Petitioners Brief — Borough of Duryea v. Guarnieri

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DEC - 6 2010

No. 09-1476 OFFICE OF THE CLERS

Inthe Supreme Court of the Clnited States

RoROUGH OF DURYVEA. PENNSYLVANIA ef al

Petitioners

CHARLES Jd. GUARNIERL., Jr

Re be oPlc ter oa f

\e ae a! cae ‘4

On Writ of Certiorari

to the United States Court of Appeals

tor the Thard Cireun

BRIFE FOR THE PETITIONERS

JOSEPH AO BRIEN DANIEL ROOrTiZ*

WAROLINE MERALCHICKH James BO RYAN

Oliver, Price & Rhodes University of Virginia

PO Rov 240 Scheol of Lau

1212 South Abington Supreme Court

Road litigation Cline

Clarks Summit, PA O80 Massie Road

Sil] Charlottestrle, VA

(970) S85. 1200 YPM

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Aroevrrgmm1a_ eau

(434) 924 SILT

‘ or. 8 } ff | aa Pi

S SS fe sata ‘ shee se

| Additional Counsel Listed On Inside Cover

MAKK TO STANCIL

Robbins, Russell, Englert

Orseck, Unitereiner &

Sauber LLP

ISO] K Street. NW

Suite 41]

Washington, DC 20006

(LOL) FF 5-400

DAVID T GOLDBERG

Donahue A Groldbers,

LLP

99 Hudson Street,

Sth Floor

New York, NY l007T3

(LIL) S84 SST

JOHN P RL Woop

Vinson & Elkins LLP

L4ao Pennsvivania Ave,

NOW, Sutte 600

Woshington, DC 20004

(LOL) 629 GO?

QUESTION PRESENTED

Can pubhe emplovees sue their emplovers under

the Petition Clause for adverse employment actions

allegedly resulting from the emplovees’ petitioning

on matters of purely private concern”

PARTIES TO THE PROCEEDING

In addition to the party identified in the caption,

petitioners also include Duryea Borough Counet,

Ann Dommes, Individually and in her Official

Capacity as Council President: Los Morreale.

Individually and in her Official Capacity as Borough

Secretary, Frank Groblewski, Individually and in his

Official Capacity as Councilman; Edward Orkwis,

Individually and in his) Ofeial Capacity as

Couneilman; Robert Webb. Individually and in his

Offieial Capacity as Councilman; Audrey Yager.

Individually and oan her Official Capacity as

Councilwoman, Joan Orloski, Individually and in her

OMecial Capacity as Councilwoman; and Alfred

Akulomis, Individually and in his Offieial Capacity as

Councilman.

lll

TABLE OF CONTENTS

Page

Question Presented aa

Parties To The Proceeding ............. il

Table Of Authorities v1

IN i an

Jurisdiction l

Constitutional Provision Involved . ot

Statement ]

A. Constitutional Background ........................ 3

B. Factual Background .. 5

C. Distmet Court Proceedings 8

Ly. Court of Appeals Proceedings ....... 10

Summary Of Argument 11

Argumoent................ 14

1 The Third Cirewmt’s Rule Violates

Fundamental Principles Of Parity Between

Speech and Petitions.......0............

A. MeDonald Recognized That The Orginal

Understanding Of The Petition Clause

Cannot Support A Hierarchy Of First

Amendment Rights....... i a ee,

B. Respondent's Proposed Rule Would Give

Central Importance To Unworkable

Istinctions Between “Speech” — and

CUI <s5c1idaceuscupnnedseensaventouieeesaruapouaditedaiever

Page

Il. Where A Public Emplovee Has Petitioned

The Government About A Matter Of Purely

Private Interest, Any Resulting Adverse

Employment Action Is Not Subject To First

Amendment Review

A. This Court’s Pubhe Emplovee Speech

Cases Counsel Applying Connick v.

Myers’s Pubhe Concern Requirement To

Petition Clause Claims.................... Ser

Bb. Recognizing Petition Clause Claims For

Adverse Job Action Taken In Response

To Petitioning About Matters Of Purely

Private Concern Would Permit

Circumvention of Connick

C. Recogmzing A Constitutional Claim For

Adverse Employment Action Resulting

From Petitioning On Matters of Private

Interest Would Displace Carefully

Crafted State Remedies

Conclusion ................. =

ee ee ee ee

ee ee ee ee ee ee a a

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. United States.

Ue ths OO CD ven vcisiseiccsussecacvencoccacovanonaninavssasiars 21

Altman v. Hurst,

rp ee br Tr. Teo RS ” | eee ene 48

Anderson v. Davila,

Be ee Re EE TAD FOE neviinséucccwardecavcevoxcacceceoces 31

Andrew v. Clark,

561 F.3d 261 (4th Cir. 2009).......... ectuuissibondies ses cca

Arnett v. Kennedy,

GEG O.B. TBE CATED ooavviccicecscaccccocesccesss ie vdicaeinunals a0

BE & K Constr. Co. v. NLRB.

of POR .) 0 TR er ees 2)

Belk v. Town of Minocqua,

858 F.2d 1258 (7th Cir. 1988)....... ths Mckes GC gure wanda! 5

Bill Johnson's Rests., Inc. v. NLRB,

Of Se 0S ROR IR IS ten Iie PORE an ene 20, 21, 26

Bishop v. Wood,

I We I IO ae viccccdiuas obnacccaveceavedstacsanexteadenr 47

Blue Chip Stamps v. Manor Drug Stores,

421 U.S. 723 (1975) 51

ee ee ee ee ee

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Bradshaw v. Twp. of Middletown,

296 F. Supp. 2d 526 (D.N.J. 2003)....0..00000002.. 31, 32

Brandenburg v. Ohio,

cn a re Oe 21

Bush v. Lucas

Se ee i Me ID os ck pcsdocxsccsonccesdinenccicencsnnesaves 53, 57

Cafeteria & Rest. Workers v. McElroy,

ok Ll enna

Cal. Motor Transp. Co. v. Trucking Unlimited,

i: SI III ooh satis tacceysateencsusensnevcansecnse cies 26

Campagna v. Mass. Dep't of Envtl. Prot.,

206 F. Supp. 2d 120 (D. Mass. 2002)..................... 47

CBOCS West, Inc. v. Humphries,

ee Fe MN HII es cecncteuh caccmecucsscsunsseuscoisecolenevecects 22

Cicchiello v. Beard.

No. 3:07-cv-2338, 2010 WL 2891523

es SE WE is, SPINE on vesennesescosieccesiudevessancasavonns 46

Cipriani v. Lycoming County Hous. Auth.,

177 F. Supp. 2d 303 (M.D. Pa. 2001)............... 31, 33

City of San Diego v. Roe,

SC Wr eo ne ee 43

Vill

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Clayton v. City of Atl. City,

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CED.IN od. PURO BO, BOUD) «......cccccsccccccccccc-scccssscseseseece 46

Connick v. Myers,

OE ie BA OR xcnkcsacsssacsescscsevsccscrecosconees passim

Cook v. Gralike,

EE I I 5. ons suvsunsouecuoupasnvecsnecconsen 17

County of Allegheny v. ACLU,

FR Re a ee 34

D'Angelo v. Sch. Bd.,

497 F.3d 1203 (11th Cir. 2007).........................0...0.. 3

Davenport v. Wash. Educ. Ass'n,

fk | i

DeHart v. Baker Hughes Oilfield Operations,

No. Civ.A. H-04-2233, 2005 WL 3005641

See i I: 47

Diana v. Oliphant,

No. 3:05-CV-2338, 2007 WL 3491856

SS Ns I, Ty ED aii viccndeeoeisincgee cceceecescoucecuecess 49

Dist. of Columbia v. Heller,

RO Os Sits BU III ssc stssivvccvcxssnecendsencsmasensccondescs 23

E. R.R. Presidents Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127 (1961) ..........eeeceeeee 18-19

Page(s)

Edwards v. South Car wWina,

372 U.S. 229 | 41983). EE ee AE te 14a, 30

> & » | ~ =< ~ oe eed ct ped

rerere, a. 591 (2008) ec cb CaNeeewecese ee cee Dea ssin

Foraker v. Chaffinen,

501 F.3d 231 (3d Cir. 2007)...........--- eee passim

Gareetti V. Cebda ilos,

Ba U.S. 410 (2DOWGE) ...........eeecencsccerecresserseeresees PASSE

Garcia v. San Antonio Metro Transit Auth..

