Neither Commissioned Nor Created: Granting First Amendment Protection for Public Employees’ Truthful Testimony Pursuant to Official Duties

Jennifer Stakich Walker*

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Table of Contents
I. INTRODUCTION AND BACKGROUND
II. ANALYSIS
A. Garcetti should not apply to public employees’ regular testimony
1. Testimony and Public Concern
2. Managerial Prerogative over “Commissioned or Created” Speech

B. Lane should be extended to subpoenaed testimony pursuant to the employee’s duties
1. Subpoenaed Testimony Should Be Protected Since It Represents Public Concern
2. An Employer’s Right to Discipline Its Employees for Job-Related Speech

I.  INTRODUCTION AND BACKGROUND

The First Amendment is not an absolute protection. It stands as a protection for the speech privileges of American citizens, but it is not unlimited.[1]  Although the speech of a private citizen can be limited by his or her private employer,[2] the First Amendment prevents the government from restricting the speech of a private citizen.[3]  A public employee working for the government, however, has much less protection from government censorship.[4]

Before 1968, the prevailing attitude was that government (or public) employees did not receive any free speech protection allowing them to criticize their employers.  This attitude stemmed from the rights-privilege doctrine: government employment was special and distinct from the average occupation, so the employee was privileged to hold the position and gave up his rights accordingly, even some of his constitutional ones.[5]  A person could choose whether to be a public employee and give up his right to free speech, or, as the Adler court stated: “If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly?  We think not.”[6]  Prior to 1968, a public employee could not contest conditions of government employment, including limitations of constitutional rights.[7]  The Supreme Court allowed these limitations since the government’s interest in regulating the speech of its employees is significant when compared to its interest in regulating the speech of the general public.[8]  Therefore, employee speech that disrupted the employer’s significant interest in maintaining control of the workplace could lead to the discipline, or even termination, of the employee.[9]  Expansive free speech protection for public employees, then, is a trend younger than space travel.

In 1968, the Supreme Court fashioned a test balancing the employer’s interests in maintaining a working government office and the employee’s free speech interests to determine whether a public employee’s speech could receive First Amendment protection.[10]  This shift in jurisprudence reflected the changing political climate of America and the post-McCarthyism era of government employment, for the Supreme Court no longer felt comfortable with the government’s restrictions on public employees.[11]  The Court used the Pickering balancing test while also expounding on it: “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.[12]  The Pickering/Connick balancing test remained relatively unchanged until 2006, when the Court effectively denied First Amendment protection to speech created “pursuant to” an employee’s official duties, heavily restricting a public employee’s speech rights.[13]  According to the Court, a public employer has managerial prerogative over “what the employer itself has commissioned or created.”[14]

On June 19, 2014, the Supreme Court decided Lane v. Franks and gave back some ground to the free speech rights of public employees.[15]  The Court specifically allowed the plaintiff free speech protection for his subpoenaed testimony since he did not usually testify as a part of his job duties, unlike the Garcetti plaintiff, whose “speech at issue” was part of his job.[16]  Footnote four of the opinion, which is echoed in Justice Thomas’s concurrence, poses the question of whether a public employee who regularly testifies as part of his job duties can receive First Amendment protection for his compelled truthful testimony.[17]

While Lane was not a controversial opinion, this general framework raises a more specific problem: does the subpoenaed testimony of public employees given pursuant to their official job responsibilities garner First Amendment protection? Although previous decisions have ruled that public-employee testimony is not protected when it is made pursuant to the individual’s job duties,[18] the Court’s language that the employer has an opportunity to restrict the speech that it “commissioned or created” does not have a feasible application to compelled truthful testimony.

II.  ANALYSIS

A.  Garcetti should not apply to public employees’ regular testimony

One option for the courts is to apply the Garcetti rule to this context, refusing to allow First Amendment protection for public employees who regularly testify pursuant to their job responsibilities.  This position is supported by the fact that regular testimony is pursuant to an employee’s job duties, and so excludable from free speech coverage, since the government has a managerial prerogative over work or even speech that “the employer itself has commissioned or created.[19]  However, allowing employers to retaliate based on the truthful testimony of employees who regularly testify under subpoena would be contrary to the Supreme Court’s policies of fairness and the exchange of information in the public sphere.

