Opposition Brief — Adair v. Charter County of Wayne (No. 06-912)

&F FILED

No. 06-912 FEB 3 - 2007 _

CPPICE OCP THESLE

SUPREME COURFT, U.S.

In the

Supreme Court of the United States

MICHAEL ADAIR, et al.,

Petitioners,

V.

CHARTER COUNTY OF WAYNE,

a municipal corporation, et al.,

’ Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

Linda G. Burwell

Counsel of Record

Deborah Brouwer

NEMETH BURWELL, P.C.

200 Talon Centre Drive

Suite 200

Detroit, MI 48207

(313) 567-5921

Counsel for Respondents

Charter County of Wayne, et al.

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

Il.

COUNTER-STATEMENT QUESTIONS

PRESENTED FOR REVIEW

Have Petitioners shown any compelling reason for review

by this Court as to Petitioners’ retaliation claim under 42

U.S.C. § 1983, where the decision of the Sixth Circuit

Court of Appeals comported with the majority view of

courts that have considered whether a public employee

claiming retaliation under the Petition Clause must

demonstrate that a matter of public concern was involved?

Have Petitioners shown any compelling reason for review

by this Court as to Respondents’ municipal immunity,»

where the decision of the Sixth Court of Appeals was

based on the specific facts before it, and comported with

existing Supreme Court law?

i!

PARTIES TO THE PROCEEDINGS

The Petitioners are Michael Adair, William Childress,

Leon Denton, Charles Elstone, Richard Frederick, Richard

Hitch,-Ernest Hunter, Charles Johnson, Victor Kline, John

Malaiiiak, Michael Molitor, Paul Molitor, Peter Molitor,

David Okoney, Dean Pigott, Bruce Preston, Michael

Tavtigian, John Teschke, Robert Tipton, and Bradford

Vincent.

The Respondents are Charter County of Wayne, a

municipal corporation, and Detroit Metropolitan Wayne

County Airport Authority, a municipal corporation.

ill

TABLE OF CONTENTS

COUNTER-STATEMENT QUESTIONS PRESENTED

FOR REVIEW

pe ee ee Per eer ere eT eT Te rere iil

pp ee eee iv

OPINIONS AND ORDERS BELOW ............ |

PCTS CTT ETT eee rere l

CONSTITUTIONAL AND STATUTORY

FV EOEUe BESVORLVEERD bese cc cessccecncess I

REASONS THE PETITION SHOULD BE DENIED .. 4

I. THERE IS NO TRUE “SPLIT AMONG THE

CONE 8 ve d64 64S OKA RA eee 4

ll. THE SIXTH CIRCUIT'S DECISION — IS

CONSISTENT WITH ITS PREVIOUS DECISIONS

ON THIS ISSUE

Ill. THE SIXTH CIRCUIT'S CONCLUSION THAT

PETITIONERS WERE NOT ENGAGED IN

PROTECTED ACTIVITY WAS NOT

OUTCOME-DETERMINATIVE

ee PPT eee ee er re fee 1]

