Amicus Curiae Brief — Garcetti v. Ceballos

~\

(ne ) saree COS

No. 04-473 JUL 22 2005

In The

Supreme Court of the United States

¢

GIL GARCETTI, et ai.,

Petitioners,

v.

RICHARD CEBALLOS,

Respondent.

Sf

On Writ Of Certiorari To The

United States Court Of

For The Ninth Circuit

¢

BRIEF OF AMICI CURIAE

GOVERNMENT ACCOUNTABILITY PROJECT,

NATIONAL EMPLOYMENT LAWYERS

ASSOCIATION AND ASSOCIATION

OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF RESPONDENT

4

JOANNE ROYCE*

THOMAS M. DEVINE

GOVERNMENT ACCOUNTABILITY

PROJECT

1612 K Street, NW,

Suite 1100

Washington, D.C. 20006

(202) 408-0034

*Counsel of Record for the Amici Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...........:::s:sseseseseseseseseeeesenees iii

INTEREST OF THE AMICI CURIAE...........:s:sesessseeees 1

SUMMARY OF THE ARGUMENT ...........:::ssessseseseeeees 4

TET RTT aR RT AOE ST ET TOT 6

I. First amendment coverage for job-required

speech is a necessity for the government to

furnction effectively. ............cccccccccrrrerereereerereeeeeees 8

A. Constitutional protection of speech ex-

pressed pursuant to employment duties is

essential for the First Amendment’s para-

MOUNE ObjECtIVES ...........ccceeeeeeeesrererereneeeeenees 8

B. Canceling protection for job-required

speech would impair government efficiency,

because clear channels of communication

are a prerequisite for the government to

function effectively...............ccccsseeseeesseereeeees 12

C. Per se exclusion of First Amendment cov-

erage for cesta speech is unwork-

SB ciarccecenedccns eensatiaipttnanseensininasancinintoacsnenpate 16

II. Constitutional protection for job-required

speech is consistent with past Supreme Court

PTECOCENL..............ccccesrsrssssscssscrseerscssssssesssessensoes 17

III. State and federal statutes are an inherently

inadequate substitute for constitutional pro-

QO CREGEE ccccocccseccrcsescsccccsscscesccsssooessssoncnnssotocssossscness 20

IV. Petitioner’s warnings of paralyzed manage-

ment and flooded courts has failed the reality

ii

TABLE OF CONTENTS -— Continued

Page

A. Careful application of “public concern”

jurisprudence and Pickering balance will

check frivolous First Amendment claims.... 22

B. Decades of environmental whistleblower

jurisprudence protecting disclosures pur-

suant to job duties have not resulted in

flood of litigation ................ccccsecsssssesseeeeeeeees 24

CON CLAIIBUIN wc cccccocccccesescnsnscosecnssnsinsiiesnnnnnnnnnnnnn 28

TABLE OF AUTHORITIES

Page

CASES

Brady v. Maryland, 373 U.S. 83 (1963) ................006. 6, 7, 16

Bridges v. California, 314 U.S. 252 (1941) ...............0 5, 18

Brown and Root v. Donovan, 747 F.2d 1029 (5th Cir.

IT atcatthlaesicrarceieiehin cna dertnceninentenennnemnmtmesnancsenanneeseccntet 26

Burkett v. U.S., 402 F.2d 1002 (Ct. Cl. 1968).............cc000 19

Connick v. Myers, 461 U.S. 138 (1983) ........ 5, 10, 17, 18, 24

City of Madison Jt. School District No. 8 v. Wiscon-

sin Employment Relations Commission, 429 US.

eT 19

Givhan v. Western Line Consolidated School Dis-

trict, 438 U.B. 410 (197B)..........0cscccccscsccscssscesecescesecees 5, 19

Horton v. Dept. of Navy, 66 F.3d 279 (Fed. Cir.

Satara ates erica emenscciibnannanemnsensnenaneusnecnnenete 22

Hostrop v. Bd. of Junior College Dist. No. 515, 471

TN TE 19

Huffman v. OPM, 263 F.3d 1341 (Fed. Cir. 2001)............. 22

Kansas Gas & Electric Company v. Brock, 780 F.2d

TT crite arracnntgnmenensensenneneeannennsenscees 26

Mackowiak v. University Nuclear Systems, Inc., 735

F.2d 1159 (9th Cir. 1984) .0...........cccccccccccsseeeeeees 24, 25, 26

Meuwissen v. Department of Interior, 234 F.3d 9

SIT Tad oncteerinenenetnesennnnensesnacesnensenetsasese 22

Mills v. Alabama, 384 U.S. 214 (1966) .0...........ccccccceceeeeenes 9

Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274

oe 24

iv

TABLE OF AUTHORITIES -— Continued

Page

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

Giana cccsssesepecnsnsiitanptintnienenitinbtinndicinumatetniigeiiadnel passim

U.S. v. National Treasury Employees’ Union, 513

ee ee ED cccsiencrnnncteniciasitinndtmmaninniaiaimeitinlintininaussinittiinsiaian 23

Waters v. Churchill, 511 U.S. 661 (1994)................ 1, 11,18

Waters v. Peterson, 495 F.2d 91 (D.C. Cir. 19793)............... 15

Whitney v. California, 274 U.S. 357 (1927) ..........cccccceceeeees 8

Willis v. Department of Agriculture, 141 F.3d 1139

i REE See reertnccncutninictetanieientninsienttininnatiiauipasiamees 22

CONSTITUTION

Ces Ge: CRITI, B cnnciictiinncninenntiinntcicasecdtinnatanitinatsanieal passim

STATUTES

Pe IED ctercnstrnscacinsiinitenienitiinnnmtiinnintitiliiiaiisaaiiiii 4

ee ts OP See nrrarcvensnncncrecesunmnsnctisionsstaitsnsncinmeiibinabiasiadinianks 2

Clean Air Act, 42 U.S.C. § 7622 (2005) .............ccccceesseeeees 24

ES. Caen § S-GRB BT) Cai acccccccccccscssnssseceseseseccssecssseseecs 7

Energy Reorganization Act, 42 U.S.C. § 5851 (2005)....... 24

Federal Water Pollution Control Act, 33 U.S.C.

