Amicus Curiae Brief — Garcetti v. Ceballos

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

Git GARCETTI, et al.,

Petitioners,

Vv.

RICHARD CEBALLOS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE NATIONAL TREASURY

EMPLOYEES UNION AS AMICUS CURIAE

SUPPORTING RESPONDENT

GREGORY O’DUDEN *

General Counsel

ELAINE D. KAPLAN

Senior Deputy General Counsel

BARBARA A. ATKIN

Deputy General Counsel

JULIE SARAH LEHRMAN

Assistant Counsel

NATIONAL TREASURY

EMPLOYEES UNION

1750 H Street, N.W.

Washington, DC 20006

(202) 572-5500

* Counsel of Record Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. — (202)789-0096 — WASHINGTON, D.C. 20001

© <P 0

TABLE OF CONTENTS

Page:

CR Oe Fer OI csscccesccscsccrsenssessencesesssccsece ii

INTEREST OF THE AMICUG..........c.0cecssscsssossscessssosees l

SUMMARY OF ARGUMENT ............cccccccscsccseeseseeseees 2

AREAS NE SD a a 5

SPEECH BY A PUBLIC EMPLOYEE ON

MATTERS OF PUBLIC CONCERN IS NOT

STRIPPED OF CONSTITUTIONAL PROTEC-

TION MERELY BECAUSE IT IS WORK-

RELATED SPEECH MADE IN FURTHER-

ANCE OF THE EMPLOYEE’S DUTIES .............. 5

A. This Court Accords First Amendment Protec-

tion to Work-Related Speech by Public Em-

ployees on Matters of Public Concerm............... 5

B. Petitioners Would Deny First Amendment

Protection to Much Work-Related Speech by

Public Employees on Matters of Public

Concern if It Happens To Be in Furtherance of

the Employees’ Duties.................. Riuinisemuiesesetins 12

STEP UUT TT wesiesscsesibisnicteniielivtisdeeniitiiniadenetiinsatdiadtiinniedes 27

il

TABLE OF AUTHORITIES

CASES: Page

Baldassare v. New Jersey, 250 F.3d 188 (3rd Cir.

BOUT ) ...occeccccccosescensteseeieneeiinnaniinnnnnnnEE 12

Board of County Comm'rs v. Umbehr, 518 U.S.

GGG ( BG) ...0cceccescsseseesnenesssnnnsieseenennisiannnnnnnnnnn 6, 9, 24

Board of Regents of the Univ. of Wisconsin v.

Southworth, 529 U.S. 217 (2000) .....ccccceccceeeeeees 25

Campbell v. Hamilton County, 2001 U.S. App.

LEXIS 22884 (6th Cir. 2001) ...........ccccccceesseeees 8

Ceballos v. Garcetti, 361 F.3d 1168 (9th Cir.

BIDS) ...0.0000ccccssesenessnesecesesennneniiinnninnnnnnnnannnn 22

City of Madison v. Wisconsin Employment Rela-

tions Comm'n, 429 U.S. 167 (1976) .....ccccceeeeees 7

City of San Diego v. Roe, 125 S.Ct. 521 (2004) ..6, 7, 8, 9

Connick v. Myers, 461 U.S. 138 (1983) ...ccccceeee passim

Crofoot v. Gov't Printing Office, 761 F.2d 661

(Fed. Cie, DGS) ..cccscccssscscsendesnemisenianniaanna 9

Delgado v. Jones, 282 F.3d 511 (7th Cir. 2002) ... 10, 12

Dill v. City of Edmond, 155 F.3d 1193 (10th Cir.

| NT 10, 12

Doe v. Hampton, 566 F.2d 265 (D.C. Cir. 1977) .. 9

Fikes v. City of Daphne, 79 F.3d 1079 (11th Cir.

5 DDS) ....rccsccsscesonssesesnesenehennnenaineininnnnnnnnnnn 8, 11,12

Fitzgerald v. Dept. of Agric., 97 MSPR 181

(BOBS) ......cccrcesesensconsssessesnanenaniiunssinannnnnnnnnnnnnE 17-18

Givhan v. Western Line Consol. Sch. Dist., 439

U.S. S80 (IF 7D) ..cccosescsscccsenssosenssaniennnnnnnn passim

Harman v. City of New York, 140 F.3d 111 (2d

CUP. BIDE) ..r-coccccescescesinnsnncnnnnssiiininninnnnnnnnnnnE 2

iduffman v. Office of Pers. Mgmt., 263 F.3d 1341

(Fed. Civ, 2GD8) ...ccccccsesscosssnnenennmninaninnnnnnanan 19

Kennedy v. Tangipahoa Parish Library Sys., 224

F368 359 (Ste Cle. DOGG) ..ccscarceuscetiiemaaae 1]

Lee v. Nicholl, 197 F.3d 1291 (10th Cir. 1999)..... 10, 11

7 = ee

il

TABLE OF AUTHORITIES—Continued

Page

Lewis v. Cowen, 165 F.3d 154 (2d Cir. 1999) .....8, 11, 26

Marohnic v. Walker, 800 F.2d 613 (6th Cir.

i 7

Martin v. Parrish, 805 F.2d 583 (Sth Cir. 1986)... 8

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

A 11

Oladeinde v. City of Birmingham, 230 F.3d 1275

es &

Perry v. Sinderr-ann, 408 U.S. 593 (1972)........... 11

Pickering v. Board of Educ., 391 U.S. 563

I passim

Rankin v. McPherson, 483 U.S. 378 (1987)....6, 8, 10, 26

Rodgers v. Banks, 344 F.3d 587 (6th Cir. 2003).8, 10, 11

Sanjour v. Envtl. Prot. Agency, 56 F.3d 85 (D.C.

ee ccsssesscoueneccnce 2

Sasse v. United States Dept. of Labor, 409 F.3d

ee 19

Taylor v. Keith, 338 F.3d 639 (6th Cir. 2003)....... 10, 12

United States v. National Treasury Employees

Union, 513 U.S. 454 (1995) ......cccccccccccesceseeeeeees passim

Waters v. Churchill, 511 U.S. 661 (1994) .00000000.... passim

White v. Dept. of Air Force, 39\ F.3d 1377 (Fed.

I ceneees 19

Willis v. Dept. of Agric., 141 F.3d 1139 (Fed. Cir.

Sinn nnianasiietiieaititeeierectianeintesenenensnessnecnezsessccesecees 19

STATUTES AND REGULATIONS:

cr 19

I a scsesncansccnsonane 21

LE +. | | ae 21

a 9

ee 9

sas cccrscenatecnennees 9

iV

TABLE OF AUTHORITIES—Continued

ee

Be Gr aah © Fae icanencumiasintincisemmmenaininanaias

Pe Ge BO iterttcennttnneniantnnitninantens

70 Fed. Reg. 5272 (Feb. 1, 2005) ..............:ccccceeees

MISCELLANEOUS:

FBI Whistleblower Describes “Roadblocks”, at

http://archives.cnn.com/2002/ALLPOLITICS/

06/06/terror.lapses (June 6, 2002) ............cc000000.

