### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1865

A MY H ARNISHFEGER

, Plaintiff

‐ Appellant

,

v.

U NITED S TATES OF A MERICA

, et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:16

‐ cv

‐ 03035

‐ TWP

‐ DLP

— Tanya Walton Pratt

, Judge

.

____________________

A RGUED N OVEMBER 28, 2018

— D ECIDED D ECEMBER 3, 2019

____________________

Before R OVNER

, H AMILTON

, and B RENNAN

, Circuit Judges

.

H AMILTON

, Circuit Judge

. This appeal deals with First

Amendment protection for public employees when they en

‐

gage in speech that is not related or tied to their work. Plainti ff

Amy Harnishfeger authored a short book, published under a

pseudonym, about her time as a phone

‐ sex operator called

Conversations with Monsters: 5 Chilling, Depraved and Deviant

Phone Sex Conversations

. A month after publishing Conversa

‐

tions

, Harnishfeger began what was to have been a one

‐ year2 No. 18

‐ 1865

stint with the Indiana Army National Guard as a member of

the Volunteers in Service to America (VISTA) program, a fed

‐

eral antipoverty program administered by the Corporation

for National and Community Service (CNCS).

But when Harnishfeger’s National Guard supervisor dis

‐

covered Conversations and identi fi ed Harnishfeger as its au

‐

thor, she demanded that CNCS remove Harnishfeger from

her position. CNCS complied. Harnishfeger was unable to

fi nd another suitable placement for the remainder of her

VISTA service, so, three months after she started, CNCS cut

her from the program entirely. Harnishfeger fi led this suit al

‐ leging violations of her rights under the First Amendment

and the Administrative Procedure Act (APA). The district

court granted the defendants’ motions for summary judg

‐

ment. Harnishfeger v. United States

, 2018 WL 1532691 (S.D. Ind.

March 29, 2018). Harnishfeger appeals.

We reverse in part and a ffi rm in part. Conversations with

Monsters is clearly protected speech, and on this record, a jury

could fi nd that Harnishfeger’s National Guard supervisor,

Lieutenant Colonel Lisa Kopczynski, infringed her free

‐ speech rights by removing her from her placement because of

it. We fi nd no basis, however, for holding CNCS or its em

‐ ployees liable, so we a ffi rm the judgment in favor of the fed

‐

eral defendants.

I. Factual Background

A. Conversations with Monsters

Because this appeal is from a grant of summary judgment,

we state the facts and the inferences from them in the light

most favorable to Harnishfeger. A li tt le more than a decade

ago, Harnishfeger found herself unemployed andNo. 18

‐ 1865 3

“disgruntled with the thought of working for ‘the man’ any

longer,” as she wrote in the introduction to Conversations

. She

decided to try phone

‐ sex work, but quickly discovered it was

not the “ fl irty fun” the phone

‐ sex industry held it out to be.

Harnishfeger was horri fi ed to hear what some of the callers

would fantasize to her about, including sexual abuse of chil

‐

dren.

These “vile, unrepentant, disgusting poor excuses for

men” (and one woman) are the “monsters” of whom she

wrote in Conversations

. Harnishfeger did not mince words: “if

you’re ge tt ing o ff at the thought of hurting a child

. . . , there

is something clearly un fi t for this world in you and you need

to end things once and for all.” Conversations recounted fi ve of

Harnishfeger’s most horrifying phone

‐ sex calls and medi

‐

tated on the social role of phone

‐ sex operators and on her own

experiences as one of them.

Harnishfeger published Conversations with Monsters in

May 2016 by making it available for sale in electronic form on

Amazon, an online marketplace. On June 2, 2016 Harnish

‐ feger announced publication of her book on her page on Face

‐

book, a social networking website, with a link to the book’s

page on Amazon. Harnishfeger’s Facebook page was “set to

private,” meaning that only Facebook users whom Harnish

‐ feger designated as her “friends” could view what she posted

there. Others viewing Harnishfeger’s Facebook page would

see only very general information about her.

Because Conversations was published pseudonymously,

only Harnishfeger’s Facebook “friends” could tie her to it.

Even they, however, would have had to do a bit of hunting to

fi nd a reference to it unless they had seen the publication an

‐

nouncement soon after it was posted. A Facebook user’s posts4 No. 18

‐ 1865

appear on her page chronologically from most recent to least

recent, so Harnishfeger’s “quite frequent” Facebook activity

would have buried the publication announcement under fl ur

‐

ries of more recent posts “as li tt le as a week or two” after it

was made.

B. VISTA

Shortly after publishing Conversations with Monsters

, Harnishfeger was selected to participate in the VISTA pro

‐

gram. The VISTA program is a part of AmeriCorps, a federal

network of hundreds of programs across the nation. It is

sometimes called “the domestic Peace Corps.” VISTA mem

‐

bers serve full

‐ time for a year at non

‐ pro fi t organizations or

local government agencies to help them carry out programs

to alleviate poverty. AmeriCorps is administered by CNCS, a

federal agency that leads service, volunteering, and grant

‐ making e ff orts in the United States. 1

Prospective VISTA members apply directly to CNCS. If se

‐

lected to participate in the program, members apply sepa

‐ rately to work with a sponsoring organization pre

‐ approved

by CNCS. In Indiana, for example, the twenty

‐ three organiza

‐

tions approved for VISTA sponsorship in 2016 included vari

‐

ous charities, the Indianapolis Public Schools, and the Indiana

Army National Guard. VISTA members/volunteers do not

1 See AmeriCorps FAQs, CNCS, https://www.national

‐ service.gov/programs/americorps/americorps

‐ faqs (last visited Dec. 3,

2019); AmeriCorps VISTA FAQs, CNCS, https://nationalservice.gov/pro

‐ grams/americorps/americorps

‐ programs/americorps

‐ vista/americorps

‐

vista

‐ faqs (last visited Dec. 3, 2019); About CNCS, https://www.national

‐ service.gov/about (last visited Dec. 3, 2019).No. 18

‐ 1865 5

receive a salary, but they do receive a number of bene fi ts, in

‐ cluding a small monthly living allowance.

C. Harnishfeger’s Short VISTA Career

Harnishfeger had applied to and been accepted by CNCS

as a VISTA volunteer sponsored by the Indiana Army Na

‐

tional Guard. She began her VISTA service with the Guard’s

Family Program O ffi ce in Indianapolis on June 24, 2016.

Harnishfeger was responsible for maintaining a database of

information on service providers to whom veterans and their

families could turn for help. Much of the underlying infor

‐

mation had already been gathered by the Guard’s previous

VISTA volunteer. If it had not been, Harnishfeger would

glean the information herself from public sources. She would

then enter it into the database. The information was made

publicly available on the Guard’s website.

Occasionally—perhaps a dozen times over the course of

three months—Harnishfeger was unable to fi nd an item of in

‐

formation she needed, such as a service provider’s telephone

number or physical address. In those cases, Harnishfeger con

‐

tacted the service provider directly, usually by telephone or

email.