1.  Testimony and Public Concern.  The Court’s bright-line standard in Garcetti departed from the typical Pickering framework and instead mandated that when a public employee speaks pursuant to his duties, he cannot enjoy First Amendment protection.[20]  This rule is further supported by Garcetti’s rationale that employing a balancing test for speech pursuant to official duties would encroach on “principles of federalism and the separation of powers.[21]  However, Justice Souter’s dissent in Garcetti questioned this very assumption, noting that public employees’ speech might have greater value for society than speech in the private sector.  This is possible because the employee will be closely acquainted with the topic since he will be interacting with it every day at work.[22]  Indeed, the Court in San Diego v. Roe noted that restricting the speech of government employees would deprive society of “informed opinions on important public issues.[23]  The dissent in Garcetti took this rationale one step further, noting that society would be deprived of these informed opinions even when an employee speaks on a topic pursuant to his official duties and indicating that silencing employees cannot be predicated merely on the government’s interest in making sure that a minority does not abuse the system.[24]

Further, there is the matter of speech on a topic of public concern.  In Garcetti, the Court stated that “[w]hen an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences.[25]  However, the Court bookended this statement by noting that an employee performing his job duties could not receive free speech protections, effectively holding that public concern is not even considered once the Court determines that the employee spoke pursuant to his official duties.[26]  This language contradicts prior cases where the Court first examined whether the speech at issue is of public concern before continuing in the analysis.[27]  For example, the Court in Roe held that the officer’s antics did not present any information about the police department to the public, but the videos were detrimental to the police department’s efficiency and function.[28]  Adding a threshold question to the threshold question seems contrary to sound reasoning.  Although a public employee’s testimony could be considered completely internal since all the information provided to a court would be gleaned from the employee’s job, such subpoenaed testimony is almost always inherently a matter of public concern when presented in open court.[29]

2.  Managerial Prerogative over “Commissioned or Created” Speech.  The Garcetti opinion endorses a type of managerial prerogative over the speech of public employees.[30]  This prerogative is premised on the fact that what the employee provides, pursuant to his job responsibilities, is a product that the employer significantly controls.[31]  In Garcetti, Ceballos’s internal memorandum was constitutionally suppressed by the employer for these very reasons.[32]  However, it is perhaps illustrative that the Court did not discuss whether Ceballos’s testimony was subject to this managerial prerogative since the Court failed to discuss the testimony aspect of the case at all.[33]  Application of the Garcetti rule would provide a bright-line rule for lower courts and avoid the creation of a complicated and fact-intensive balancing test in order to weigh the type of employee’s testimony—would testimony regarding routine file keeping be allowed over testimony regarding more sensitive police operations?  The Garcetti rule would simplify this process by simply not allowing protection for any testimony, no matter how mundane or entry-level, if it was related to the employee’s job responsibilities.

Is it possible for truthful subpoenaed testimony to be “commissioned or created” by the employer and thus subject to the employer’s control?  The Garcetti Court might answer yes (we do not really know),[34] but a better rule would recognize that such testimony should not be subject to managerial prerogative.  Furthermore, as the Third Circuit stated in Reilly v. Atlantic City, the fact that an employee’s job provided “the initial impetus to appear in court is immaterial” to his civic duty to testify truthfully.[35]  The area of truthful testimony is distinct and separate from other contexts that the Court addressed in Garcetti.[36]  The difference between the Reilly testimony and the Garcetti memorandum is the context—it is not that the basic information was protected more in Reilly than it was in Garcetti, but instead that the presentation of that information garnered greater protection.  It is entirely feasible that had Reilly presented the same statements in his workplace and not at trial, he would not have enjoyed much protection, if any at all.[37]  The employee’s response to a subpoena is an action outside the employer’s control, for providing the employer the means to stifle truthful testimony would place an individual agency’s interests over the public good and the goals of the judiciary.[38]