Handbook of Occupational Groups and Families,

at http://www.opm.gov/fedclass/gshbkocc.pdf .

Mare Kauffman, FDA Official Alleges Pressure

to Suppress Vioxx Findings, Washington Post,

ee Oe Fa ccteesiinentianeeninsiniitintaicniaiiantiniatin

Medicare Chief Actuary Foster Says He

Informed White House Officials in June That

Medicare Legislation Would Cost More Than

Lawmakers Expected, (March 25, 2004) at

http://www.kaisernetwork.org/daily_reports/re

p_index.cfm?hint=3&DR_1ID=22867................

Public Employees for Environmental Respon-

sibility: Campaigns: Scientific Integrity at

http://peer.org/campaigns/eller/index.php .........

Manuel Roig-Franzia, Biologist Rehired by the

U.S. Fish and Wildlife Service, Washington

Pe a Gi re Oe Oe citnieeittiiinittiiciniiiintatiie

Statement of Dana Corrigan, Acting Principal

Deputy Inspector General Department of

Health and Human Services on Thomas Scully

and Richard Foster Investigation, 07/07/04 at

http://oig.hhs.gov/publications/pressmaterials.

UII cxemnssnemsntinpnemminininsiiintanieniiineitiasiiiattinisiialiaiadai

21

17

17

17

v

TABLE OF AUTHORITIES—Continued

Page

U.S. Customs and Border Protection Table of

Offenses And Penalties, Instructions on Use, at

http://www.customs.gov/xp/cgov/careers/neo_

kit/additional_info/standards_of_conduct/tb_of

AID ciittdicintiiiireitieen tabi itneeitaslietaiit 23-24

Whistleblower’s Information Deleted by Treas-

ury Department Before Report Went to

Congress, at http://www.bushgreenwatch.org/

mt_archives/000194.php (Sept. 28, 2004)......... 17

IN THE

Supreme Court of the United States

No. 04-473

Git GARCETTI, et al.,

Petitioners,

Vv.

RICHARD CEBALLOS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE NATIONAL TREASURY

EMPLOYEES UNION AS AMICUS CURIAE

SUPPORTING RESPONDENT

INTEREST OF THE AMICUS '

Amicus curiae, the National Treasury Employees Union

(“NTEU”), is a federal sector labor organization that is the

exclusive bargaining representative of approximately 150,000

federal employees in about thirty agencies and departments

nationwide. NTEU’s members at such agencies as the

Bureau of Customs and Border Protection, the Nuclear

Regulatory Commission, and the Food and Drug Admin-

' The parties have consented to the filing of this brief, and their letters

of consent have been lodged with the Clerk of the Court. No attorney for

any party has authored this brief in whole or in part, and no person or

entity, other than the amicus, made any monetary contribution to the

preparation or submission of this brief.

2

istration perform functions that are critical to the public safety

and homeland security. Its members also occupy key

positions in the formulation of tax policy at the Internal

Revenue Service, and play important roles in regulating the

financial industry in the Securities and Exchange Com-

mission, the Federal Deposit Insurance Corporation, and the

Office of the Comptroller of the Currency. In these positions,

employees often have occasion to express their opinions and

to make recommendations to both agency officials and

members of the public that they serve. And, like all federal

employees, they have an obligation to disclose wrongdoing

whenever they observe it on the job. They thus have a vital

interest in the scope of constitutional protections afforded

them by the First Amendment when they speak on matters of

public concern related to their government employment,

whether that speech occurs in the workplace or off-site.

In recognition of that vital interest, NTEU has frequently

been a party or amicus in proceedings that involved issues

relating to the First Amendment rights of fede-a! employees.

See, e.g., United States v. National Treasury Employees

Union, 513 U.S. 454 (1995); Harman v. City of New York,

140 F.3d 111 (2d Cir. 1998) (amicus); Sanjour v. Envtl. Prot.

Agency, 56 F.2d 85 (D.C. Cir. 1995) (en banc) (amicus). It

files this brief in order to provide the Court with information

concerning the practical significance and potential conse-

quences to public employees of the position advocated by

petitioners, if it were to be accepted by this Court.

SUMMARY OF ARGUMENT

Speech by public employees on work-related matters—

addressing current government policies or activities of their

own departments or agencies, for exaraple—is speech on

classic matters of public concern. Petitioners would cate-

gorically deny constitutional protection to much of this

speech, despite its importance to the public’s understanding

— oe at Es |

3

of its government, whenever the speech can be characterized

as “in furtherance of the employee’s job duties.” This ap-

proach would unnecessarily chill speech that furthers the

interests of the public and the government itself. It is also

based on a misreading of the precedent of this Court and is

unworkable in its application.

Again and again, public employees, armed with their

specialized expertise and data or other insights resulting from

their work, have served the public interest by exposing

wrongdoing or waste of government funds and by presenting

unpopular but objectively sound conclusions and opinions,

often in contexts that involve the performance of their

duties—or that could be so characterized. This speech is

entitled to constitutional protection, subject to the Pickering

balancing test, consistent with this Court's longstanding

protection of speech by public employees on matters of

public concern. See Pickering v. Board of Educ., 391 U.S.

563, 568 (1968). As the Court has recognized, informed

debate requires the input of public employees. In fact, the

closer the relationship between employees’ speech and their

work duties, the better equipped the employees are to

contribute to the public and the government interests. This is

the very speech that petitioners would have this Court inhibit,

by limiting the protection to speech by employees less

intimately involved with the issue and therefore less able to

contribute meaningfully.

Petitioners rest their argument on an artificial distinction

between what they call “citizen speech” and “employee

speech”; they define the latter to include all “work -required”

speech. Petitioners argue that only “citizen speech” —as they

define it—is entitled to constitutional protection. This

distinction, based on the “hat” that the employee is wearing

when speaking, is not supported by this Court’s precedent.

The references in this Court’s precedents to “employee

speech” and “citizen speech” were more in the nature of

4

shorthand terms, intended to aid in distinguishing between

two possible types of expression, both of which consist of

speech by individuals who are simultaneously “employees”

and “citizens.” Contrary to petitioners’ view, the focus must

remain on the subject matter of the speech and, specifically,

on whether it addresses a matter of public concern or whether

it involves a matter of purely personal concern.

Petitioners’ proposed test not only leads to absurd results,

but is unworkable. The inquiry into whether speech is in

furtherance of an employee’s duties is highly subjective and

vulnerable to multiple interpretations. The proposed test also

creates perverse incentives that thwart internal problem-

solving on such vital topics as safety, scientific integrity, and

mismanagement—all of which are matters of considerable

public concern. Moreover, because Pickering’s balancing

test provides ample protection to legitimate government

interests, petitioners err in claiming that a limit on the scope

of constitutionally protected speech is necessary to avoid

disruption of government operations. There is, in short, no

reason to disturb the long-standing framework under which

both work-related speech and work-required speech on mat-

ters of public concern are weighed under the Pickering

balance, in order to protect the interests of all: the public, the

employee, and the government employer.