Ep Sey Wale harssicaptntenicniansnintisinniainintiebantebiel heunnvadbenentepes 24

Miss. Code Ann. § 43-47-37 (1999 & Supp. 2008).............. 20

Safe Drinking Water Act, 42 U.S.C. § 300-j-9 (2005)........ 24

Solid Waste Disposal Act, 42 U.S.C. § 6971.............cccc000 24

Superfund, 42 U.S.C. § 9610 (2005).............cccccccccecceeeeeeees 24

TABLE OF AUTHORITIES — Continued

Page

Texas Govt. Code Ann. § 554.001-.10 (Vernon 1994

Of § 20

Toxic Substances Control Act, 15 U.S.C. § 2622

TTT ccinncsitnicicentenaihetasinerteecearnaemaeetiaetindiiaedlinliasiaiiiaiassias taal laine 24

Utah Protection of Public Employees Act, Utah

Code Ann. § 67-27-1 to -9 (2000) .............cccceeeeeeeeeerenenees 20

W. Va. Code Ann. § 6C-1-1 to -8 (Michie 2003) ................. 20

Whistleblower Protection Act of 1989, P.L. No. 101-

BR, BOD Bah, BD Ce cecccrcccccsnescscscenscesesscncsnsescssencessssess 2

Wis. Stat. Ann. § 895.65 (West 1997 & Supp. 2003)......... 21

Wyo. Stat. § 9-11-103 (Michie 2003)................ccccceeeeeeeeeens 21

LEGISLATIVE DOCUMENTS

134 Cong. Rec. $10632 (daily ed., Aug. 2, 1988)............... 21

134 Cong. Rec. H9323 (daily ed., Aug. 2, 1988)................ 21

134 Cong. Rec. $15337 (daily ed., Aug. 2, 1988)............... 21

135 Cong. Rec. $10632 (daily ed., March 16, 1989).......... 21

135 Cong. Rec. $2805 (daily ed., Aug. 2, 1988)................. 21

Hearing on S. 1358 Before the Senate Governmental

Affairs Committee (Nov. 12, 2003) (testimony of

Thomas M. Devine), slip at 25 ...............cccsccresseneseneeenees 21

S. Rep. No. 95-969 (1978).........ccscesscerseeeeeeeenenenensnnnenennenss 11

S. Rep. No. 107-349 (2002)...........:ccceceeseeeseereeeeesensenennenennes 21

Standards of Ethical Conduct for Employees of the

Executive Branch, 5 C.F.R. 2635.101(b)(11) ..............000 7

vi

TABLE OF AUTHORITIES — Continued

The Whistleblowers: A Report on Federal Employees

Who Disclose Acts of Government Waste, Abuse

and Corruption Prepared for the Senate Comm.

On Governmental Affairs, 95th Cong., 2d Sess. 49

Fie iniccsnepeneicsmaniiaiaaiaiiaiasidbinesndamiasisadiinediataitinntatitiinisnn 13, 14

OTHER AUTHORITIES

Miriam A. Cherry, Whistling in the Dark? Corporate

Fraud, Whistleblowers and the Implications of

the Sarbanes-Oxley Act for Employment Law, 79

ER Cie ERUES ERE GED ccccccsvenccntenssnnsassctecnenmmenmnnees 20

Report of the National Commission on Terrorist

Attacks, 399-428 Government Printing Office

RE a ne re en 14

Stephen M. Kohn, Concepts and Procedures in

Whistleblower Law 383 (2001) .................seceeeeeeeeeees 14, 20

Thomas M. Devine, The Whistleblower’s Survival

Guide: Courage Without Martyrdom (1997).................++ 2

Thomas M. Devine, The Whistleblower Protection

Act and the Modern Law of Dissent, 51 Adminis-

trative Law Review 531 (Spring 1999) ..................0000+ 21

Thomas M. Devine, The Whistleblower Protection

Act of 1989: Foundation for the Modern Law of

Employment Dissent, 51 Admin. L.R. 531 (1999)........... 2

Thomas M. Devine et al., Whistleblowing Around

the World: Law, Culture and Practice, “Whistle-

blowing and the United States: The gap between

vision and lessons learned” (2004) ....................ccceeceeeeeees 2

Thomas I. Emerson, The System of Freedom of

TORN Gary Gee ccnccsiccsenemecnesimesineencimniaitnents 10

vii

TABLE OF AUTHORITIES -— Continued

Memorandum of President George W. Bush to

Heads of Executive Departments and Agencies

on Standards of Official Conduct (Jan. 20, 2001)........... 7

Robert G. Vaughn, Statutory Protection of Whistle-

blowers in the Executive Branch, 1982 UV. Ill. L.

Robert G. Vaughn, Thomas M. Devine & Keith

Henderson, The Whistleblower Statute Prepared

for the Organization of American States and the

Global Legal Revolution Protecting Whistelblow-

ers, 35 Geo. Wash. Int’] L. Rev. 857 (2003).............c0000+ 2

i

1

INTEREST OF THE AMICI CURIAE’

Amici are organizations each with a long history of

occupational free speech advocacy. Amici are dedicated to

the concept that “a government employee, like any citizen,

may have a strong, legitimate interest in speaking out on

public matters.” Waters v. Churchill, 511 U.S. 661, 674

(1994).

The Government Accountability Project (GAP) is

a non-partisan, non-profit public interest law firm special-

izing in legal advocacy on behalf of “whistleblowers” —

government and corporate employees who expose illegal-

ity, gross waste and mismanagement; abuse of authority,

substantial or specific public health and safety dangers; or

other institutional misconduct undermining the public

interest.

GAP’s efforts on behalf of federal whistleblowers, in

particular, are based on the belief that a professional and

dedicated civil service is essential to an effective democ-

racy. Civil servants are the vital link between our govern-

ment and the people it serves. They are the foundation to

keep responsible government service a constant, regard-

less of variations in leadership or political party. GAP

believes that to preserve not only the integrity and inde-

pendence of the federal civil service, but also the responsive-

ness of federal institutions to the citizenry, conscientious

employees who point out illegal or questionable practices

* This brief is filed with consent of both parties. Letters of consent

are on file with the Clerk of this Court. No attorney for any party has

authored this brief in whole or in part, and no person or entity other

than the amici curiae and its members and counsel made any monetary

contribution to the preparation or submission of this brief.

2

must not be forced to choose between their jobs and their

silence.