iV

TABLE OF AUTHORITIES

Cases

Adair v. Charter County of Wayne,

452 F.3d 482 (6th Cir. 2006) ............ 3,4,9

Belk v. Town of Minocqua,

gw brs fy Le A ree ere 7

City of Newport v. Fact Concerts, Inc.,

ae Ce ee CE 6 <6 Ook o We eee we Res 10

Connick v. Myers, 461 U.S. 138 (1983) .........-. a

Gable v. Lewis,

201 F.3d 769, reh'g and reh'g en banc denied,

2000 U.S. App. LEXIS 7029 (6th Cir. 2000) ..... 8

Grigley v. City of Atlanta,

136 F.3d 752 (11th Cir.), cert. denied,

ee as DEON 65.0 0ecweceseee ee utuwns 6

Hoffman v. Mayor, Councilman and Citizens of City of

Liberty,

SUS F.2d Zz9 (Gta Cir. 1990) we ewe ees’ 6

Jones v. Union City, 296 F.3d 417 (6th Cir. 2002) .... 8

Kirby v. City of Elizabeth City, North Carolina,

388 F.3d 440 (4th Cir. 2004); cert. denied, -- U.S. -- ,

126 S. Ct. 2350, 165 L.Ed.2d 294 (2006) ....... 5

Martin v. City of Del City,

Soe We ee CUO Ge SFEE occ vcs ewes 6

McDonald v. Smith, 472 U.S. 479 (1985) ......... oe

Monell v. Dep't of Soc. Services,

ee Ge ETE oko oo ob cea ecu’ 9, 10

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)... 9

Rathjen v. Litchfield, 878 F.2d 836 (Sth Cir. 1989) ... 6

Rendish v. City of Tacoma,

123 F.3d 1216 (1997), reh'g and reh'g en banc denied,

134 F.3d 1389 (9" Cir.), cert. denied,

524 U.S. 952 (1998)

San Filippo v. Bongiovanni,

30 F.3d 424 (3d Cir. 1994), cert. denied,

ee a OEE. isis ke «2k Ree ele eee 6, 7

Thaddeus-X v. Blatter,

175 F.3d 378 (6" Cir. 1999) (en banc) ......... 9

Valot v. Southeast Local School Dist. Bd. of Ed.,

107 F.3d 1220 (6th Cir.), cert. denied,

— (8s EES. os ee rea 6,8

White Plains Towing Corp. v. Patterson,

991 F.2d 1049 (2d Cir.), cert. denied,

ae Ga AOD cvs 6 one re 6 0 vce ewe 5

Wisniewski v. United States, 353 U.S. 901 (1957) .... 8

Zorzi v. County of Putnam,

30 F.3d 885, reh'g and reh'g en banc denied, 1994

U.S. App. LEXIS 23294 (7th Cir. 1994) ........ 6

Statutes

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eee a Oyo 4 ay 00 ee ee ee passim

Rules

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OPINIONS AND ORDERS BELOW

The opinion of the Sixth Circuit Court of Appeals is

officially reported at 452 F.3d 482 (6" Cir. 2006).

JURISDICTION

The decision of the Sixth Circuit Court of Appeals was

filed on June 22, 2006. The Sixth Circuit Court of Appeals’

Order denying Plaintiffs’ Motion for Rehearing/Rehearing En

Banc was filed on October 2, 2006. The jurisdiction of this

Court is invoked by Petitioners pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

First Amendment

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press, or the right

of the people to peaceably assemble, and to petition the

Government for a redress of grievances.

42 U.S.C. § 1983

Every person who, under color of any statute, ordinance,

regulation, custom, or usage of any State or Territory of the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within its

jurisdiction thereof to the deprivation of any rights,

privileges, Or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.

COUNTER-STATEMENT OF FACTS

In March 2002, a group of 30 law enforcement officers

employed at that time by the Wayne County, Michigan

Sheriff's Department and assigned to the Wayne County

2

Metropolitan Airport Police Department,' filed suit under the

Fair Labor Standards Act’ seeking compensation (at one and

one-half times their normal rate of pay) for all off-duty hours

during which they carried a beeper or pager. Because these

police officers carried their pagers at all times, the suit sought

compensation for 24 hours a day, 365 days a year. To justify

their claim for pay, the officers argued that carrying the

pagers was onerous and severely interfered with their

personal lives.

To relieve them, and all other officers assigned to the

Airport, of this burden, the Airport’s Director of Public

Safety’ requested that all of the Airport’s law enforcement

officers turn in their pagers. The officers who had sued for

overtime then amended their Complaint, adding FLSA

retaliation claims. Several other officers, who were not part

of the original lawsuit, also joined the suit, claiming that their

pagers were removed in retaliation for their protected activity

- even though the protected activity was the lawsuit that they

joined only after the alleged retaliation.

At this same time, the airport was engaged in cost-saving

efforts dictated by the increased security demands following

the September 11, 2001 terrorist attacks. The Airport’s

Director of Public Safety therefore modified a number of

' Some months after the suit was filed, a new entity, called the

Wayne County Airport Authority, was created by the Michigan

legislature, and became Petitioners’ employer. Mich. Comp. Laws

§§ 259.108 et seq.

? 29 U.S.C. §§ 211 et seq.

> The Airport’s Director of Public Safety was Mark DeBeau, who

was named as an individual defendant in Plaintiffs’ original suit.

The District Court determined that Mr. DeBeau was immune from

liability, and the Sixth Circuit affirmed. He is not a party to this

action.

3

practices affecting all of the officers employed at the Airport,

including those officers who had filed the FLSA suit.

