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

No. 05-4143
MARTIN SIGSWORTH,
                                              Plaintiff-Appellant,
                                 v.

CITY OF AURORA, ILLINOIS, an
Illinois municipal corporation,
a body politic; DAVID STOVER,
Mayor of the City of Aurora,
Illinois, WILLIAM J. LAWLER,
Chief of Police of Aurora, et al.,
                                           Defendants-Appellees.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 05 C 1888—Samuel Der-Yeghiayan, Judge.
                          ____________
   ARGUED NOVEMBER 27, 2006—DECIDED MAY 25, 2007
                  ____________


  Before WOOD, EVANS, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Martin Sigsworth, an investi-
gator with the Aurora, Illinois Police Department, repre-
sented his agency on a multi-jurisdictional task force
formed to investigate gang activity in and around the
Aurora area. When key targets in a drug raid managed to
evade arrest, Sigsworth suspected that they had been
tipped off by some of the task force’s members. Sigsworth
reported his suspicions to his supervisors, and he claims
2                                             No. 05-4143

that in retaliation for this speech, he was removed from
the task force and passed over for promotions. Sigsworth
filed suit under 42 U.S.C. § 1983 against the City of
Aurora, its mayor, and various supervisory officers in the
Aurora Police Department alleging violations of his
First Amendment rights. He appeals the district court’s
dismissal of his first amended complaint. We affirm,
finding that Sigsworth’s speech was not made outside of
his capacity as an investigator and a task force member, so
he was not speaking as a citizen for First Amendment
purposes. Sigsworth also objects to the district court’s
denial of his motions for leave to file a second amended
complaint that were brought pursuant to Federal Rules of
Civil Procedure 59(e) and 15(a). However, we cannot
conclude that the district court abused its discretion
because there were no manifest errors of law or newly
discovered evidence that merited consideration, and
amendments to his complaint would have been futile
since his speech was made as a public employee and not as
a citizen.


                  I. BACKGROUND
  The following allegations are taken from the first
amended complaint. Martin Sigsworth joined the Aurora
Police Department in 1992. In 1998, while employed as
a detective in the Investigations Division, he began
working with various federal agencies on a task force
focused on increasing cooperation among law enforcement
agencies to combat gang and drug activity in the Aurora
area. In 2002, the task force obtained numerous arrest
warrants for suspected drug dealers and gang members
and planned to conduct a large-scale operation to execute
the warrants. According to Sigsworth, the day before the
planned arrests, some of the task force’s members “acted
in a manner so as to provide general and specific notice of
No. 05-4143                                                    3

the impending raid.” Because of the “improper notice,”
several of the targeted suspects were able to evade arrest.
  After the botched raid, Sigsworth reported to his super-
visors what he believed to be misconduct by the task force
members which hampered execution of some of the war-
rants. The policy of cooperation among the organizations
participating in the task force and other policies of the
Aurora Police Department prompted him to complain of
the procedural missteps of his task force colleagues.
Defendant Chief of Police William Lawler, one of
Sigsworth’s supervisors, instructed him to remain silent
about the circumstances surrounding the raid. A short
time later, Sigsworth was removed from the task force
and the associated investigation. Moreover, despite his
rank at the top of the list of eligible candidates, Sigsworth
was denied promotions to sergeant.
  On June 16, 2005, Sigsworth filed his first amended
complaint against the City of Aurora, the mayor, and
various officials in the Aurora Police Department claim-
ing that the defendants deprived him of his right to
free speech under the First Amendment by retaliating
against him for reporting the alleged misconduct.1 The
defendants filed a motion to dismiss, which the district
court granted after finding that Sigsworth’s communica-
tions were not spoken as a citizen on a matter of public
concern and, therefore, not entitled to protection under the
First Amendment. Sigsworth’s motions to file a second
amended complaint were also denied, and he now appeals.


