel tank without causing damage have all been deemed routine searches.
Molina argues that the search of his laptop and Playstation that led to the discovery of the two heroin bags constitutes a non-routine and unreasonable search. However, he is unable to point to any specific act that is either non-routine or unreasonable.
Instead, his argument seems to be that because the initial X-ray and search of his laptop and Playstation turned up negative, and because his eighteen-hour detention at the hospital (to which he consented) showed that he was not carrying drugs internally, it was therefore unreasonable to detain his laptop and Playstation for further testing. And, even if it was reasonable to further detain the electronics initially, he contends, the detention became unreasonable during the twenty-two days they were at the CBP lab.
The government, for its part, counters that the search qualifies as a routine border search and thus no suspicion at all -- let alone reasonable suspicion -- was necessary, but even if reasonable suspicion was necessary, that standard was satisfied.
[w]e need not categorize the search as either routine or non-routine because we agree with the government that even assuming the search was non-routine, reasonable suspicion existed to justify the search. Reasonable suspicion exists when agents `demonstrate some objective, articulable facts that justify the intrusion as to the particular person and place searched.’ U.S. v. Robles, supra (quoting U.S. v. Uricoechea-Casallas, 946 F.2d 162 (U.S. Court of Appeals for the 1st Circuit 1991); see also Montoya de Hernandez, supra (describing reasonable suspicion as a `common-sense conclusio[n] about human behavior upon which practical people, -- including government officials, are entitled to rely’) (quoting New Jersey v. T.L.O., 469 U.S. 325 (1985)).
[s]uch objective, articulable facts are present here. First, this was Molina's third trip in four months (each only for a matter of days) to Colombia, a country known for its connection to drug smuggling.
Second, Molina gave odd and suspicious answers to routine Customs questions. These answers ranged from highly dubious—(1) he could not remember the last name of either the friend he was visiting (Camilo) or the friend who introduced them (Cynthia); and (2) all he did while in Colombia was stay in the hotel and play with his Playstation—to assertions proven to be flat-out lies—(3) he claimed to have purchased his ticket online with a credit card but in actuality paid for it in cash at a travel agency; and (4) he claimed to be working in Puerto Rico the next morning but in fact had a confirmed flight to New York City.
Third, his laptop was old and operational, yet it contained no data. Finally, his phones contained text messages involving prior and future money transactions. Taken together, these facts easily give rise to a reasonable suspicion that Molina was attempting to smuggle narcotics. See U.S. v. Robles, supra (reasonable suspicion existed where a metal machine part of no commercial value was shipped `from Colombia—a known source country for narcotics’ to a residence in the United States at a cost higher than its worth, without insurance); U.S. v. Lamela, 942 F.2d 100 (U.S. Court for the 1st Circuit 1991) (finding reasonable suspicion where defendant, among other things, `was a passenger aboard an international flight originating in Colombia’ and `gave inconsistent responses to routine questions relating to the purpose of his travel’). . . .
initial X-ray of the electronics and the X-ray, CT scan, and bowel monitoring of Molina came up negative in no way alters this conclusion or transforms a legitimate and proper search into an unreasonable one. `Authorities must be allowed “to graduate their response to the demands of any particular situation,”’ Montoya de Hernández, supra . . . (quoting U.S. v. Place, 462U.S. 696 (1983)), and that is precisely what the CBP officers did here. The officers had reasonable suspicion that Molina was smuggling drugs; they just did not know where the drugs were hidden. There is nothing unreasonable about the officers shifting their attention back to the electronics and giving them a more in-depth look once they were satisfied that the drugs were neither on nor in Molina's body. To the contrary, this approach is eminently reasonable when one considers that a dog-sniff conducted while Molina was at the hospital showed interest in his laptop.
unreasonable during the twenty-two days the electronics were detained. The Supreme Court has `consistently rejected hard-and-fast time limits,’ instead placing an emphasis on `”common sense and ordinary human experience.”’ Montoya de Hernández, supra (quoting U.S.v. Sharpe, 470 U.S. 675 (1985)). . . . Though twenty-two days does seem lengthy, it is not unreasonable under these circumstances.
We will not second-guess the techniques used by the CBP lab and require that a faster alternative -- which could have damaged the electronics during the disassembly and reassembly process, could have put an unnecessary budgetary and workload strain on the lab, or could even have failed to detect the expertly hidden heroin -- be employed. See Montoya de Hernández, supra (`[C]ourts should not indulge in “unrealistic second-guessing,”’ . . . ‘[T]he fact that the protection of the public might . . . have been accomplished by ‘less-intrusive’ means does not, in itself, render the search unreasonable’ (quoting U.S. v. Sharpe supra . . . .). Thus, the search of Molina's laptop and Playstation did not violate his 4th Amendment rights.