In two cases, Harnishfeger could fi nd no contact infor

‐

mation for the service provider at all, so, using her own Face

‐

book account, she posted a comment to the provider’s Face

‐

book page asking for the information she needed. For exam

‐ ple, on August 26, she posted a message to the Facebook page

of an organization called PACT—Hoosier Hills asking for an

o ffi ce email address. The comment identi fi ed Harnishfeger as

a “VISTA volunteer.”6 No. 18

‐ 1865

To post these comments requesting information, Harnish

‐ feger was not required to, and did not, designate the service

providers as her Facebook “friends.” Because her Facebook

account was private, neither the provider’s Facebook account

manager nor any other members of the public viewing her

comments were able to view Harnishfeger’s posts to her own

Facebook page, including her earlier post about Conversations

.

During her three months of VISTA service with the Guard,

these dozen contacts were the only occasions on which

Harnishfeger interacted with members of the public on the

Guard’s behalf. Otherwise, she sat at a computer and entered

data. She performed her duties to the Guard’s satisfaction.

D. Harnishfeger’s Termination from VISTA

That likely would have been the story of Harnishfeger’s

entire year with the Guard. But then Noelle Butler, Harnish

‐ feger’s direct supervisor, asked to become her Facebook

“friend.” Harnishfeger felt she could not reject this request

from her quasi

‐ employer. She accepted Butler’s “friend re

‐ quest” and thereby gave Butler access to all of her “friends

‐ only” Facebook activity.

In mid

‐ to late September, Butler explored Harnishfeger’s

Facebook history deeply enough—through “many dozens, if

not hundreds” of posts—to come upon her post of June 2 an

‐ nouncing the publication of Conversations with Monsters

. Over

her lunch break one day, “[o]ut of curiosity about this bizarre

title,” Butler and another Guard employee followed the Ama

‐

zon link and purchased a copy of the book. On September 27,

Butler and the other employee brought the book’s contents to

the a tt ention of Lieutenant Colonel Lisa Kopczynski, the

Guard’s State Family Program Director.No. 18

‐ 1865 7

On September 28, Lt. Col. Kopczynski wrote a le tt er to

Emily Kubiszewski, a State Program O ffi cer for CNCS who

was Harnishfeger’s point of contact with the VISTA program.

Kopczynski requested that Harnishfeger be removed from the

VISTA placement or be terminated early for cause. Referring

to Conversations

, Kopczynski explained that “activities and

conduct found” on Harnishfeger’s Facebook page did not “fa

‐ vorably represent” the Guard’s Family Program O ffi ce.

The next day, September 29, Harnishfeger met with Butler

and Kopczynski. Kopczynski told her that Conversations with

Monsters was “really horrible,” that she was not presenting

the Guard “in a favorable light,” and that the Guard could not

“have anyone fi nd out about” her authorship of Conversations

. Harnishfeger would therefore be removed from her VISTA

placement with the Guard.

The same day, Harnishfeger received a le tt er from Louis

Lopez, Indiana State Program Director for CNCS, informing

her that she had been removed from her VISTA placement

and put on “Administrative Hold status” for up to 30 days,

e ff ective immediately. A week or so later, in early October,

Kubiszewski told Harnishfeger that, although she would not

be readmi tt ed to her placement with the Guard, if she deac

‐

tivated her Facebook account, she would be permi tt ed to seek

another sponsor where she could complete her term of VISTA

service. Harnishfeger accordingly deactivated her account.

On October 6, Kubiszewski sent Harnishfeger a le tt er

spelling out her prospects with the VISTA program. She gave

Harnishfeger a list of approved VISTA sponsors in Indiana

and nineteen days, until October 25, to fi nd a new sponsor. If

Harnishfeger could not secure reassignment before October8 No. 18

‐ 1865

25, her VISTA participation would be terminated entirely, ef

‐

fective October 26.

Harnishfeger contacted fi ve of the twenty

‐ two potential

sponsors available to her. One responded, but it was too far

from Indianapolis to be feasible on Harnishfeger’s limited

means. Harnishfeger thus failed to secure reassignment by

the October 25 deadline. On that day, she received a second

le tt er from Lopez informing her that her VISTA membership

had been fi nally terminated “for lack of suitable assignment.”

E. This Lawsuit

Within two weeks, Harnishfeger sued Lopez, Ku

‐

biszewski, Kopczynski, and Butler in their personal and o ffi‐

cial capacities, as well as the United States government, for

violating her rights under the First and Fourteenth Amend

‐

ments and the Administrative Procedure Act, 5 U.S.C. § 706.

The district court had jurisdiction of the case under 28 U.S.C.

§ 1331 and § 1346.

The personal

‐ capacity defendants (except Butler, who was

later dismissed on Harnishfeger’s motion) moved to dismiss

the complaint. The United States, as a named defendant and

as the real target of o ffi cial

‐ capacity claims against federal ac

‐

tors, Hafer v. Melo

, 502 U.S. 21, 25–26 (1991), moved separately

to dismiss the complaint or in the alternative for summary

judgment. After converting the defendants’ motions to dis

‐

miss to motions for summary judgment, see Fed. R. Civ. P.

12(d), the district court granted the defendants’ motions and

entered fi nal judgment in the defendants’ favor.

II. Analysis

Because the district court converted the defendants’ mo

‐

tions to dismiss to motions for summary judgment, we applyNo. 18

‐ 1865 9

the standard of review for grants of summary judgment.

Washington v. Summerville

, 127 F.3d 552, 557 (7th Cir. 1997). On

the record before us, a reasonable jury could conclude that

Lieutenant Colonel Kopczynski violated Harnishfeger’s con

‐

stitutional rights. Harnishfeger has a claim under 42 U.S.C.

§ 1983 against Kopczynski as a state actor, and Kopczynski is

not entitled to quali fi ed immunity. We therefore reverse the

judgment as to Kopczynski. By contrast, Harnishfeger failed

to show a triable issue as to whether any federal defendant is

responsible for a violation of her rights under the First

Amendment or the APA. We a ffi rm the judgment in their fa

‐

vor.

A. First Amendment Claim Against Lt. Col. Kopczynski

1. First Amendment Merits

We begin with the First Amendment merits before turning

to questions of Lieutenant Colonel Kopczynski’s personal lia

‐ bility. To prove a First Amendment retaliation claim, a public

employee must establish three elements: fi rst, that she en

‐ gaged in constitutionally protected speech; second, that she

su ff ered a deprivation likely to deter protected speech; and

third, that her protected speech was a motivating factor in the

deprivation and ultimately, if the public employer cannot

show it would have in fl icted the deprivation anyway, its but

‐

for cause. See Graber v. Clarke

, 763 F.3d 888, 894–95 (7th Cir.