469 US. BPS (1 GBS) «.......--00crcsccsrcenssecenersseescssenses ad

Garrison v. Lowisiana,

379 U.S. C4 (19GA4D........-.-.cecesecrecerterertees ett 91, 25

Gert V. Robert Welch. Ine..

418 U.S. 323 (1974)........... rome |

Globe Newspaper Co. v. Superior Court,

$457 ULS. 596 (1gs2) 17-18

Gunier Vv gon ye

* ”~ *. . *. | —_

497 F.3d S68 (Sth Cir. 20017)

Harlow v. Fitzgeraid,

457 ULS. S00 k : 4 errrerernn: O56

Harris v. Miss. Valley State Urn

S73 So. 2d 970 (Miss. 2004). 5

Page(s)

Henslev vo Fekerhari,

461 U.S. 424 (1988) o.oo eee a 49

Herbert v. Lando.

Peo Bel Tb 5) Renee eens Cees

Hil N Borough of Auton Wa .

$45 F.34 225 (Sd Cir. 2008)... ee cee et Gs =e

Hustler Magazine, Inc. v. Fahwed.,

BE Be Be CN sa issc eden baked ekadecesesussasceosacsesesees fi

lenkins v. Rock Hili Locai Sch. Dist..

513 F.3d S580 (6th Cir. 2008) ........... ne eS es

dennings v. Ctty of Stillwater,

383 F.3d 1199 (Oth Cir. 2004)............... peers. |

Karchnak vo Swatara Nep..

No. O7-CV-1408, 20098 US. Dist. LENTS S8834

(4D. Pa. July 10, 2009) ................:.................53,

Lauth v. McCollum.

424 F.3d 631 (7th Cir. 2005). | 48

Lohman v. Durvea Borough.

No. 3:05-CV-1423. 2007 U.S. Dist. LENTS 87720

OE.D. Pa. Now. 20, 2007) ..........c.ccccccccepeneeseee, 31, 33

Maher v. Gagne.

448 U.S. 122 (19s +0

. ‘ ** eesee . °° . °* . . . — . es

Marrero v. Camden County I

Servus., 164 F. Supp. 2d 455 (DN. 2001)

Martin v. Criv of Dei City.

179 F.3d S82 (10th Cir, 19899)

McDowell v. Napolitane,

S95 P.ld 218 (NM. 1999)

MeGovern v. City of Jersey City,

No. 98-8186 (ILL). 2007 WL 28983323

(DN... Sept. 28. 2007).

Minn. State Bd. For Cmiv. Colis. vo Anight,

— pie Se cee h. | Reeeeees Tl edicntiee

Morgan v. Cov ington Nev

No. 3:07-ev- 19872, 2009 WL S85480

(M.D. Pa Mar. 6, 2009)

NAACP v. Clarborne Hardware Co..,

458 ULS. S86 (1982)

New York Times Co. vo Sullivan

S376 ULS. 254 (1964) .....

Peacoc’ v. Duval.

694 F 2d 644 (oth Cur. 1982)

.. £4, 3

- «

PASS

Page(s)

Perna v. Twp. of Montclair,

No. 05-4464 (ILL), 2006 U.S. Dist. LEAIS T0Qo18

CEP. De ae. HUN nF, SO ass inssncnscnsceccsceve cssvensecien aa

Phila Newspapers, Inc. v. Hepps.

ye ie Se. Cb. Paper eeee en nC REE

Prekering v. Ba. of Educ

891 UES. S63 (1968) | ree Y :

Prat! v. Ottum,

‘ 761 A? a 3 13 (Me O00) : e : . a

Ry. Employees Dept Vv. Hanson,

851 US. 225 (igde) aoe 7 54, 30

Rathien v. Litchfield,

S7S F.2d S36 (ath Cir, 1989) | Ly A 5

Ravitch v. City of Phala..

No. 08-3726, 20098 WL, STS631

(ED. Pa. Mar. 31, 2009) .......... : 40

Rendish v. City of Tacoma

123 F Sd 1216 (th Cir. 1997) 5

Roth v. United States

354 US {76 (1957) \ 38

San Filippo v. Bongiovanni.

30 F.3d 424 (3d Cir. 1994) .........0.00. passim

Nl)

Scheuer we Rhodes.

116 US. 232 (1974)

Schlier v. Rice.

630 F.Supp. 2d 458 (MUD. Pa.

Smith v. Bates Technical Coll.

99) Pd 11385 (Wash. POO)

Snavely v. Arnold,

2007)

Page(s)

1-52

No. L:08-ev- 2165, 2009 US. Dist. LENES 51415

(M.D. Pa. dune 18, 2009)

Stromberg v. California,

PSI US. BAM (1931)

ast

Suaree Corp. Indus. v. McGraw.

202 F.8d 676 (4th Cir, 2000)...

lucket v. Delco Remy,

959 Fold 6450 (7th Cir, 198d).

Tang v. Dept of Elderiv Affairs,

163 F.8d 7 ist Cir, 1998)

Thomas v. Coilins.

323 US. 516 (1945)

Thompson v. Dist. of Columbia,

428 F.8d 283 (D.C. Cir, 2008)

Nil

Thorne v. Bavley,

S46 Fold 241 (4th Cir, 19ss)..

Town of Castle Rock v. Gonzales.

545 US. 748 (2005)..

United Mine Workers vo Hi State Bar Assn,

NP, SEE CEUUEE Poccccssicnsccdscescssscevessenes

United States v. Harriss,

347 US. 612 (1954).

Unusv. Aane,

S65 F.8d 1038 (ath Cir, 2OOY)....

Waters v. Churchill.

511 UES. B61 (1994).

Wavte vo United States,

470 US. AMS (1985)

White v. Lee.

227 F.8d 1214 (9th Cir, 2000).

White Plains Towing Corp. v. Patterson,

991 F.2d 1049 (2d Cir, 1993)

Wilkie v. Robbins.

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Page(s)

11,

OO, t

Page(s)

Constitutional Provision

US. Const. Amend. 1, el. 6... ia

Statutes

>0.6.C. 42501... 3s

JUS C.§ 7508 Ss

a CR OM Uris) @ pee SS

9Y9USC§2 O68

28 USC. § 1254(1).. a

42 U.S.C. § 1988.......... 9 Ad

43 Pa. Stat. § 217 (2010)....... od

43 Pa. Stat. § 217.2 (2010) ...........00..ssccusseeeee 56

43 Pa. Stat. § 1101.101 (201@)...........ccccisrceneeeeee od

13 Pa. Stat. § 1101.30] (2010) ...............0 eee |

13 Pa. Stat. § 1101. 1201 (2010) od

43 Pa. Stat. § 1107.1301 (2010) o4

13 Pa. Stat. § 11011802 (2010)... yA

Page(s)

58 Pa. Stat. $811 (2010)

53 Pa. Stat. § 812 (2010) ................ cece, OO, O08

538 Pa. Stat. § 814 (2010) a)

53 Pa. Stat. § S1o (2010).......... ia 00

53 Pa. Stat. § P8589 14a) 2010) SS

53 Pa. Stat. § 46171 (2010)... 5

53 Pa. Stat. § 46172 (LODO) «00... cece etter cere ene Od

53 Pa. Stat. § 46190 (2010)... 5A, AG

53 Pa. Stat. § 46191 (2010)... ad

Books, Articles, and Miscellancou s Materials

1 Annals of Cong. (Joseph Gales ed, 1834)

Durvea Borough Pubhe Officials,

http://www durveaborough.com foMficials htm.