For these and other reasons, it affirmed the District Court Judge’s denial of his motion to suppress the drugs found in his electronic devices. U.S. v. Molina-Gomez, supra.
Earlier this year in Houston, a private security video recorded an unknown individual approaching a commercial business location on foot, holding a wireless device to his ear. A minute later he lowered the device from his ear, pausing to look at it before putting it in his pocket. He then entered the business, committed a crime, and fled the scene minutes later. The relevant portion of the video-recorded sequence is about 6 minutes long.
The Government seeks historical cell-tower log information from the towers in the vicinity of the business while the crime was in progress. These records may include the telephone call numbers and unique identifiers for any wireless device communicating via that tower; the source and destination telephone numbers for those communications; the date, time and duration of each communication; the tower sector handling the radio signal; and the type of communication (such as phone call or text message). The Government also seeks subscriber account information for the telephone numbers revealed by the cell tower log. The request does not seek precise location data, nor does it seek to track the movements of a particular cell phone over time.
In re Application for Cell Tower Records, supra.
[o]n February 10, 2015 the Government filed this application under section 2703(d) of the Stored Communications Act seeking somewhat unusual authority -- an order compelling seven different cell phone service providers to release historical cell tower data for specific towers providing service to a crime scene within Houston city limits at the hour of the crime.
What is unusual is that, unlike most requests for account records under the SCA, the targeted account is not specified; neither the phone number nor the identity of the phone's subscriber or customer are currently known to law enforcement. By obtaining the records of all wireless devices using a nearby tower at the time of the crime, the Government hopes to identify the particular device used by the suspect and any confederates, and ultimately to enable their capture and arrest.
granted the application, but modified the requested time window from one hour to ten minutes. Because there is contrary authority in this district as to the propriety of such orders (sometimes called `cell tower dumps’) under the SCA, the court issues this opinion to explain its rationale.
[f]ew published opinions treat the subject of cell tower dumps. Three such opinions were issued by my colleague in Corpus Christi, Magistrate Judge Brian Owsley. In re Application for an Order Pursuant to 18 U.S.C. § 2703(D), 964 F.Supp. 2d 674 (U.S. District Court for the Southern District of Texas 2013); In the Matter of the Search of Cellular Telephone Towers, 945 F.Supp.2d 769 (U.S. District Court for the Southern District of Texas 2013); In re Application for an Order Pursuant to 18 U.S.C. § 2703(D), 930 F.Supp. 2d 698 (U.S. District Court for the Southern District of Texas 2012).
The gist of these decisions is that (1) as a constitutional matter, the records sought are protected by the 4th Amendment, and therefore a warrant based on probable cause is required to access them; and (2) as a statutory matter, the Stored Communications Act (`SCA’) does not authorize this type of request.
[m]ore recently, a magistrate judge in New York reached the opposite conclusion on both the constitutional and statutory issues. In the Matter of Application For an Order to Disclose Cell Tower Log Information, 2014 WL 4388397 (U.S. District Court for the Southern District of New York May 30, 2014) (Magistrate Judge James Francis IV).
As explained below, I am constrained by binding 5th Circuit authority to agree with Judge Francis on the 4th Amendment question. As for the matter of statutory interpretation, I concur with Judge Francis's analysis and conclude that the SCA authorizes the compelled disclosure of cell tower log data.
tower dump opinions by Judge Owsley were issued before the 5th Circuit decided In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (U.S. Court of Appeals for the 5th Circuit 2013). In a 2–1 opinion, that 5th Circuit panel held that orders for historical cell site records under the SCA did not `categorically’ violate the 4th Amendment.
In re Application for Cell Tower Records, supra (emphasis in the original). As Wikipedia explains, appeals in the U.S. Courts of Appeals are “almost always heard by a `panel’ of three judges who are randomly selected from the judges” in that circuit.
panel majority emphasized that its decision was a narrow one, and among other things expressly declined to address `orders requesting data from all phones that use a tower during a particular interval.’ In re Application of the United States for Historical Cell Site Data, supra. Even so, the 5th Circuit's reasoning leaves no doubt that the cell tower logs requested here would likewise be categorized as ordinary business records entitled to no constitutional protection. Unlike call location records, no federal statute confers upon the customer any proprietary rights in her cell phone number or account information.
Having disregarded the customer's statutorily-conferred proprietary rights in location records held by the provider, there is no reason to believe the 5th Circuit would rule differently for records such as these, which are not the property of the customer. If the customer has no reasonable expectation of privacy in call location records, it follows a fortiori that he has no reasonable expectation of privacy in his phone number or account records.