2014); Greene v. Doru ff

, 660 F.3d 975, 977–80 (7th Cir. 2011)

(collecting causation cases); Massey v. Johnson

, 457 F.3d 711,

716 (7th Cir. 2006). The fi rst element—constitutionally pro

‐

tected speech— is the nub of this appeal; the second and third

are uncontested as to Kopczynski.10 No. 18

‐ 1865

Whether a public employee’s speech is constitutionally

protected is a question of law, “even though it may

. . . re

‐ quire[] predicate factual determinations.” Gustafson v. Jones

,

290 F.3d 895, 906 (7th Cir. 2002). For clarity, we note that “con

‐ stitutionally protected speech” has two di ff erent meanings in

the doctrine. A public employee ultimately satis fi es the pro

‐

tected

‐ speech element of a retaliation claim by prevailing in

the balance of employee and employer interests required by

Pickering v. Board of Education

, 391 U.S. 563 (1968). Our discus

‐

sion immediately below focuses on the threshold question

whether Harnishfeger’s speech was constitutionally pro

‐

tected in the sense that the court needs to engage in Pickering

balancing at all. We conclude that Conversations with Monsters

was protected in both senses.

a. Conversations Is Protected Under NTEU

There are at least two routes to Pickering balancing. See

City of San Diego v. Roe

, 543 U.S. 77, 80 (2004). The be tt er tra

‐

veled leads across the double threshold established by Con

‐

nick v. Myers

, 461 U.S. 138 (1983), and Garce tt i v. Ceballos

,

547 U.S. 410 (2006). The employee must show under Garce tt i

that she spoke as a citizen rather than an employee, 547 U.S.

at 418, and under Connick that she spoke on a ma tt er of public

concern rather than “ma tt ers only of personal interest.”

461 U.S. at 147.

When the employee’s speech is neither at work nor about

work, however, a di ff erent path to Pickering is available under

United States v. National Treasury Employees Union

, 513 U.S. 454

(1995) (“ NTEU ”), largely anticipated in this circuit by Eber

‐

hardt v. O’Malley

, 17 F.3d 1023 (7th Cir. 1994). In NTEU

, the

Court struck down a federal law that prohibited federal em

‐ ployees from receiving honoraria for writing and speaking onNo. 18

‐ 1865 11

ma tt ers unrelated to their o ffi cial duties. The NTEU record in

‐

cluded examples such as a mail handler who was paid for lec

‐ turing on Quaker history, an aerospace engineer who was

paid for lecturing on African American history, and a biolo

‐ gist who earned money by writing and speaking about dance

performances. 513 U.S. at 461. Justice Stevens’s opinion for the

Court also reminded readers that authors Nathaniel Haw

‐

thorne, Herman Melville, Walt Whitman, and Bret Harte had

all published (and been paid for) their famous works while

employed by various federal agencies. Id

. at 464–65.

The key issues under NTEU are whether the employee’s

speech is “made outside the workplace,” id. at 466; “involve[s]

content largely unrelated to [her] government employment,”

id. ; and is “addressed to a public audience,” id.

, or, what

amounts to the same thing, involves “any ma tt er for which

there is potentially a public.” Eberhardt

, 17 F.3d at 1026 (reject

‐ ing pre ‐ and post

‐ publication distinction). If the employee

shows these elements, and if the employer cannot show the

employee’s speech was linked by her “deliberate steps” to the

employer’s mission, purpose, or image, see Roe

, 543 U.S. at 81,

then NTEU

, not Connick

, controls, and Pickering balancing ap

‐ plies.

While Conversations may satisfy Connick as citizen speech

on a ma tt er of public concern, NTEU o ff ers the easier and

clearer path to decision. Harnishfeger’s book was wri tt en and

published a month before she began her VISTA service. Its

content is entirely unrelated to CNCS, VISTA, and the Guard.

It was wri tt en for a general audience on the personal experi

‐

ences of sex workers and their social role, ma tt ers for which

there is undoubtedly a public. Harnishfeger never12 No. 18

‐ 1865

deliberately linked the book to her VISTA service, which had

not even begun at the time of publication.

Defendants try to distinguish NTEU by citing Roe and our

decision in Craig v. Rich Township High School District 227

,

736 F.3d 1110 (7th Cir. 2013), arguing that Harnishfeger delib

‐ erately linked Conversations with Monsters to her VISTA ser

‐

vice by “promoting [the book] on her Facebook page, where

she held herself out as an employee of the Indiana National

Guard and which she used to contact local family

‐ services or

‐ ganizations on behalf of the Guard.” This argument distorts

the record and fails to give plainti ff the bene fi t of con fl icting

evidence and favorable inferences from the evidence.

The plainti ff in Roe was a San Diego police o ffi cer who sold

videos of himself on an online marketplace, stripping and

masturbating in a police uniform and pantomiming police

work. 543 U.S. at 78–79. He sold these and other items, includ

‐ ing o ffi cial San Diego police uniforms, under a user name that

was “a wordplay on a high priority police radio call,” while

identifying himself as employed in the fi eld of law enforce

‐

ment. Id. For these actions and for failing to comply with a

resulting investigation by his employer, Roe was fi red. He

sued, alleging his fi ring violated the First Amendment. Id. at

79.

The Court concluded, summarily and unanimously, that

the fi ring was permissible under either NTEU or Connick

. Id.

at 80. “In NTEU it was established that the speech was unre

‐

lated to the employment and had no e ff ect on the mission and

purpose of the employer.” Id. By contrast, although Roe’s ex

‐ pression “purported to be” unrelated to his employment, Roe

himself had taken “deliberate steps to link his videos

. . . to

his police work, all in a way injurious to his employer.” Id. atNo. 18

‐ 1865 13

81. The Court pointed to his use of a police uniform in his per

‐

formances, his allusive user name, his disclosure of law

‐ en

‐

forcement employment, and his “debased parody of an o ffi cer

performing indecent acts while in the course of o ffi cial duties”

in fi nding that Roe’s expression “brought the mission of the

employer and the professionalism of its o ffi cers into serious

disrepute.” Id. Put di ff erently, “Roe’s expression was widely

broadcast, linked to his o ffi cial status as a police o ffi cer, and

designed to exploit his employer’s image.” Id. at 84.

Similar linkage was critical in Craig

, where the plainti ff

was a former high school guidance counselor and girls’ bas

‐

ketball coach who had been fi red from those positions for

writing a book called It’s Her Fault

, a “hypersexualized” tract

dedicated to the proposition that, when men and women ex

‐ perience di ffi culties in romantic relationships, “it’s her fault.”

736 F.3d at 1113–14. A ffi rming the district court’s dismissal of

his complaint, we rejected Craig’s argument that his book was

protected under NTEU

.