é Elliot's Debates on the Federal Constitution

iy, | ee ou

Stephen A. Higginson, Note, A Short History of the

Right to Petition Government for the Redress of

Grievances, 96 Yale Lod. 142 (1986)... 2%,

AV)

Paye(s)

Gary Lawson & Guy Seidman, Downsizing the Right

fo Petition, 98 Nw. ULL. Rev. 789 (1999). 16

Gregory A Mark, The Vestigial Constitution: The

History and Significance of the Right to Petition,

66 Fordham 1. Rev. 2153 (1998) 16-17

Eric Schnapper, “Libelous” Petitions for Redress of

Grievances Bad Historiography Makes Worse

Law, 74 lowa L. Rev. 803 (1989)... Og

2 Bernard Schwartz, The Bill of Rights: A

Documentary History (1971) 000... 27. 40

US. Census Bureau, American FactFinder.

http.//factfinder census gov... , ae

BRIEF FOR PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. La-

lda, is available at 364 F. Appx 749. The district

court's memorandum and order granting In part and

denying in part petitioners’ motion for summary

yudgment, Pet. App. 55a-95a, 1s reported at 2007 WL

4085563. The district court's memorandum and

order denying petitioners’ motion for a new tral and

judgment as a matter of law, Pet. App. 16a-d4a, ts

available at 2008 WL 4132035.

JURISDICTION

The judgment of the court of appeals was entered

on February 4, 2010. Petitioners timely filed a

petition for rehearing and rehearing en bane, which

was denied on March 4, 2010. Pet. App. 97a-98a.

This Court's jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the Constitution of the

United States provides, in) pertinent part, that

“Congress shall make no law *** abridging the

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

people peaceably to assemble, and to petition the

Government for a redress of grievances.”

STATEMENT

This case concerns whether public emplovees

mav sue their emplovers under the Petition Clause

of the First Amendment, U.S. Const. amend. I, el. 6,

for adverse employment actions resulting from the

employees having petitioned on matters of purely

private concern. The Third Circuit, alone among the

federal circuits, has held that they can. See, e.g.,

Pet. App. 8a; Foraker v. Chaffinch, 501 F.3d 231, 236

(3d Cir. 2007); Hill v. Borough of Kutztown, 455 F.3d

225, 242 n.24 (3d. Cir. 2006); San Filippo v. Bon-

grovanni, 30 F.3d 424, 442-443 (3d Cir. 1994).

The Third Circuit's decision is wrong for two

reasons. First, public emplovees’ similar speech-

based claims are not actionable unless their speech

concerns a matter of public interest, Connick v.

Myers, 461 U.S. 138, 147 (1983), and this Court's

precedents make clear that the Petition Clause

affords no “greater constitutional protection” than

the Speech Clause and should be subject to the same

modes of constitutional analysis. McDonald v.

Smith, 472 U.S. 479, 485 (1985). Second, this Court

has long recognized that government entities have

“far broader” powers when acting as an employer

rather than as a sovereign, Engquist v. Or. Dept of

Agric., 553 U.S. 591, 598 (2008) (quoting Waters v.

Churchill, 511 U.S. 661. 671 (1994) (plurality

opinien)), and that governmental employers

accordingly “enjoy wide latitude” in addressing

employment disputes that “cannot be fairly

considered as relating to any matter of political,

social, or other concern to the community.” /d. at

599-600 (quoting Connick. 461 U.S. at 146).

Allowing adverse employment’ action claims

involving matters of purely private concern to be

litigated in federal court—whether they imphicate

the Petition Clause or the Free Speech Clause—

would dramatically increase judicial supervision of

garden-variety workplace disputes, disrupt the

effective operation of government, and displace state

and local governments’ own carefully crafted

protections.

A. Constitutional Background

The First Amendment guarantees “the right of

the people *** to petition the Government for a

redress of grievances.” U.S. Const. amend. I, cl. 6.

This Court has noted that this “|cJlause * * * was

inspired by the same ideals of liberty and democracy

that gave us the freedoms to speak, publish, and

assemble.” McDonald v. Smith, 472 U.S. 479, 485

(1985). Recognizing that “[t}hese First Amendment

rights are inseparable,” it has held that “there is no

sound basis for granting greater constitutional

protection to statements made in a petition * * *

than other First Amendment expressions.” Jbid.

In Connick v. Myers, 461 U.S. 138, 147 (1983),

this Court held that the First Amendment's Free

Speech Clause does not protect a public emplovee

from adverse employment action taken because of

her speech on a matter not of public concern.

Resting on “the common sense realization that

government offices could not function if every

employment decision became a_ constitutional

matter,” id. at 143, this Court held that when a

public employee speaks “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,” id.

at 147.

In San Filippo v. Bongiovanni, the Third Circuit

refused to apply Connick’s. public’ concern

requirement to Petition Clause cases. 30 F.3d at

443-444. Rejecting the uniform view of all other

circuits that had considered the issue, the San

Filippo majority distinguished petition claims from

free speech claims. “When one files a ‘petition,’” the

majority held, “one is not appealing over

government's head to the general citizenry: when

one files a ‘petition’ one is addressing government

and asking government to fix what, allegedly,

government has broken or has failed in its duty to

repair.” Jd. at 442. To disallow a claim for adverse

employment action because the petitioning that led

to it addressed purely private concerns, the majority

asserted, would make “the petition clause *** a

trap for the unwary—and a dead letter.” /bid.

Judge Becker dissented vigorously on this point.

He observed “that a public employee plaintiff who

has ‘petitioned’ is in no better position than one who

has merely exercised free speech.” San Filippo, 30

F.3d at 449 (Becker, J., concurring and dissenting).

The majority’s position, he concluded, defied “the

inexorable logic of McDonald v. Smith,” invited

“wary [public employees] to formulate their speech

on matters of private concern as a lawsuit or

grievance in order to avoid being disciplined[, and]

would undermine the government’s special role as an

emplover.” Ibid.

The ten other federal circuits, as well as the four

state supreme courts, that have addressed this

question, have uniformly held that claims lhke

respondent's are not cognizable. Tang v. RI. Dept of

Elderly Affairs, 163 F.3d 7, 12 (1st Cir. 1998); White

Plains Towing Corp. v. Patterson, 991 F.2d 1049,

1058-1059 (2d Cir. 1993); Andrew v. Clark, 561 F.3d

261, 269 (4th Cir. 2009); Rathjen v. Litchfield, 878

F.2d 836, 841-842 (5th Cir. 1989); Jenkins v. Rock

Hill Local Sch. Dist., 513 F.3d 580, 587 (6th

Cir. 2008); Belk v. Town of Minocqua, 858 F.2d 1258,

1261-1262 (7th Cir. 1988); Gunter v. Morrison, 497

F.3d 868, 872 (8th Cir. 2007); Rendish v. City of

Tacoma, 123 F.3d 1216, 1220-1221, 1222 (9th

Cir. 1997); Martin v. City of Del City, 179 F.3d 882,

887-889 (10th Cir. 1999); D’Angelo v. Sch. Bd., 497

F.3d 1203, 1211 (11th Cir. 2007); Pratt v. Ottum, 761

A.2d 313, 321 (Me. 2000); Harris v. Miss. Valley

State Univ., 873 So.2d 970, 984 (Miss. 2004):

McDowell v. Napolitano, 895 P.2d 218, 225-226

(N.M. 1995); Smith v. Bates Technical Coll., 991 P.2d

1135, 1145-1147 (Wash. 2000).