1
  Sigsworth also alleged the defendants violated his right to due
process under the Fourteenth Amendment by denying him a
promotion. In granting the defendants’ motion, the district
court dismissed this claim because Sigsworth’s allegations did
not indicate that he had a legitimate claim of entitlement to a
promotion. Sigsworth does not contest that ruling in this appeal.
4                                              No. 05-4143

                     II. ANALYSIS
A. Sigsworth’s First Amendment Retaliation Claims
  We review de novo the district court’s dismissal of
Sigsworth’s first amended complaint. See Chi. Dist.
Council of Carpenters Welfare Fund v. Caremark, Inc., 474
F.3d 463, 471 (7th Cir. 2007). In doing so, we accept as
true all well-pleaded factual allegations in the first
amended complaint and construe all reasonable infer-
ences from those facts in favor of Sigsworth. See id.
  The First Amendment protects a public employee’s
right to speak as a citizen about matters of public con-
cern under certain circumstances. See Garcetti v. Ceballos,
126 S. Ct. 1951, 1957 (2006); Connick v. Myers, 461 U.S.
138, 147-48 (1983); Pickering v. Bd. of Educ., 391 U.S. 563,
568 (1968). In such circumstances, an employer may not
retaliate against an employee for engaging in protected
speech. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
2006). To ensure that public employee speech is afforded
the proper constitutional protections, we have traditionally
applied the balancing test first announced in Pickering
v. Board of Education and clarified in Connick v. Myers
and other subsequent cases. See, e.g., Schad v. Jones, 415
F.3d 671, 674 (7th Cir. 2005); Cygan v. Wis. Dep’t of Corr.,
388 F.3d 1092, 1099 (7th Cir. 2004). Under the Connick-
Pickering test, a public employee can establish that his
speech is constitutionally protected if (1) the employee
spoke as a citizen on matters of public concern, and (2) the
interest of the employee as a citizen in commenting upon
matters of public concern outweighs the interest of the
State as an employer in promoting the efficiency of the
public services it performs through its employees. See
Schad, 415 F.3d at 674 (citing Connick, 461 U.S. at 147;
Pickering, 391 U.S. at 568). Applying this test, the dis-
trict court dismissed Sigsworth’s First Amendment
retaliation claims, concluding that Sigsworth did not
No. 05-4143                                               5

speak on a matter of public concern because he failed to
allege that he exceeded his normal duties when he dis-
closed the improper acts of the task force members to his
supervisors. The district court determined that because
Sigsworth could not satisfy the first requirement of the
Connick-Pickering test, his speech was not entitled to
constitutional protection.
   The Supreme Court has since provided further guid-
ance as to when a public employee speaks as a citizen for
First Amendment purposes. In Garcetti v. Ceballos, the
Court considered a First Amendment retaliation claim
where the relevant speech was a memorandum from a
deputy district attorney, Richard Ceballos, to his super-
visors that raised concerns about misrepresentations
contained in a search warrant affidavit and recommended
dismissal of the case. 126 S. Ct. at 1959-60. Ceballos
alleged that his employer acted in retaliation by reassign-
ing him to a trial deputy position, transferring him to
another courthouse, and denying him a promotion. Id. at
1956. The Court found that Ceballos did not speak as
a citizen, recognizing as the controlling factor in its
determination that Ceballos’s memorandum was written
pursuant to his duties as a deputy district attorney. Id. at
1959. In light of this finding, the Court held that “when
public employees make statements pursuant to their
official duties, the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does
not insulate their communications from employer disci-
pline.” Id. at 1960. The Court concluded that the deputy
district attorney was not speaking as a citizen because
he was merely discharging his professional responsibil-
ities when writing his recommendation memorandum. Id.
  With Garcetti in mind, we turn to Sigsworth’s claims of
First Amendment retaliation. The thrust of Sigsworth’s
argument on appeal is that he sufficiently alleged First
Amendment retaliation because his speech “constituted
6                                                     No. 05-4143

matters of the utmost concern to the public.” However,
Garcetti requires that before analyzing whether an em-
ployee’s speech is of public concern, a court must deter-
mine whether the employee was speaking “as a citizen” or,
by contrast, pursuant to his duties as a public employee.
126 S. Ct. at 1960.2 We therefore engage in the balancing
of public and private interests under Pickering and its
progeny “[o]nly when government penalizes speech that a
plaintiff utters ‘as a citizen’ . . . .” Mills, 452 F.3d at 647-
48. As we explain more fully below, Sigsworth was not
speaking as a citizen when he reported to his supervisors
his suspicions of misconduct by his colleagues.