Craig had taken “‘deliberate steps to link’ his book with

his work as a guidance counselor

. . . .” Id. at 1118, quoting

Roe

, 543 U.S. at 81. Craig’s book cited his work as a counselor

and coach as the basis for his claimed expertise; thanked his

“students and clients” in the acknowledgments; contained a

foreword wri tt en by a teacher at Craig’s school; and described

the counseling Craig had provided “to thousands of students,

parents, clients, and friends.” Id. We held this material re

‐

fl ected “Craig’s conscious choice to connect ‘It’s Her Fault’ to

his counseling position,” taking his book outside NTEU ’s pro

‐

tection. Id.

The point of Roe and Craig is that the speaker

‐ employee

cannot deliberately trade on her public employment while14 No. 18

‐ 1865

claiming the speech is entirely unrelated. But NTEU would

mean li tt le indeed if its protection could be circumvented by

merely identifying an author as a public employee. (Recall

that Butler had to canvass “many dozens, if not hundreds” of

Harnishfeger’s Facebook posts to fi nd the Conversations pub

‐

lication announcement.) And simply nothing at all in Conver

‐

sations or its distribution is deliberately linked to the mission,

purpose, or image of the Indiana Army National Guard or the

VISTA program.

Conversations was speech on a ma tt er of public concern

within the meaning of NTEU

, and Harnishfeger is therefore

entitled to Pickering balancing. The district court erred in

reaching the contrary conclusion. That is not enough to re

‐

solve this appeal, however, as the district court ruled in the

alternative that, even assuming Conversations was constitu

‐ tionally protected in the threshold sense, the Pickering balance

weighed in the defendants’ favor. This ruling, too, was erro

‐

neous.

b. The Pickering Balance Does Not Weigh in the De

‐ fendants’ Favor

The challenge in public

‐ employee speech doctrine is “to

arrive at a balance between the interests of the [employee], as

a citizen, in commenting upon ma tt ers of public concern and

the interest of the State, as an employer, in promoting the ef

‐

fi ciency of the public services it performs through its employ

‐

ees.” Pickering

, 391 U.S. at 568. In deciding whether the bal

‐

ance should be struck in favor of speech or e ffi ciency in a

given case, we have examined seven factors:

(1) whether the speech would create problems

in maintaining discipline or harmony amongNo. 18

‐ 1865 15

co

‐ workers; (2) whether the employment rela

‐ tionship is one in which personal loyalty and

con fi dence are necessary; (3) whether the

speech impeded the employee’s ability to per

‐

form her responsibilities; (4) the time, place and

manner of the speech; (5) the context in which

the underlying dispute arose; (6) whether the

ma tt er was one on which debate was vital to in

‐

formed decisionmaking; and (7) whether the

speaker should be regarded as a member of the

general public.

Kristofek v. Village of Orland Hills

, 832 F.3d 785, 796 (7th Cir.

2016), quoting Greer v. Amesqua

, 212 F.3d 358, 371 (7th Cir.

2000). We need not address each factor in each case. Id.

, citing

Graber v. Clarke

, 763 F.3d 888, 896 (7th Cir. 2014).

At trial, the public employer has the burden of showing by

a preponderance of the evidence that this balance weighs in

its favor. Gustafson v. Jones

, 290 F.3d 895, 906, 909 (7th Cir.

2002). Requiring proof by a preponderance of the evidence in

‐

dicates that the public employer’s burden is one of persua

‐

sion, not merely production, in the nature of an a ffi rmative

defense. See Gustafson v. Jones

, 117 F.3d 1015, 1019 (7th Cir.

1997) (“[P]urely as a ma tt er of good pleading practice, we

think it preferable to leave to the defendant the burden of rais

‐ ing justi fi cation [under Pickering ] as an a ffi rmative defense.”);

see generally Scha ff

er ex rel. Scha ff

er v. Weast

, 546 U.S. 49, 57

(2005), citing FTC v. Morton Salt Co.

, 334 U.S. 37, 44–45 (1948)

(“[T]he burden of persuasion as to certain elements of a plain

‐

ti ff ’s claim may be shifted to defendants, when such elements

can fairly be characterized as a ffi rmative defenses

. . . .”).16 No. 18

‐ 1865

When a public employer moves for summary judgment on

the Pickering balancing defense, therefore, it must “lay out the

elements of the [defense], cite the facts which it believes sa

‐ tisf[y] these elements, and demonstrate why the record is so

one

‐ sided as to rule out the prospect of a fi nding in favor of

the non

‐ movant” on the defense.” See Hotel 71 Mezz Lender

LLC v. Nat’l Retirement Fund

, 778 F.3d 593, 601 (7th Cir. 2015)

(summary judgment standard where movant bears burden of

proof on claim or defense). The district court did not hold the

defendants to this standard, however.

On appeal, the defendants’ defense of the district court’s

Pickering balance su ff ers from two general defects. First,

through citations to websites and the “VISTA Member Hand

‐

book,” they seek to defend the district court’s decision based

on facts that were not before that court. Contra, Fed. R. App.

P. 10(a); United States v. Elizalde

‐ Adame

, 262 F.3d 637, 640 (7th

Cir. 2001) (“[W]e still could not consider the claims because

they are based on factual material outside of the record which

was never presented to the district court.”). We therefore de

‐

cline to consider these materials. 2

2 In one unusual case, we reversed summary judgment in an opinion

that discussed in detail factual materials drawn from the majority’s own

factual research, outside the appellate record. See Rowe v. Gibson

, 798 F.3d

622 (7th Cir. 2015), rehearing en banc denied by equally divided court,

2015 WL 10767326 (7th Cir. 2015). The Rowe majority denied, however,

that it based its decision on such research. 798 F.3d at 629, 630, 632; 2015

WL 10767326 at *1. The plaintiff’s pro se status as a prisoner who had vir

‐ tually no access to medical expertise was critical to the majority’s unusual

decision to carry out its own factual research. Id

. at 629–30. By contrast, in

this opinion we have cited several government websites only for general

background and context about the VISTA program, not for material facts.

See supra at 4 n.1.No. 18

‐ 1865 17

Second, the defendants o ff er justi fi cations for Harnish

‐ feger’s termination that Kopczynski might have considered at

the time but for which there is no actual evidence. “ Pickering

balancing is not an exercise in judicial speculation.” Gustafson

,

290 F.3d at 909. More speci fi cally, Pickering balancing “is not

like ‘rational basis’ review

. . . , under which it is enough to

imagine any rational underpinning” for a challenged govern

‐

ment action. Id. at 909–10. “First Amendment rights cannot be

trampled based on hypothetical concerns that a governmental

employer never expressed.” Id. at 910. A court must look in

‐

stead to what the public employer’s concerns “really were.”

Id. at 909; cf. Craig

, 736 F.3d at 1115, 1119–21 (on motion to

dismiss, reviewing public employer’s “list of Charges” and

“Bill of Particulars” a tt ached to complaint as “adequate basis”

on which to perform Pickering balancing).