B. Factual Background

1. The Borough of Duryea (the “Borough” or

“Duryea”’) is a small municipality in northeastern

Pennsylvania with a population of approximately

4,634. See U.S. Census Bureau, American

FactFinder, http://factfinder.census.gov (2000

figures; last accessed November 29, 2010). The

Borough government consists of a seven-member

Borough Council (the “Council”) and a mayor (the

“Mayor’), all of whom are elected and serve part-

time. C.A. App. A00174 & A00448. The Council is

responsible for hiring and firing Borough employees,

id. at A00175, establishing policies for the Borough

government's operation, and setting its annual

budget (which, in 2010, is $1.17 million, including

$12.000 for annual legal expenses. see C.A. App.

A0O661). The Mavor is the Borough's chief executive

and supervises the clnef of pohce in accordance with

Council poheies. dA. 14; see also id. at 69. 71-72.

The day-to-day operations of the Borough are

managed by a full-time Borough manager. C.A. App.

A006 14-A0Q06 15.

2. In 2000. the Borough ftnred respondent

Charles J. Guarmeri, dr. to serve as chief of pelice.

Pet. App. 56a. Guarnier: supervised a polhce force

consisting of between one and three full-time officers

(including himself) and appreximately nine part-

time officers. C.A. App. A0O177-A0017S. In 2002,

the Borough issued three written reprimands to

Guarnieri in connection with a series of budget

overruns and his tailure to produce a requested

written statement of his job duties. JA 26-28. On

February 7, 20038, the Council dismissed Guarmeri

for disciplinary reasons. /@. at 14-19. He responded

by filing a grievance. which led to arttration

proceedings. /d. at 15.

In December 2004. the arbitrator concluded that

because of Guarnicr’s “many” instances of

misconduct, dA. 31. including “ignorfing]

discrepancies between police schedules and police

timecards. making it difficult to audit expenditures.”

and “displayjing] a non-cooperative attitude and a

general reluctance to comply with requests and

directives, id. at 32. “[cJertainly his conduct

deserved discipline.” id. at 37. But because the

Borough had not consistently primanded

Guarnieri promptly to convey “its expectations and

the consequences of” misconduct, rdid.. and because

of “procedural errors” “in initiating and completing

the termination.” the arbutrator concluded that the

Borough lacked just cause for his termination, see

generally did. (In only three instances prier to

termination], however. was he cited promptly for

violations and then formally disciphned.”). The

arbitrator ordered Guarnieri reinstated with back

pay for the period beginning in February 2004, id. at

38, but he also held that the first twelve months

after Guarmierr’s termination should be considered

an unpaid “diseiphnary suspension.” lé:a.

When Guarnieri returned to work on January 21,

2005. the Council issued eleven = directives

Instructing him how to perform specific aspects of

his .ob.t Pet. App. 57a. In response. Guarnier: filed

another grievance. which proceeded to arbitration

Id. at 59a. On February 15, 2006. the arbitrator

held that some of the directives were improper for

Various reasons, concluding that some were vague.

infringed upon the Mavoer’s authority to supervise

the day-to-day operations of the Pohce Department.

or violated the Collective Bargaining Agreement

with the pohce union. Jd.A. 72-79 The arbitral

award ordered the Couneil to clamfv and reissue or

The directives instructed Guarmer:. among other things,

(1) net to work more than eight hours a day or fortv hours per

week. (2)to follow Durvea’s purchase order system. (3) to

personally patro! four to five hours during every shift. (4) to

provide an officer for the armval and dismissal of students at

the Rorough’s onivy school, (5) to use the pobee car only for

offal business. and (6) to enforce the Borough government's

no-smoking policy at the police department offloes Pet App

S7a-59a

rescind the directives. Jad. at 79. The Couneil issued

revised directives in dune 2006. Pet. App. 60a.

C. District Court Proceedings

1. While the matter was pending before the

arbitrator, the relationship between Guarmer and

the council grew increasingly fractious.? Guarmer

filed this lawsuit in dulv 2005, claiming that the

directives and other acts of the Council constituted

retahation in violation of the Petition Clause based

on his having filed and won his intial grievance.

Pet. App. 4¢a-S5a: dA. 4. The suit named as

defendants the Borough, the Borough Council. the

Borough manager (individually and officially), and

each of the seven members then serving on the

Council (ndividually and efficially).*

2. In December 2006, Guarmeri filed a request

for approximately $284 in overtime.‘ The Boreugh

demed the request because Guarmeri had not

explained why the overtime was necessarv. Pet

For example. the Council directed Guarmen not to

participate in truancy and seat belt programs although thes

cid not require expenditure of Borough funds and the Borough

secretary asked Guarnier. to submat additional paperwork

bevond a marriage heense when he attempted to enroll his wife

in the Borough’s health insurance. Pet App 4a da &n1

Only four of the defendant Council members remain in

office today. See Durvea Borough Public OMfcials.

http: www durveaborough oom officials ht (last Visited

Novembder 29. 2010) The three former members remain as

defendants

* Although the court of appeals opinion states that the

amount at issue was $338, that figure includes approximately

$54 in overtime sought by another officer in a separate claim

See C_A. App. AQO8TS, ADDS? 1

App. da. An investigation bv the federal Department

of Labor concluded that the Borough was required to

pay the overtime, though Guarmieri refused to accept

the check when presented. /bid.; CA) App. AOQ649-

AO6S2. Guarniern then amended his complaint to

add the demal of overtime pay as an additional

retahatorv act. Pet. App. da.

3. The district court denied petitioners’ summary

udgMent motion on the petition claim, concluding

that “|[tuhe fihng of a formal petition is protected

without regard to whether the petition addresses a

matter of pubhe concern.” Pet. App. 79a (citing San

Filippo, 30 F.3d at 442). After trial. a jury concluded

that the Councils directives and withholding of

overtime Were In reaction to Guarmer?s exercise of

his right to petition. Ja@. at da-taS With respect to

the directives. the jJurv) awarded $5.000) in

compensatory damages and $3,000 in punitive

damages against each defendant. JAid On the

overtime claim. the jurv) awarded $350) in

compensatory damages from the Borough. plus one

dollar from each individual defendant, but imposed a

punitive damage award of $3,500 against each

individual defendant. loiad. In ealeulating

petitioner's statutory attorney's fees under 42 USC.

$1988. the district court found the lodestar to be

$102,110.25, after reducing the requested sum by 91

hours because of dupheation with a similar claim

Guarmeris counsel had brought previously. The

district court then made a further reduction of over

* The purv reyected Guarmen’s cham that the delay in

extending health insurance benefits to his wife constituted

retahation Pet Avp. da-6a

OO percent and awarded petilroner $45,000 in

attorney's fees. Jd at 7a

The distret court demed the Rorough’s renewed

motion for judgment as a matter of law and a motion

for a new trial. Pet. App. 16a-43a.

D. Court of Appeals Proceedings

The court of appeals affirmed the finding of

hatihty bot vacated im part with respect to the

award of damages and attornev's fees. Pet App. la

Lda While acknowledging that the disputes

between the parties were “often pettw rdoat 4a, the

Third Circuit rejected Durvea’s argument that it

should adopt the uniform position of the other courts

of appeals and decline to recognize a federal cause of

action where the petition concerns a matter of purely

private concern, saying that it was “bound bw” San

Filippo, Pet. App. Sa

The court vacated the award of punitive

damages. The court concluded that while some of

Durvea’s actions were “petty and careless.” they

were not “mahecious” er “reckless{ly] or callous|iv}

indifferen(t}” te Guarmeri’s rights and therefore did

hot Warrant imposing punitive damages. Pet. App

l2a. The court also concluded that the district court

had erred by reducing the award of attorney's fees to

$102,110.25 and later to $45,000. The court noted

that the factors the district court had considered mn

reducing the fee award (such as dupheation of work,

the difficulty of the case, and counsel's experience),

Were the same factors it) had considered in

establishing the lodestar. It then remanded tor

recalculation ef attornevs tees. Pet. App. l3a-l5a%

The Third Cireunt demed Durvea’s petition for

rehearing and rehearing en bane. Pet. App. 97a-9Sa.