5

ARGUMENT

SPEECH BY A PUBLIC EMPLOYEE ON MAT-

TERS OF PUBLIC CONCERN IS NOT STRIPPED

OF CONSTITUTIONAL PROTECTION MERELY

BECAUSE IT IS WORK-RELATED SPEECH MADE

IN FURTHERANCE OF THE EMPLOYEE’S DUTIES

A. This Court Accords First Amendment Protection

to Work-Related Speech by Public Employees on

Matters of Public Concern

This Court has long recognized that one of the bedrock

principles of our society is free and open debate. Public

employees play an important role in the debate on public

affairs. See United States v. National Treasury Employees

Union, 513 U.S. 454, 464 (1995) (noting that federal em-

ployees have made “significant contributions to the market-

place of ideas”). Participation by public employees in “free

and open debate [on important public questions] is vital to

informed decision-making by the electorate.” Pickering v.

Board of Educ. , 391 U.S. 563, 571-72 (1968). It is also vital

to informed decision-making by the government. Public

employees make invaluable contributions, whether they

express their opinions privately to their employer or openly,

directly to the public. See Givhan v. Western Line Consol.

Sch. Dist., 439 U.S. 410, 415-16 (1979).

There is no question that the government, in its capacity as

employer, may impose restraints on the job-related speech of

public employees that would be unconstitutional if applied to

the public at large. See Waters v. Churchill, 511 U.S. 661,

671-675 (1994) (plurality). Nevertheless, the Court has

granted First Amendment protection to work-related speech

by public employees on matters of public concern. In —

Pickering, the Court adopted a balancing test under which the

interests of the employee in commenting on matters of public

concern are balanced against the interest of the government,

6

as employer, in promoting its efficient operation. Pickering,

391 U.S. at 568; see also Connick v. Myers, 461 U.S. 138,

145-47 (1983). This protection accorded to a broad range of

speech by employees on issues relating to government

operations well serves the public interest.

1. This Court’s seminal case of Pickering is founded on

the recognition that “public employees are often the members

of the community who are likely to have informed opinions

as to the operations of their public employers, operations

which are of substantial concern to the public.” City of San

Diego v. Roe, 125 §.Ct. 521, 525 (2004); (citing Pickering,

391 U.S. at 572) (“Teachers are, as a class, the members of

the community most likely to have informed and definite

opinions as to how funds allotted to the operation of the

schools should be spent.”); see also Waters, 511 U.S. at 674

(plurality) (observing that public employees “are often in the

best position to know what ails the agencies for which they

work; public debate may gain much from their informed

opinions”); Board of County Comm'rs v. Umbehr, 518 U.S.

668, 674 (1996) (citing Waters, 511 U.S. at 674) (explaining

that retaliation for speech by government contractors may

chill speech by those who, “because of their dealings with the

government,” may best know government ailments).

Indeed, informed decisions concerning public affairs can

hardly be made if the opinions of the very members of the

public most qualified to speak on such matters are cate-

gorically silenced. “[{T]he threat of dismissal from public

employment is . . . a potent means of inhibiting speech.”

Pickering, 391 U.S. at 574; accord Rankin v. McPherson, 483

U.S. 378, 384 (1987). The interests that would suffer, as a

consequence, are not just those of the employee: “The interest

at stake is as much the public’s interest in receiving informed

opinion as it is the employee’s own right to disseminate it.”

Roe, 125 S.Ct. at 525; accord Pickering, 391 U.S. at 572; see

7

also NTEU, 513 U.S. at 470 (disincentive to federal em-

ployees’ free speech imposes a “significant burden on the

public’s right to read and hear what the employees would

otherwise have written and said”). Interference with this flow

of information would significantly impair the public’s ability to

monitor the performance of essential government operations.

Finally, the government itself would be significantly mjured

if members of its workforce were discouraged from identifying

problems in government initiatives that require correction. The

government as employer, as well as the government as sov-

ereign, benefits from constructive criticism and from prompt

exposure of operational flaws, which enable it to take appro-

priate corrective action. See, e.g., City of Madison v. Wis-

consin Employment Relations Comm'n, 429 U.S. 167, 177

(1976) (highlighting board of education’s interest in hearing

teacher’s views on school operations); Marohnic v. Walker,

800 F.2d 613, 616 (6th Cir. 1986) (interests of employer and

employee are co-extensive when employee reports misconduct;

goal for both is proper functiciing of organization).

2. In determining which speech by public employees is to

be accorded the protection of the First Amendment and,

therefore, subject to the Pickering balancing test, this Court

examines whether the speech addresses a matter of “public

concern” or whether it involves a matter “only of personal

interest.” Connick, 461 U.S. at 146-47.

Matters of public concern are broadly defined to include

speech fairly related to “any matter of political, social, or other

concern to the community.” /d. at 146. Recently, the Court

has further expla‘ned that matters are of “public concern” when

the subject is of “legitimate news interest; that is, a subject of

general interest and of value and concern to the public at the

time of publication.” Roe, 125 S.Ct. at 525-26.’ This includes

* In Roc. the Court also examined whether the speech in question

would have satisfied the definition of public concern articulated by the

8

information relating to actual or potential wrongdoing or

breach of trust by a public official, and an agency’s efficient

performance of its duties. Connick, 461 U.S. at 146. It also

includes “statements criticizing public policy and the im-

plementation of it.” Rankin, 483 U.S. at 387."

Matters of purely private interest, which are not entitled to

constitutional protection, most commonly include speech

addressing a personal employment dispute, such as the

employee’s individual work-related grievances. Connick, 461

U.S. at 148-149; accord NTEU, 513 U.S. at 466 (speech

involving only “complaint about a change in the employee’s

own duties” fails to meet the public concern test). This

category, however, also encompasses other speech at work,

unrelated to personal grievances, that simply does not amount

to a matter of public significance,’ as well as private off-duty

dissent in Connick: whether the employee “discussed subjects that could

reasonably be expected to be of interest to persons seeking to develop

informed opinions about the manner in which .. . an elected official

charged with managing a vital governmental agency, discharges his

responsibilities.” Roe, 125 S.Ct. at 526 (citing Connick, 461 U.S. at 163)

(Brennan, J., dissenting).

* See also Rodgers v. Banks, 344 F.3d 587, 600-01 (6" Cir. 2003)

(complaints by director of quality management for mental health facility

implicated the public concern because they addressed facility’s disregard

of patient privacy); Oladeinde v. City of Birmingham, 230 F.3d 1275,

1292 (11th Cir. 2000) (alleged cover-up by police chief and officers of

criminal conduct of a family member of clected official is matter of public

concern); Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999) (“the public

fisc is a matter of public concern”); Fikes v. City of Daphne, 79 F.3d

1079, 1084 (11th Cir. 1996) (question of whether police officers are

performing their duties is a public safety issue and therefore an issue of

political or social concern).