On this record, the only evidence of the defendants’ actual

concerns with Conversations is Kopczynski’s September 28,

2016 le tt er to Kubiszewski requesting Harnishfeger’s removal

from her Guard assignment, supported by Harnishfeger’s re

‐

port of her September 29, 2016 meeting with Kopczynski and

Butler. Kopczynski’s le tt er disclosed one overriding concern:

that Conversations and Harnishfeger’s June 2, 2016 Facebook

post announcing its publication “substantially diminishe[d]”

Harnishfeger’s “e ff ectiveness as an AmeriCorps VISTA mem

‐

ber.”

The le tt er suggests two reasons for that conclusion: fi rst,

that “activities and conduct found on Amy’s social media Fa

‐

cebook account

. . . do not favorably represent our Family

Program O ffi ce or its core programs,” and again that “[t]hese

public displays on social media do not re fl ect a positive image

for our organization”; and second, that “[t]his posting and its18 No. 18

‐ 1865

content do not create a culture that reduces violent behavior

within the ranks or emphasizes and encourages help

‐ seeking

behaviors” and are “in direct contrast with the Indiana Na

‐

tional Guard’s Domestic Violence Prevention and Response

Plan.”

Harnishfeger’s report of the September 29 meeting is con

‐

sistent with the September 28 le tt er, except that on September

29 there was apparently no mention of “help

‐ seeking beha

‐

viors” or the Guard’s “Domestic Violence Prevention and Re

‐

sponse Plan.” According to Harnishfeger, in their meeting

Kopczynski said that Conversations was “really horrible,” that

Harnishfeger was not presenting the Guard “in a favorable

light,” and that the Guard could not “have anyone fi nd out”

that Harnishfeger had wri tt en it.

Kopczynski’s fi rst reason for doubting Harnishfeger’s ef

‐

fectiveness was that Conversations re fl ected poorly on the

Guard. But there is no evidence or reasonable inference that it

had done so or would do so—certainly not to an extent that

would risk compromising the Guard’s mission, a prospect

Kopczynski’s le tt er did not even raise. “The burden of caution

employees bear with respect to the words they speak will vary

with the extent of authority and public accountability the em

‐ ployee’s role entails.” Rankin v. McPherson

, 483 U.S. 378, 390

(1987). Harnishfeger’s responsibilities with the Guard were so

routine and clerical that she could not be viewed by a reason

‐

able member of the public as speaking for the Guard on any

ma tt er, beyond her occasional collection of telephone num

‐

bers and email addresses from veterans’ service providers.

In this respect, Harnishfeger is much like the clerical law

‐

enforcement employee in Rankin

. She was fi red from that role

(impermissibly, as the Court held) for saying, in a privateNo. 18

‐ 1865 19

conversation with a colleague at work about a recent a tt empt

on President Reagan’s life, that “if they go for him again, I

hope they get him.” 483 U.S. at 381. Notwithstanding the gen

‐

eral proposition that approving of murder may cast doubt on

a person’s suitability for a career in law enforcement, see id.

at 390, the Court rejected the suggestion that “every employee

in Constable Rankin’s o ffi ce, whether computer operator,

electrician, or fi le clerk, is equally required, on pain of dis

‐ charge, to avoid any statement susceptible of being inter

‐ preted” as an indication of unsuitability for promoting the

public employer’s ultimate law

‐ enforcement mission. Id. at

391.

On this point, the Court contrasted the case with McMul

‐

len v. Carson

, 754 F.2d 936 (11th Cir. 1985), which upheld the

fi ring of a clerical employee in the Jacksonville, Florida, sher

‐

i ff ’s o ffi ce after the employee identi fi ed himself at a televised

press conference as a recruiter for the Ku Klux Klan. Rankin

,

483 U.S. at 391 n.18. In that case, “[t]he evidence [was] uncon

‐

tradicted that Jacksonville’s black community in large part

would categorically distrust the Sheri ff ’s o ffi ce if a known

Klan member were permi tt ed to stay on in any position.”

McMullen

, 754 F.2d at 939.

Our decision in Craig o ff ers a useful comparison on this

point as well. Emphasizing the “inordinate amount of trust

and authority” conferred upon Craig by his role as a high

school guidance counselor, 736 F.3d at 1119, we could “easily

see how female students may feel uncomfortable seeking ad

‐

vice from Craig given his professed inability to refrain from

sexualizing females” and indeed might have forgone “the

school’s counseling services entirely rather than take the risk

that Craig would not view them as a person but instead as an20 No. 18

‐ 1865

object.” Id. at 1120. The school’s interest in “ensur[ing] e ff ec

‐

tive delivery of counseling services to female students” was

squarely implicated, and immediately endangered, by Craig’s

speech. Id.

As in Rankin

, and unlike McMullen and Craig

, there is in

Harnishfeger’s case no evidence and no basis for believing

that veterans or organizations serving them would distrust

the Guard if the known author of a phone

‐ sex memoir were

permi tt ed to collect and enter the organizations’ contact infor

‐

mation into a database on the Guard’s behalf. That is all the

more true of Conversations speci fi cally, which disapproves

sexual abuse of children in the strongest terms, describing

those who fantasize about it as “monsters” who “need to end

things once and for all.” It “borders on the fanciful,” see Ran

‐

kin

, 483 U.S. at 393 (Powell, J., concurring), to suggest, as de

‐

fendants do here, that any member of the public could believe

the Guard condoned sexual abuse of children because its

VISTA volunteer authored Conversations

.

It is in fact highly unlikely that Conversations could have

re fl ected anything at all about the Guard, positive or negative.

Only a single “private” Facebook post linked Conversations to

Harnishfeger, and, as far as the record discloses with cer

‐ tainty, only two “public” Facebook posts linked Harnishfeger

to the Guard. Harnishfeger’s authorship of Conversations was

uncovered only because Butler, the Guard’s own employee,

out of boredom or curiosity on her lunch break, went digging

through “dozens, if not hundreds” of Harnishfeger’s Face

‐

book posts. She was able to do so only because—we must as

‐ sume—Harnishfeger felt compelled to accept her supervisor’s

“friend” request. The reasonable inference in Harnishfeger’s

favor is that she would not have accepted “friend” requestsNo. 18

‐ 1865 21

from any Guard employee who was not her supervisor, nor

from anyone connected to the two service providers she con

‐

tacted on Facebook on the Guard’s behalf.

The district court weighed in defendants’ favor the possi

‐ bility that Butler

, not Harnishfeger, would disrupt the Guard’s

mission by spreading knowledge of Conversations

. We must

disagree. Aside from the lack of evidence on this point, the

government cannot be handed a “snooper’s veto” when it un

‐

covers otherwise secreted employee speech and then invokes

the possibility that its own agents would publicize it. Cf.

Craig

, 736 F.3d at 1121 (recognizing that “heckler’s veto” can

‐

not be used to silence unpopular speech).

