                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 05-3722
NANCY SPIEGLA,
                                             Plaintiff-Appellee,
                               v.

EDWARD HULL, Individually and
as an employee of Westville Correctional Facility,
HERBERT NEWKIRK, Individually and as
Superintendent of Westville Correctional Facility,
and BERNARD JOHNSON, Individually and as an
Employee of Westville Correctional Facility,
                                    Defendants-Appellants.
                         ____________
       Appeal from the United States District Court for the
   Northern District of Indiana, Hammond Division at Lafayette.
             No. 01 CV 0075—Allen Sharp, Judge.
                         ____________
 ARGUED SEPTEMBER 12, 2006—DECIDED MARCH 30, 2007
                   ____________


 Before EASTERBROOK, Chief Judge, and POSNER and
SYKES, Circuit Judges.
  SYKES, Circuit Judge. This First Amendment retalia-
tion case is before us for the second time. In the first
appeal, we held that Indiana State Correctional Officer
Nancy Spiegla engaged in protected speech by reporting
a possible security lapse to an assistant superintendent
at the Westville Correctional Facility where she worked.
2                                               No. 05-3722

On remand, a jury found that the defendants—Westville’s
superintendent, assistant superintendent, and a senior
corrections officer—retaliated against her on the basis of
this protected speech and awarded her $210,000 in dam-
ages. The defendants appealed, and after briefing
was completed, the Supreme Court decided Garcetti v.
Ceballos, 126 S. Ct. 1951, 1960 (2006), holding that the
First Amendment does not protect statements made
pursuant to a public employee’s official duties because
that employee is not speaking as a “citizen” but as an
employee. Because our first holding addressed the degree
of First Amendment protection afforded public employees
under then-existing case law, we must now reexamine
its soundness in light of Garcetti.
  The speech at issue here is a complaint Spiegla made
about having been prevented by her immediate supervisor
from investigating a possible security breach while she
was on duty and stationed at the prison’s main gate.
Spiegla noted the incident in her log and later that same
day reported it to an assistant superintendent. In bring-
ing the possible security lapse to his attention, Spiegla
was speaking not as a citizen but as a correctional officer
charged with the duty to ensure the prison’s safety and
security. Accordingly, the First Amendment does not
insulate her statements from employer discipline, and
the judgment in her favor must be vacated.


                     I. Background
  From 1985 to 2000, Nancy Spiegla was employed as a
state correctional officer at the Westville Correctional
Facility in Indiana. From 1993 to 2000, Spiegla worked
essentially the same post at the prison’s main gate on a 5-2
schedule (five days on, two off ). Working the main gate
involved controlling the traffic in and out of the prison, as
well as searching the vehicles of visitors and employees for
No. 05-3722                                                 3

contraband. By all accounts Spiegla was an outstanding
employee throughout her tenure at the prison.
  On January 13, 2000, Spiegla was at her main-gate post
alongside Sergeant Brian Moody, her immediate supervi-
sor, when something in the parking lot caught her atten-
tion. She saw Major Eddie Hull and Captain Ernest Huff
transfer bags from their private vehicles into the state-
owned truck they were driving. When the two men ap-
proached the main gate in the truck, Spiegla intended to
search their bags for possible contraband as part of the
general search she performed on all vehicles entering the
prison.1 But when she got up to leave the guard house,
Moody dissuaded her from searching the truck, explaining
that a recent change in prison policy exempted all state
vehicles from search. Spiegla had not heard of any
change and believed the correct policy was to search all
vehicles, no exceptions. Frustrated that she “could not go
out there and do [her] job,” Spiegla noted the apparent
breach of prison policy in her log.
  Later that day, Spiegla recounted the incident to Assis-
tant Superintendent John Schrader, who told her she
should have searched Hull and Huff ’s truck. Schrader
also promised to refer the matter to Superintendent
Herbert Newkirk, which he did at an executive staff
meeting later that day or the next. At the meeting
Newkirk asked Assistant Superintendent Bernard Johnson
(who was angry at the manner in which Spiegla’s con-
cerns were raised) to investigate the matter.
  Four days later Spiegla was reassigned from the main
gate to the perimeter, a 6-2 shift that involved walking
around the prison’s outer fence and delivering food to the