* See, e.g., Martin v. Parrish, 805 F.2d 583, 585 (Sth Cir. 1986) (pro-

fanity used by college professor in class while criticizing students’ poor

attitude); Campbell v. Hamilton County, 2001 U.S. App. LEXIS 22884

(6th Cir. 2001) (unpublished) (derogatory comment about a judge by a

probation officer to probationer before hearing on probation violation).

9

expression by employees on non-work-related topics that

does not add to the public debate.” See Roe, 125 S.Ct. at 526

(finding that the making and marketing of pornographic

videotapes by an off-duty police officer was speech that “did

nothing to inform the public about any aspect of the [police

department’s] functioning or operation” and did not relate to

any other issue of concern to the community).

Applying these principles to the “enormous variety of fact

situations in which critical statements by teachers and other

public employees may be thought by their superiors . . . to

furnish grounds for dismissal” (Pickering, 391 U.S. at 569)

must be done on a case-by-case basis. This Court has

repeatedly declined invitations to adopt a bright-line rule. See

id. at 370 (“we do not deem it either appropriate or feasible to

attempt to lay down a general standard against which all such

statements may be judged”). Accord Umbehr, 518 U.S. at

678 (“Pickering requires a fact-sensitive . . . weighing of. . .

interests); Givhan, 439 U.S. at 415 (declining to adopt bright-

line rule that internal, work-related speech is unprotected).

Instead, the Court examines the “content, form, and context

of a given statement, as revealed by the whole record,” to

determine whether an employee’s speech addresses a matter

of public concern. Connick, 461 U.S. at 147-148. Of

particular significance here is this Court’s explicit refusal to

limit constitutional protection to employee speech that is

expressed in the public arena. Instead, the Court has held that

speech does not lose its protection if it is expressed privately

* The government, of course, may only discipline an employee for off-

duty misconduct if there is a sufficient showing of a nexus between the

alleged misconduct and the employee's ability to accomplish his or her

duties or some other legitimate government interest promoting the

efficiency of the service. See 5 U.S.C. § 7513(a) (a federal employee may

be removed “for such cause as will promote the efficiency of the

service”); accord 5 C.F.R. §§ 731.201, 752.403. See generally, Crofoot v.

Gov't Printing Office, 761 F.2d 661, 664 (Fed. Cir. 1985); Doe v.

Hampton, 566 F.2d 265, 272 (D.C. Cir. 1977).

10

to the employer, rather than in a public setting. Givhan, 439

U.S. at 415. The focus is thus squarely placed on the subject

matter of the given statement, rather than its audience.

The lower courts that have applied the Connick/Pickering

test over the years have found a wide range of speech by

public employees communicated at the workplace and/or on

topics related to their public employment to involve matters

of public concern. ° This includes speech on work-time, | in the

workplace, to a co-worker,’ a supervisor, or some other

° At the same time, of course, much work-related speech may be

unprotected if, for example, it does not “sufficiently inform the issue as to

be helpful to the public in evaluating the conduct of government.” Lee v.

Nicholl, 197 F.3d 1291, 1295 (10th Cir. 1999) (citation omitted).

Petitioners are thus incorrect when they claim that “virtually all” job-

required speech would be constitutionally protected if the lower court is

not reversed. See Pet. Br. at 11. But see Pet. Br. at 36 (suggesting that

protection of job-required speech would have a greater impact on those

government offices where subjects related to matters of public concern are

“constantly discussed” or “where employees’ primary job duties are to

speak about such matters”).

” See, e.g., Rankin, 483 U.S. at 382 (clerk told colleague, after Presi-

dent Reagan was shot, that she hoped any subsequent attempt on his life

would be successful); Connick, 461 U.S at 149 (Assistant District

Attorney circulated questionnaire soliciting views of colleagues on, inter

alia, whether they felt pressured to work on political campaigns).

* See, e.g., Givhan, 439 U.S. at 413 (teacher’s complaint to her prin-

cipal about employment practices perceived to be racially discriminatory

in purpose or effect); Taylor v. Keith, 338 F.3d 639, 641 (6th Cir. 2003)

(police officers filed routine report indicating that another officer had

problem with using excessive force); Rodgers, 344 F.3d at 592 (director

of quality management wrote letter to hospital CEO complaining about

hospital’s failure to remedy problem of patient privacy); Delgado v.

Jones, 282 F.3d 511, 514 (7th Cir. 2002) (police officer presented

memorandum to his lieutenant which stated that his investigation led him

to conclude that a close personal relative of an elected official was

involved in criminal drug activity); Dill v. City of Edmond, 155 F.3d

1193, 1200-01 (10th Cir. 1998) (police officer wrote a letter to Chief of

supervisory body.” It also encompasses speech on breaktime

but in the workplace,” and speech on the employee’s own

time, off-site, to an outside entity.’ It even includes an

employee's refusal to make a supervisor-ordered statement to a

superior supervisory entity .' > Topics have ranged from speech

relating to the employee's working conditions'’ or those of

co-workers,” to speech | relating to the conditions of the

employee's “customers.” "> Often, the speech reports the re-

Police stating that his on-the-job investigation led him to be aware of

exculpatory evidence in a murder case).

* See. e.g., Nicholl, 197 F.3d at 1294 (letters to Board of County Com-

missioners); Fikes, 79 F.3d at 1081 (officer reported allegations of

improper use of a confiscated vehicle and failure to terminate a high speed

chase to the Alabama Bureau of Investigation); Kennedy v. Tangipahoa

Parish Library Sys., 224 F.3d 359, 363 (5" Cir. 2000) (library employee

wrote letter to Library Board of Control and branch managers suggesting

that library employees not be alone in library for safety reasons).

* See, e.g. Waters, 511 U.S. at 664-65 (nurse made statements to

colleague, while at work but on a break, about hospital working

conditions).

" See, e.g., Pickering, 301 U.S. at 566 (teacher wrote letter to

newspaper editor criticizing Board of Education); Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 282 (1977) (teacher called radio

station to publicize school’s plan to implement teacher dress code); Perry

v. Sind mann, 408 U.S. 593, 595 (1972) (advertisement critical of

college administration appeared over teacher's name).

"? See, e.g., Lewis, 165 F.3d at 159 (lottery officer refused to present

proposed change to state lottery system to Board in positive light without

presenting risks).

'* See, e.g., Kennedy, 224 F.3d at 362-63, supra, note 9.

* See, e.g., Connick, 461 U.S. at 149, supra, note 7; Givhan, 439 U.S.

at 413, supra, note 8; Nicholl, 197 F.3d at 1294, supra, note 9.

'* See, e.g. Rodgers, 344 F.3d at 592-93, supra, note 8.