Kopczynski’s second reason for doubting Harnishfeger’s

e ff ectiveness was that her “posting and its content do not cre

‐

ate a culture that reduces violent behavior within the ranks or

emphasizes and encourages help

‐ seeking behaviors” and are

“in direct contrast with the Indiana National Guard’s Domes

‐

tic Violence Prevention and Response Plan.” The district court

did not address this ground, and the defendants do not at

‐

tempt to defend it on appeal. Conversations neither promotes

violence nor discourages victims of violence from seeking

help.

In sum, the defendants’ side of the Pickering balance is

empty. The connection between the stated grounds for

Harnishfeger’s termination and the evidence before us is so

tenuous as to support a reasonable inference that the former

were mere pretexts for the feelings of embarrassment and dis

‐

gust that Conversations undoubtedly—and intentionally,

Harnishfeger points out—arouses in its readers. But a public

employer may not “use authority over employees to silence

discourse, not because it hampers public functions but simply22 No. 18

‐ 1865

because superiors disagree with the content of employees’

speech.” Rankin

, 483 U.S. at 384. The First Amendment pro

‐

hibits such misuse of authority.

2. Action Under Color of State Law

Section 1983 o ff ers a remedy for constitutional violations

by persons acting under color of state law, not federal law.

Knutson v. Wis. Air Nat’l Guard

, 995 F.2d 765, 767 (7th Cir.

1993). Kopczynski contends that she acted here under federal

law, not state. The district court did not address the issue, but

the record is su ffi cient for us to address it as an alternative

ground argued for a ffi rming summary judgment.

“No set formula exists” for determining whether a partic

‐

ular governmental action is taken under color of state or fed

‐

eral law; our inquiry “focuses on the nature of that action and

functional capacity of the actor.” Knutson

, 995 F.2d at 767, cit

‐ ing Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency

,

440 U.S. 391, 399–400 (1979). The question arises with respect

to the National Guard because, as the Supreme Court has ex

‐ plained, its members occupy a unique position in our federal

structure:

[In 1933, Congress] created the two overlapping

but distinct organizations

. . . —the National

Guard of the various States and the National

Guard of the United States. Since 1933 all per

‐

sons who have enlisted in a State National

Guard unit have simultaneously enlisted in the

National Guard of the United States. In the lat

‐

ter capacity they became a part of the Enlisted

Reserve Corps of the Army, but unless and until

ordered to active duty in the Army, theyNo. 18

‐ 1865 23

retained their status as members of a separate

State Guard unit.

Perpich v. U.S. Dep’t of Defense

, 496 U.S. 334, 345 (1990) (inter

‐

nal quotation marks omi tt ed). Unless and until called into fed

‐

eral service, therefore, “[i]n each state the National Guard is a

state agency, under state authority and control.” Knutson

,

995 F.2d at 767.

In Knutson we considered whether, in light of its “hybrid

nature,” the Wisconsin Air National Guard acted under color

of state law for purposes of § 1983 in fi ring plainti ff Knutson.

Id. Despite the web of state and federal laws and regulations

governing National Guard service, at bo tt om Knutson’s case

“present[ed] the rather straightforward case of state o ffi cers

exercising their state authority to e ff ectuate the termination of

state militia personnel.” Id. at 768. There was no contention

that Knutson’s unit had been federalized at any relevant time,

and the governor of Wisconsin otherwise served as the

Guard’s commander in chief. Id. Though federal law author

‐

ized the Guard’s activity, governed much of its conduct, and

subsidized the salaries of its o ffi cers and technicians, id. at 767,

that did “not alter the state

‐ law character of its actions.” Id. at

768.

Similarly here, the Indiana Army National Guard was not

federalized at any time relevant to this case. The governor of

Indiana is the commander in chief of Indiana’s National

Guard units. Ind. Code § 10

‐ 16

‐ 6

‐ 4(a). Kopczynski’s Septem

‐

ber 28, 2016 le tt er to Kubiszewski was on le tt erhead bearing

Indiana’s state seal and the emblem of the “Indiana Joint

Forces Headquarters.” All signs point to state action, not fed

‐

eral.24 No. 18

‐ 1865

The defendants argue that Knutson does not control here,

not because the Indiana Army National Guard is materially

di ff erent from the Wisconsin Air National Guard, but because

Harnishfeger was a member of a federal program when

Kopczynski demanded her removal. The proper focus, how

‐

ever, is not on the target of the action but on the actor. Knut

‐

son

, 995 F.2d at 767. The defense argument implies that any

public or private VISTA sponsor (the Indianapolis Public

Schools or a local Boys and Girls Club, for example) becomes

a federal agent whenever it hosts a VISTA volunteer, a view

we fi nd untenable.

The defense points out that Harnishfeger’s VISTA position

was federally funded and subject in part to federal guidelines.

But both factors were present in Knutson as well, see id

. at 767

(“the federal government provides salaries, bene fi ts, and sup

‐ plies to full

‐ time Guard o ffi cers and technicians”), 768 (“Wis

‐

consin adopts and [defendant] opts to utilize federal substan

‐

tive and procedural rules”), and that did not “alter the state

‐

law character” of the Wisconsin Air National Guard’s actions.

Id. at 768.

In demanding Harnishfeger’s removal from her VISTA

placement, Lieutenant Colonel Kopczynski was a Guard of

‐

fi cer exercising her supervisory authority over the Guard’s

Family Program O ffi ce for the Guard’s bene fi t and in further

‐

ance of the Guard’s mission. That was action under color of

state law, so § 1983 o ff ers a remedy.

3. Quali fi ed Immunity

Defendants also sought summary judgment on the de

‐

fense of quali fi ed immunity, arguing that Kopczynski did not

violate clearly established constitutional law by demandingNo. 18

‐ 1865 25

Harnishfeger’s removal. See generally, e.g., Surita v. Hyde

,

665 F.3d 860, 868 (7th Cir. 2011), citing Pearson v. Callahan

,

555 U.S. 223, 231 (2009). It is “an undeniable fact about balanc

‐ ing tests,” such as Pickering ’s, “that they produce a wide gray

area between the clearly legal and the clearly illegal, and the

rules of quali fi ed immunity require giving the bene fi t of the

doubt to the reasonable public o ffi cial if the particular case

falls within that gray area.” Gustafson v. Jones

, 117 F.3d 1015,

1021 (7th Cir. 1997). “[G]overnment o ffi cials are not expected

to be prescient and are not liable for damages simply because

they legitimately but mistakenly believed that the balancing

of interests tipped in the State’s favor.” Gregorich v. Lund

,

54 F.3d 410, 415 (7th Cir. 1995).

No prescience is demanded, however, of the public em

‐ ployer who retaliates against protected speech “where the

speech caused no actual disruption of any kind for four

months, and where the employer neither articulates a belief

that the speech has the potential to be disruptive in the future,

nor has evidence to support the reasonableness of such a be

‐

lief.” Gustafson v. Jones

, 290 F.3d 895, 913 (7th Cir. 2002) (re

‐ jecting defense of quali fi ed immunity on appeal from verdict

for plainti ff s). Substitute “three months” for “four months,”

and the observation applies here.