The concept that subpoenaed testimony is not speech “commissioned or created” by the employer is predicated on the assumption that a judicial subpoena is of greater weight than an individual employer’s interests and, therefore, should be protected.[39]  However, some advocate that a subpoena does not transform a public employee’s testimony into speech protected by the First Amendment since the job, not the subpoena, compelled him to speak.[40]  This particular argument overlooks the fact that subpoenaed testimony is often related to investigations or audits that the employee was compelled to perform, and the results of these investigations should be presented without fear of the employer’s retaliation based on the employee’s viewpoints.[41]  In this type of scenario, an employee could be held liable for truthful information presented in open court even if that information is presented pursuant to his official duties, a result that appears patently unfair and contrary to the First Amendment.  In the context of subpoenaed testimony by public employees, Garcetti’s rule creates harsh consequences for too many meritorious plaintiffs who will be caught between a rock and a hard place.[42]

In sum, courts might view public employees who regularly testify, pursuant to their jobs, as beyond the scope of the First Amendment.  Applying Garcetti to these situations will provide courts with a clear directive, but this rule would severely undercut the Court’s espoused policies of fairness and the contribution of information to the public debate.

B.  Lane should be extended to subpoenaed testimony pursuant to the employee’s duties

Another option is that Lane could be extended to cover employees’ truthful subpoenaed testimony even if those employees regularly testify as part of their typical job responsibilities.  Under this doctrine, the Court would effectively create a larger exception to cover such testimony; instead of creating an over-inclusive test that excludes too much meritorious speech like Garcetti, the Court would fashion a broad rule under the doctrine of Lane, which does not employ a fact-sensitive standard that depends heavily on interpretation.

1.  Subpoenaed Testimony Should Be Protected Since It Represents Public Concern.  Extending the Lane protections to cover subpoenaed testimony regularly given by a public employee does not demolish the limitations placed on public employees by Garcetti and other prior cases.  Rather, the issue here is a distinct and narrow problem that requires additional protection.  Although the difference between subpoenaed and voluntary testimony might appear to be a quibble of semantics, “there would appear to be a conceptual distinction that turns on a witness’s will or desire to testify, especially in this context where the witness is a law enforcement officer.”[43]

The Supreme Court in both Connick and Rankin indicated that context could create a matter of public concern by looking to the time, place, and manner of the speech at issue.[44]  Both subpoenaed and voluntary testimony implies that such testimony is a per se public concern.[45]  Viewed under Connick and Rankin, testimony itself is a per se public concern merely because of its context: given in a court of law for the purpose of aiding a truthful recitation of the facts.[46]  However, when a public employee testifies voluntarily in a matter, courts typically consider his interests as having less weight under the First Amendment.[47]  Further, voluntary testimony by a public employee undercuts the relationship between the employee and his employer.[48]  Voluntary testimony disrupts the workplace and undermines the relationships between employee and coworkers as well as superiors,[49] most likely in a way with which subpoenaed testimony would not be concerned.

When an employee complies with a subpoena in a current case, the employer’s interests are afforded less weight by some courts.[50]  Likewise, subpoenaed testimony serves a different purpose for the jury, and carries a different punishment.  “[B]ecause the subpoena is by its nature coercive, the vexing choice between defection and silence in the face of misconduct is not the employee’s own; accordingly, there is less reason for his employer and colleagues to interpret his testimony as disloyalty.”[51]  Instead, the employee must decide whether to comply with the subpoena, risking his employer’s ire, or refuse to testify, risking sanctions from the court.[52]  This dichotomy divides the employee’s loyalty: he must choose between his job and his judiciary.  By not offering protection for subpoenaed testimony given pursuant to official responsibilities, the court system is effectively condoning an employer’s coercion by forcing the employee to choose the lesser of two evils.

The very context of subpoenaed testimony speaks to a matter of public concern.  As such, a public employee’s truthful testimony, compelled by subpoena, should be protected by the First Amendment.