GAP has substantial expertise on protecting govern-

ment employees’ free speech rights. GAP attorneys have

testified before Congress over the last two decades con-

cerning the effectiveness of existing statutory protection,

filed numerous amicus curiae briefs on constitutional and

statutory issues relevant to whistleblowers, co-authored

the model whistleblower protection law to implement the

Inter-American Convention Against Corruption, and led

legislative campaigns for a broad range of relevant federal

laws, including the Whistleblower Protection Act of 1989,

P.L. No. 101-12, 103 Stat. 16 (April 10, 1989) (WPA) and

subsequent 1994 amendments, as well as the employee

rights provisions in the Sarbanes-Oxley Act of 2002, 18

U.S.C. § 1514A. GAP has published material concerning

the WPA and its practical realities. See, e.g., Thomas M.

Devine, The Whistleblower’s Survival Guide: Courage

Without Martyrdom (1997); Thomas M. Devine et al.,

Whistleblowing Around the World: Law, Culture and

Practice, “Whistleblowing and the United States: The gap

between vision and lessons learned” (2004); Thomas M.

Devine, The Whistleblower Protection Act of 1989: Founda-

tion for the Modern Law of Employment Dissent, 51

Admin. L.R. 531 (1999); and Robert G. Vaughn, Thomas

M. Devine & Keith Henderson, The Whistleblower Statute

Prepared for the Organization of American States and the

Global Legal Revolution Protecting Whistleblowers, 35 The

Geo. Wash. Int’] L. Rev. 857 (2003).

The National Employment Lawyers Association

(NELA) is the only professional membership organization

in the country comprised of lawyers who represent employ-

ees in labor, employment and civil rights disputes. NELA

and its 67 state and local affiliates have a membership of

3

over 3,000 attorneys who are committed to working on

behalf of those who have been illegally treated in the

workplace. NELA strives to protect the rights of its mem-

bers’ clients, and regularly supports precedent-setting

litigation affecting the rights of individuals in the work-

place. NELA advocates for employee rights and workplace

fairness while promoting the highest standards of profes-

sionalism, ethics and judicial integrity.

The Association of Trial Lawyers of America

(ATLA) is a voluntary national bar association of ap-

proximately 50,000 members practicing in every State.

ATLA members primarily represent plaintiffs in personal

injury, civil rights and employment discrimination cases.

ATLA has long advocated legal protections for employ-

ees who step forward to expose wrongful or dangerous

misconduct.

Amici agree that the contribution of whistleblowers to

uncovering and rectifying grave problems facing society at

large cannot be overstated. Whistleblowers are employees

who take an ethical stand against wrongdoing. They often

do so at great risk to their careers, financial stability, and

personal and familial relationships. Frequently, whistle-

blowers are courageous people of integrity who have

observed and documented fraud, gross violations of law or

health-threatening safety and environmental hazards.

Amici advocate that society protect and applaud whistle-

blowers, because they are saving lives, preserving our

health and safety and preserving vital fiscal resources.

Amici respectfully submit this brief to assist the Court in

resolution of this case.

4

SUMMARY OF THE ARGUMENT

The case at bar will establish whether there is consti-

tutional protection for public employees whose responsibili-

ties require them to assume the risks of whistleblowers,

often involuntarily, in order to carry out the duties of their

positions. Petitioners would have the Court create a

Catch-22, where a public servant must choose between

legally abdicating his or her duty, or else being legally

defenseless against harassment such as professional

isolation or termination — the likely consequences if job-

required speech is controversial or threatens politically

powerful interests within or outside the government.

Protection for job-required speech is a prerequisite for

the government to function effectively. It is deeply-

ingrained that freedom of expression includes activities

within the employment relationship, and job-required

speech is where the First Amendment counts the most for

the public dependent on the government to function

responsibly. Government employees are the indispensable

early warning system to catch problems before govern-

ment service deteriorates, whether the consequences

would be waste of taxpayer funds or unnecessary public

health and safety threats. In the context of dissent, their

role has been popularized as “whistleblowers.” Under 5

U.S.C. § 2302(b)(8) for the federal civil service they are

defined as employees who disclose information they

reasonably believe is evidence of illegality, gross waste,

gross mismanagement, abuse of authority or a substantial

and specific danger to public health or safety. The stakes

are even higher for those engaging in job-required speech

not necessarily including dissent, but often requiring a

5

messenger to deliver unwelcome news or carry out un-

popular assignments.

Normally, a First Amendment case requires the Court

to balance the employee’s rights as a citizen against the

government’s right to efficiently manage its institutions.

Petitioners ask the Court to withdraw constitutional

rights in a radically different, lose-lose scenario for both

principles. If employees cannot defend themselves for

communicating openly and honestly about politically

unpopular assignments, the inevitable chilling effect

would create a code of silence that replaces the free flow of

information necessary for government managers to make

informed, responsible judgments and oversee their imple-

mentation. The government cannot function efficiently in

a structure that encourages public employees to be silent

observers and that shields managers who “don’t want to

know.” Ironically, canceling constitutional protection for

mandatory intra-agency communications not only would

dry up the flow of information internally but would exac-

erbate and maximize unnecessary public controversy,

because that would be the only remaining safe context left

for a public employee.

Petitioners ask the Court to overturn 2 longstanding

doctrine highlighted by the Bridges, Pickering, Givhan,

Scrivener and Connick decisions that shield speech neces-

sary for public service. Contrary to Petitioner’s sophistic

distinction, the key factor behind this doctrine has been

the subject matter and value of constitutionally-protected

speech, not the identity or societal role of the speaker.

Petitioner’s dire warnings of paralyzed management and

flooded courts already have failed the reality test. As demon-

strated by the Pickering doctrine’s history, the Court’s case-

by-case balancing test has developed adequate criteria for a

6

functional free speech boundary. Further, neither man-

agement nor the courts have been overburdened by the

experience under environmental whistleblower statutes,

where for decades corporate workers have had the right

that Petitioners find so threatening.

There is, likewise, no basis to conclude constitutional

protection is unnecessary due to the existence of federal,

state and local whistleblower statutes. Their hit or miss

coverage and drastically different track records of effec-

tiveness have been characterized by inconsistent bounda-

ries for protection with respect to the type of disclosure,

subject matter, manner of disclosure and remedies. The

federal whistleblower law excludes protection for speech to

carry out assignments. Clearly, sporadic statutory cover-

age is no substitute for a minimum foundation of constitu-

tional rights.