First, under clearly established law in September 2016,

Conversations was protected. It was speech neither at work nor

about work; it was addressed to a general audience; and there

was no sign that Harnishfeger deliberately linked its content

or message to the Guard’s mission, purpose, or image. City of

San Diego v. Roe

, 543 U.S. 77, 80–82 (2004); NTEU

, 513 U.S. 454,

466 (1995); Eberhardt v. O’Malley

, 17 F.3d 1023, 1026–27 (7th

Cir. 1994). Though we must take care not to de fi ne the right26 No. 18

‐ 1865

asserted by Harnishfeger at too high a level of generality, see

Viilo v. Eyre

, 547 F.3d 707, 710 (7th Cir. 2008), citing Brosseau v.

Haugen

, 543 U.S. 194, 198–99 (2004), there is no real dispute on

these points here.

Defendants argue that Roe and Craig v. Rich Township High

School District 227

, 736 F.3d 1110 (7th Cir. 2013), together sug

‐

gest that sexually explicit speech “is generally not considered

of public concern,” but those cases suggest no such thing. Roe

made clear that the plainti ff ’s sexualized performances would

have been protected under NTEU but for his deliberate link

‐

age of them to his police work. See 543 U.S. at 81 (“Although

Roe’s activities took place outside the workplace

. . . .”). And

Craig lost at the Pickering balancing step of the analysis, not

the threshold step of whether his speech addressed a ma tt er

of public concern under Connick

. See Craig

, 736 F.3d at 1113,

1115–18.

Second, clearly established law in September 2016 held

that the public employer’s side of the Pickering balance must

be supported with evidence of actual disruption, or at least

the articulation of a reasonable belief in future disruption plus

evidence of its reasonableness at the time. Gustafson

, 290 F.3d

at 913; see also Hulbert v. Wilhelm

, 120 F.3d 648, 655 (7th Cir.

1997) (denying quali fi ed immunity: “ Connick reiterated Pick

‐ ering ’s rule that the mere incantation of the phrase ‘internal

harmony in the workplace’ is not enough to carry the day, and

the Pierce County defendants appeared to have relied on

nothing more substantial than that.”); Dahm v. Flynn

, 60 F.3d

253, 258 (7th Cir. 1994) (reversing in part grant of quali fi ed

immunity defense: “Not only did Flynn fail to identify how

Dahm’s testimony impeded the e ffi cient operations of theNo. 18

‐ 1865 27

Lo tt ery, but the precise opposite would seem to have moti

‐

vated the Wisconsin legislature to invite Dahm to testify[.]”).

The Pickering analysis here shows no actual disruption; no

articulation of a belief in future disruption with respect to

Kopczynski’s appeal that Conversations does not “favorably

represent” the Guard; and no rational connection between

Kopczynski’s appeal to the Guard’s Domestic Violence Pre

‐

vention and Response Plan and Conversations or Harnish

‐ feger’s VISTA placement. On this record, the explanations

provided appear to be so fl imsy as to support an inference

that they were not objectively reasonable but re fl ected only

disgust with Conversations and its author, whom the Guard,

as Kopczynski emphasized, “likely would not have consid

‐

ered” for VISTA placement had it been aware of her “previous

employment/work experience.” On this record, “the line be

‐

tween the permi tt ed and the forbidden” was clearly “marked

in advance.” Walsh v. Ward

, 991 F.2d 1344, 1346 (7th Cir. 1993).

Kopczynski has not shown that she stayed within that line

and is entitled to summary judgment based on quali fi ed im

‐ munity.

B. Claims Against the Federal Defendants

As for Harnishfeger’s claims against Kubiszewski, Lopez,

and the United States, we conclude she failed to show a triable

issue on any federal defendant’s personal participation in a

constitutional violation and otherwise failed to show a triable

issue on her APA claim. We therefore a ffi rm the judgment in

the federal defendants’ favor.

1. First Amendment Claim

Causation, the third element of a public employee’s First

Amendment retaliation claim, is uncontested by the parties28 No. 18

‐ 1865

on appeal, though it was disputed in the district court. The

district court did not decide the issue, but we may a ffi rm a

grant of summary judgment on any basis in the record, “so

long as that ground was adequately addressed in the district

court and the nonmoving party had an opportunity to contest

the issue.” Pere tz v. Sims

, 662 F.3d 478, 480 (7th Cir. 2011),

quoting Cardoso v. Robert Bosch Corp.

, 427 F.3d 429, 432 (7th

Cir. 2005). Here, Harnishfeger had and took the opportunity

to contest the issue in the district court (indeed, she cross

‐

moved for summary judgment on liability) and the lack of

causation here is so clear

‐ cut that we see no need to remand

the issue for the district court to consider in the fi rst instance.

“[T]o make out a prima facie case for retaliation at sum

‐

mary judgment,” a public employee must bring forward evi

‐

dence su ffi cient to permit a reasonable fi nding that her pro

‐

tected speech “was at least a motivating factor” of the public

employer’s speech

‐ deterring deprivation. Kidwell v. Eisen

‐

hauer

, 679 F.3d 957, 965 (7th Cir. 2012). “Causation is a subject

on which philosophers speak more clearly than lawyers.”

Greene v. Doru ff

, 660 F.3d 975, 978 (7th Cir. 2011). What the law

calls a “motivating factor” in this context is a su ffi cient condi

‐

tion: the public employee at summary judgment must show

that a reasonable jury could fi nd her protected speech “was a

su ffi cient condition of the harm” for which she seeks redress.

Id. at 979.

If that showing is made, “the burden shifts to the employer

to rebut the causal inference raised by [the employee’s] evi

‐

dence,” Kidwell

, 679 F.3d at 965, by showing that her protected

speech “though a su ffi cient condition was not a necessary

condition” of the employer’s adverse action; “the harm

. . . would have occurred anyway.” Greene

, 660 F.3d at 979. IfNo. 18

‐ 1865 29

the employer fails, “the inference is that ‘but for’ causation

(that is, a necessary condition) has been shown,” and the em

‐ ployee prevails. Id.

Harnishfeger failed to carry her initial burden of o ff ering

evidence of causation as to the federal employees, Ku

‐

biszewski and Lopez. Kubiszewski was a State Program Of

‐

fi cer for CNCS and Harnishfeger’s point of contact with the

VISTA program. A week or so after Lopez’s September 29,

2016 le tt er to Harnishfeger informing her CNCS had placed

her on administrative leave, Kubiszewski informed Harnish

‐ feger that if she deactivated (more exactly, “took speci fi c steps

with respect to”) her Facebook account, she would be permit

‐

ted to seek another sponsoring organization. Harnishfeger

then deactivated her Facebook account. On October 6, Ku

‐

biszewski sent Harnishfeger a list of approved VISTA spon

‐

sors in Indiana and told her she had nineteen days, until Oc

‐

tober 25, to fi nd a new sponsor.