SUMMARY OF ARGUMENT

1 This Court has reeognized repeatedly that the

Speech and Petition Clauses foster the same ideals

of self-government and free expression and thus are

“generally subject to the same constitutional

analysis.” Wavte v. United States, 470 US. 598, 611

n.11 (1985). This Court ruled in McDonald vo Smith

that neither the text nor Instory of the Petition

Clause affords any basis tor “granting greater

constitutional protection to statements made in a

petition” 472 US. 479. 485 (i985). Because speech

and so petition omghts are overlapping — and

complementary, the substantive rules that govern

one apply wath equal force to the other. In cases

impheating both rights, this Court has not engaged

In separate analysis, and, in cases iumpheating

primarily the petition mght. this Court has freely

apphed Speech Clause doctrines.

The Third Cireuitt has resected this Court's

reading of the Petition Clause in McDonald in tavor

of its own revisionist theory, which treats petitioning

*On remand, respondent's counse! has requested additional

fees and costs associated with the appeal of the case These

total between $27,189.81 and $34,525.31. depending on the

hourly rate used, and de not include proceedings mn this Court

See Fourth AfY of Cynthia Polhek, Psq. in Support of Plhontulf

Guarniens Motion for Attorney Fees and Costs €4. Fee

proceedings are ongoing in the district court

as aright superior to speech. Under that theory, the

right to petiion deserves its own freestanding

constitutional doctrine because it is older than the

right to speech and concerns appeals to the

government rather than to the people. In essence,

because England recogmzed a freedom to petition in

the centumes before the Framers enshrined the

freedom of speech. the Third Circuit beheves

expression In a petition warrants “special treatment”

(San Filippo, 30 F.3d at 441), vis-a-vis other forms of

expression. That conclusion misinterprets history,

would require overruling this Court's holding in

McDonald that) petitioning and. speech should

presumptively receive the same constitutional

protection, and would call into question many long-

settled precedents applving speech = doctrine to

petition claims. In addition, respondent's proposed

rule would give central importance to the difficult

matter of distinguishing between “speech” and

“petitions.”

L.A. This Court has consistently held that

government is entitled to broader discretion when

acting as an emplover than as sovereign, whether an

emplovee’s challenges arise under the Equal

Protection Clause, the Due Process Clause, or the

Free Speech Clause. The same conclusion ts

warranted here. Although government emplovees do

not sacrifice their First Amendment rights by

accepting pubhe employment, they can sue under the

First Amendment Speech Clause for adverse

employment action only when expressing a wiew “as

a citizen upon matters of pubhe concern.” Connick v.

Myers, 461 US. 138, 147 (1983) This threshold

pubhe-concern requirement = springs from two

sources: government agencies need, hke any

emplover, to have broad discretion in responding to

emplovees’ purely work-related complaints, and the

First Amendments primary focus on fostering

democratic self-governance. Neither rationale

apphes with less force simply because an emplovee

chooses to state his complaint in a petition. Indeed,

the principles of Connick apply with special force to

petitions, which are likely to be more costly and

disruptive than an emplovee’s mere comments about

workplace affairs. Respondent's proposed standard

could transform a garden-varniety pubhe emplovnient

dispute into a federal constitutional case and

thereby hamstring the operation of agencies trom

the FBI to the Durvea Pohce Department.

Bo If petition claims concermny private matters

are actionable but speech claims are not, pubhe

emplovees could (and wall) easily sidestep Connick

by characterizing their claims as arising under the

Petition Clause.

Such easy evasion of Connick would encourage

an onslaught of burdensome htigation and costly

settlements and judgments. Government employers

would face increased complexity and uncertamty in

addressing employee complaints, creating an obvious

risk that public emplovers will retain unproductive

or disruptive emplovees simply to avoid crpphneg

defense costs and judgments.

C. Applying the pubhe concern requirement to

the Petition Clause affords proper respect to

existing —and etfective—-remedial schemes. State

and federal laws, along with collective-bargaming

agreements, already provide robust remedies for

pubhe emplovees disciplined for fling work-related

lawsuits or grievances. Many states have adopted

remedies that are carefully tanlored to consider the

job type, emplover size, reason for discipline. and

other factors. Dispensing with Connick’s pubhe

concern requirement would impose a one-size-fits-all

remedy that ignores distinctions state legislatures

have recognized as important and reward emplovees

who bypass informal gnevance processes. The result

would be a serious judicial intrusion upon states and

localities’ treedom to manage personnel matters.

ARGUMENT

1. THE THIRD CIRCUITS RULE VIOLATES

FUNDAMENTAL PRINCIPLES OF PARITY

BETWEEN SPEECH AND PETITIONS

In McDonald vo Smith, this Court rejected the

claim that the “actual malice” standard of New York

Times Co. v. Sullivan, 3876 U.S. 254 (1964), should

not apply to hbelous expressions contained in

petitions to government. 472 U.S. 479, 485 (1985).

It held that “there 1s no sound basis for granting

greater constitutional protection to statements made

ina petition ** * than [to] other First Amendment

expressions. Jdbid. Because the Speech and Petition

Clauses serve the same First Amendment interest

and are both necessary to effectuate that interest,

the Petition Clause deserves no “special First

Amendment status.” /bid. This Court's precedents

have for decades embodied parity in its treatment of

the two clauses that has fostered a First Amendment

jurisprudence that (1) elevates neither clause over

the other, (2) apples a umform standard to claims

involving both speech and petitions, and (3) freely

cross-apphes substantive doctrine between cases

involving the two clauses.

Accordingly, “[a]lthough the rmght to petition and

the right to free speech are separate guarantees,

they are related and generally subject to the same

constitutional analysis,” especially when the rights

to speech and petition have not been “burdened * * *

differently.” Wavte v. United States, 470 U.S. 598,

611 n.11 (1985) (emphasis added). As all the federal

courts of appeals and state supreme courts that have

addressed the issue recognize, McDonald's reasoning

and holding require—or at least create a strong

presumption—that the substantive = standards

governing the Petition and Speech Clauses closely

track one another when addressing the same

governmental conduct. See Pet. at 8-10. When a

public emplovee’s expression takes the form of both

speech and a petition, these courts seamlessly apply

the Speech Clause’s pubhe concern requirement to

review adverse employment action claims under the

Petition Clause. /érd.

The Third Circuit and respondent, however, deny

the clauses’ fundamental — parity. Distorting

McDonald, they maintain that the Petition Clause

mves disgruntled public emplovees a cause of action

for adverse employment actions taken in response to

expression impheating matters of purely private

coneern—an argument this Court has specifically

rejected for the neighboring Speech Clause. See

Connick v. Myers, 461 U.S. 138, 147 (1983). ‘To do

so, they adopt a revisionist history of the Petition

Clause that McDonald firmly rejected.

A. McDonald Recognized That The Original

Understanding Of The Petition Clause

Cannot Support A Hierarchy Of First

Amendment Rights

The night to petition initially emerged in England

not as a guarantor of autonomy or accountability but

as a mechanism for reinforcing the Crown's

authority over its subjects. Gregory A. Mark. The

Vestigial Constitution: The History and Significance

of the Right to Petition, 66 Fordham L. Rev. 2158,

2163-2165 (1998). For example, although Magna

Carta protected the barons’ right to petition, it also

conditioned formal action on petitions upon the

barons’ allegiance to the Crown. Jbid. Likewise, the

Crown and Parhament could dismiss a _ petition

whose language was disrespectful of their authority

without any consideration at all. Jd. at 2170. In the

seventeenth century, as Parhament more readily

asserted its authority, petitioning became a means of

controlling the Crown itself. Parhament began to

condition allocation of funds to the King upon his

considering the petitions it forwarded. Jd. at 2167-

2168. The need to quell civil unrest gave the Crown

further incentive to act on petitions. Gary Lawson &

Guy Seidman, Downsizing the Right to Petition, 93

Nw. U. L. Rev. 739, 751-752 (1999). What began as

a means through which the sovereign maintained its

authority thus evolved into a principal mechanism

for a “wide[] spectrum of society” to “participat[e] in

English pohtical life.” Mark, supra, at 2169-2170.