12

sults of an employee's investigation into misconduct by co-

workers or public officials. '°

The common denominator in all of these cases is obviously

the work-related nature of the speech, whether because of the

location where it is made or its content. The importance of

the message to the public understanding—the degree of

public concern implicated—is often directly correlated to the

degree to which the mess.ge relates to the employee's duties.

The more an employee knows about a particular topic (in

many cases precisely because it is his or her particular area of

work expertise), the more useful the speech will be in

generating informed debate. The purpose of creating

informed debate is ill-served by offering no First Amendment

protection to the very speakers who can contribute the most.

B. Petitioners Would Deny First Amendment Pro-

tection to Much Work-Related Speech by Public

Employees on Matters of Public Concern if It

Happens To Be in Furtherance of the Employees’

Duties

Petitioners ask this Court to adopt a new per se test, under

which all employee speech found to be expressed “pursuant

to the duties of employment” would be denied constitutional

protection—tregardless of whether it addressed a matter of

public concern. Pet. Br. at 25-35. As we discuss below, this

new test finds no support in this Court’s jurisprudence. To

the contrary, the Court’s prior holdings point firmly to the

opposite conclusion: that such speech is indeed protected,

subject to the public concern test and, of course, the Pickering

balancing test. In addition, as we demonstrate, the proposed

new test is unworkable in application, unnecessary to protect

© See, e.g., Taylor, 338 F.3d at 640, supra, note 8; Delgado, 282 F.3d

at 514, supra, note 8; Baldassare v. New Jersey, 250 F.3d 188, 192-93 (3d

Cir. 2001); Dill, 155 F.3d at 1201, supra, note 8; Fikes, 79 F.3d at 1081,

supra, note 9.

13

the government's legitimate interests, and will inevitably chill

speech that furthers the interests not only of the speaker but

also of the public and the government.

1. Petitioners have misread the Connick/Pickering frame-

work as establishing a “citizen/employee” dichotomy, under

which the “hat” worn by the employee at the time of the

speech is determinative. Thus, in addition to determining

whether the speech was on a matter of public concern or

addressed purely personal matters, petitioners would have the

courts evaluate whether the speech was made in the em-

ployee’s “personal” capacity—deemed to be “citizen” speech

—or whether it was made by the employee qua “employee.”

The latter category, according to petitioners, necessarily

encompasses all speech that is variously described as “job-

required” (Pet. Br. at 16), made “pursuant to the duties of

employment” (id. at 25), or made “during the normal course

and scope of employment, in accordance with the duties of

employment” (id. at 27).'’ In essence, petitioners would try

to identify a subset of employee speech that is job-required

and deprive it of any constitutional protection.

There is nothing in Connick, Pickering, or any other

precedent of this Court to indicate that the Court considers

anything other than the speaker’s message itself to be relevant

to the first prong of the Pickering balancing test.'* Certainly

'’ The United States, as amicus, prefers formulations that reference the

carrying out of “job duties” or “job responsibilities.” See, e.g., U.S. Br. at

9, 15, 16, 25, 28.

'* Petitioners misread N7TEU in citing it as support for their claim that

this Court places weight on the absence of any “relevance” to government

employment in finding speech protected. Pet. Br. at 27. See also U.S. Br.

at 17. The Court there stressed the lack of a nexus between the speech

and the speakers’ government jobs as part of its finding that the gov-

ernment’s interest was slight and could not justify the burden placed on

speech by the statute at issue. NTEU, 513 U.S. at 474. It certainly did not

suggest that the speech would be unprotected—and the Pickering balance

unnecessary — if the speech had had a closer tie to the employees’ jobs.

14

there is nothing to show that the Court intended the role of the

speaker to be dispositive. To the contrary, this Court in

Givhan discussed only whether private expression is con-

stitutionally protected, and did not find it necessary to

determine whether the teacher was speaking as an

“employee” or “citizen” when she raised her concerns about

racially discriminatory practices in a meeting with her

principal. 439 U.S. at 413-16.

In Connick itself, the Court focused only on the content of

Myers’ speech and did not address the fact that she was

undeniably wearing her employee “hat” when she circulated

the questionnaire on the job, during office hours, and to her

colleagues. Had that questionnaire been a means of in-

forming the public “that the District Attorney’s Office was

not discharging its governmental responsibilities in the

investigation or prosecution of criminal cases,” the Court

suggested that Myers would have been engaging in speech

“as a citizen” on matters of public concern. Connick, 461

U.S. at 148. That speech, of course, would have been

intimately connected to her professional responsibilities as a

prosecutor and arguably as “required” by that work as were

Ceballos’ disclosures in the instant case.

Petitioners err in attaching substantive significance to the

reference in Connick to speech “as a citizen upon matters of

public concern,” which is compared to speech “as an em-

ployee upon matters only of personal interest.” Connick, 461

U.S. at 147 (emphasis added). This reference is more

accurately viewed as a shorthand way of capturing and

distinguishing between the two possible types of expression,

both of which consist of speech by employees that has some

nexus to government employment. As shown supra, pp. 8-9,

“employee speech” most often refers to speech relating to

employee grievances or other personal problems of the

employee in the workplace of limited general interest.

Similarly, under the Connick/Pickering line of cases, “citizen

15

speech” ref-re *o speech by employees either at work or off-

work but on work-related matters, in both instances where the

speech has ramifications beyond the workplace. Thus, “cit'-

zen speech” simply connotes “major issue of broad import”

while “employee speech” connotes “minor, personal issue.”

There is no indication that the Court intended any other

weight to be accorded to the terms. Indeed, as shown below,

the distinction that petitioners would draw between “em-

ployee” and “citizen” is illusory and virtually impossible of

application. It is axiomatic that public employees are

simultaneously citizens who largely retain their First Amend-

ment right to comment on important issues of the day. See

Pickering, 391 U.S. at 568.'” They can speak as “citizens” —

meaning on important issues—both on and off the job.

Attempting to ascertain the “capacity” in which they are

speakin at any particular time simply does not advance the

relevant inquiry, which is whether the message addresses a

matter of public concern.

2. The test proposed by the petitioners leads to artificial

distinctions and absurd results. There can be no merit to a

test that would deprive any constitutional protection to

Pharmacologist A’s discussion with his supervisor about his

findings regarding the side effects of a drug that he was

assigned to analyze, while protecting that identical speech if

uttered by Microbiologist B who learned of the issue from his

' Pickering similarly referred to “citizen speech” in discussing the

need to balance “the interests of the teacher, as a citizen, in commenting

upon matters of public concern and the interests of the State, as an

employer, in promoting the efficiency of the public services it performs

through its employees.” 391 U.S. at 568. This reflects the Court’s

concern for protecting all speech by public employees on matters of

public concern, subject, of course, to the balancing test, for the critical

reason that they are citizens and have a strong interest in making their

views heard.

16

friend A in the FDA cafeteria. It is similarly absurd—and

contrary to this Court’s holding in Givhan—to deny protec-

tion to A’s internal communications with his superiors on the

side effects, while protecting A’s lunch-time conversations

with B (and A’s subsequent efforts to alert the public to the

drug’s harmful potential).