+

ARGUMENT

The case at bar crystallizes the quandary of the

federal employee who, as part of his or her job duties,

identifies governmental waste, fraud or illegality and

suffers retaliaticn at the hands of a governmental author-

ity for his duty to report. Here, Richard Ceballos, a deputy

district attorney, reported in a disposition memorandum to

his supervisors that an affidavit in support of a search

warrant had been falsified. Pursuant to the dictates of

Brady v. Maryland, 373 U.S. 83 (1963), he also shared his

determination with defense counsel in the underlying

case. Subsequently he suffered retaliation as confirmed

below for his disclosures within the chain of command and

those made to defense counsel as required by law.

ed

3

7

The dilemma faced by Respondent Ceballos — of

having a duty to report wrongdoing, but having no com-

mensurate protection from retaliation — is neither theo-

retical nor infrequent. Indeed, the duty to disclose is an

increasingly common reality for government employees. To

illustrate, every federal employee who witnesses fraud,

waste or illegality is faced with the same predicament. The

Standards of Ethical Conduct for Employees of the Execu-

tive Branch, 5 C.F.R. Part 2635, § 2635.101(b)(11) provides

as follows: “Employees shall disclose waste, fraud, abuse

and corruption to appropriate authorities.” On January 20,

2001, President Bush reiterated this obligation in a

memorandum he issued to assure “the highest standards

of integrity in Government.” Memorandum from President

George W. Bush to the Heads of Executive Departments

and Agencies on Standards of Official Conduct (Jan. 20,

2001). Many state employees are similarly obligated as a

part of their employment to report official malfeasance.

See, e.g., D.C. Code § 1-615.58(7) (2005) (“Each employee of

the District government shall make all protected disclo-

sures concerning any violation of law, rule, or regulation,

contract, misuse of government resources or other disclo-

sure enumerated in § 1-615.52(a)(6), as soon as the em-

ployee becomes aware of the violation or misuse of

resources.”).

To assert, as do Petitioners, that a federal employee

may be constitutionally required to communicate certain

Brady information but denied constitutional protection if

that and associated disclosures within the chain of com-

mand engenders retaliation, well illustrates both the

injustice and the illogic of denying First Amendment

protection to speech expressed pursuant to job duties. It

creates a Catch-22, where a public servant must choose

8

between illegally abdicating his or her duty and being

legally defenseless against professional isolation or termi-

nation — the likely consequence if duty speech is contro-

versial or threatens politically powerful interests within or

outside the government.

I. FIRST AMENDMENT COVERAGE FOR JOB-

REQUIRED SPEECH IS A NECESSITY FOR

THE GOVERNMENT TO FUNCTION EFFEC-

TIVELY.

A. Constitutional Protection of Speech Ex-

pressed Pursuant to Employment Duties is

Essential for the First Amendment’s Para-

mount Objectives.

One of the most eloquent formulations of First

Amendment values was delivered by Justice Brandeis, in

his concurring opinion in Whitney v. California, 274 U.S.

357 (1927):

Those who won our independence believed

... that public discussion is a political duty; and

that this should be a fundamental principle of

the American government.... Believing in the

power of reason as applied through public dis-

cussion, they eschewed silence coerced by law —

the argument of force in its worst form. Recogniz-

ing the occasional tyrannies of governing majori-

ties, they amended the Constitution so that free

speech and assembly should be guaranteed.

Whitney, 274 U.S. at 375-76.

This Court has also established that unfettered speech

concerning the manner in which government performs its

duties is a requisite element of the informed self-

governance that the First Amendment seeks to protect:

Whatever differences may exist about interpreta-

tions of the First Amendment, there is practically

universal agreement that a major purpose of that

Amendment was the free discussion of govern-

mental affairs. This of course includes discus-

sions of candidates, structures and forms of

government, the manner in which government is

operated or should be operated, and all such

matters relating to political processes.

Mills v. Alabama, 384 U.S. 214, 218-219 (1966).

It is well-established that freedom of expression

includes speech in order to responsibly carry out job

duties. As one commentator observed,

The term [“expression” protected by the First

Amendment] would also include communications

made in the regular course of agency business,

even a conversation between two employees of

the agency on some minor matter pending for

agency consideration. In other words, if the com-

munication satisfies the other requirements for

classification as “expression,” the fact that it

takes place within the employment relation does

not take it out of the category of “expression.”

Any other view would, of course, render the First

Amendment inapplicable except as to utterances

made outside the course of agency business. But

there is no reason to draw the line at such a

point. Effective functioning of a system of free-

dom of expression requires, certainly so far as

the government employee is concerned, protec-

tion made for statements made within the em-

ployment relation as well as outside it.

10

Thomas I. Emerson, The System of Freedom of Expression

566, 570-71 (1970).

In Pickering v. Board of Education, 391 U.S. 563, 568

(1968), this Court established the tests for application of

that principle in a landmark decision that remains control-

ling: “the interests of the [employee] as a citizen, in com-

menting on matters of public concern” must be balanced

against “the interest of the State as an employer, in

promoting the efficiency of the public services it performs

through its employees.”

Beginning with Pickering, this Court recognized that

the First Amendment should function as a bulwark

against governmental tyranny for public employees as for

any other citizen. “Our responsibility is to ensure that

citizens are not deprived of fundamental rights by virtue

of working for the government.” Connick v. Myers, 461

U.S. 138, 147 (1983). For public employees, no less than

any other citizen, may be subjected to abusive governmen-

tal attempts to silence discourse on matters of public

concern. Indeed, First Amendment protection of public

employee complaints is compelled by the uniquely vulner-

able status of the civil servant as “whistleblower.” “[I)t is

apparent that the threat of dismissal from public employ-

ment is nonetheless a potent means of inhibiting speech.”

Pickering, 391 U.S. at 574.

The Pickering doctrine recognizes not only the special

vulnerability of the public employee but also the societal

benefits of protecting employment-related speech. “Gov-

ernment 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. And a

government employee, like any citizen, may have a strong,

11

legitimate interest in speaking out on public matters.”

Waters v. Churchill, 511 U.S. 661, 674 (1994) (citations

omitted).

Since 1978, Congress has observed how whistleblow-

ers ensure the values underlying the First Amendment:

Often, the whistleblower’s reward for dedication

to the highest moral principles is harassment

and abuse. Whistleblowers frequently encounter

severe damage to their careers and substantial

economic loss. Protecting employees who disclose

government illegality, waste, and corruption is a

major step toward a more effective civil service.