The net effect is that the 4th Amendment ground for Judge Owsley's rulings on cell tower dumps has been cut away, at least for the time being, in this circuit. We now turn to the statutory ground for these rulings.
In the usual § 2703(d) application, the Government requests account records associated with a particular phone number, or the name of a particular subscriber or customer, or both. This typically results in the production of a set of records pertaining to a single account. Here, by contrast, the `selector’ is the cell tower in contact with all mobile devices at a given time, which might retrieve several thousand phone numbers in a metropolitan area like Houston. The question arises whether or not the SCA contemplates a single order compelling access to records from multiple accounts.
However, this argument is effectively refuted by the Dictionary Act, which instructs courts that `[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise, words importing the singular include and apply to several persons, parties or things; [and] words importing the plural include the singular. . . .’ 1 U.S.Code § 1. Thus the default rule of interpretation is to include both singular and plural, absent a contrary indication in the statute.
18 U.S. Code § 2703(d) (emphasis added). But this passage does not limit a records request to a single account or phone number. To the contrary, the reference to `unusually voluminous’ requests implies that a merely `voluminous’ request, perhaps encompassing multiple accounts, is within the contemplation of the law.
the court's power to quash a voluminous request is triggered by `a motion made promptly by the service provider,’ suggesting that the initial judgment about what is too voluminous is the provider's call, not the court's. To be sure, the court has inherent power to limit the scope of the tower dump based on 4th Amendment privacy concerns, but again, the Fifth Circuit has found no reasonable expectation of privacy in cell site records.
A court could also limit the temporal scope of the tower dump based on the Government's threshold showing of the `specific and articulable facts’ required by § 2703(d). For that very reason, I have reduced the relevant time window here from one hour to ten minutes. These considerations do not defeat or undermine the Government's position that at least some volume of multiple account records is accessible under a single § 2703(d) order.
Accordingly, I concur with Judge Francis that the SCA authorizes law enforcement access to cell tower logs and associated account information.
to avoid possible misunderstanding. This holding has no application to a related though very different investigative technique using a device known as a cell site simulator, sometimes referred to as a `StingRay.’ Like a cell tower dump, the StingRay device may be used to discover telephone and other identification numbers of wireless devices in a given location.
However, there are several critical differences: (1) the device is deployed by law enforcement, not the provider; (2) the information obtained is transmitted in real time directly to law enforcement, not retrospectively via the provider's records; and (3) the device allows continuous real time tracking of the wireless devices in contact with it.
is little reported case law considering the governing statutory authority for law enforcement's use of a StingRay device. In the only reported case from this district, Judge Owsley denied the government's application to authorize such a device under the Pen/Trap Statute. In re Application for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, 890 F.Supp.2d 747 (U.S. District Court for the Southern District of Texas 2012). Law enforcement had intended to use the device to identify the telephone number of a cell phone used by a suspected drug dealer.
But as Judge Owsley persuasively observed, the Pen/Trap Statute requires that a pen/trap order must specify in advance `the number or other identifier’ of the targeted phone, in contrast to other information which need be specified only `if known.’ In re Application for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, supra. In other words, Congress did not contemplate that a pen/trap order could be used to discover the phone number of the target phone.
Another case suggests that a mobile tracking device warrant under Rule 41 of the Federal Rules of Criminal Procedure is the proper procedure for a cell site simulator, at least when the device is used to track the location of a target device. See U.S. v. Rigmaiden, 844 F.Supp.2d 982 (U.S. District Court for the District of Arizona 2012). The defendant, a fugitive charged with identity theft, was located by a cell site simulator that `mimicked a Verizon Wireless cell tower and sent signals to, and received signals from, the aircard’ connected to his laptop computer. U.S. v. Rigmaiden, supra. The government had obtained a Rule 41 mobile tracking device warrant for the cell site simulator, and conceded for purposes of [his] motion to suppress that `the aircard tracking operation was a 4th Amendment search and seizure.’ U.S. v. Rigmaiden, supra.
authorize the use of a cell site simulator, and for good reason. The SCA is a record production regime, authorizing one-time access to account records in the hands of the provider, as opposed to the continuous real-time monitoring that a StingRay entails. See, generally, In re Order Authorizing Prospective and Continuous Release of Cell Site Location Records, 31 F.Supp.3d 889 (U.S. District Court for the Southern District of Texas 2014) (`Congress never intended the Stored Communications Act to govern ongoing surveillance’).
Thus, even though the StingRay and the tower dump may both ultimately yield the same information -- the number or identifier of the cell phone used by a criminal suspect -- the manner of acquiring that information is very different, and entails a very different legal analysis. For all these reasons, the fact that a cell tower dump may be authorized by the SCA does not imply that a cell site simulator is likewise authorized under the SCA.