In drawing such arbitrary and irrational distinctions,

petitioners have created perverse incentives that run counter

to broader government interests. The government has a

critical interest in establishing an environment in which

employees do not fear to raise concerns in a timely fashion on

important issues, such as potential problems with the

construction of a nuclear power plant, dangerous lead levels

or bacterial contamination in the water supply, or gaps in

border crossing controls that could permit entry by a terrorist.

It similarly has an important interest in resolving allegations

of wrongdoing or disputes over policy before the problems

reach a critical level. In an optimum world, this is done

quickly and internally. Neither of these interests is advanced

by petitioners’ proposed test; to the contrary, they are

affirmatively thwarted by it.

Speech in furtherance of employees’ duties—speech that

perhaps has the most potential of making an informed

contribution to the public debate—is also the speech that is

the most vulnerable to suppression. Agencies, under the

guise of supervisory review or high-level policy review, have

been known to tone down messages of potential hazards, or to

censor them entirely. Career public servants have seen their

reports amended or suppressed because they did not conform

to the general policy objectives or political imperatives of the

current political appointees heading their respective agencies

or other reviewing authorities within the Administration. Dr.

David Graham, the scientist with the FDA who was directed

17

to soften his conclusions regarding dangerous side effects of

Vioxx, is only one of many examples.” Those who protest

*® Graham, associate science director at the Office of Drug Safety at the

FDA, prepared a study in which he concluded that the pain drug Vioxx

had dangerous side effects. He claims that he was pressured by superiors

to soften his conclusions, and that he complied only as much as he could

to avoid compromising his “deeply held convictions.” He was conse-

quently threatened and ostracized by the FDA. The drug manufacturer

withdrew Vioxx from the market when an independent study confirmed

his conclusions. FDA Failed Public on Vioxx, Scientist Says, at http:/

www.msnbc.msn.com/id/6520630 (last updated Nov. 19, 2004); Marc

Kauffman, FDA Official Alleges Pressure to Suppress Vioxx Findings,

Washington Post, Oct. 8, 2004, at A23.

See also Andrew Eller, a biologist working on Florida panther-related

issues with the U.S. Fish and Wildlife Service, who was terminated after

accusing his agency of purposely relying on flawed scientific information

regarding the Florida panther’s likelihood of survival in the face of real

estate development. The agency did so, he maintained, in order to

facilitate the granting of construction permits to influential developers.

The agency has reinstated Eller, conceding that some of his conclusions

were correct. Manuel Roig-Franzia, Biologist Rehired by the U.S. Fish

and Wildlife Service, Washington Post, July 6, 2005, at AIS. It has been

alleged that the agency is under severe pressure from its political superiors

to accommodate campaign contributors. See Public Employees for

Environmental Responsibility: Campaigns: Scientific Integrity at http://

peer.org/campaigns/eller/index.php (last visited July 20, 2005).

John Fitzgerald, an environmental analyst with the U.S. Agency for

International Development in 2002, was responsible for monitoring

compliance on certain overseas development projects. He attempted to

report to Congress legal violations and environmental mismanagement

regarding questionable energy projects in Africa, South America, and

Eastern Europe, but Treasury officials removed the information from his

report before it reached Congress. His position was subsequently

eliminated. Whistleblower’s Information Deleted by Treasury Depart-

ment Before Report Went to Congress, at hitp://www.bushgreenwatch.

org/mt_archives/000194 php (September 28, 2004). In September 2004,

the Merit Systems Protection Board granted him a hearing on the merits

of his allegations, finding that he had made “a non- frivolous allegation of

18

and persist in pressing their conclusions—particularly those

who feel compelled to take the dispute to Congress or the

media—are prime targets for retaliation.

Denial of constitutional protection to such speech creates

an obvious disincentive to report misconduct or to voice

opinions that may be unpopular with superiors or managers.

Perversely, the greater the magnitude of the problem and the

cost, monetarily or politically, of correcting it, the greater is

the risk to the small voice who is urging caution. Not all

employees have the courage of Coleen Rowley, the FBI

employee who attempted to draw attention within the FBI to

its institutional failure to respond to indicators about

impending terrorist attacks.”! The employee who identifies a

a protected disclosure.” Fitzgerald v. Dept. of Agric., 97 MSPR 181

(2004). His case was subsequently settled.

Richard Fdster, Medicare's chief actuary, was responsible for providing

cost estimates to Congress regarding several Medicare proposals under

debate. Foster estimated that the actual cost of legislation would be 25%

to 50% higher than the administration's public estimates but was

prevented from providing his finding to Congress by the former

Administrator of the Centers for Medicare and Medicaid Services (CMS).

An investigation by the HHS Office of Inspector General concluded that

CMS failed to provide the proper information requested by Congress and

that the Administrator had warned Foster that he would be disciplined if

he released his disfavored findings. Statement of Dana Corrigan, Acting

Principal Deputy Inspector General Department of Health and Human

Services on Thomas Scully and Richard Foster Investigation 07/07/04,

available at http://oig.hhs.gov/publications/pressmaterials. html; Medicare

Chief Actuary Foster Says He Informed White House Officials in June

That Medicare Legislation Would Cost More Than Lawmakers Expected,

(March 25, 2004) available at http://www.kaisernetwork.org/daily

_reports/rep_index.cfm?hint+ 3&DR_1ID=22867.

*' Rowley, an FBI employee in the Minneapolis field office, wrote a

letter to FBI Director Robert Mueller outlining her concerns that the FBI

had not adequately responded to internal memoranda and other indicators

about impending terror attacks prior to September 11, 2001. She at-

tempted, without success, to contact Mueller’s office to alert him to errors in

his statements post-September || regarding the absence of advance warning

ee ee eee

19

serious institutional lapse that may have contributed to the

nation’s vulnerability to a terrorist attack, like the employee

who sees a safety risk threatening an imminent space shuttle

flight or the opening of a new nuclear power plant, needs

extraordinary courage to persist, once her views are heard and

brushed aside. The loss of constitutional protection to this

dissent only increases the disincentives. If these employees

choose the safer course and remain silent, the cost to the

public could be enormous. Protection of employees’ freedom

to speak out on such issues of public concern is essential to

the proper and efficient functioning of agencies and the

assurance of a safer and better-run nation.”

At the same time, it is essential that employees not be

discouraged from raising these issues in the first instance

within the agency. Denial of constitutional protection to

speech made to a supervisor in the course of an employee's

duties creates a strong disincentive to solve problems

internally. Anyone advising an employee anxious to report a

major problem uncovered on the job would have to counsel

the employee to consider bringing the debate directly into

indicators. She was therefore forced to contact Congress with her infor-

mation. FB/ Whistleblower Describes “Roadblocks”, at bhittp://archives.

enn.com/2002/ALLPOLITICS/06/06/terror.lapses/ (June 6, 2002).