2.  An Employer’s Right to Discipline Its Employees for Job-Related Speech.  The Court has often repeated that placing limitations on public employees’ free speech protections is critical to ensure that the employer can regulate its office and perform its duties in the most efficient way possible.[53]  In doing so, courts have distinguished between testimony given pursuant to job duties and testimony merely arising from the job itself.[54]  One commentator has noted the difference in breadth between speech as part of the job and speech that impacts the job.[55]  Likewise, the Court in Lane noted that its decision was specifically limited to testimony related to the employment or referencing “information learned during that employment” rather than testimony pursuant to an employee’s job responsibilities.[56]  Regardless, the Court emphasized that public testimony is an independent obligation that makes such testimony citizen speech, not purely speech pursuant to official duties.[57]

The distinction between testimony arising from the job and testimony pursuant to official responsibilities is likely one of linguistics and not one of practicable weight.  This distinction may cause more confusion in the courts and more litigation than if all subpoenaed testimony related to an employee’s job was protected.  Extending Lane to cover public employees’ regular testimony might appear to be a broad all-encompassing rule, but this rule would practically cover a small subset of public employee speech and employer discipline.

Even conceding that such testimony is initially based on an employee’s job responsibilities, those responsibilities are “independent of” the employee’s duty to testify truthfully as a citizen.[58]  Further, “the citizen’s obligation to testify truthfully is no weaker when one is employed by the government. . . .”[59]  One scholar posits that certain groups of workers are afforded more First Amendment protection than others since the risk to teamwork and workplace efficiency in paramilitary jobs is high.[60]  This argument favoring the employer’s interests should not apply to those individuals who regularly testify pursuant to their job responsibilities since subpoenaed testimony does not destroy workplace efficiency.  Arguments can be made that an employer has a heightened interest in controlling the speech made pursuant to an employee’s duties;[61] despite this, an employer has no right to screen and stifle such testimony that it did not “commission or create.”

Responding to a court’s directive to testify at a trial is an action outside the employer’s purview which, if allowed, would negatively impact the goals of the judicial process.[62]  The current legal framework allows just such a result; a better rule would be one that exempts the subpoenaed testimony given pursuant to a public employee’s job duties, for the employer cannot purchase and pay for that testimony as it does other speech.[63]  Testimonial speech is by default conceived by the request of the court system itself; therefore, it is not typical workplace speech that the employer can legally control through its creation and that the employer can use and interpret to aid its ultimate goals.[64]  Instead, such testimony should not be considered as “commissioned or created” by the employer since the employer has no legal right to “spin” the speech to promote its own goals—rather, the employer can have no influence at all in manipulating the testimony since the very basis of the judicial system is to provide a forum for truth.

The current rule necessarily places the employer’s interests above the public interest of having high quality testimony in public proceedings.  The Court has repeatedly noted that such testimony by public employees contributes almost expert-like knowledge to the judicial proceedings since those employees are in the best position to comment on topics with which they are intimately acquainted.[65]  When such employee testimony is not clearly erroneous or does not disclose any privileged information, the employer’s interest in restricting the speech is relatively low.[66]

Further, a fairness argument supports protection for testimony made by public employees who regularly testify as part of their official duties.  The underlying purpose of offering witness protection is to prevent witnesses from being intimidated or coerced into not presenting the truth at trial.[67]  According to Worrell v. Henry, decided in the Tenth Circuit, providing free speech protection to public employees’ testimony “protects both employees’ interest in free expression and the judicial system’s interest in arriving at the truth.”[68]  In light of these considerations, an extension of the Lane rule would not only advance social goals of fairness but would also support the purpose of the judicial system.  The foundation of the judicial system would be eroded if witnesses are not provided with adequate protections for testimony.[69]  Such protections for public employees’ truthful testimony shield the speech of the employee as well as the truth-seeking function of the judicial system.[70]  If a public employee’s testimony is not protected, the employer can retaliate against the employee and effectively undermine the purpose of the courts in seeking the truth.[71]

Expanding the rule from Lane would increase the protections for public employees’ testimony and ensure the judicial system remains a forum for truth.  Although the employer does possess legitimate interests of workplace efficiency and office teamwork, those interests should not outweigh the interests of the judicial system.  Such testimony should not be subject to the employer’s manipulations since the testimony itself was engendered by the judicial system and not speech that the employer has legally “commissioned or created.”  Each citizen has an obligation to testify truthfully.  Whether or not an employee’s duties force him to testify is irrelevant in light of his civic duty to do so.[72]

Jennifer Rose Stakich

 


* Mrs. Walker is a student at the University of Georgia School of Law. She would like to thank Professor Wells for his guidance in this article.