In the vast federal bureaucracy it is not difficult

to conceal wrongdoing provided that no one

summons the courage to disclose the truth.

Whenever misdeeds take place in a federal

agency, there are employees who know that it

has occurred, and who are outraged by it. What

is needed is a means to assure them that they

will not suffer if they help uncover and correct

administrative abuses. What is needed is a

means to protect the Pentagon employee who

discloses billions of dollars in cost overruns, the

GSA employee who discloses widespread fraud,

and the nuclear engineer who questions the

safety of certain nuclear plants.

S. Rep. No. 95-969, at 8 (1978).

The most trenchant weapon against governmental

abuse of authority is the whistleblowing employee whose

speech identifies waste, illegality or corruption in govern-

mental operations. Job-related speech by government

employees is critical to maintaining the promise of the

First Amendment. It is speech where it counts. And if that

speech happens to be part of an employee’s job duties, the

12

interests protected by the First Amendment are of even

greater significance for the public who is dependent upon

responsible government function.

This case will establish whether there is constitu-

tional protection for government employees whose respon-

sibilities require them to be, often involuntary,

whistleblowers, in order to carry out their duties to the

public. If, as this Court has held, a government employee

who engages in discretionary speech on matters of public

concern is vulnerable and deserving of constitutional

protection, the public employee whose duty it is to speak

on such matters is even more vulnerable. Likewise, if

public employees are uniquely informed due to their

government employment, the public empleyee’s unique

expertise peaks for speech that is a part of job duties.

Finally, an employee suffering retaliation for speech

pursuant to job duties has at least as legitimate an inter-

est in speaking on public matters as does any other citi-

zen.

B. Canceling Protection for Job-Required

Speech Would Impair Government Effi-

ciency, Because Clear Channels of Com-

munication are a Prerequisite for the

Government to Function Effectively.

Normally in assessing a First Amendment case, the

court must decide which valid but conflicting interest will

lose, balancing between an employee’s rights and the

government's interest in efficiency. Petitioners ask this

court to withdraw constitutional rights in a radically

different, lose-lose scenario for both employee rights and

the government’s management interest in efficiency. As

Te Rn ere 7

13

recognized above, rights for whistleblowing are a major

step toward a more effective civil service.

Duty speech is far more significant. The government

cannot function effectively under a code of silence. In 1978,

a massive Senate Governmental Affairs Committee study,

concluded, “The code of silence thwarts management’s

ability to effectively manage and actually removes the

burden of accountability from their shoulders. Fear of

reprisal renders intra-agency communications a sham,

and compromises not only the employee, but also the

Constitutional function of congressional oversight itself.”

The Whistleblowers: A Report on Federal Employees Who

Disclose Acts of Government Waste, Abuse and Corruption

Prepared for the Senate Comm. On Governmental Affairs,

95th Cong., 2d Sess. 49 (1978).

In other words, it undermines government efficiency

to have a structure that encourages a staff of “yes people”

and that shields managers who “don’t want to know.” As

the same Senate study also found,

Agency heads who are not aware of potentially

serious situations within their own organization

obviously cannot take any measures to correct

them. However, once informed of a problem, once

provided with the existing facts pertaining to an

allegation of wrongdoing, the agency head can

decide what the appropriate response should be.

He or she can, using existing authority, make de-

cisions, resolve the problem and be held account-

able for their actions. It is currently too easy for

a serious problem to be excused within the bu-

reaucracy because the “right” persons were not

aware that it existed. ...

14

Agency policy makers must be made aware of

and accountable for those problems that federal

employees encounter in the course of their work.

Safe, effective intra-agency communication is the

prerequisite of responsible, efficient public ser-

vice. Dissenting opinions and important informa-

tion, however unpleasant, must be transmitted

to government officials.

Id. at 3, 48.

In a chilling illustration of this principle, a major

finding of the 9/11 Commission was that the breakdown in

official communications increased America’s vulnerability

to terrorism. Report of the National Commission on

Terrorist Attacks, 399-428 Government Printing Office

(2004).

The principle is so fundamental that some statutes

make it a prerequisite that an employee disclose miscon-

duct allegations within the chain of command as a precon-

dition for free speech rights outside the organization.

Stephen M. Kohn, Concepts and Procedures in Whistle-

blower Law 383 (2001).

Canceling constitutional protection for duty speech

would exacerbate the code of silence. There can be little

uncertainty that when employees cannot defend them-

selves against retaliation, they are more likely to remain

“silent observers” of misconduct they uncover in carrying

out their job duties. Profiles in courage are the exception,

not the rule. As this Court observed in Pickering, 391 U.S.

at 574, “the threat of dismissal from public employment is

. & potent means of inhibiting speech.” In whatever

context, public employees who criticize misconduct within

their agencies are criticizing their employers. That creates

15

in’ srent discomfort. Waters v. Peterson, 495 F.2d 91, 98

(U.C. Cir. 1973). Employees throughout the government’s

public service mission logically could fear dismissal,

demotion, retaliation or suspension in retaliation for

speech necessary to perform their jobs properly — unless

this Court recognizes First Amendment protection for duty

speech, as well as for public debate.

The consequences are even more severe, however, for

silencing duty speech compared to silencing dissent.

Illegal government abdication can be even more threaten-

ing to public service than efficiency concerns. To illustrate,

had Respondent Ceballos not made disclosures to his

superiors and defendant’s counsel, the integrity of the

judicial system for that prosecution could have been

fatally compromised. Coerced silence could thwart the

public’s right to know information essential for democratic

levitimacy in government actions. The consequences could

be disastrous for silencing mandatory reports of dangerous

products such as contaminated meat and poultry, envi-

ronmental spills, nuclear safety violations or defective

military equipment. Taxpayers could be defrauded billions

of dollars, if government auditors are silenced from per-

forming their duties.

Ironically, while canceling constitutional protection for

duty speech would increase internal silence, in some

instances it could also increase public debate. Lack of safe,

routine in-house channels would force government work-

ers to make the same statements in extracurricular

contexts in order to retain constitutional rights. Lack of

safe internal channels will drive employees into public

disclosures that create management inefficiency due to

unnecessary, broad-based public conflicts. Forcing employ-

ees to take otherwise “job-required speech” out of the chain

16

of command in order to assure First Amendment protec-

tion would institutionalize the maximum disruptive effect

for agencies. Managers would be far more likely not to

receive notice of potential problems, allowing them to

clean house before media and public exposure.