The resulting “web of mutual obligation” helped

legitimize the authoritv of the Crown and the

Parhament by providing the English people a potent

means of political participation. Ibid.

To promote and protect popular sovereignty in

America, our Constitution guarantees not only the

right to petition, but also the rights to speak,

maintain a free press, and peaceably assemble.

Although its first draft separated the right to

petition from the freedoms of speech and press, see ]

Annals of Cong. 434 (June 8, 1789) (Joseph Gales

ed., 1834) (James Madison) (separating the nght to

“apply[] to the Legislature by petitions” from the

freedoms of speech and press), the First Amendment

as ratified consolidated all three of these protections,

along with the right to peaceably assemble.

The Petition Clause was thus “cut from the same

cloth” as these companion clauses, McDonald, 472

U.S. at 482. and shares their central aim: fostering

democratic self-government, id. at 483 (“|T]he values

in the right of petition as an important aspect of self-

government are beyond question.”). The right to

petition serves an important expressive function as

one of the primary “wavs [the people] may

communicate their will” to the government. 1

Annals of Cong. 738 (Aug. 15, 1789) (Joseph Gales

ed., 1834) (James Madison): accord Cook v. Gralike,

531 U.S. 510, 529 (2001) (Kennedy, J.. concurring)

(recognizing that “when the Constitution was

enacted, respectful petitions to legislators were an

accepted mode of urging legislative action’). As this

Court has recognized, the Petition Clause and its

companion First Amendment clauses addressing

expression “share a common core purpose of assuring

freedom of communication on matters relating to the

functioning of government.” Globe Newspaper Co. v.

Superior Court, 457 U.S. 596, 604 (1982). Those

companion clauses, “every bit as much as the

Petition Clause, were included in the First

Amendment to ensure the growth and preservation

of democratic self-governance.” McDonald, 472 U.S.

at 489 (Brennan. J., concurring). “[T]hough not

identical, [these] are inseparable cognate rights.”

Thomas v. Collins, 323 U.S. 516, 530 (1943).

More specifically, the rights of speech and

petition are both indispensible for self-government.

Neither the Speech nor the Petition Clause can

effectively secure democratic self-governance

without the other. Take the Speech Clause. It

protects at bottom the people’s ability to form their

own views of government. If government can punish

or restrict expression, it can slow or prevent the

formation of public opinions hostile to it and thus

promote its own interests at the expense of the

public interest. The Speech Clause thus allows for

the robust exchange of views on what action is

appropriate free from government interference.

The Petition Clause serves a_ related but

somewhat different function. Although it too

protects expression, it protects primarily expression

from the public to the government. Once the public

has, through the mechanism of free speech, framed

its grievances, the right to petition ensures it can

communicate those grievances to the government.

E. R.R. Presidents Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127, 137 (1961) (‘In a

representative democracy * * * government act{[s] on

behalf of the people and, to a very large extent, the

whole concept of representation depends upon the

ability of the people to make their wishes known to

their representatives.”). The speech right thus

protects primarily the free formation of public

opinion (although the debate also informs those in

government of the public’s views), while the petition

right primarily protects the public’s ability to

people’s sovereignty over the government.

Stromberg v. California, 283 U.S. 359, 369 (1931)

(‘The maintenance of the opportunity for free

political discussion to the end that government may

be responsive to the will of the people and that

changes may be obtained by lawful means, an

opportunity essential to the security of the Republic.

is a fundamental principle of our constitutional

system.”).

As a result. when expression takes the form of

both speech and a petition, this Court has recognized

that although the Petition Clause illuminates one

dimension of the First Amendment interest, it does

not demand separate analysis. In Edwards v. South

Carolina, for example. this Court reversed the

criminal convictions of 187 defendants, who had

“peaceably assembled at the site of the State

Government and there peaceably expressed their

grievances ‘to the citizens of South Carolina, along

with the legislative Bodies of South Carolina,”

which were then in session. 372 U.S. 229, 235 &

n.10 (1963). Their actions implicated the rights of

assembly, free speech, and petition and, indeed, this

Court held that all three expression rights were

violated. Jd. at 235 (“[l]t is clear to us that * * *

South Carolina’. infringed’ the petitioners’

constitutionally protected rights of free speech, free

assembly, and freedom to petition for redress of their

grievances.”). The Court, however, performed no

“0

separate analysis under each clause. Rather, it

relied exclusively on free speech precedents, id. at

236-238, to hold that defendants had exercised

“these [three] basic constitutional rights in their

ed*dS

most pristine and classic form. 1d at 23d.

In United States v. Harriss, 847 US. 612 (1994),

this Court analyzed the constitutionahty of the

Federal Regulation of Lobbving Act. In holding that

the relevant provisions did “not violate the freedoms

guaranteed by the First Amendment dreedom to

speak, publish and petition the Government.” rd at

625, it similarly eschewed a clause by-clause

analysis Rather, it applied a single umform and

holistic analysis across all three clauses to find that

the Act’s purpose—"maintain[ing] the integnty of a

basic governmental process.” ifrd —yjustifed the

required disclosures. Jd. at 626

Recogmizing the Speech and Petition Clauses’

deep interdependence, this Court has repeatedly

apphed reasoning and doctrine from precedents

discussing one clause in opimons construing the

other. In Bil Johnson's Restaurants, Inc v

National Labor Relations Board, this Court noted

that “[)Just as false statements are not unmunized by

the First Amendment mght to freedom of speech,

baseless tigation is not immunized by the First

Amendment right to petition” 461 US. TSl, 7438

(1983) (citing two Speech Clause cases, Herdert v

Lando, 441 U.S. 183, 171 (A879), and Gertz v. Robert

Welch, Inc. 448 ULS. 828. 340 C974). Similarly.

when this Court considered whether the Petition

Clause protects an emplover who tiles an

unsuccessful retahatory suit against a unton trom an

? 1

unfair labor practice, at) reasoned bv analogy to

fannhar Speech Clause doctrines hke “prior

restraint,” BE & A Constr, Co vo NLRB, 536 US

O16, O80 (LOOL) (crting Alvewander vo Uniied Slates,

O98 LLS. 944, 553-554 (19938)), “false statements.” id

at S30-531 (cuting Bill Johnson's Rests.. 461 ULS. at

748), the need for “breathing space” rd at 43)

citing Gertz, 418 US at 341, and New York Times

Co. v. Sullivan, 376 ULS) 2d4, 279-280, 285 (1964)),

and the irrelevance of all wall to the question of

whether regulating demonstrably false expression ts

constitutional, rd oat) oS4 (eiting) Garrison v

Loursiana, 379 US. 64, 73-74 CL9B4) Phila

Newspapers, Inc. vo Hepps, 475 US. 767, 776-777

(1986), and Hustier Magazine, Inc ve Falwell, 485

US. 46, 53 (1988) Most importantly, in MeDonala

itself, when this Court considered the extent. to

which the Petition Clause protects false statements

made ima letter to the President. it rehed on New

York Times Coo v. Sullioan and apphed the Speech

Clause’s “actual mahee” standard to the Petition

Clause, 472 US at 485

Recognizing these clauses’ party under

McDonald, the courts of appeals have routinely

borrowed Speech Clause doctrine tor use in Petition

Clause cases. In White v. Lee, 227 Fad 1214, 1228

(Mth Cir. 2000), tor example, the Ninth Circuit held

that petitions advocating unlawful but nonviolent

activity. receive the same protection that) sumilar

speech would under Brandendurg vo Ohio, 899 US

444 (1969). In Thorne vo Bailey, 846 F.2d 241, 244.