2
   See also Mills v. City of Evansville, 452 F.3d 646, 647 (7th Cir.
2006) (on-duty sergeant dressed in uniform did not speak as a
citizen when she criticized the effectiveness of police chief ’s plan
during discussions with her superiors); Wilburn v. Robinson, 480
F.3d 1140, 1151 (D.C. Cir. 2007) (interim director of D.C.’s Office
of Human Rights spoke pursuant to her official duty to expose
discriminatory employment practices and not as a citizen when
she complained about salary disparities between job applicants);
Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir.
2007) (high school athletic director’s memoranda to office
manager and principal inquiring about athletic account balance
were written in course of performing his job as athletic di-
rector); Haynes v. City of Circleville, 474 F.3d 357, 362-65 (6th
Cir. 2007) (police officer’s memorandum protesting reductions
in canine training was written in his capacity as patrolman and
canine handler); Casey v. W. Las Vegas Indep. Sch. Dist., 473
F.3d 1323, 1327-32 (10th Cir. 2007) (superintendent spoke as a
school district employee rather than as a private citizen when
she raised concerns to board about lawful and proper conduct of
school business); McGee v. Pub. Water Supply, 471 F.3d 918, 920-
21 (8th Cir. 2006) (district manager’s complaints about district’s
environmental compliance on two projects were made pursuant
to his official duties); Battle v. Bd. of Regents, 468 F.3d 755, 759-
62 (11th Cir. 2006) (financial aid supervisor’s reports to univer-
sity officials about inaccuracies and potential fraud in student
files were made pursuant to her official duties).
No. 05-4143                                                7

  Sigsworth claims that the report he made to his super-
visors is deserving of First Amendment protection because
his speech exceeded the scope of his official duties.
Sigsworth relies on one of our pre-Garcetti cases, Delgado
v. Jones, 282 F.3d 511, 516-20 (7th Cir. 2002), where
we found that a detective’s memorandum to his supervi-
sors about suspected criminal activities involving a
relative of an elected official with ties to the police chief
was protected by the First Amendment. There, our deci-
sion turned on whether the detective’s speech addressed
a matter of public concern, which we determined by
looking to the “content, form, and context” of the detec-
tive’s memorandum. Id. at 516-17 (citing Connick, 461 U.S.
at 147-48). With respect to the content, we acknowledged
that the detective’s disclosures might have been consistent
with his obligations as a police officer, however, we
explained that the detective “went far beyond some rote,
routine discharge of an assigned duty” by exercising
considerable discretion in conveying the information
about the possible crimes. Id. at 519. In particular, we
recognized that the detective’s memorandum set forth
“additional facts that were relevant to the manner and
scope of any subsequent investigation.” Id. Because our
central concern in Delgado was the content of the detec-
tive’s speech, we did not address whether the detective was
speaking as a citizen when he made his report. Therefore,
our pre-Garcetti decision in Delgado does not help
Sigsworth.3
 According to Sigsworth’s first amended complaint, the
Aurora Police Department sought the assistance of the
FBI, the ATF, and other task force agencies not only to



3
  We do not consider whether Delgado or other pre-Garcetti
First Amendment retaliation cases would withstand scrutiny
under Garcetti.
8                                              No. 05-4143

supplement the Department’s efforts, but also “to enhance
and ensure a policy of [the] Aurora Police Department of
cooperation with these other agencies.” Sigsworth alleges
that “[t]his policy of enhanced cooperation . . . was fur-
thered by orders to the Plaintiff to maintain communica-
tion” with the deputy chief of police. He then admits that
“in furtherance of the policy of cooperation,” he reported
the alleged misconduct by the task force members to his
supervisors. Sigsworth’s allegations indicate that in
reporting his suspicions, he was merely doing what was
expected of him as a member of the task force charged
with organizing and overseeing the planning and execu-
tion of the arrest warrants.
  We recently held in Spiegla v. Hull, No. 05-3722, 2007
WL 937081, at *5 (7th Cir. Mar. 30, 2007), that a correc-
tional officer who was responsible for maintaining the
security of a prison by regulating and monitoring vehicle
and foot traffic through the prison’s main gate spoke
pursuant to her official duties when she reported her
immediate supervisor’s breach of prison security policy to
another supervisor. Similarly, Sigsworth reported that
task force members broke the law, and, according to him,
jeopardized the success of the operation and the safety of
those involved in it. In accordance with the policy of
cooperation and orders to communicate with the deputy
chief of police, Sigsworth reported the observed miscon-
duct connected to the operation that he had helped to con-
ceive and for which he had supervisory responsibilities.
Because Sigsworth’s speech was part of the tasks he was
employed to perform, he spoke not as a citizen but as a
public employee, and that speech is not entitled to protec-
tion by the First Amendment. See Garcetti, 126 S. Ct. at
1960 (“Restricting speech that owes its existence to a
public employee’s professional responsibilities does not
infringe any liberties the employee might have enjoyed as
a private citizen.”). Failing to meet the first prong of the
No. 05-4143                                                9