C. Per Se Exclusion of First Amendment

Coverage for Job-Required Speech is Un-

workable.

The facts of the case at bar further demonstrate why

no per se rule should be established. Respondent Ceballos

alleges that his speech involved more than strictly job

duties — in addition to submitting his concerns about the

falsified affidavit in the single disposition memorandum to

his two supervisors and submitting Brady material to

defense counsel, he also expressed his concerns to his

colleagues in the District Attorney's office, to his supervi-

sors (both orally and in writing), to the Deputy Sheriff who

authored the affidavit, in a meeting with his supervisors

and several representatives of the Sheriff’s Department,

and in a court hearing. Often, as here, an employee’s

speech may not be expressed strictly pursuant to his job

duties or it may also contain speech completely unrelated

to his job duties. In such cases, it is not practical or even

possible to delineate which speech may have engendered

retaliation. Consequently, this Court’s observation in

Pickering is as compelling today as it was then:

Because of the enormous variety of fact situa-

tions in which critical statements by teachers and

other public employees may be thought by their

superiors, against whom the statements are di-

rected to furnish grounds for dismissal, we do not

deem it either appropriate or feasible to attempt

17

to lay down a general standard against which all

such statements may be judged.

Pickering, 391 U.S. at 569.

II. CONSTITUTIONAL PROTECTION FOR JOB-

REQUIRED SPEECH IS CONSISTENT WITH

PAST SUPREME COURT PRECEDENT.

By quoting selective passages of this Court’s precedent

out of context, Petitioners posit that the availability of

First Amendment protection turns upon whether the

employee speaks “as a citizen.” Petitioners argue that

when an employee speaks pursuant to the responsibilities

of public employment, he speaks, by definition, “as an

employee,” not “as a citizen” and is not therefore covered

by the First Amendment. Petitioner’s Brief at 23-25.

Petitioners distort this Court’s precedent since Pickering,

and attempt to create a sophistic distinction. No authority

is offered why a working person cannot be what he or she

is in reality — both a citizen and an employee.

Even prior to Pickering, this Court recognized that

public employees are “citizens” first and consequently do

not altogether relinquish their First Amendment rights of

citizenship. The language from Pickering and Connick

quoted by Respondents to posit a critical “citizen speech”

component of First Amendment application in fact only

reflected the historical distinction as well as the more

recent acknowledgement that public employees are citi-

zens:

We hold only that when a public employee speaks

not as a citizen upon matters of public concern,

but instead as an employee upon matters only

of personal interest, absent the most unusual

18

circumstances, a federal court is not the appro-

priate forum in which to review the wisdom for a

personnel decision taken by a public agency al-

legedly in reaction to the employee’s behavior.

Connick, 461 U.S. at 147.

_The operative distinction in this language is whether

the employee speaks on a matter of public concern, as

opposed to a matter of only personal interest, and thereby

becomes entitled to First Amendment protections within

the framework of the Pickering balance. In Waters, this

Court similarly emphasized the character of the speech,

rather than the speaker:

And a government employee, like any citizen,

may have a strong, legitimate interest in speak-

ing out on public matters. In many such situa-

tions the government may have to make a

substantial showing that the speech is, in fact,

likely to be disruptive before it may be punished.

Waters, 511 U.S. at 674.

This Court long has recognized the importance of free

communications and duty speech for the government to

function effectively in the context of litigation. In N.L.R.B.

v. Scrivener, this Court explained that free speech rights

for witnesses should be broadly construed so as “to prevent

the Board’s channels of information from being dried up by

employer intimidation of prospective complainants and

witnesses.” 405 U.S. 117, 122 (1972).

Indeed, petitioners propose to reverse a consistent

pattern of evolving precedents that protection is necessary

for communications by a public official whose duties

include the subject matter of the communication. Bridges

v. California, 314 U.S. 252, 277-78 (1941).

19

Similarly, lower courts long have respected the neces-

sity for open communications within government chan-

nels. In Burkett v. United States, 402 F.2d 1002, 1008 (Ct.

Cl. 1968), the Court of Claims noted “the importance of

keeping open channels through which employees can call

attention to alleged derelictions or injustices to the atten-

tion of their superiors.” In Hostrop v. Board of Jr. College

School District No. 515, 471 F.2d 488, 493 (7th Cir. 1972),

the court noted that “[p]laintiff, as a public employee, was

entitled to be protected from retaliation for actions which

he had every reason to believe were a part of his assigned

duties.”

In Givhan v. Western Line Consolidated School Dis-

trict, 439 U.S. 410 (1979), this Court’s unanimous ruling

ended any confusion whether the First Amendment

applies to a government employee’s internal speech. This

Court’s same reasoning applies to duty speech at issue in

this case:

The First Amendment forbids abridgement of the

freedom of the speech. Neither the Amendment

itself not our decision indicate that this freedom

is to the public employee who arranges to com-

municate privately with his employer rather

than to spread his views before the public. We

decline to accept such a view of the First

Amendment.

Givhan, 439 U.S. 415-16. As this Court emphasized in City

of Madison Joint School District No. 8 v. Wisconsin Em-

ployment Relations Commission, 429 U.S. 167, 176 n.10

(1976), “It would strain First Amendment concepts ex-

traordinarily to hold that dissident teachers could not

communicate [their] views to the very decisionmaking

body charged by law with making the choices raised. . . .”

20

Ill. STATE AND FEDERAL STATUTES ARE AN

INHERENTLY INADEQUATE SUBSTITUTE

FOR CONSTITUTIONAL PROTECTION.

Petitioners and amici contend that statutory protec-

tions render constitutional rights unnecessary. Whistle-

blowers who have had to rely on those statutes would

strenuously disagree. While 46 states and the District of

Columbia have some form of statutory protection for

public employees, “the effectiveness of whistleblower

protection varies radically from jurisdiction to jurisdic-

tion.” Kohn, supra, at 378. As one commentator explained,

“State whistleblowing statutes consist of a patchwork of

provisions. While some provide fairly broad protection,

others limit protection to a specific industry area. The

state whistleblowing statutes also differ in the type of

disclosure they protect, the manner of disclosure they

require, and the remedies they provide.” Miriam A.