245 (4th Cir 1888). the Fourth Cureurt held that

overbreadth analvsis apphes the same to statutes

*ded

> 5 on

touching the meht to petition as to Chose touching on

the rught of free speech

To pettison this Court's commitment to a non:

nerarchical First Amendment would not only do

violence to the meaning of MeDonalad, but

“necessarily unsettle manv [other] precedents”

CBOCS West, Inc. vo Humphries, 55938 US. 442, 452

(2008) As this Court has long recognized, important

considerations of stare decisis counsel against

overruling a principle that is “well embedded in the

law” dd at 4510 Exempting adverse job action

clams arsing under the Petition Clause from

Conmick’s pubhe concern requirement would throw

into disarray all this law resting on MeDonala’s

princule oof parity Instead of harmonizing

standards across the First Amendment, it) would

create discord.

The Third Cireuit’s rule reads the Pethtion Clause

ya way that cannot be squared wath history. Whale

this Court has acknowledged that “the historical

reots of the Petition Clause long antedate the

Constitution,” MeDonald, 472 US at 482. it has also

recognized that the right to) petition must be

understood ino hight of the “ideals of hbertv and

democracy” present at the Founding /@ at 485

Under the Third Crreuit’s revisionist understanding,

however, the framing and ratification of the First

Amendment are largely irrelevant. Insotar as the

Third Cireuit foeused on historical precedent, 1

considered only what “the myht to petition * * *

intended to mean in England three centuries ago,”

San Filippo, SO F.3d at 443, at the time of the

Glonous Revelution, net here at the time of eur

Was

Founding. And even then, the lesson it gleaned was

whosvneratic. Finding that the right to petition was

“independent of—and substantially more ancent

than the treedoms of speech and press.” it concluded

that its “pedigree” entitled it to preferential status

See id at 441, 448

This view of the Petition Clause ts indetensible

First, this Court has already put the Third Circuit's

revisionist historical theory to rest. Foreshadowing

the reasoning mi San Fildippe, the petitioner im

MeDonald insisted that the right to petition was

“tulnhke the more general freedoms of speech and

press’ due to its “nich and ancient historv.” Pet. Br

at 7-8, McDonald vo Smith, 472 US. 479 (1985) (No

84.476). Bat drawing en Madison's view of the First

Amendment, both the majomty and concurrence im

McDonald dispatched this) argument without

hesitation; in fact, not a single dustice supported it

See 472 LOS. at 482. 1a at 488-490 (Brennan, J,

concurring) (calling this) distinction between the

clauses “untenable” in light of the — First

Amendment's history) Since then, MeDonala’s

understanding has worked its wav into the larger

fabric of constitutional law, see pp 19-22) supra. and

this Court has rehed upon its analysis in other

contexts. see Dist. of Columbia v. Heller, 128 8. Ct

ZV7TS3, 2790 nF (QOOS) (cating MeDonala’s deseription

of “the hastomeal orgims of right to petition” in

discussing indiwidual rights)

Rather than follow what this Court has identifed

as the proper reading of history, the Third Cireuit

has erticwed ths Courts understanding of the

Petition Clause. See Fora&er vo Chaffinch, 501 F 8d

a |

VSL, Lh 246 (dd Cir. 2007) (clarming that “the right

to petition has undergone ai sigmficant

transformation since its inclusion in the Ball of

Rights” because this Court has “ignorled) the varied

histones of the right to petition and the freedoms of

speech, relymion, and press’) ef) Eme Schnapper,

“Libelous” Petitions for Redrvss of Grievances-—Baad

Histonography Makes Worse Law, 74 lowa tL. Rev

803, 845-347 (19S9) (attacking this Court's

conclusion that) First Amendment rights should

“afford comparable degrees of protection’)

Second, the Third Circuit fails to understand that

the fact the Petaton Clause serves an independent

purpase does not mean it deserves special treatment

As the Third Cireuat reeagmives, the Petition and

Speech Clauses protect different aspects of political

expression) the former safeguards primarily the

riht to address the government, the latter primarily

the right to address the people aneluding speech

designed to influence government poheies) See

Foraker, oO} F Sd at 287.) But this unremarkable

premuse does not umply, much less compel, the

starthng conclusion that courts should prefer one

form of expression over the other Ly the chiuses’

distinctive functions actually: required “separate

analysts for each clause.” Foraker, 501 Fad at 247

surely this Court would have performed one im

McDonald and its other related cases, see pp 21-25,

supra. Instead. this Court understands that whale

the Petition Clause yuarantees “a particular freedom

of expression,” 472 US. at 482) that does not mean i

deserves “special First Amendment status” cd. at

ISS) Far from being constitutionally compelled, the

Third Crreuit’s position rests on an unsupported leap

oft lone

Third, even af it were permissible to grant one

right special treatment over the other, freedom of

speech — not the right to petition-—would be the more

natural candidate Under the Third) Cireuit’s

nerarchy of expression, “asking government to fx

what *** {it} has broken” merits = more

constitutional protection than “appealing 9 over

government's head to the general cravenry ” San

Riippo, 30 F.Sd at 4420 While this prority may

accord with ancent English practice, which placed

sovereignty ino the Crown, at eannot be reconciled

with our constitutional tradition The older British

view rests on the behet that the state rather than

the people—ts the guardian of individual liberty

But as Madison noted im his report for the Virgima

Resolutions of 1279S.) our government ts “altogether

different” from the Britash model in that) “[the

people, not the government, possess the absolute

sovereignty.” 4 Elhot’s Debates on the Federal

Constitution S60 470 (i876) For this reason, the

Virginia Resolutions declared that “tree

communication among the people * * * has ever been

justly deemed the only effectual guardian of every

other rutht” dado at 453-954. Heeding the lessons of

history, this Court has recogmived both that speech

on pubhe affairs is “a fundamental principle of our

constitutional svstem ” Stromberg, 283 US) at Jee,

and “the essence of self-government.” Garrison, S79

US. at 75, and that other mechanisms serve even

better than petitions to register popular opimion with

government. Minn Stale Bd kor Cmityv Coils vs

Arnight, 465 US) 271, 28h (1984) CMsagreement

y .

with pubhe pohey and disapproval of otfierals’

responsiveness * * * 1s to be registered principally at

the polls’). If, contrary to this Court's teachings, the

Speech and Petition Clauses must have a merarchy,

speech, not. petitioning. should receive more

protection

Perhaps realizing othe impossibility ot

rehabilitating the Third Circuit's theory, respondent

offers two new arguments, neither of which ts

convineing First, recasting the Petition Clause as a

guarantee of “access to the courts.” Bro in Opp 9, he

argues that “[njothing in McDonald suggested that

the right of access to the courts * * * is limited to

lawsults regarding matters of pubhe concern.” id. at

YS Bat this novel understanding of the Petition

Clause cannot survive a close reading of MeDonala.