In re Application for Cell Tower Records, supra. He therefore granted the govrnment’s application. In re Application for Cell Tower Records, supra.
Laura Pauley Perrette and [Shivers] were divorced in 2004, and Perrette obtained a restraining order against [him] in 2006. The order prohibited [Shivers] from, inter alia, harassing, threatening, following, stalking, molesting, or disturbing the peace of Perrette, and from coming within 100 yards of her.
Perrette and Arklie testified [Shivers] got within eight inches to one foot from Perrette's face, and smirked and smiled. Perrette became very upset, shrunk into her chair, and covered her face with her hands. [Shivers] pulled out his cell phone, held it out towards Perrette, and walked backwards while appearing to use the phone's video function. Arklie stood up from where he was seated, got in front of the table, and positioned his body to block [Shivers’] view of Perrette. Arklie, who was about 12 feet away from where defendant was holding his phone, stood next to the table, and told [Shivers], `You are not allowed to do that here.’ Arklie held his hand up in front of his face to avoid being taped. He denied threatening or assaulting [Shivers].
As [Shivers] backed away, pointing his camera in Perrette's direction, he screamed, `I have a restraining order against her. I have a restraining order against her.’ Video captured by [his] camera phone was taken from near the restaurant's entrance, and it showed the table where Perrette and Arklie were sitting. On the video, [Shivers] pointed to the table and stated, `He just threatened me. He just came at me threatening me.’ Gomes responded, `I know, I saw.’ [Shivers] asked, `You saw?’ to which Gomes responded, `Yeah.’ [Shivers] shouted, `Could you tell the manager here that I have a restraining order on that other person,’ and `He just came at me threatening me.’ Patrons . . . turned around to see why [Shivers] was shouting. Perrette was extremely embarrassed by the commotion. Perrette called 911 to report a violation of the restraining order. Prior to the police arriving, [Shivers] left the restaurant.
[w]ith regard to the Penal Code § 653.2 charge, Perrette testified that, starting a few years prior to 2012, [Shivers] began posting comments about her on his Twitter website. Perrette was an actor on the CBS television series `NCIS,’ and persons who searched `# NCIS’ or Perrette's name on Twitter would find [Shivers’] posts. [He] repeatedly posted messages, or `tweeted,’ that Perrette `stalked’ him and made death threats against him, although Perrette had not done so. [Shivers] also falsely tweeted he had `restraining orders’ against her.
Regarding the restraining order charge, [he] contends the court misinstructed the jury, erroneously failed to instruct sua sponte on self-defense, and erred in answering the jury's question. Concerning the harassing message charge, [Shivers] contends there was insufficient evidence presented at trial, and the court failed to properly instruct the jury on the elements of the offense.
contends the court failed to correctly instruct the jury concerning the elements of Penal Code § 273.6, subdivision (a). `The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law [citations omitted]. . . .’ (People v. Posey, 32 Cal.4th 193, 218 (California Supreme Court 2004).
People v. Shivers, supra. As Wikipedia explains, in U.S. jury trials the jurors are the finders of fact, i.e., they decide whether the facts proven by the evidence introduced at trial “prove” one or all of the elements of the crime(s) with which a defendant is charged. To assist them in that process, the trial judge “instructs” the on the applicable law, by giving them oral (and usually written) instructions on the relevant law. As this site explains, in a criminal trial the prosecutor and defense attorney can each ask the judge to submit certain instructions, which they have drafted and submitted for the judge’s consideration. But judges can also submit instructions on their own; Shivers seems to be arguing that this judge failed to sua sponte submit certain instructions concerning the violation of a restraining order charge. People v. Shivers, supra.
`Penal Code § 273.6, subdivision (a), provides it is a misdemeanor for a defendant to commit “Any intentional and knowing violation of a protective order. . . .” The court provided the jury with an instruction based on CALCRIM No. 2701. The court instructed that the People had to prove: `One, a court issued a written order that the defendant stay 100 yards away and must not harass, follow, disturb the peace, keep under surveillance, contact, telephone, or send messages or mail or email or take any action to obtain the location of the protected person. [¶] . . .
a violation of the restraining order could have occurred even if [Shivers] had not videoed Perrette. [He] could have been convicted based on coming within eight inches to one foot of her, or disturbing her peace by falsely shouting in the restaurant that he had `a restraining order against her.”’ Moreover, there was no requirement the People needed to show [he] knew his acts were unlawful. The requirement in Penal Code section 273.6, subdivision (a), that a defendant commit a `knowing violation of a protective order’ only refers to the requirement the defendant must know the order exists and be aware of what it states. (See People v. Saffell, 74 Cal.App.2d Supp. 967 (California Court of Appeals 1946).) Penal Code § 273.6 requires only general criminal intent (see People v. Greenfield, 134 Cal.App.3d Supp. 1 (California Court of Appeals 1982)), meaning a violation may be proved by showing [Shivers] knew of the contents of the order, and intended to do a proscribed act, such as harassing, disturbing the peace, or coming within 100 yards of Perrette.
