# Amicus Curiae Brief — Garcetti v. Ceballos

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0042%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 410

## Text

~\
(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0042%3A19. Public record. Not legal advice.