     [1]  Schenck v. United States, 249 U.S. 47, 51–52 (1919).

     [2]  Waters v. Churchill, 511 U.S. 661, 694–95 (1994) (Stevens, J., dissenting).

     [3]  U.S. Const. amend. I.

     [4]  Garcetti v. Ceballos, 547 U.S. 410, 424 (2006); Waters, 511 U.S. at 671.

     [5]  See Connick v. Myers, 461 U.S. 138, 143 (1983) (“[T]he unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.”).

     [6]  Adler v. Bd. of Educ., 342 U.S. 485, 492 (1952), overruled in part by Keyishian v. Bd. of Regents, 385 U.S. 589, 593–94 (1967).

     [7]  Charles W. “Rocky” Rhodes, Public Employee Speech Rights Fall Prey to an Emerging Doctrinal Formalism, 15 Wm. & Mary Bill Rts. J. 1173, 1176 (2007).

     [8]  Matt Wolfe, Comment, Does the First Amendment Protect Testimony by Public Employees?, 77 U. Chi. L. Rev. 1473, 1474–75 (2010).

     [9]  Garcetti, 547 U.S. at 424.

   [10]  Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

   [11]  John Q. Mulligan, Note, Huppert, Reilly, and the Increasing Futility of Relying on the First Amendment to Protect Employee Speech, 19 Wm. & Mary Bill Rts. J. 449, 451–52 (2010).

   [12]  Connick v. Myers, 461 U.S. 138, 147–48 (1983).

   [13]  Garcetti, 547 U.S. at 421; Elizabeth Dale, Employee Speech & Management Rights: A Counterintuitive Reading of Garcetti v. Ceballos, 29 Berkeley J. Emp. & Lab. L. 175, 175–76 (2008).

   [14]  Garcetti, 547 U.S. at 421–22.

   [15]  134 S. Ct. 2369 (2014).

   [16]  Id. at 2379.

   [17]  Id. at 2378 n.4; id. at 2383 (Thomas, J., concurring).

   [18]  Garcetti, 547 U.S. at 421–22.

   [19]  Id. at 422.

   [20]  Id. at 421–22.

   [21]  Id. at 423.

   [22]  Id. at 430–31 (Souter, J., dissenting).

   [23]  543 U.S. 77, 82 (2004).

   [24]  Garcetti, 547 U.S. at 433–34.

   [25]  Id. at 423.

   [26]  Id.

   [27]  Roe, 543 U.S. at 84.

   [28]  Id.

   [29]  Catletti ex rel. Estate of Catletti v. Rampe, 334 F.3d 225, 230 (2d Cir. 2003).

   [30]  Garcetti, 547 U.S. at 421–22.

   [31]  Id. at 422; Helen Norton, Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression, 59 Duke L.J. 1, 30–34 (2009) (claiming Garcetti may have gone too far and stating “[t]he Court . . . distinguished speech that the government has paid its employees or agents to deliver—and remains free to control”).

   [32]  Garcetti, 547 U.S. at 422.

   [33]  Id.

   [34]  See Adelaida Jasperse, Note, Damned if You Do, Damned if You Don’t: A Public Employee’s Trilemma Regarding Truthful Testimony, 33 W. New Eng. L. Rev. 623, 651 (2011) (arguing that Garcetti should be read narrowly since it did not address Ceballos’s testimony).

   [35]  532 F.3d 216, 231 (3d Cir. 2008); Leslie Pope, Comment, Huppert v. City of Pittsburg: The Contested Status of Police Officers’ Subpoenaed Testimony After Garcetti v. Ceballos, 119 Yale L.J. 2143, 2149 (2010) (arguing that a public employee’s testimony is still citizen speech even though the testimony “ow[es] its existence to his employment” since his duty to testify truthfully “preexists his adoption” of his employment “and cannot be overridden by his superiors” (internal quotation marks omitted)).

   [36]  Garcetti, 547 U.S. at 444.

   [37]  See Molly K. Smith, Note, Compelled Investigatory and Testimonial Speech: An Overdue Clarification of the Public Employee Speech Doctrine that Rehabilitates “All of the Values at Stake, 101 Ky. L.J. 403, 426–29 (2013) (arguing that “testimonial” or “investigatory” speech should be protected by the First Amendment since it is not “the typical speech the employer itself has commissioned or created whose message the employer may legally control” (internal quotation marks omitted)).