Connick-Pickering test, Sigsworth cannot advance his
claims of unconstitutional retaliation.
  In reaching this conclusion, we note that the defendants
agree that Garcetti is not a categorical rule that deprives
public employee speech of First Amendment protection
whenever that employee complains of work-related miscon-
duct. And, even employees who face retaliation for speech
connected to a job duty may be entitled to protection under
their state whistleblower statutes. See id. at 1962; 740 Ill.
Comp. Stat. §§ 174/15 & 30 (2007) (damages available
under the Illinois Whistleblower Act to an employee that
has been retaliated against by his employer “for disclosing
information to a government or law enforcement agency,
where the employee has reasonable cause to believe that
the information discloses a violation of a State or federal
law, rule, or regulation”).


B. Sigsworth’s Requests to File a Second Amended
   Complaint
  After the district court granted the defendants’ motion to
dismiss in its entirety, it denied Sigsworth’s motion
requesting leave to file a second amended complaint under
Federal Rules of Civil Procedure 59(e) and 15(a). See
Paganis v. Blonstein, 3 F.3d 1067, 1072 (7th Cir. 1993)
(noting that once the district court has dismissed action in
its entirety, plaintiff may amend the complaint with leave
of court after a motion under Rule 59(e) has been made
and judgment has been set aside or vacated). A district
court’s rulings on a party’s Rule 59(e) and Rule 15(a)
motions are reviewed for an abuse of discretion. Doe v.
Howe Military Sch., 227 F.3d 981, 989, 993 (7th Cir. 2000).
  We begin with the district court’s ruling on the Rule
59(e) motion to alter or amend the judgment. In disposing
of Sigsworth’s motion, the district court correctly observed
10                                               No. 05-4143

that Sigsworth alleged neither errors of law nor the
discovery of new evidence that would warrant recon-
sideration of the final judgment under Rule 59(e). See LB
Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267
(7th Cir. 1995) (“[A] Rule 59(e) motion must clearly
establish either a manifest error of law or fact or must
present newly discovered evidence.”) (internal quotations
omitted). Indeed, the motion requests leave to set forth
additional facts which Sigsworth admits he intentionally
omitted from his first amended complaint. However, it is
well-settled that a Rule 59(e) motion is not properly
utilized “to advance arguments or theories that could and
should have been made before the district court rendered
a judgment . . . .” Id. (internal citations omitted). We
therefore find that the district court did not abuse its
discretion in denying Sigsworth’s Rule 59(e) motion.
   Sigsworth filed another motion, this time asking the
district court to reconsider the denial of his first Rule 59(e)
motion and to allow him leave to file his proposed second
amended complaint. The district court summarily denied
this motion without explanation. Sigsworth’s second
Rule 59(e) motion suffered from the same deficiency as his
first, the failure to establish any errors of law or fact or
to put forth newly discovered evidence; therefore, we see
no reason to find that the district court abused its dis-
cretion in denying it.
   Turning to Sigsworth’s request to amend under Rule
15(a), we note that because there were no grounds to set
aside the district court’s judgment dismissing Sigsworth’s
first amended complaint, Sigsworth could not further
amend the complaint. See Paganis, 3 F.3d at 1073 n.8
(unless a final judgment is set aside or vacated, a plaintiff
may not amend her complaint). The district court declined
to address the merits of Sigsworth’s Rule 15(a) motion to
amend his complaint, but this was not error. See Helm v.
Resolution Trust Corp., 84 F.3d 874, 879 (7th Cir. 1996)
No. 05-4143                                             11

(noting that a district court may deny a Rule 59(e) motion
without first considering the merits of the Rule 15(a)
motion where the former is “doomed to denial”). Nonethe-
less, allowing Sigsworth to amend his complaint would be
futile in light of Garcetti. Although the proposed second
amended complaint adds detail to Sigsworth’s initial
allegations, it does not overcome the fact that Sigsworth’s
report to his supervisors of the suspected misconduct
was part of his official duties as an investigator and
member of the task force and, therefore, outside the scope
of First Amendment protection. See Garcetti, 126 S. Ct. at
1960. Because the additions proposed by Sigsworth cannot
cure the deficiencies of his first amended complaint,
he would not be entitled to receive leave to amend under
Rule 15(a).


                  III. CONCLUSION
  For the reasons stated above, the district court’s dis-
missal of Sigsworth’s first amended complaint and denial
of his motions for leave to file a second amended complaint
are AFFIRMED.

A true Copy:
      Teste:

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




                  USCA-02-C-0072—5-25-07
