Tejinder Singh Argues in Front of the Supreme Court of the United States Regarding Public Employee Protections Under the First Amendment

On Monday, April 28, 2014, the Supreme Court of the United States heard argument in Lane v. Franks, a case concerning whether the First Amendment permits a public employer to retaliate against an employee for giving truthful testimony, when testifying was not part of the employee's job responsibilities. Making his first appearance before the Court, Tejinder Singh, a counsel at the Supreme Court litigation boutique Goldstein and Russell, P.C., represented the petitioner, employee Edward Lane, and argued that the First Amendment did not permit Mr. Lane's former employer to fire him for his testimony. I asked the first time Supreme Court advocate about his life, career, and the experience of appearing before the Justices.

Professional Overview

Tejinder was born in Punjab, India. His family immigrated to the United States in 1984, when he was two years old, settling in San Jose, California, where he grew up. He stayed in California through college, earning a B.A. from the University of California at Berkeley in 2004 before switching coasts to get a J.D. from Harvard Law School in 2008.

Tejinder explained that when he decided to go to law school, he thought he wanted to be a law professor one day. He also had a background on his university's debate team, and he noted that "debaters attend law school at an extremely high rate, because when you spend all your time arguing, a progression to law feels natural."

Academic aspirations quickly dissipated, however. "When it comes to legal writing, I'm my own worst critic. I never loved anything I wrote in school, and I didn't want to publish anything I didn't love." Instead, during his first summer of law school, Tejinder had the opportunity to be the sole summer associate at Howe & Russell, P.C., a previous incarnation of his current firm. He explains how he got the job: "Tom Goldstein, who had previously run the firm, was leaving to head the Supreme Court and appellate practice at Akin Gump, and he was taking his second year summer hires with him. Tom was also one of the instructors for the Supreme Court clinic at Harvard Law School, and he had asked his students whether they knew any first year student who might be a good fit for a low paying summer job at Howe & Russell. I got lucky when one of my debate friends, who was a third year student in the clinic, floated my name. Tom called me to offer the job, and I accepted it on the spot." At Howe & Russell, Tejinder had the chance to collaborate with his current colleagues on Supreme Court cases. "It was working in this small environment with these great lawyers that made me want to keep doing more of it."

After law school, Tejinder crossed the Pond to London to work in the U.S. law group at Allen & Overy, assisting in cross border debt and equity transactions just as the global financial crisis began. He explains that he went to London "chasing after a girl a gorgeous LLM classmate who was heading to London to join a major international arbitration practice." The trip paid off, both personally and professionally. Tejinder had a front row seat to the global financial collapse, gaining insights into the ways that derivatives contracts had tied the economy in knots, and seeing firsthand how businesses and countries reacted. He also returned to the United States with a fiancée.

Upon his return, Tejinder clerked for the honorable Judge Diana Motz in the Fourth Circuit Court of Appeals in Baltimore. "Judge Motz was a great teacher, especially for legal writing. When we drafted opinions in chambers, the clerks would go back and forth with the judge, so the clerks had an opportunity to witness firsthand the evolution from first draft to finished product. That iterative process was very helpful because it revealed how judges approach writing and deciding cases, which is something that young lawyers can really only see by clerking."

After his clerkship, he joined the Supreme Court and appellate practice at Akin Gump, working for Tom Goldstein. When Tom left Akin Gump in 2011 to rejoin his Supreme Court boutique, Tejinder went with him.

"Our four lawyer firm focuses on cases before the Supreme Court of the United States, and in fact we represent a party in about 10 percent of the merits docket every Term. We are experts in the forum, and we are privileged to have the opportunity to represent a broad slate of clients pursuing a diverse array of interests. We litigate First Amendment cases and other civil rights matters, securities law cases, arbitration cases—really, you name it, and we can handle presenting it to the Court. It's a fun way to practice because we get such diverse exposure. Simultaneously, we're not generalists: we contribute a level of understanding about the Court that subject matter specialists seldom have. So we're usually working on teams with other lawyers, combining our expertise with theirs to achieve the best possible results. From time to time, we represent clients in other courts as well."

If you think that sounds fun, Tejinder would agree. "My job is excellent. I have wonderful colleagues, stimulating work, and often exceptional clients. I have not met another lawyer my age with whom I would willingly trade jobs. It really is that good."

When the attorney isn't working, he enjoys cooking, playing poker, and spending time with his toddler son, who "cracks [him] up every day." Tejinder is also "a senior advisor to the International Center for Advocates Against Discrimination, an organization that seeks to eradicate structural discrimination globally." And he thinks that"Michael Lewis is an amazing storyteller and writer."

Does he have a favorite restaurant? "No. But I eat vegetarian, and I have a special disdain for restaurants that offer me insipid pasta, an uninspired salad, or a grilled portobello mushroom. It's just so lazy. Cook plants properly, season and spice aggressively, and I'm a happy guy."

The Lane Case

Edward Lane was the director of a statewide program for at risk youth, administered by the Alabama community college system. While conducting an audit of the program's finances, he noticed that a state legislator had been receiving substantial paychecks, but had not been doing any work. After Lane couldn't get the legislator to report to work, he fired her. The legislator threatened retaliation, declaring that if his program sought state funding she would see that he was fired from his job.

Federal authorities took notice. The FBI investigated the legislator's conduct, and federal prosecutors obtained a fraud indictment against her. During her two criminal trials (the first concluded in a mistrial), Lane was subpoenaed to testify before a grand jury. After his testimony, then college president Steve Franks fired him, along with a group of other employees, ostensibly for financial reasons. Two days later, Franks reinstated all but two employees (Lane and one other). Lane sued the college for terminating him for his testimony in violation of his First Amendment rights. The U.S. Court of Appeals for the Eleventh Circuit ruled against the former director, stating that he did not testify "as a citizen" because his testimony solely described events that occurred at work, and also holding that Franks was entitled to qualified immunity from damages.