The People and [Shivers] stipulated at trial the restraining order was in full force and effect on the night of the incident, and that [he] had knowledge of the existence of the order. The court therefore did not err in instructing the jury that one of the elements of the offense was that `the defendant knew of the court order,’ and that the People had to prove this element.
People v. Shivers, supra. For these and other reasons, the court affirmed Shivers’ conviction for violating California Penal Code § 273.6(a). People v. Shivers, supra.
person is guilty if he or she electronically distributes a harassing message `which would . . . likely . . . incite or produce’ the third party's action. [Shivers’] reading of the statute eliminates the modifier `likely,’ and would criminalize the proscribed acts only if a person's message `incite[d] or produce[d]’ unlawful action. `”[A] statute should not be given a construction that results in rendering one of its provisions nugatory. . . . If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.”’. . . (People v. Hicks, 6 Cal.4th 7840 California Supreme Court 1993)) The plain meaning of the words used reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person's electronic distribution of a message. The only requirement is that a defendant's message is likely to incite or produce third party actions.
People v. Shivers, supra (emphasis in the original).
circumstantial evidence was sufficient to permit a reasonable trier of fact to conclude defendant acted with intent to incite or produce unlawful action by a third party who read his messages. [Shivers] electronically distributed messages about Perrette using Twitter, which, as shown by the evidence at trial, is a public social networking website on the Internet where users can write and respond to short messages. Twitter constituted an `electronic communication device’ within the meaning of the prohibited communications statute. (See California Penal Code § 653.2(b)) [including Internet web pages and websites within the definition of `electronic communication device’].) The evidence showed a person's tweets posted on Twitter can be read by the public and spread to the websites of other Twitter users by being retweeted, so that a single tweet may be repeated and disseminated throughout numerous web pages accessible to the public.
posted messages on Twitter such that persons searching for Perrette's name could find his tweets. Also, by using a hashtag for the show (`# NCIS’) and the location (`# Cahuenga’), third parties searching on Twitter would also come across defendant's tweets. Several of the tweets were made in response to persons who had read defendant's tweets, and other tweets had been retweeted by third parties, indicating to defendant that third parties were accessing the information he posted and his tweets were being disseminated.
The tweets leading up to the ones posted on July 4 and July 8, 2012, falsely indicated that [he] had a restraining order against Perrette and that she was stalking him and making death threats against him. The July 4 and July 8, 2012 tweets referenced the area of Cahuenga where Perrette lived. These tweets also referred to Perrette as defendant's `stalker,’ and requested that readers `call LAPD!!!’ and `report her to LAPD immediately!’ if they saw her following him in the area.
[i]t can be inferred [Shivers] knew that persons who encountered Perrette after reading his tweets could have been motivated to report her to the police for what they believed was her stalking him, or to otherwise harass her. (See California Penal Code § 653.2(c)(1) [defining `harassment’ as `conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person’].) Given the nature of Twitter and the provocative contents of [Shivers’] tweets, a reasonable trier of fact could conclude [he] posted his tweets with the specific intent to incite or produce unwanted physical contact, injury, or harassment at the hands of a third party.
People v. Shivers, supra. For these and other reasons, the Court of Appeals affirmed Shivers’ convictions. People v. Shivers, supra.
Bank Fraud, PayPal and "Loss"


Nearly 100 years ago, U.S. Supreme Court Justice Holmes wrote “Men must turn square corners when they deal with the Government.” Rock Island, Ark. & LA RR Co. v. United States, 254 U.S. 141, 143 (1920). About ten years later, 10th Circuit Judge McDermott added the statement that “The Government ought to turn square corners when dealing with its citizens.” Howbert v. Penrose, 38 F. 2d 577, 581 (10th Cir. 1930). The “square corners” doctrine stands for fairness and full compliance with required procedures and due process. We recently got a whiff of this requirement in Judge Timothy J. Kelly’s (D.C. District Court) ruling on a temporary restraining order that required the White House to restore CNN reporter Jim Acosta’s “hard pass” allowing him entry into the White House. The White House had summarily removed the pass because of a verbal tiff between the President and Acosta at a press conference on November 7, 2018. Judge Kelly ordered the pass to be temporarily restored because the White House did not provide Acosta with the due process required by the 5th Amendment to legally revoke his press pass. “Adequate due process “must include notice, an opportunity to rebut the government’s reasons and a written decision.” CNN v. Trump et al, DDC No. 1:18-cv-02610-TJK (Motion Hearing, at 9), citing Sherrill v. Knight, 569 F.2d 124 (DC Cir. 1977). But we find these types of problems in much more mundane government contract issues, such as the government’s withholding of money owed to a contractor. CB&I Areva Mox Services, LLC v. United States, Fed. Cl. No. 16-950C et al, Nov. 9, 2018 (hereafter “Mox Services”).