Plaintiffs nonetheless claimed that those changes - the

elimination of “comp time” in favor of overtime and the

assignment of county-owned, fully equipped SUVs to the

airport’s K-9 officers ~ were not an effort to save money, but

were personally directed at them, in retaliation for their

lawsuit.

During the course of the litigation, Plaintiffs filed several

amended complaints, but. did not assert their claim of

retaliation in violation of their First Amendment Rights under

42 U.S.C. § 1983 until May 23, 2003, after the Airport had

filed its Motions for Summary Judgment. In October 2004,

the District Court dismissed all of Plaintiffs’ claims, including

their § 1983 claims.

The Sixth Circuit Court of Appeals affirmed the District

Court’s decision in June 2006, in a decision reported at Adair

vy. Charter County of Wayne, 452 F.3d 482 (6th Cir. 2006).

That court held that:

# Plaintiffs were not entitled to overtime pay under the

FLSA because their off-duty time was _ utilized

predominantly for their personal benefit, and not for

their employers’ benefit. Adair, 452 F.3d at 489.

= Plaintiffs were not entitled to damages under the

FLSA for alleged retaliation because the complained-

of acts were not materially adverse employment

actions. Further, there was no evidence that those

actions were caused by the filing of Plaintiffs’ iawsuit,

in part because the changes were applied to all of the

Airport’s officers and not just to Plaintiffs. /d. at 490-

491.

4

# Plaintiffs failed to state a claim under 42 U.S.C.

§ 1983 because they had not proved that either their

speech or their iawsuit for overtime pay touched on

matters of public concern. /d. at 492.

= Both Wayne County and the Airport were immune

from liability because the alleged retaliatory acts were

not made by a final policymaker, and thus were not

the official policy or custom of the Airport or the

County. /d. at 493.

REASONS THE PETITION SHOULD BE DENIED |

I. THERE IS NO TRUE “SPLIT AMONG THE

CIRCUITS”

Litigants have no absolute right to review upon a writ of

certiorari, which instead is a matter committed to this Court’s

discretion. In exercising that discretion, the Court may

consider whether the court of appeals in the case before it

“entered a decision in conflict with the decision of another

United States court of appeals on the same important matter.”

S. Ct. R. 10(a). Petitioners in this case claim that grant of

their Writ is justified because of a conflict among the circuit

courts of appeal. A “conflict” exists only in the most limited

sense, however. The Sixth Circuit Court of Appeals decision

below was consistent with the overwhelming majority of

circuit courts that have considered the question of whether a

public employee claiming retaliation by her employer under

the Petition Clause must demonstrate that her actions involved

an issue of public concern. Nine circuit courts of appeals have

concluded that such a showing is required; only a single

circuit has decided otherwise. No significant split among the

circuits exists to justify this Court’s review of Petitioners’

claims.

5

In Connick v. Myers, 461 U.S. 138, 140 (1983), this

Court recognized that, while “a public employee does not

relinquish First Amendment rights to comment upon matters

of public interest by virtue of government employment,” the

government does retain a significant interest in regulating the

conduct of its employees. “[W]hen a public employee speaks

not as a citizen upon matters of public concern, but instead as

an employee upon matters only of personal interest . . . a

federal court is not the appropriate forum in which to review

the wisdom of a personnel decision taken by a public agency

allegedly in reaction to the employee’s behavior.” /d. at 147.

The Connick court therefore adopted a test balancing the

interests of the public employer in ensuring a smoothly

functioning workplace against the rights of its employees. The

rights of an employee thus can be limited when that employee

is acting as an employee, seeking to advance her personal

interests, rather than as a citizen acting for the public good.

Id. at 146. Unless the alleged protected activity addresses a

matter of public concern, then, it is not activity protected

under the First Amendment.

Although the plaintiff in Connick had sought vindication

of her Free Speech rights, rather than her Petition Clause

rights, this Court has also determined that “the right to

petition is cut from the same cloth as the other guarantees of

{the First} Amendment.” McDonald v. Smith, 472 U.S. 479

(1985)(Holding that the Petition Clause does not provide -

absolute immunity from a libel action).