1
  There is no indication Hull or Huff were actually engaged in
smuggling contraband.
4                                               No. 05-3722

towers. Upset over the transfer, Spiegla brought this
action under 42 U.S.C. § 1983 against Johnson, Hull, and
Newkirk, all of whom had authority to transfer her. She
claimed she was transferred in retaliation for reporting
the main gate incident to Schrader; these statements, she
asserted, were protected speech under the First Amend-
ment. The district court granted summary judgment for
the defendants on the ground that Spiegla “was not
speaking out as a citizen, but rather as an employee” and
therefore had not engaged in protected speech.
  On appeal we reversed and remanded, holding in part
that the First Amendment did protect her statements to
Schrader. Spiegla v. Hull, 371 F.3d 928, 939 (7th Cir.
2004) (“Spiegla I”) (concluding that Spiegla “spoke as a
private citizen on a matter of public concern”). The case
ultimately went to trial on the remaining issues of
fact—namely, causation and whether the defendants
would have taken the same action in the absence of the
protected speech. See Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274 (1977). The jury found for
Spiegla and awarded her $210,000 in damages.
  The defendants appealed, asserting a number of trial
errors. But after briefing was completed, the Supreme
Court issued its decision in Garcetti, clarifying the thresh-
old legal inquiry in First Amendment retaliation claims
in the public employment context. The defendants re-
quested a supplemental briefing schedule in light of
Garcetti. We granted their request and ordered the
parties to submit supplemental memoranda discussing
the effect of Garcetti on this appeal.


                       II. Analysis
 Our first inquiry is the application of Garcetti to
Spiegla’s claim; if Spiegla was not speaking as a “citizen”
No. 05-3722                                               5

as understood in Garcetti, her speech was not protected by
the First Amendment as a matter of law and we need not
reach the trial errors asserted by the defendants. Garcetti
made it clear that public employees have no cause of
action for First Amendment retaliation unless they were
disciplined for speaking as citizens about a matter of
public concern. 126 S. Ct. at 1958, 1960. When public
employees make statements pursuant to their official
duties, they are not speaking as citizens and “the Con-
stitution does not insulate their communications from
employer discipline.” Id. at 1960. In other words, if
Spiegla’s statements to Schrader were made pursuant
to her official duties as a correctional officer, it was not
protected speech and she has no claim for First Amend-
ment retaliation.


A. Procedural Arguments
  Before turning to the impact of Garcetti on Spiegla’s
claim, we must first address her contention that the
defendants’ “efforts to use [Garcetti] to overturn the . . .
verdicts” are procedurally defective. More specifically,
Spiegla asserts (1) the defendants waived their Garcetti
argument by failing to raise it in the district court or in
their initial appellate briefs; and (2) the defendants’
“motion to discuss supplemental authority [was] an
improper method” of raising Garcetti. She is wrong on
both counts.
  Arguments not raised in the district court are generally
waived on appeal, Belom v. Nat’l Future Ass’n, 284 F.3d
795, 799 (7th Cir. 2002), but here the defendants did make
a Garcetti-type argument before the district court. Most
significantly, they moved for summary judgment on the
basis that “speech required in the course of public em-
ployment is not protected by the First Amendment.” This
argument anticipated the ultimate holding in Garcetti,
6                                             No. 05-3722

and moving for summary judgment on this ground was
sufficient to preserve the issue for appellate review. See
Pond v. Michelin N. Am., Inc., 183 F.3d 592, 597 (7th Cir.
1999).
   The defendants’ failure to raise a Garcetti-type argu-
ment on remand or in their initial appellate briefs in
this second round of appellate proceedings was under-
standable. We had specifically rejected this line of argu-
ment in Spiegla I, holding that Spiegla “spoke as a
private citizen on a matter of public concern when she
brought the search policy and Hull and Huff ’s conduct to
the attention of her superior.” Spiegla I, 371 F.3d at 939-
40. Accordingly, the law of the case doctrine barred the
defendants from raising the issue again on remand or in
their appeal from the judgment entered on the jury’s
verdict. See EEOC v. Sears, Roebuck & Co., 417 F.3d 789,
796 (7th Cir. 2005). When the defendants filed their
opening and reply briefs in this second appeal, they had
no basis to challenge anew our holding in Spiegla I. Only
the Supreme Court’s decision in Garcetti a few weeks
later called Spiegla I into question and opened the door
for a reexamination of that decision in this appeal.
Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir. 1991)
(stating that “a decision of the Supreme Court after the
first review” triggers an exception to law of the case).
Waiver under Rule 28(a)(5) of the Federal Rules of Appel-
late Procedure occurs when a party omits an available
argument. United States v. Feinberg, 89 F.3d 333, 340-41
(7th Cir. 1996). A party cannot, however, waive an argu-
ment that did not exist when he submitted his brief. Id.;
see United States v. Henningsen, 387 F.3d 585, 591 (7th
Cir. 2004).
  Spiegla also argues that the defendants picked the
wrong procedural vehicle in which to raise Garcetti. She
claims that rather than file a “motion to discuss supple-
No. 05-3722                                                  7