*? Whether there are whistleblower protections is, of course, irrelevant

to whether there should be constitutional protection. But, it should be

noted that whistleblower protections are severely limited. Courts have

denied whistleblower protection to employees who are performing their

normal ly assigned duties in reporting waste, fraud and abuse. See Sasse v.

United States Dept. of Labor, 409 F.3d 773 (6th Cir. 2005); Huffman vy.

Office of Pers. Mgmt., 263 F.3d 1341, 1351-54 (Fed. Cir. 2001); Willis v.

Dept. of Agric., 141 F.3d 1139, 1144 (Fed. Cir. 1998). The Federal

Circuit has also held that mere differences of opinion on debatable policy

decisions by agencies do not constitute protected disclosures under the

Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). See White v. Dept.

of Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004),

20

the public forum, even given the risks that such disclosure

would entail.

These difficult issues are circumvented if the government

preserves current incentives to solve problems internally. A

harmonious public employer-employee relationship is to be

fostered, not hindered; such a relationship maintains and

improves the organization in a more efficient manner than if

the employee is forced to seek external aid.

3. Aside from its substantive defects, petitioners’ test is,

bluntly put, unworkable. As a practical matter, it would be

impossible in the case of many government positions to

determine precisely what speech was “required” or made “in

furtherance of the employee's duties.”

Petitioners themselves do not argue that all speech “on the

job” or made while the employee was “on the clock” is

unprotected. They similarly do not argue that all speech that

relates to the employee’s job is unprotected. Thus, they

evidently concede that much speech on work-related topics

by public employees to their co-workers or supervisors,

during working hours and in the workplace, is still protected

under their formulation. Courts attempting to apply their

proposed test would therefore be faced with the daunting and

subjective task of determining what, precisely, were the

employee’s job responsibilities and how the speech in

question meshed with those duties.

The employee's position description is not likely to be

particularly helpful in resolving this factual issue. Not all

public employees have formal position descriptions; if they

do have one, it often does not accurately reflect their actual

daily duties. Some define their own assignments. Virtually

all have occasion to perform tasks that are not specified

among their formal job responsibilities, ranging from clerical

support tasks such as word-processing, copying, and faxing,

to training of colleagues, to filling in as needed to perform the

21

notorious “other duties as assigned.” This is particularly true

in times of crisis.”> Moreover, in the federal government with

the increased emphasis on the need for greater personnel

flexibilities, more and more employees may be functioning

under unwritten “performance expectations” that could take

the form of “individual, team, and/or work unit goals or

objectives.” Department of Homeland Security Human

Resources Management System, 70 Fed. Reg. 5272, 5274

(Feb. 1, 2005); see also id. at 5303 (to be codified at 5 C.F.R.

§ 9701.406(c)). These unwritten and vaguely defined “ex-

pectations” would compound the difficulty of determining

exactly what the job “requires.”

The lack of clarity in the precise nature of the employee’s

duties, however, is only part of the problem. Perhaps the

more serious barrier to application of petitioners’ proposed

test is the broad discretion given to many government

employees (particularly mid-rank and senior-level employ-

ees) in determining how they are to carry out their job

responsibilities. The federal government, for example,

employs a host of highly educated professional employees:

scientists; engineers; architects; teachers and professors at

primary, secondary, undergraduate and graduate levels;

attorneys and judges; medical doctors and other health care

professionals; accountants; economists; mathematicians and

statisticians; historians; and chaplains—to name just a few.

See, e.g., Handbook of Occupational Groups and Fam-

ilies, available at http://www.opm.gov/fedclass/gshbkocc.pdf

** As illustrated in the wake of September 11, 2001, public employees

have historically done whatever is necessary to help handle emergency

situations. In any event, even assuming, arguendo, that employees did not

volunteer, governments have ample flexibility to assign additional

responsibilities. The Federal Service Labor-Management Relations Stat-

ute, 5 U.S.C. § 7101, et seg., which covers labor relations in the federal

sector for a majority of federal employees, specifies that agencies have the

right “to take whatever actions may be necessary to carry out the agency

mission during emergencies.” 5 U.S.C. § 7106(a)(2)(D).

22

(August, 2002). These professionals fulfill their responsi-

bilities in accordance with the general guete’ines of their

employing agency, but also in accordance with their pro-

fession’s ethical proscriptions or standards and their own

educated judgment. They frequently have enormous discre-

tion in deciding, not only what they should be saying or

doing, but also how and when they should be saying or doing

it.* A chaplain with the Veterans Administration, a professor

at the Naval Academy, an. economist with the Federal

Reserve, or a pharmacologist with the Food and Drug

Administration does not have neatly cabined duties or pre-

determined metiiods for achieving his or her objectives.”

** The Solicitor General is flatly wrong in claiming that public employ-

ees have “no personal interest” in the content of speech in furtherance of

their duties. U.S. Br. at 19. As the majority pointed out in the decision on

review, for many employees, “promoting the public good is a deeply

personal mission that is at least as important as personal career advance-

ment.” Ceballos v. Garcetti, 361 F.3d 1168, 1175 (9" Cir. 2004). Public

employees like the scientists at the Nuclear Regulatory Commission and

the Food and Drug Administration care deeply about the issues on which

they work; their professional conclusions are their own, the product of

their educated judgments and the tenets of their profession. While the

government employer obviously sets the general parameters of their work

(and can discipline them for unacceptable performance), the emple yees

themselves are personally responsible for the validity of their conclusions.

Indeed, NRC and FDA both give employees the right to preserve in the

record their professional disagreements of opinion. See 21 C.F.R. § 10.70

(FDA); NRC Directive 10.159 (The NRC Differing Professional Opinions

Program). In both agencies, however, employees care so deeply about the

integrity of their professional opinions, and feel so vulnerable to

retaliation, that NTEU has negotiated contractual rights paralleling and

supplementing those agency-mandated procedures. See NTEU-FDA

Collective Bargaining Agreement, Art. 5, Sec. 20; NTEU-NRC Collective

Bargaining Agreement, Art. 3.9.

* The difficulty in distinguishing between “job-related” and “job-

required” speech is not, of course, limited to speech by professional

employees. To illustrate: Most government employees are required to

attend internal office meetings, to obtain general instructions or

assignments, but it may be far from clear whether their decision to speak

23

Whether a particular report, speech, letter, or conversation

with a member of the public is “required” by the job or only

“related to” it may be impossible to determine, either by

the affected employee, by his or her manager, or by the

reviewing court, given the absence of a clear line between the

two concepts.

4. The error in focusing on whether the speech is “required

by” or “in furtherance of’ employees’ duties is further

illustrated by the numerous responsibilities imposed on

employees that are unrelated to their particular work

assignments. The clearest example is the virtually uniform

obligation imposed on federal executive branch employees to

report misconduct to the appropriate authorities, even when

investigation of misconduct ordinarily forms no part of the

employees’ duties.