Cherry, Whistling in the Dark? Corporate Fraud, Whistle-

blowers and the Implications of the Sarbanes-Oxley Act for

Employment Law, 79 Wash. L. Rev. 1029, 1047 (2004).

To illustrate the inconsistencies, in Mississippi public

employees are protected, but only if they provide informa-

tion to an investigative body or agency. Miss. Code Ann.

§ 43-47-37 (1999 & Supp. 2003). In Texas public employees

are protected if they report a violation of law. Texas Gov't

Code Ann. § 554.001-.010 (Vernon 1994 and Supp. 2004).

In Utah and West Virginia they have free speech rights for

reporting a violation of law or waste. Ucah Protection of

Public Employees Act, Utah Code Ann. § 67-21-1 to -9

(2000); W. Va. Code Ann. § 6C-1-1 to -8. (Michie 2003). In

Wisconsin and Wyoming, free speech rights protect gov-

ernment workers for reporting illegality, mismanagement,

abuse of authority, substantial waste or a danger to public

21

health and safety. Wis. Stat. Ann. § 895.65 (West 1997 and

Supp. 2003); Wyo. Stat. 9-11-103 (Michie 2003). Quite

clearly, a bewildering array of hit or miss statutes is no

substitute for constitutional protection as a floor for this

right.

The Whistleblower Protection Act’s track record is a

potent lesson learned of the fragility of statutory free

speech rights. The law repeatedly had an overwhelming

legislative mandate. As a leading commentator noted

about the original 1978 passage of free speech rights, “The

ideological breadth of the coalition supporting whistle-

blower protection indicates that the passage of these

provisions is a strong congressional statement in support

of the legitimacy of whistleblowing.” Robert G. Vaughn,

Statutory Protection of Whistleblowers in the Executive

Branch, 1982 U. Ill. L. Rev. 615, 619-20.

If anything, this mandate was intensified by passage

of the Whistleblower Protection Act in 1989. While Con-

gress seldom passes any significant legislation unani-

mously, due to a pocket veto this law was approved twice

in just over five months, along with an earlier unanimous

approval in the Senate. 134 Cong. Rec. S10632 (daily ed.,

Aug. 2, 1988); id. at H9323; id. at S.15337; 135 Cong. Rec.

S10632 (daily ed., March 16, 1989); and id. at S2805. After

Congress unanimously strengthened the Act in 1994,

commentators hailed it as the strongest free speech law in

history, on paper. See, e.g., Thomas M. Devine, The Whis-

tleblower Protection Act and the Modern Law of Dissent, 51

Admin. L. Rev. 531 (Spring 1999).

Unfortunately, the record of the Act has been one of

sustained frustration for those who rely on it. S. Rep. 107-

349, 107th Cong., 2d Sess. November 19, 2002. The bottom

22

line is that the aggrieved employee almost always loses. In

appellate decisions at the Federal Circuit Court of Appeals

from October 1994 until September 1, 2003, whistleblow-

ers had a 1-84 track record for decisions on the merits.

Testimony of Thomas M. Devine, Hearings on S. 1358

before the Senate Governmental Affairs Committee (Nov.

12, 2003), slip testimony at 25. Although in theory the

statute protects “any” lawful disclosure the employee

reasonably believes is evidence of listed misconduct, in

reality it no longer covers disclosures to co-workers,

suspected wrongdoers, supervisors who lack authority to

impose corrective action; Horton v. Department of Navy, 66

F.3d 279, 282 (Fed. Cir. 1995), or any speech except by the

first person to disclose the information. Meuwissen uv.

Department of Interior, 234 F.3d 9 (Fed. Cir. 2000). Most

reievant for the case at bar, the law no longer covers

speech that is part of carrying out assigned duties, except

if the results are taken outside channels. Willis v. Depart-

ment of Agriculture, 141 F.3d 1139, 1143 (Fed. Cir. 1998);

Huffman v. OPM, 263 F.3d 1341 (Fed. Cir. 2001). There

can be little serious disagreement that even the best-

intentioned statutes are too unstable to serve as reliable

substitutes for a minimum base of constitutional rights.

IV. PETITIONER’S WARNINGS OF PARALYZED

MANAGEMENT AND FLOODED COURTS HAS

FAILED THE REALITY TEST.

A. Careful application of “Public Concern”

Jurisprudence and Pickering Balance Will

Check Frivolous First Amendment Claims.

Petitioner’s argument for reining in “drifting First

Amendment jurisprudence” is largely based upon the twin

predictions of management paralysis and litigation deluge.

ew mee ome

23

These are, of course, the same exhortations urged to

oppose coverage of Mr. Pickering’s speech 38 years ago.

First Amendment coverage of government employee

speech since Pickering has not handicapped management

nor dramatically increased the volume of First Amend-

ment litigation. Nor will coverage of job-required speech

by government employees inaugurate these harms.

Furthermore, as most recently noted in U.S. v. Na-

tional Treasury Employees’ Union:

When the Government defends a regulation on

speech as a means to redress past harms or pre-

vent anticipated harms it must do more than

simply ‘posit the existence of the disease sought

to be cured.’ ... It must demonstrate that the

recited harms are real, not merely conjectural,

and that the regulation will in fact alleviate

these harms in a direct and material way.

NTEU, 513 U.S. at 475, citing Turner Broadcasting

System, Inc. v. FCC, 512 U.S. 622, 664 (1994).

Wholesale denial of First Amendment protection to

job-required speech is an immoderate response to the

posited harms. Nevertheless, the reluctance to expand

First Amendment protections to expression in the course

of job duties stems from a legitimate concern that man-

agement may become unduly burdened if it is too easy to

claim protected status. But frivolous free speech claims

may be deterred and screened out by careful application of

the discerning First Amendment jurisprudence beginning

with Pickering. Potential mischief with an expanded scope

of protection may be countered by prudent application of

the Connick “content, form and context” test for “public

concern,” the nexus requirement and the time-tested

24

Pickering balance. Connick, 461 U.S. at 147-148; Mt.

Healthy City Sch. Dist. v. Doyle, 429 U.S. 274 (1977);

Pickering, 391 U.S. at 568.

B. Decades of Environmental Whistleblower

Jurisprudence Protecting Disclosures Pur-

suant to Job Duties Have Not Resulted in

Flood of Litigation.

For at least two decades, private employees have been

protected for job-required disclosures under a number of

environmental whistleblower statutes. See, e.g., 15 U.S.C.