Mox Services had a cost reimbursement subcontract involving construction and operations at the Department of Energy’s (“DOE”) Savannah River Nuclear Site. Mox and other subcontractors had overhauled its employees’ titles, duties and, in the case of 55 employees, their compensation rates billed to DOE. The prime contractor did not notify DOE of the increased salaries, which occurred in 2015. In 2016, DOE conducted a labor verification for Mox, discovered that certain employee billing rates had changed and demanded certain supporting materials to permit DOE to make a cost-allowability decision, granting Mox only 6 days to provide the data. DOE alerted Mox that if the additional documentation was not provided in that time frame, the “Agency would take appropriate action…to protect the Government’s interest.” Four days after the due date, because it did not receive the data, DOE began to withhold 2 percent of the total direct labor expenses, totaling $1.1 million.
Mox submitted a certified claim for the $1.1 million, asserting that DOE did not follow the formal “disallowance procedure” set forth in FAR 42.801 and the DOE Acquisition Regulation, 48 CFR § 942.803. In order to disallow costs, the contracting officer must provide official notice of the intent to disallow the disputed amount. 48 CFR § 942.803(a)(2). DOE never issued proper notice of its intent to disallow. (Agencies are required to follow such regulations in administering contracts. See Spherix, Inc. v. United States, 58 Fed. Cl 351, 355-56 (2003)). The Court rejected as notice the “imprecise phase” that DOE used—“take appropriate action,” because it did not convey to Mox that DOE intended to disallow costs.
The Takeaway: Both contractors and the Government must “turn square corners” in the execution of contracts. Of course, contractors must follow the FAR and agency regulations precisely. But the Government must also faithfully follow its own applicable rules and regulations. The failure to grant a contractor all of the due process that exists in the FAR and DOE Acquisition regulation will not be overlooked by the courts.


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Your company provides services or products in the European Union? You digitally monitor the behaviour of people in the EU but do not have a corporate office in the EU?
In this case, the European General Data Protection Regulation (GDPR) requires that you appoint a representative in the Union as the contact person for all questions on data protection from EU citizens and data protection supervisory authorities.
As your representative in the Union we will be the contact person for your customers (“data subjects”) in all European countries for all privacy issues.
Your EU representative will be legally appointed to represent you as the “controller” when dealing with data protection supervisory authorities in the EU.
We will establish and maintain your records of processing activities together with you. If requested, we will provide these records to authorities.
Our consultants and lawyers have many years of experience in data protection.
At our law firm, we speak ten languages and know the data protection laws of many EU countries in detail.
You can book a certain number of data protection inquiries made by your clients or supervisory authorities for a fixed monthly rate (flat rate).
Number of processing-activities records to be reviewed, updated or created.
First, we will evaluate all personal data processing and the relevant documents in your company.
In a preliminary discussion (via teleconference), our experts will brief your management and other supervisors about data processing in accordance with the GDPR.
Then, based on your information, we will create/optimise all the necessary records of processing activities for your business.
As soon as these mandatory preparations have been completed, our work as your EU representative begins.
If you would like to appoint a data protection expert from activeMind.legal as your representative in the European Union, please send us the following information, and we’ll send you with a non-binding offer!
Please note that we only answer fully completed inquiries!
Yes, my company provides services or goods in Germany.
Please provide us with any additional information below that we could utilise to provide you with a more-concise offer that best fits your data protection needs.
Which companies need a representative in the European Union?
Companies that do not have an office in the EU yet provide their products or services within the European Union must appoint a representative in the Union if they process personal data (GDPR Art. 27(1)).
The GDPR extends its ‘territorial scope’, i.e. its scope of application, to controllers and processors having their registered office in a country outside of the EU. Moreover, the GDPR applies to the processing of personal data of individuals residing in the EU, regardless of their nationality (GDPR Art. 3(2)). It is thus irrelevant where the company is located and where the processing takes place as long as the processed data pertains to individuals residing in the EU. It is also important to remember that the rules apply to both controllers and processors of personal data, e. g. cloud providers will not be exempt from the enforcement of GDPR.
A non-EU-based company (i.e. without a corporate office in the EU), which intends to offer products, goods or services to ‘data subjects’, i.e. an identified or identifiable natural person, in one or more EU countries, needs to fulfil the requirements stated in the GDPR. Even free services are covered by this regulation.