Government-wide regulations require all executive branch

employees to “disclose waste, fraud, abuse, and corruption to

appropriate authorities.” 5 C.F.R. § 2635.101(b)(11). Indi-

vidual agencies impose similar obligations, which are often

posted at the worksite. The Department of Treasury, for

example, requires employees to report “any information”

indicating that an employee or contractor engaged in crimi-

nal conduct or violated the rules of conduct. 31 C.F.R.

§ 0.107(a)(3). Employees of the Bureau of Customs and

Border Protection (CBP), Department of Homeland Security,

are subject to disciplinary action if they fail to report

information concerning the violation of a law, policy, or

procedure by a fellow CBP employee. See U.S. Customs and

Border Protection Table of Offenses and Penalties, Instruc-

up at a meeting, volunteering concerns or lodging objections, is required

by their job. Similarly, many government employees, such as IRS

Revenue Officers and CBP Officers (formerly Customs Inspectors),

regularly interact with members of the public in situations where it is

virtually impossible to determine which statements are “job-required” and

which are only “job-related.”

24

tions on Use, available at http://www.customs.gov/xp/

cgov/careers/neo_kit/additional_info/standards_of_conduct/tb

_off_penalties.xml (last visited July 20, 2005). Thus, it is fair

to say that a federal employee attempting to report

government corruption or other malfeasance is merely acting

in furtherance of his duties, and would have no constitutional

protection against retaliation for doing so, if petitioners’

formulation were adopted by this Court.

5. Finally, the adoption of petitioners’ test is simply not

necessary to protect the government’s interests. There is no

basis for the contention by petitioners and their amici that

protection of job-required speech will lead to an “operational

nightmare” for government agencies, under which managers

attempting necessary and appropriate employment action

would be chilled and the courts inundated with a flood of

constitutional cases. See Pet. Br. at 35-40; U.S. Br. at 22.

As an initial matter, it bears emphasis that the Ninth

Circuit's protection of job-required speech is, and has been,

the prevailing judicial position for many years. See Re-

spondent’s Br. in Opposition at 11-18. During this time,

there has hardly been a flood of cases threatening to

overwhelm the courts. Those cases that are filed in federal

court have been, and can continue to be, effectively resolved

using the Pickering balance.

Pickering requires a “fact-sensitive and deferential weigh-

ing of the government's legitimate interests.” Umbehr, 518

U.S. at 677. In Umbehr, the Court concluded that “proper

application of the Pickering balancing test [can] accom-

modate the differences between employees and independent

contractors,” providing the necessary “nuanced approach

[that] recognizes the variety of interests that may arise... .”

Id. at 678. Those same principles apply with even greater

force here, where the balancing requires only the traditional

weighing of the government’s interests in effective and

25

efficient operations against the employee’s interest in speak-

ing about matters directly related to his or her duties.

The Pickering approach readily accommodates the con-

cerns raised here by petitioners and their amici. The govern-

ment, after all, need only show that its belief that the speech

would disrupt the workplace was reasonable. See Waters,

511 U.S. at 680 (plurality); id. at 684-85 (Souter, J., concur-

ring); Connick, 461 U.S. at 154. The potential for disruptive-

ness and interference with legitimate government operations

is manifest in the hypothetical cases of an attorney who filed

a brief making representations contrary to the instructions of

his superiors (U.S. Br. at 22), a White House press secretary

who deliberately ignored the President’s instructions on the

message to be delivered to the press corps (Pet. Br. 36), or a

teacher who discussed birth control in a class in violation of

school board policy (Nat’! School Boards Assn. Br. at 19).7°

In each of those instances, the interests of the government

would readily outweigh the employee’s interest in expression.

See, e.g., Waters, 511 U.S. at 681 (plurality termed the

potential disruptiveness enough, “[a]s a matter of law,” to

outweigh “whatever First Amendment value the speech might

*© Petitioners and the Solicitor General analogize employees’ work-

required speech with government-funded speech, arguing that it can

control the message because it has funded the speech. See Pet. Br. at 32-

34; U.S. Br. at 19-21. In those cases, however, the government has

directed that a certain message be conveyed through its funding and is

responsible for the content of the state-funded speech. See Board of

Regents of the Univ. of Wisconsin v. Southworth, 529 U.S. 217, 229

(2000). Assuming, for the sake of argument, that government-funding

cases are applicable at all, their relevance would be confined to cases

where the government has directed the employee to deliver a specific

message, as in the case of an agency spokesperson. In most cases, of

course, the government has not directed its employees to convey a specific

message. Instead, it has assigned them tasks, leaving it to them to form

judgments and convey their conclusions drawn from their execution of

those tasks.

26

have had”). The nature of the employee’s responsibilities and

the fact that the expression was made in furtherance of the

employee’s duties might well be relevant factors adding to

the weight of the government’s side of the balance.”’ They

are not, however, relevant to the other side of the balance:

whether the speech addresses a matter of public concern.

In short, petitioners have no basis for their dire predictions

of an increased litigation burden if allegations of retaliation

for speech made in the course of the employee’s duties are

allowed to survive a motion to dismiss. Even assuming they

are correct that the balance cannot be struck in favor of the

government as a matter of law (but see Waters, 511 U.S. at

681), the government’s interests are amply protected under

the Pickering balancing test. Moreover, we must underscore

that adoption of petitioners’ proposed test is hardly likely to

reduce the litigation burden. As discussed above, courts

would be required to wrestle with difficult evidentiary ques-

tions regarding the nature of the employee’s duties, whether

the speech was in furtherance of those duties, and—perhaps

worst of all—whether the person was speaking as a “citizen”

or an “employee.” It seems highly unlikely that these issues

could be resolved by motion, without an evidentiary hearing.

*” Without suggesting how it would resolve the balance in any specific

situation, the Court noted in Pickering that the balancing could be affected

by such considerations as whether there was a great need for confi-

dentiality or whether “the relationship between superior and subordinate is

of such a personal and intimate nature that certain forms of public

criticism of the superior by the subordinate would seriously undermine the

effectiveness of the working relationship between them... .” 391 U.S. at

570 n.3. Accord Rankin, 483 U.S. at 390-91 (in weighing the State’s

interest, “some attention” must be paid to employee’s job responsibilities,

for the “burden of caution” borne by the employee varies with “the extent

of authority and public accountability” the employee's job entails), Lewis,

165 F.3d at 162 (Pickering balance affected by nature of responsibilities,

including degree of confidentiality, policy-making, or public contact in

employee's job).

27

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals should be affirmed.

Respectfully submitted,

GREGORY O’DUDEN *

General Counsel

ELAINE D. KAPLAN

Senior Deputy General Counsel

BARBARA A. ATKIN

Deputy General Counsel

JULIE SARAH LEHRMAN

Assistant Counsel

NATIONAL TREASURY _

EMPLOYEES UNION

1750 H Street, N.W.

Washington, DC 20006

(202) 572-5500

* Counsel of Record Counsel for Amicus Curiae