mental authority,” the defendants should have brought
Garcetti to our attention by filing a letter pursuant to Rule
28(j) of the Federal Rules of Appellate Procedure. The
first flaw in Spiegla’s argument is that a “motion to
discuss supplemental authority” does not accurately
characterize the defendants’ post-Garcetti motion. Their
motion simply requested a supplemental briefing sched-
ule in light of Garcetti.
  Second, the defendants were right to respond to Garcetti
by requesting additional briefing rather than submitting
a Rule 28(j) letter. Rule 28(j) permits parties to briefly
apprise the court of new or previously undiscovered
authority pertinent to arguments made orally or in the
briefs. FED. R. APP. P. 28(j) (“The letter must state the
reasons for the supplemental citations, referring either to
the page of the brief or to a point argued orally.”). It does
not, however, provide a second forum in which to raise
wholly new or different arguments. See United States v.
Jones, 308 F.3d 425, 427 n.1 (4th Cir. 2002). Rule 28(j)
letters are limited to 350 words. Because Garcetti armed
the defendants with a new argument against the sound-
ness of Spiegla I based on new controlling authority, they
properly requested additional briefing rather than sub-
mit a Rule 28(j) letter. The issue of whether Garcetti
requires us to revisit Spiegla I is ill-suited for a 350-word
Rule 28(j) letter.


B. The Effect of Garcetti
  We held in Spiegla I that Spiegla’s speech was protected,
but because the judgment in this case is not yet final, we
are obliged to reevaluate that holding in light of Garcetti.
See Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993)
(“When this Court applies a rule of federal law to the
parties before it, that rule . . . must be given full retroac-
tive effect in all cases still open on direct review . . . .”).
8                                               No. 05-3722

More specifically, we must reexamine whether Spiegla’s
statements to the assistant superintendent qualify for
First Amendment protection under the standard articu-
lated in Garcetti. The “inquiry into the protected status of
speech is one of law, not fact.” Connick v. Myers, 461 U.S.
138, 148 n.7 (1983).
  Whether public-employee speech is protected is deter-
mined by reference to the two-part Connick-Pickering test.
Spiegla I, 371 F.3d at 935. First, we inquire whether the
employee “spoke as a citizen on a matter of public con-
cern.” Id. (citing Connick, 461 U.S. at 138). If not, the
employee has no cause of action for First Amendment
retaliation and there is no need to reach the second part
of the test, which requires a balancing of the employee’s
interest “as a citizen in commenting on the matter” against
the public employer’s interest “as [an] employer[ ] in
promoting effective and efficient public service.” Id. at 940
(citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968));
see Garcetti, 126 S. Ct. at 1960. Prior to Garcetti, we
considered the “content, form, and context” of the em-
ployee’s speech to determine whether the employee spoke
as a citizen on a matter of public concern, with content
being the most important factor. Spiegla I, 371 F.3d at
935 (quoting Connick, 461 U.S. at 147-48); Gustafson v.
Jones, 290 F.3d 895, 907 (7th Cir. 2002).
  After Garcetti, however, the threshold inquiry is wheth-
er the employee was speaking as a citizen; only then do
we inquire into the content of the speech. Mills v. City of
Evansville, 452 F.3d 646, 647-48 (7th Cir. 2006). Garcetti
made clear that public employees speaking “pursuant to
their official duties” are speaking as employees, not
citizens, and thus are not protected by the First Amend-
ment regardless of the content of their speech. See
Garcetti, 126 S. Ct. at 1959-60. Consequently, the opera-
tive question now is whether Spiegla made her statements
No. 05-3722                                               9

to Assistant Superintendent Schrader pursuant to her
official duties as a correctional officer.
  Based on the record as a whole, we conclude that Spiegla
was speaking pursuant to her official duties—not as a
citizen—when she told Schrader about the conduct of Hull
and Huff, and about Moody’s action in preventing her
from conducting a search. As a correctional officer as-
signed to the main gate, Spiegla’s primary responsibility
was to regulate and monitor the vehicle and foot traffic
through the gate. This involved searching incoming
vehicles and people for contraband, tasks for which she
received specialized training. Written prison “post orders”
dictated who and what were subject to search, and
Spiegla’s employment required her to faithfully follow
those orders. As a correctional officer, she also had a more
general responsibility to keep the facility secure and
report any suspicious behavior by prison inmates, staff,
or visitors to her superiors.
  Spiegla became suspicious when she saw Hull and Huff
transfer bags to their state truck from their private cars.
As they approached the gate, she got up to discharge her
official duty—search the truck (as she did all vehicles) and
“make sure there was nothing in those bags.” When her
immediate supervisor, Sergeant Moody, told her not to
search the truck, she disagreed based on her understand-
ing that “regardless of who you are, you are to be
searched.” Upset that she “could not go out there and do
[her] job,” Spiegla noted the incident in her log.
  Later that day while still in uniform and on duty at
the main gate, Spiegla saw Assistant Superintendent
Schrader and explained to him that Moody stopped her
from searching the truck of two “higher ups” she believed
should have been searched. Spiegla recounted the inci-
dent to Schrader pursuant to her responsibility as a
correctional officer to inform her superiors of a possible
10                                              No. 05-3722