The same applies to non-EU-based companies that monitor the behaviour of EU residents (e.g. by creating a profile), in so far as their behaviour takes place in the EU. Monitoring includes the tracking of individuals online to create profiles, including where this data is used to make decisions about these individuals or to analyse or predict their personal preferences, behaviours and attitudes. However, the mere accessibility of a company’s website in the EU may not necessarily fall within this scope (GDPR Retical 23).
The EU-based representative serves as the first point of contact with your business for data subjects and the data protection supervisory authorities. Thereby enforcement of the GDPR shall be guaranteed. The designation of the representative shall be without any prejudice to legal actions that can be taken against a respective controller or processor.
Are there any exemptions to the obligation of appointing an EU representative?
The GDPR includes exemptions to the obligations of appointing a representative for controllers or processors not based in the EU.
the processing is unlikely to result in a risk to the rights and freedoms of data subjects.
It is important to know that the controller/processor must fulfil all these conditions in order to be exempt from the obligation to appoint a representative.
Public authorities or bodies are generally exempt from the requirement in Article 27.
Who can be appointed as a representative in the Union?
Any natural or legal person who resides in one of the Member States can be appointed as a representative in the Union for a non-EU-based company (GDPR art. 4 (17)).
The representative must have a business or personal residence in the EU. Further, the representative’s residence must be in one of the EU Members State where the data subjects whose personal data the company processes are located (GDPR Art. 27(3)). Companies processing personal data in different Member States will therefore have a range of countries to choose from. The wording of the provision is clear, as it requires the representative to be located in ‘one of the Member States’.
With respect to the tasks of the representative, it is advisable to consider a representative who is not only appropriate for the company but also has a broad understanding of legal and technical data protection issues. It is also important to bear in mind that a controller or processor is not in compliance with the legal requirement to appoint a representative in the Union if the representative is unfit to fulfil the respectively assigned obligations according to the GDPR.
Since the EU-based representative serves as the contact person for all issues related to the company’s processing of personal data under the GDPR, he or she must be in a position to communicate effectively with data subjects and to cooperate effectively with the relevant data protection supervisory authorities. This means that communication must take place in the language(s) used by the data subjects and the data protection supervisory authorities.
How should the EU representative be appointed?
The appointment of an EU representative for companies without an office in the EU must be made in writing (GDPR Art. 27 (1)).
The written agreement or the contract should at least state the rights and obligations of the representative. An oral appointment of the representative is excluded.
What are the tasks of an EU representative?
The main job of the representative is to operate as the local liaison with the data subjects and the supervisory authorities. Thus, the representative acts on behalf of the controller or the processor with regard to their obligations under the GDPR.
This representation applies, for example, to the rights of data subjects (Chapter III of the GDPR) and the collaboration with the respective supervisory authorities with regard to any action taken to ensure compliance with this regulation (GDPR Recital 80 and Art. 31).
Additional tasks could include maintaining records of processing activities (GDPR Art. 30 (1) and (2)) and where applicable making the records available to the supervisory authority (GDPR Art. 30(4)).
The designation of an EU-based representative does not affect the responsibility or liability of the controller or of the processor under GDPR. Art. 27(4), which stipulates that the representative acts ‘in addition’ or ‘instead of’ the controller or processor when performing the obligations to data subjects or supervisory authorities. The appointment of a representative does not replace or limit the duties of the company located in a country outside of the EU.
To what extent can the representative be held liable?
The appointment of the representative in the Union is made without prejudice to legal actions which could be initiated against the controller or processer. They shall therefore be responsible to meet the regulatory obligations when processing personal data of EU residents.
A representative may be subject to enforcement actions by data protection supervisory authorities in the event of non-compliance by the controller (GDPR Art. 58). The representative may be requested by the supervisory authority to provide all the information necessary to fulfil his/her duties. If the requested information is not available to the representative, it must be obtained from the data controller/processor.

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WHAT: The U.S. Supreme Court will review application of the False Claims Act’s statute of limitations tolling provision (permitting suit up to 10 years) in qui tam actions where the Government declines to intervene, potentially resolving a three-way circuit split.
WHEN: The Court granted certiorari on November 16, 2018.
WHAT DOES IT MEAN FOR INDUSTRY: Under the False Claims Act (FCA), there are two statutes of limitations: (1) six years after the date of the violation or (2) three years after the date on which the responsible Government official learned or should have known of the relevant facts underlying the claim, but in no event more than ten years after the violation. Last week, the Supreme Court announced that it would review an Eleventh Circuit FCA decision that deepened the existing debate over the application of the tolling provision of the statute of limitations in these high-stakes matters. By granting cert in this matter, the Court has the opportunity to give much-needed certainty to those who regularly do business with the Government by resolving a three-way circuit split over a key issue—just how long can a relator wait to bring an action for fraud when the Government has not intervened?