§ 2622 (Toxic Substances Control Act) (2005); 33 U.S.C.

§ 1367 (Federal Water Pollution Control Act) (2005); 42

U.S.C. § 300-j-9 (Safe Drinking Water Act) (2005); 42 U.S.C.

§ 5851 (Energy Reorganization Act) (2005); 42 U.S.C. § 6971

(Solid Waste Disposal Act) (2005); 42 U.S.C. § 7622 (Clean

Air Act) (2005); and 42 U.S.C. § 9610 (Superfund) (2005).

These statutory protections have resulted in neither mana-

gerial paralysis nor a flood of litigation. Petitioners’ predic-

tions regarding the dire consequences of extended coverage

have been tested in the real world and those tests have not

borne out the harm foretold.

Generally speaking, these whistleblower provisions

protect any employee, private or public, who assists in

enforcement of the substantive provisions of the underly-

ing Acts.

There has been an opportunity to test Petitioners’

predictions under these corporate speech statutes. In

1984, the Ninth Circuit held that internal complaints

pursuant to job duties triggered protection under the ERA.

Mackowiak v. University Nuclear Systems, Inc., 735 F.2d

1159 (9th Cir. 1984). Mackowiak, a quality control inspec-

tor at a nuclear power plant under construction, was

employed by University Nuclear Systems Incorporated

(UNSD, a subcontractor of Bechtel, itself a contractor with

the Washington Public Power Supply System. The duties

of quality control inspectors of nuclear power plants are

governed by the regulations of the Nuclear Regulatory

UNSI employees to confirm conformance with federal

specifications. If an inspector found an item of possible

noncompliance, he was required to write a “Request for

Information” to the quality assurance department. If an

inspector found improper installation or construction, he

was required to “red tag” the item in question and file a

Non-Conformance Report. Id. at 1160-61.

As part of his inspector duties, Mackowiak repeatedly

made a record of UNSI safety and quality violations. For

example, over the course of a month and a half, he filed a

Request for Information regarding possible falsification of

documentation by UNSI personnel; he filed a Request for

Information regarding access to the tool cribs; and he “red

tagged” a tool crib. Shortly thereafter, Mackowiak was laid

off. Id. The Ninth Circuit found that Mackowiak’s internal

complaints about safety and quality, undertaken as part of

his quality control inspector duties, were protected under

the ERA’s whistleblower provisions. Jd. at 1163. The Court

explained that they were modeled on and served the same

purpose as the similar provisions of the Mine Health and

Safety Act. Noting that internal safety complaints were

covered under the MHSA, the Court reasoned that the

rationale for coverage was even stronger in Mackowiak’s

case because quality control inspectors play such a crucial

role in NRC oversight of nuclear plants:

At times, the inspector may come into conflict

with his employee by identifying problems that

might cause added expense and delay. If the

NRC’s regulatory scheme is to function effec-

tively, inspectors must be free from the threat of

retaliatory discharge for identifying safety and

quality problems.

Id. at 1163.

Arguing against such protection, UNSI raised the

specter of a collapse of managerial authority. The Ninth

Circuit responded decisively:

UNSI argues that the Secretary’s ruling [finding

internal, job-required disclosures covered under

the statute] would require companies to retain

“abrasive, insolent, and arrogant” quality ontrol

inspectors if they comply technically with the re-

quirements of the job. Not so. The ruling simply

forbids discrimination based on competent and

aggressive inspection work. In other words, con-

tractors regulated by §5851 may not discharge

quality control inspectors because they do their

Jobs too well.

Id. (emphasis added).

A year later, the Tenth Circuit approved the reasoning

in Mackowiak and found that a quality assurance inspec-

tor who filed reports with his superiors detailing potential

quality assurance problems was covered under the ERA’s

whistleblower provisions. Kansas Gas & Electric Company

v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985). Recognizing

the Fifth Circuit had reached a different result in Brown and

Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984), the Court

discounted the decision because it failed to adequately

address the remedial purposes of whistleblower statutes and

the consequent necessity for a broad construction. Kansas

Gas & Electric Company, 780 F.2d at 1513.

ee -

27

Whistleblower protection for private employees who

raise concerns pursuant to their job duties is well-

established under the environmental and nuclear whistle-

blower statutes administered by the Department of Labor.

See, e.g., Bassett v. Niagara Mohawk Power Co., 86-ERA-2

(Sec’y July 9, 1986) (the performance of quality assurance

work for an employer covered by the Acts is per se pro-

tected activity); Richter v. Baldwin Associates, 84-ERA-9

to 12 (Sec’y Mar. 12, 1986); Tyndall v. U.S. EPA, 93-CAA-6

(ARB June 14, 1996) (job duties performed by investigator

for the Inspector General of the U.S. EPA found to consti-

tute protected activity); Gutierrez v. Regents of the Univer-

sity of California, ARB No. 99-116, ALJ No. 1998-ERA-19

(ARB Nov. 13, 2002), slip at 5 (raising safety and health

issues at the LANL as part of his job as an internal asses-

sor is covered activity); Higgins v. Alyeska Pipeline Service

Co., 97-CAA-13 (ALJ Order Denying Motion for Summary

Decision, January 26, 1998) (performance of job duties

involving investigating employee complaints about opera-

tion of pipeline found “inherently protected activity”).

Protection of job-required speech under these statutes has

resulted in no discernable impediment to managerial

authority in the relevant private industries. Nor will

coverage of job-re~uired speech under the First Amend-

ment.

CONCLUSION

A per se restriction of job-required speech, as proposed

by Petitioners, will chill ethical conduct by governmental

employees and wreak incalculable damage on the nation.

The ‘udgment of the court of appeals should be affirmed.

Respectfully submitted,

JOANNE ROYCE JEFFREY L. NEEDLE

THOMAS M. DEVINE ASSOCIATION OF TRIAL

GOVERNMENT ACCOUNTABILITY LAWYERS OF AMERICA

PROJECT LAW OFFICES OF

1612 K Street, NW, JEFFREY NEEDLE

Suite 1100 119 1st Ave. South

Washington, D.C. 20006 Suite #200

(202) 408-0034 Seattle, Washington 98104

MARISSA M. TIRONA (206) 447-1560

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

44 Montgomery Street,

Suite 2080

San Francisco, CA 94104

(415) 296-7629 ext. 103