Armed with these strictures from the Supreme Court, nine

of this country’s circuit courts of appeals have applied the

“public concern” requirement to plaintiffs alleging retaliation

by their governmental employer in violation of the Petition

Clause. See White Plains Towing Corp. v. Patterson, 991

F.2d 1049 (2d Cir.), cert. denied, 510 U.S. 865 (1993);

Kirby v. City of Elizabeth City, North Carolina, 388 F.3d 440

6

(4th Cir. 2004); cert. denied, -- U.S. -- , 126 S. Ct. 2350,

165 L.Ed.2d 294 (2006); Rathjen v. Litchfield, 878 F.2d 836

(Sth Cir. 1989); Valot v. Southeast Local School Dist. Bd. of

Ed., 107 F.3d 1220 (6th Cir.), cert. denied, 522 U.S. 861

(1997); Zorzi v. County of Putnam, 30 F.3d 885 (7th Cir.

1994), reh’g and reh’g en banc denied; Hoffman v. Mayor,

Councilman and Citizens of City of Liberty, 905 F.2d 229 (8th

Cir. 1990); Rendish v. City of Tacoma, 123 F.3d 1216 (9th

Cir. 1997), reh’g and reh’g en banc denied, 134 F.3d 1389,

cert. denied, 524 U.S. 952 (1998); Martin v. City of Del City,

179 F.3d 882 (10th Cir. 1999); Grigley v. City of Atlanta,

136 F.3d 752 (11th Cir.), cert. denied, 525 U.S. 819 (1998).

Only one circuit - the Third Circuit - has reached a

contrary conclusion. San Filippo v. Bongiovanni, 30 F.3d 424

(3d Cir. 1994), cert. denied, 513 U.S. 1082 (1995). That

court determined that the U.S. Constitution’s Petition Clause

is broader than its Free Speech clause and provides even

greater protection, in part because it seemed to the court

paradoxical that a government could establish a process for

“redress of grievances” such as a judicial system, and then

discipline a public employee for utilizing that very process.

Id. at 439.

Thirteen years have passed since the San Filippo decision.

In that time, not a single other circuit has joined in the Third

Circuit’s analysis. Those circuits that have considered the

Petition Clause/public concern issue anew during those years

have expressly rejected San Filippo as inconsistent with

Supreme Court precedent. See, e.g., Rendish, 123 F.3d at

1223; Grigley, 136 F.3d at 754; Martin, 179 F.3d at 887-888.

Contrary to Petitioners’ bare assertion that, after San

Filippo, courts “have failed to give this issue the sort of

independent analysis it deserves” [Petition at p. 13],

subsequent decisions have indeed analyzed (and rejected) the

7

arguments set forth in San Filippo. In Rendish, for example,

the Ninth Circuit Court of Appeais carefully reviewed the

Supreme Court decisions in Connick, which delineated the

scope of public employees’ constitutional rights, and

McDonald, and concluded that providing greater protection to

a public employee who “through foresight or mere fortuity”

presents her speech as a grievance or in a lawsuit rather than

as pure speech would implement “precisely the sort of

hierarchy of first amendment rights forbidden by McDonald. ”

123 F.3d at 1222, quoting Belk v. Town of Minocqua, 858

F.2d 1258, 1261-1262 (7th Cir. 1988). The court stated:

“We respectfully disagree with the Third Circuit’s analysis.

First, it diverges from the Supreme Court’s teachings that the

primary function of the First Amendment is to facilitate

participation in a free political process and that the First

Amendment extends its guarantees to public employees in

order to encourage such participation. Moreover, it equates

the government’s conduct as employer with its conduct as

government. When government as employer disciplines an

employee for pursuing litigation, it does not act as ‘the very

government’ which established the mechanism for redress . . .

but rather in its role as an employer.” 123 F.3d at 1223.

This Court thus should deny Petitioners’ Writ because the

great majority of circuit courts of appeal have correctly

concluded that only when a public employee acts as a citizen,

rather than as an employee acting to protect or advance her

personal interests, is that employee protected by the First

Amendment.

8

Ii. THE SIXTH CIRCUIT’S DECISION IS

CONSISTENT WITH ITS PREVIOUS DECISIONS

ON THIS ISSUE

In further support of their Writ, Petitioners claim -

incorrectly -- that the decision below is inconsistent with prior

decisions of the Sixth Circuit and that such “confusion” needs

to be corrected by this Court. [Petition at pp. 4, 9] This

argument should be rejected first because “[iJt is primarily the

task of a Court of Appeals to reconcile its internal

difficulties.” Wisniewski v. United States, 353 U.S. 901, 902

(1957). Secondly, there is no confusion in need of resolution

because the decision of the Sixth Circuit below was entirely

consistent with its previous decisions.