In United States ex rel. Hunt v. Cochise Consultancy, Inc., 887 F.3d 1081, 1083 (11th Cir. 2018), the relator filed a qui tam action against The Parsons Corporation and Cochise Consultancy, Inc. for allegedly submitting false claims to the U.S. Department of Defense related to a contract to clear excess munitions in Iraq. The district court determined that the statute of limitations had expired. The relator had filed his action more than six years after the date of the alleged violation but within three years after he disclosed the violation to the Government. The district court held that the three-year statute of limitations does not apply in qui tam actions in which the Government has declined to intervene and dismissed the case.
On appeal, the U.S. Court of Appeals for the Eleventh Circuit reversed, holding that the three-year limitations period applies even where the Government declines to intervene. The Eleventh Circuit further held that “this period begins to run when the relevant federal government official learns of the facts giving rise to the claim, when the relator learned of the fraud is immaterial for statute of limitations purposes.” Under the Eleventh Circuit’s interpretation of the FCA, a relator may file a claim within three years of the date on which the Government first knows or should know of the alleged fraud—even if the relator has known of the alleged violation for much longer—as long as the filing occurs within ten years of the violation.
The Eleventh Circuit’s decision sets up a three-way split among the federal circuit courts. The Fourth, Fifth, and Tenth Circuits hold that a qui tam relator cannot take advantage of the three-year statute of limitations period if the Government does not intervene in the action. See United States ex rel. Sanders v. North American Bus Industries, Inc., 546 F.3d 288 (4th Cir. 2008); United States ex rel. Erskine v. Baker, 213 F.3d 638, 2000 WL 554644 (5th Cir. 2000); United States ex rel. Sikkenga v. Regence BlueCross BlueShield of Utah, 472 F.3d 702 (10th Cir. 2006). Those Courts maintain that Congress must have intended for the three-year period to apply only to the Government, as it relies on the Government’s knowledge of the facts supporting a claim for relief.
The Third and Ninth Circuits do permit a qui tam relator to use the three-year statute of limitations but hold that the limitations period begins to run when the relator, not the Government, knows or should know of the facts underlying the alleged fraud. See United States ex rel. Malloy v. Telephonics Corp., 68 F. App’x 270 (3d Cir. 2003); United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211 (9th Cir. 1996). The Ninth Circuit reasoned that nothing in the FCA statute of limitations “differentiates between private and government plaintiffs at all” and explained that qui tam relators “are merely agents suing on behalf of the government.” But acknowledging that tolling provisions are meant to trigger the statute of limitations once the plaintiff learns of the facts supporting its claim, the Ninth Circuit held that where the Government is not a plaintiff the three-year period must be triggered by the relator’s knowledge, not that of the Government.
The Eleventh Circuit rejected both of these existing interpretations of the FCA’s statute of limitations in permitting the Cochise Consultancy relator to proceed. Had the relator in that case brought his claim in any of the other five circuits that have addressed this issue, his claims would have been time barred. Recognizing that this multi-prong circuit split allows relators to forum-shop for the jurisdiction with the most advantageous statute of limitations, the defendants petitioned the Supreme Court to review the case and implement a uniform standard. The petition for cert is available here.
In reviewing the Eleventh Circuit’s decision, the Supreme Court has an opportunity to ensure that relators are encouraged to report violations as soon as possible. If they are permitted to toll the statute of limitations based on the Government’s knowledge, relators could instead be incentivized to conceal their knowledge from the Government to game the system and wait for a larger recovery if the performance is on-going. Of course, that path is also risky for a realtor if another whistleblower files first, leading to a possible dismissal under the first to file rule.
While it remains to be seen how the Supreme Court will come out on the merits of this case, its decision to grant cert is good news for those who regularly do business with the Government. The decision to grant cert is another clear indication that this Court is inclined to take cases where circuit splits create forum-shopping opportunities. The FCA’s broad venue provision means that defendants could be hauled into almost any court in the country. Having circuits take such differing positions with respect to statutes of limitations creates a great deal of uncertainty for businesses who contract with the Government—particularly those that have investigated and self-reported potential issues and would like to move on and close out contracts. While uncertainty is never a good thing, it is particularly harmful when the FCA is implicated given the possibility of treble damages and statutory penalties. This may be why the court has averaged approximately one FCA case a year over the last decade. Whichever way the Court rules, the resolution of this case will likely provide much-needed clarity for potential defendants and curtail opportunistic forum-shopping by relators.

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