breach in prison search policy, especially one involving two
senior prison officers. In doing so she spoke as an em-
ployee, not a citizen, because ensuring compliance with
prison security policy was part of what she was employed
to do. See Garcetti, 126 S. Ct. at 1960.
  We acknowledged in Spiegla I that Spiegla’s state-
ments were “consistent with her general duty as a cor-
rectional officer to keep the facility secure.” 371 F.3d at
939. We went on to conclude, however, that because they
“were not part and parcel of her core function[ ]” to
implement but not question prison security policies, “she
acted beyond her employment capacity and spoke as a
private citizen on a matter of public concern.” Id. This
focus on “core” job functions is too narrow after Garcetti,
which asked only whether an “employee’s expressions
[were] made pursuant to official responsibilities.” Garcetti,
126 S. Ct. at 1961. Because Spiegla reported the possible
security breach to Schrader as part of her official responsi-
bility as a correctional officer to keep the prison secure,
her speech was not “citizen” speech protected by the
First Amendment. This holding is consistent with the
early post-Garcetti precedent in this and other circuits.
Compare Mills, 452 F.3d at 647-48 (police sergeant critical
of her boss’s personnel decision spoke as employee, not
citizen), Hill v. Borough of Kutztown, 455 F.3d 225, 242
(3d. Cir. 2006) (borough manager who relayed worker
complaints to borough council spoke as part of his duties
as manager, not a citizen), and Freitag v. Ayers, 463 F.3d
838, 855 (9th Cir. 2006) (correctional officer did not speak
as a citizen when she made internal reports to superiors
about inmate sexual misconduct), with Fuerst v. Clarke,
454 F.3d 770, 774 (7th Cir. 2006) (deputy sheriff spoke
as citizen because he made a public statement in his
capacity as a union representative), and Freitag, 463 F.3d
at 854 (correctional officer spoke as a citizen by sending
No. 05-3722                                                11

letters to a state legislator and the state inspector gen-
eral).
  That Spiegla’s statements highlighted potential miscon-
duct by prison officers does not change the fact that she
was speaking pursuant to her official responsibilities, not
as a citizen “contributi[ng] to the civic discourse.” Garcetti,
126 S. Ct. at 1960. The memo at issue in Garcetti also
pointed to serious official misconduct—possible misrepre-
sentations made by a deputy sheriff in a warrant affidavit.
But the assistant district attorney who wrote it was
responsible for supervising warrant applications; because
this was one of “the tasks he was paid to perform,” he
“acted as a government employee” when he wrote the
memo and his speech was not protected. Id.
  Similarly here, Spiegla “acted as a government em-
ployee” when she reported the possible misconduct to her
superior and sought clarification of a security policy she
felt may have been breached. She did not make a public
statement, discuss politics with a coworker, write a letter
to newspapers or legislators, or otherwise speak as a
citizen. See id. at 1960, 1961 (listing examples of proto-
typical protected speech by public employees). Because
Spiegla did not speak as a citizen under the standard
articulated in Garcetti, she has no claim for First Amend-
ment retaliation under § 1983.
  Accordingly, the judgment entered in Spiegla’s favor
must be vacated, but not without our observation that the
record and the jury’s verdict substantiate that Spiegla was
punished for simply trying to follow the rules. Garcetti
instructed that public employers should, “ ‘as a matter of
good judgment,’ be ‘receptive to constructive criticism
offered by their employees.’ ” Garcetti, 126 S. Ct. at 1962
(quoting Connick, 461 U.S. at 149). Our holding here,
however, is a straightforward application of the principle
in Garcetti that there is not a “constitutional cause of
12                                            No. 05-3722

action behind every statement a public employee makes
in the course of doing his or her job.” Id. The judgment is
VACATED and the case is REMANDED to the district court
with instructions to enter judgment for the defendants.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—3-30-07