Petitioners claim that the Sixth Circuit decision in Gable

v. Lewis, 201 F.3d 769 (6th Cir. 2000) reh’g and reh’g en

banc denied, is somehow at odds with its decision in the

present case, as well as with its rulings in Jones v. Union

City, 296 F.3d 417 (6th Cir. 2002) and Valot, supra. This is

simply incorrect. The issue confronted by the court in Gable

was not whether a public employee alleging retaliation under

the Petition Clause must demonstrate that her actions involved

a matter of public concern. The plaintiff in Gable was not a

public employee at all, but “simply a citizen offering services

to a state agency.” Gable, 201 F.2d at 771. The Sixth Circuit

thus declined to require evidence of a public concern, because

“the reason for the test is missing in the present case -

maintaining order in the governmental workplace.” /d.

In contrast, the plaintiffs in Valot, supra, and Jones, supra

were public employees - as were Petitioners in this case.

Consistent with the decisions of many circuits, the Sixth

9

Circuit has crafted a clear and rational approach to the issue.’

It is neither internally inconsistent nor confusing and does not

require intervention by this Court.

~,

Wi.THE SIXTH CIRCUIT’S CONCLUSION THAT

PETITIONERS WERE NOT ENGAGED _IN

PROTECTED ACTIVITY WAS NOT OUTCOME-

DETERMINATIVE

No compelling reason exists for this Court to review the

decision below because the issue urged upon the Court for

review did not determine the Sixth Circuit’s ultimate decision.

While the Sixth Circuit concluded that Petitioners had not

established either a Free Speech or Petition Clause claim, the

court went on to state that, “[e]ven if Plaintiffs were able to

demonstrate that they were deprived of a federal constitutional

right. . . they must also show that an official policy or custom

of Wayne County or the Airport was the moving force behind

the constitutional violation.” Adair, supra, 452 F.3d at 492-

493. Applying the specific facts of the case to the standards

for municipal liability crafted by the Supreme Court in Monell

v. Dep't of Soc. Services, 436 U.S. 658 (1978) and Pembaur

v. City of Cincinnati, 475 U.S. 469 (1986), the Sixth Circuit

determined that neither the County nor the Airport had

adopted an official policy or custom resulting in a

constitutional injury to Petitioners. /d. at 493. The court

relied on two factors in reaching this conclusion: first, that the

alleged retaliatory actions (removal of pagers, modification of

rules for the use of compensatory time; provision of SUVs to

* See, for example, Thaddeus-X v. Blatter, 175 F.3d 378, 392 (6th

1999)(en banc), in which the Sixth Circuit concluded that the

“public concern” test did not apply to a prisoner’s right to petition

the government, because the government's interest in a harmonious

workforce was not at issue.

10

the K-9 unit) were not taken by County or the Airport itself

but by the Airport’s Director of Public Safety. Petitioners’

contentions notwithstanding, the court below stated that even

while such a position “carries with it considerable influence,”

it is not the position of a final policymaker. /d. The court

noted further that the specific actions alleged by Petitioners as

violative of their constitutional rights “lack the sort of force

and finality characteristic of official municipal policy.” /d.,

citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981) and Monell, supra. °

Thus, the Sixth Circuit held that, even if Petitioners had

engaged in protected activity, their § 1983 claim still would

fail, because the Airport and County were immune from

liability. Even if this Court were to reverse the Sixth Circuit’s

conclusion that Petitioners were required to demonstrate that

their lawsuit was a matter of public concern, the ultimate

result of the case would not be affected. There thus are no

compelling reasons to grant the Writ, and so it should be

denied.

> Petitioners attempt to sidestep this weakness in their claim by

urging this Court also to review that aspect of the decision below.

{Petition at pp. 19-20] Petitioners fail to articulate even the most

modest justification for review of that issue, however, claiming

only that the Sixth Circuit made a factual error, because the

Director of Public Safety had “decision making authority.” That

hardly rises to the level of being a “final policy maker,” however,

and presents no compelling reason for this Court to review the

factual determination made below.

I]

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

Linda G. Burwell

Counsel of Record

Deborah Brouwer

Nemeth Burwell, P.C.

200 Talon Centre Dr., Ste. 200

Detroit, MI 48207

313-567-5921

Attorneys for Respondents

Dated: February 5, 2007