Lopez was the Indiana State Program Director for CNCS.

On September 29, 2016 Lopez told Harnishfeger by le tt er that

she had been removed from her VISTA placement and put on

“Administrative Hold status for a period not to exceed 30

days,” e ff ective immediately. When Harnishfeger failed to se

‐

cure a reassignment with another sponsoring organization by

October 25, Lopez informed her by a second le tt er that her

VISTA membership had been fi nally terminated “for lack of

suitable assignment.”

A governmental actor may be held personally liable only

for constitutional violations in which she personally partici

‐ pated. Ashcroft v. Iqbal

, 556 U.S. 662, 676–77 (2009) ( Bivens );

Gentry v. Duckworth

, 65 F.3d 555, 561 (7th Cir. 1995) (§ 1983).

On the facts recited above, it is clear beyond genuine dispute30 No. 18

‐ 1865

that neither Kubiszewski nor Lopez (with one exception)

played any role in Harnishfeger’s removal from her VISTA

placement with the Guard.

The exception for Lopez arises from the regulations gov

‐ erning VISTA participation. Those regulations provide in rel

‐

evant part that “CNCS has the sole authority to remove a

VISTA from a project where

. . . she has been assigned.”

45 C.F.R. § 2556.405(a). However, a sponsoring organization

“may request that CNCS remove a VISTA assigned to its pro

‐ ject.” § 2556.410(a). When such a request is made, “[t]he State

Program Director may, at his

. . . discretion, a tt empt to resolve

the situation with the sponsor so that an alternative solution

other than removal of the VISTA from the project assignment

is reached.” § 2556.410(b) (emphasis added). Otherwise, if an

alternative solution “is not sought, or is not reached within a

reasonable time period, the State Program Director shall re

‐

move the VISTA from the project.” § 2556.410(c) (emphasis

added).

As long as the Guard dug in its heels, as it did, it had the

power to insist that Harnishfeger’s term with it was over. Still,

assuming without deciding that Lopez’s failure to exercise his

discretion to try to persuade the Guard to change its mind

might have been actionable, Harnishfeger has failed to show

that a jury could reasonably conclude Conversations explains

Lopez’s failure. There is no evidence that Lopez knew, even

in a general way, what the content of Conversations was. Nei

‐

ther is there any evidence of Lopez’s reaction to Conversations

speci fi cally or to any speech, o ff ensive or not, by VISTA mem

‐

bers generally. On this record, there is simply no indication

that the content of Conversations in fl uenced Lopez’s decisionNo. 18

‐ 1865 31

not to exercise his discretion to try to persuade the Guard to

allow Harnishfeger to stay.

As for Harnishfeger’s removal by CNCS from the VISTA

program entirely, the constitutional violation at issue is her

removal from her VISTA placement with the Guard. The Pick

‐ ering balance makes no allowance here for the interests of

CNCS regarding termination once the Guard ended Harnish

‐ feger’s VISTA term with it. In any event, as with Lopez’s in

‐

volvement in Harnishfeger’s removal from her placement

with the Guard, there is no non

‐ speculative inference that

Conversations explains Kubiszewski and Lopez’s actions in re

‐ moving Harnishfeger from the VISTA program. Again, there

is no evidence Lopez had any material understanding of Con

‐

versations to begin with. More fundamentally, if one imagines

Conversations being brought to the a tt ention of Kubiszewski

and Lopez directly, without mediation by Kopczynski’s re

‐

moval request, the record contains no reason to believe that

either federal o ffi cer’s reaction would have been adverse to its

author—still less, adverse to such a degree that either would

have been moved to seek Harnishfeger’s removal from

VISTA. Kubiszewski and Lopez are entitled to judgment as a

ma tt er of law.

2. The APA Claim

Under the federal Administrative Procedure Act, the tar

‐

get of an adverse fi nal agency action may seek to have the ac

‐

tion held unlawful and set aside by a reviewing court if it is

“arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law,” or “contrary to constitutional right,

power, privilege, or immunity.” 5 U.S.C. § 706(2)(A)–(B). The

district court entered judgment in the defendants’ favor on

the APA claim because it concluded that no defendant had32 No. 18

‐ 1865

violated Harnishfeger’s constitutional rights and CNCS’s de

‐

cision to terminate Harnishfeger’s VISTA participation for

lack of suitable assignment was not arbitrary or unreasonable.

We agree that no federal defendant—Kubiszewski, Lopez,

or the United States, which acted through them in this case—

violated the Constitution. We have already explained why the

record does not permit a reasonable inference that Ku

‐

biszewski or Lopez abridged Harnishfeger’s free

‐ speech

rights: they did not personally participate in Lieutenant Colo

‐

nel Kopczynski’s decision to demand Harnishfeger’s removal

from her placement with the Guard; and Harnishfeger has not

shown evidence that Conversations su ffi ces to explain their de

‐

cision to remove her from the VISTA program entirely.

For non

‐ constitutional review of agency action, “we rely

on the same administrative record that was before the district

court and render an independent judgment as to whether the

agency acted unreasonably.” Mi tt elstadt v. Perdue

, 913 F.3d

626, 633 (7th Cir. 2019), quoting Stable Invs. P’ship v. Vilsack

,

775 F.3d 910, 915 (7th Cir. 2015). Our review is “deferential.”

Id.

, quoting St. Clair v. Sec’y of Navy

, 155 F.3d 848, 851 (7th Cir.

1998). Harnishfeger does not deny that she failed to secure re

‐ assignment after her removal from the Guard and that this

failure motivated her “non

‐ cause” termination from the

VISTA program. She complains, however, of “numerous

uniquely onerous conditions” on which her continued VISTA

service was made to depend: the unsuitability or undesirabil

‐ ity of the pro ff ered alternative placements; the “cold calling”

process to which she was relegated; and the requirement that

any future sponsor speak with her Guard supervisors.

Undoubtedly, CNCS’s course of proceeding put Harnish

‐ feger in a less than ideal position to continue her VISTANo. 18

‐ 1865 33

service. But non

‐ ideal is not irrational. Harnishfeger’s charge

that the conditions of her continued participation were

“uniquely onerous” is not supported by the record. True, the

“cold calling” procedure di ff ered from the initial sponsor

‐ as

‐ signment process, but there is no evidence as to how CNCS

usually proceeded in sponsor

‐ re assignment cases. Without

such evidence, we cannot say that it was arbitrary for CNCS

to have failed to o ff er Harnishfeger more interesting or more

convenient reassignment options, or to have permi tt ed any

prospective new sponsor to speak with Harnishfeger’s former

sponsor. Harnishfeger failed to show a genuine dispute as to

her entitlement to relief under the APA. The federal defen

‐

dants are therefore entitled to judgment as a ma tt er of law.

The judgment in favor of all defendants but Kopczynski is

AFFIRMED. The judgment in favor of Kopczynski is

REVERSED and the case REMANDED for further procee

‐ dings consistent with this opinion.