   [38]  Reilly, 532 F.3d at 231.

   [39]  Herts v. Smith, 345 F.3d 581, 586 (8th Cir. 2003).

   [40]  Wolfe, supra note 8, at 1497.

   [41]  Smith, supra note 37, at 426–27.

   [42]  Jasperse, supra note 34, at 646.

   [43]  Green v. Phila. Hous. Auth., 105 F.3d 882, 886 (3d Cir. 1997).

   [44]  Connick v. Myers, 461 U.S. 138, 147–48 (1983); Rankin v. McPherson, 483 U.S. 376, 388 (1987).

   [45]  Robinson v. Balog, 160 F.3d 183, 189 (4th Cir. 1998); Johnston v. Harris Cnty. Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir. 1989).

   [46]  Catletti ex rel. Estate of Catletti v. Rampe, 334 F.3d 225, 229–30 (2d Cir. 2003).

   [47]  Worrell v. Henry, 219 F.3d 1197, 1207 (10th Cir. 2000).

   [48]  Id.

   [49]  Id.

   [50]  See Herts v. Smith, 345 F.3d 581, 586 (8th Cir. 2003) (discussing the relative interest of the state when its employees give subpoenaed testimony).

   [51]  Pope, supra note 35, at 2153.

   [52]  Worrell, 219 F.3d at 1205.  See also Mulligan, supra note 11, at 458 (noting that employees are “forced into the unfortunate Catch-22 of having to choose between testifying before a grand jury and being retaliated against or refusing to testify and being held in contempt”).

   [53]  Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006); Connick v. Myers, 461 U.S. 138, 150–52 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

   [54]  Garcetti, 547 U.S. at 421, 423.

   [55]  Michael L. Wells, Section 1983, The First Amendment, and Public Employee Speech: Shaping the Right to Fit the Remedy (and Vice Versa), 35 Ga. L. Rev. 939, 994 (2001).

   [56]  Lane v. Franks, 134 S. Ct. 2368, 2378 (2014).

   [57]  Id. at 2379.

   [58]  Reilly v. Atlantic City, 532 F.3d 216, 231 (3d Cir. 2008); Sheldon H. Nahmod, Public Employee Speech, Categorical Balancing and § 1983: A Critique of Garcetti v. Ceballos, 42 U. Rich. L. Rev. 561, 575 (2008) (arguing that a person is simultaneously an employee and a citizen).

   [59]  Reilly, 532 F.3d at 231; see also Jody L. Rodenberg, Freedom of Speech and the “Catch-22” for Public Employees in the Ninth Circuit—Huppert v. City of Pittsburg, 63 SMU L. Rev. 259, 263 (2010) (quoting Reilly to support the dissent: “that duty of citizenship [to offer truthful testimony] is not vitiated by one’s status as a public employee”).

   [60]  Wells, supra note 55, at 997.

   [61]  Garcetti v. Ceballos, 547 U.S. 410, 422 (2006).

   [62]  Reilly, 532 F.3d at 231.

   [63]  Smith, supra note 37, at 426–27; Susan Stuart, Shibboleths and Ceballos: Eroding Constitutional Rights Through Pseudocommunication, 2008 BYU L. Rev. 1545, 1578–79.

   [64]  Margaret Tarkington, Government Speech and the Publicly Employed Attorney, 2010 BYU L. Rev. 2175, 2181–82.

   [65]  Lane v. Franks, 134 S. Ct. 2368, 2379–80 (2014).

   [66]  Id. at 2381; Adam Shinar, Public Employee Speech and the Privatization of the First Amendment, 46 Conn. L. Rev. 1, 16 (2013).

   [67]  Worrell v. Henry, 219 F.3d 1197, 1204 (10 Cir. 2000).

   [68]  Id. at 1205.

   [69]  Catletti ex rel. Estate of Catletti v. Rampe, 334 F.3d 225, 230 (2d Cir. 2003).

   [70]  Worrell, 219 F.3d at 1205.

   [71]  Jasperse, supra note 34, at 654.

   [72] Id.

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