Tejinder learned of Lane's case through a computer search. Every day, his firm runs hundreds of searches through the Bloomberg Law appellate decisions database, looking for cases that raise issues that may interest the Supreme Court. When Tejinder saw that the Eleventh Circuit had decided this important First Amendment question in a way that deepened a conflict among the circuit courts of appeals, he contacted Lane's attorneys and asked if he could help, pro bono, to take the case forward. "I'm very happy to be at a firm where the first concern isn't whether a case will pay a lot of money, but instead whether we can deliver an excellent result for the client. When we think that we can, we have not hesitated to reach out to attorneys and their clients to see if we can assist." Lane heard the pitch, and retained Tejinder to represent him at the Court.

Tejinder ran the representation from start to finish, drafting the petition for a writ of certiorari and the reply to the brief in opposition, and then the merits brief and reply, as well as coordinating the submission of eight separate amicus briefs. "Our firm has a general rule that if you bring in a case, you can keep it if the client agrees. And running this Supreme Court case was a great professional experience. I had a chance not only to handle the research and writing components, but to shape the overall strategy. Of course, whenever I needed it, I received tremendous assistance and support from my colleagues, who are some of the best and most seasoned advocates in the business."

The representation culminated at oral argument, where Tejinder made his first appearance before the Justices on Lane's behalf. He explained that the First Amendment protected Lane's testimony because Lane spoke as a citizen, and not as an employee, and because his speech related to a matter of public concern. Tejinder argued that his client's job duties included managing the staff in his program. But he never thought, as part of his duties, he would have to testify in a federal criminal trial. Additionally, Tejinder highlighted that Lane's testimony was under subpoena, a fact that he described as "strong evidence that when an employee testifies he is not doing so because it's his job to do so."

Justice Sonia Sotomayor asked Tejinder whether lab technicians and police officers who are frequently called to testify by prosecutors and defense attorneys are protected. "When are they acting within the scope of their duties and when are they not?"

Tejinder conceded that in those cases, there was an argument that the employees spoke in the course of their duties, so that the speech might not be protected. He added, however, there is a stronger First Amendment argument that "even in those circumstances, there is a separate and a superior obligation to testify truthfully to the court that is, to provide information in a way that is unbiased toward the interests of the employer." Even so, Tejinder did not urge the Court to adopt that broader rule, which was not necessary to decide Lane's case. Instead, he urged the Justices to apply the rule the Court announced in its 2006 decision Garcetti v. Ceballos, i.e., that a public employee's speech is protected when the employee speaks on a matter of public concern, and does not do so in the course of his official duties. He asserted, "To the extent that any clarification is required, the only clarification would be that even when the testimony describes facts that the employee learned in the course of employment, it's still protected."

I asked Tejinder how it felt to argue in front of the Justices on behalf of his client. He replied:

"Edward Lane is a superhero: he stood up and told the truth, even though it cost him a lucrative job. His courage is remarkable, and I was proud to represent him. The fact that I got to argue before the Justices was entirely secondary but it was a lot of fun. In a job that focuses so much on research and writing, to stand up and speak to a group of nine brilliant, engaged jurists was a blast."

I asked whether Tejinder believed he influenced the Justices? "Ask me again when the decision comes out. I think that we're clearly correct in this case, but convincing the Justices who are so well prepared to change their minds during an oral argument is a daunting task for any advocate."

What's Next?

I asked Tejinder what he's known for as a professional, and what he wants to work on going forward. He responded:

"Our task involves high level strategic thinking, and lots of research and writing. I've spent most of my young career honing my research and writing skills, and while there's always room to improve, I'm starting to get happy with my abilities in that regard. I'm working hard now on making sure that I always understand the big picture in a case both from the perspective of the Court, and also the perspective of the client so that I can make sure that our strategy is always geared toward the best possible result. I think that I've had more of an opportunity to do that than most lawyers my age (not many 32-year olds get to run their own Supreme Court case, for example), but there's still lots to learn."

Is there an area of practice Tejinder would like to develop further into? He claimed:

"Our firm has started to do a substantial amount of work in cases involving the judicial review of arbitration awards. And my wife is a very talented international arbitration advocate. I think this is a great area of law: it's developing before our eyes, the stakes are often tremendous for the parties, and it's the type of work that even a very lean firm (one without a lot of associates and paralegals) can do efficiently. So I'm very interested to participate more in that. I also wouldn't mind running and arguing another case or two in the near future."

Where does Tejinder see himself in five years' time? "I've only been out of law school for six years, and at my current job for three, so a five year time horizon is daunting to me. I don't know where I'll be, but the goal is to keep learning and improving."

If he were not a lawyer, what would he most probably be doing? "When I left California for the East Coast, it felt like an adventure. When I jumped the Atlantic to London, it felt like an adventure. And when I left Akin Gump to join a tiny firm that's involved in a huge percentage of the Supreme Court's docket, it felt like an adventure. If I were to leave here, it would be to go on another adventure—exactly what kind, I don't know, but that's what makes it an adventure."

How does Tejinder want to be remembered? "Before I walk into a room, I would like to be underestimated, so that people are always impressed when they meet me. As soon as I leave, I'd like to be remembered as better looking, smarter, and funnier than I really was. The trick is finding a way to flip the switch at the exact right moment."

And what are his goals? "To continue to learn and improve, to make something of every great opportunity that comes along, and to ultimately leave this place better than I found it."