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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

&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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1971%3A2. Public record. Not legal advice.