While this Court has stated that “the right of access

to the courts is ** * buf one aspect of the mght of

petition” Calo Motor Transp Co v. Trucking

Uniimited, 404 US) SOS, S11 (1972) temphasis

added), that statement does not undermine this

Court's refusal in MeDonald to accord the Petition

Clause preferential status see 472 US at 485) For,

as respondent admits, McDonald uself cited the two

cases he rehes upon tor tis theorv of “the riaht of

aceess fo the courts” Broun Opp 2S) see also

McDonald, A472 US. at 484 (erting Bill Johnson's

Rests, 401 US at 741, Cad Motor Transp Co, 404

Us at S18) Given that this Court drew on these

precedents while simultaneously refusing — to

prioritize the Petition Clause, there 1s no reason why

a “rght of aceess to the courts” requires a different

conclusion here

> bee

~~ *

Nor do rights of court access define the core of the

Petition Clause or warrant special rules for lawsuits,

as respondent contends. Bro in Opp 910 Access to

the legislature. not to the courts, was the central

object of the Petition Clause’s protection. Thus. as

James Madison explained when he introduced what

became the First Amendment, “lit is! proper to be

recommended by Congress to the State Lemslatures

Ithat tlhe people shall not be restrained * * * from

applying fo the Legislature bw petitions, or

remonstrances, for redress of their grievances” 2

Bernard Schwartz, The Bill of Rights <A

Documentary History 1026 (1971) (emphasis added),

see generally Stephen A. Higginson, Note, A Shor:

History of the Right to Petition Government for the

Redress of Grievances, 96 Yale Lid. 142, 156 (1986)

("The express function of the * * * petition clause

Was to protect Gitizens applying to the Legislature”)

(internal quotation marks omitted)

Respondent appears to recognize, moreover, that

even his ahistonmcal vision of the Petition Clause

cannot quite do the work he needs of at) He thus

repeated|ly supersizes his access to the-courts

interpretation of the Petition Clause to cover

evervday workplace gmevances and arbitrations,

Which, of course, occur entirely outside the courts

See. cg. Bro in Opp. 910 (Because the Third

Cireuit rule derwes from the might of access to the

courts, it is expressly limited to invocation of some

‘formal mechanism for redress of gmevances, such as

a lawsuit or a formal gmevanece and arbitration

process under a collective bargaining agreement.)

(citation omiutted) Why he does sou clear Without

putting grevanees and arbitrations at the heart of

the clause, he cannot justifv even his “narrow”

version of San Mi:ppo or the Third Cireuit’s

appheation of ats rule to his own case, which

concerns not yust a lawsuit but gmevances But

putting them there undermines his) overarching

clam that Connick should not apply to petitions

because the Petition Clause offers special protection

to lawsuits. Respondent cannot have it both ways.

This case concerns the Petition Clause, not a more

particulanzed mht of access to the courts

Second, respondent seeks to paint as dicta this

Court's understanding of the Petition and Speech

Clauses interrelationship He begins by recasting

McDonalds repeated admonitions against granting

the Petition Clause special treatment as solely the

product of “the specific history of hbel claims.” Br. in

Opp 27-28) This assertion cannet be squared with

this Court’s precedents If this Court's opposition to

a hierarchical First Amendment stemmed. solely

from the common law of hbel, itis unclear why it has

adopted this position in such diverse contexts as

sohoiting workers for union membership, Thomas,

828 US) at 580-6381, and refusing to register tor the

Selective Service, Wavle, 470 US at 8ll ntl

Even less convincing is respondent's suggestion

that this Court's holding in McDonald is somehow

hmited to appeals “to the President” Broun Opp. 29

Aside from suffering from the same flaws as his

attempt to confine McDonald to hbel. ths theory

wnores the tacts of the case. The detendant in

McDonald petitioned several congressmen and other

executive branch offterals in addition to the

President about a kev federal appointment 472 US

at 48lon2. His actions represented core petitioning

activity, not mere missive writing to people who just

happened to occupy positions in government No

more than the Third Cureuit can respondent escape

“the inexorable logic of McDonald” San Filippo, 30

F Sd at 449 (Becker, d., concurring and dissenting)

B. Respondent's Proposed Rule Would Give

Central Importance To Unworkable

Distinctions Between “Speech” and

“Petitions”

In addition to unsetthng many past decisions, see

pp 20-22, supra, pmontizing petition over speech

clams threatens to burden courts and pubhe

emplovers with manv issues about what forms of

expression constitute petitions So long as the

Speech and Petition Clauses both require a showing

of pubhe concern, pubhe emplovees will have little

reason to argue that conduct that is more naturally

considered “speech” falls within the scope of the

right to petition, because it would be subject to the

same standard But aft this Court exempts the

Petition Clause from Conmnick’s threshold publi

concern requirement, much would turn on whether

an emplovee’s conduct constitutes a cogmzable

“petition” in addition to “speech” Courts and pubhe

emplovers will become enmeshed in the inquiry into

whether conduct ts appropriately deemed “speech” or

a “petition” an inquiry that would otherwise be

irrelevant. There are at least four possible wavs to

define a “petition” in the retahation context, not one

of which is coherent or workable

birst. this Court could decide that a publi

emplovee s rurht to petition should actually cover ali

petitions. As respondent admits, “[t]his Court's

decisions make clear that the Petition Clause apphes

to a far wider range of activities” than invoking

formal mechanisms to redress gmevances Br. in

Opp. 10. Indeed, this Court has held that many

informal activities constitute a “petition.” such as

writing a letter, MeDonald, 472 U.S. at 480-482,

hiring an attorney, United Mine Workers vo lll State

Bar Assn, 389 US. 217, 221-222 (1967), boveotting.

NAACP v. Clarborne Hardware Co., 448 U.S. 886.

913-914 (1982), and protesting, Fdwards, 372 US

at 235) Such a broad interpretation would create

two problems. First, 1t would encompass nearly

evervthing that could reach an emplover’s attention

Second, it would render the Speech Clause largely

irrelevant in this area. If intormal forms of

expression quality as constitutionally protected

“petitions,” its unclear what role would be left for

the Speech Clause here, other than to. create

arbitrary distinctions. Protecting a publhe emplovee

tor writing a letter but not for circulating a

questionnaire is hardly a sensible appheation of the

birst Amendment

Second, this Court could adopt the Third Cireuit’s

approach, which hmits “petitions” to complaints that

“invokle}) a mechanism for redress of grievances

against the government” San Filippo, 30 F.3d at

439 nisi rd at 442. But the purported reason tor

this restriction does not justify excluding informal

complaints. According to the Third Cireurt, this

hmutation is based on the assumption that appeals to

the state deserve more protection than appeals to

the people. See id at 442. Even at this distinction

were correct, Which it is not, see po 23-24. supra, it

would not yustity excluding informal letters to pubhie

oMeials complaming of a wrong and asking for some

remedy. The libelous letter in McDonald apparently

would not qualify as a petition under the Third

Cireuit’s standard. See 472 ULS. at 451

Unsurprisingly, the experience of federal courts

within the Third Cireuit shows that ths arbitrary

distinction creates much confusion 10 practice

Whatever its advantages, clarity is not among them

While email complaints to government officials may

not constitute 2 protected “petition, Foraker, oO01

F.3d at 237-238, the following activities do: giving

notice of intent to file a lawsuit, Bradshaw Vv Twp. of

Middletown, 296 F. Supp. 2d 526, 546 (DNA. O03),

see also Anderson V. Davila, 125 F.sd 148. 162 (ad

Cir, 1997), consulting with an attorney, Cipriani \V

Lycoming County Hous. Auth., 177 F. Supp. Pd 308,

394 nz (MD. Pa. X0OL), requesting a public

hearing, Morgan ¥ Covington Twp.. No. 3:07-cv

1972. 2009 WL 585450, at *10-11 (M.D. Pa. Mar 6.

2oo4), and assisting another employee 10 filing a

grievance, Lohman v. Duryea Borough, Civil Action

No 3.08-CV-1425, 2007 US. Dist LEXIS S7720, at

#39 33 (MLD. Pa. Novy. 2. 2007).

Perhaps recognizing these deficrencies,

respondent offers vet a third approach a “narrow

limitation to petitions invoking some formal

remedial mechanism,” Br in Opp. 13 emphasis

added), which he tries to root in a general “right of

access to the courts,” id. at 9. He offers no basis for

drawing the line there other than it avoids some of

the pitfalls of other approaches. But it suffers from

an equally serious defect: its grounding principle, the

dae

“right of aceess to courts,” cannot support the reach

respondent needs from it. It offers no reason why

the Petition Clause should cover employment

gnevances leading to arbitrations, which occur

entirely outside the courts, much less why it should

cover grmevance procedures that may never even

result in arbitration

Fourth, this Court could tether the Petition

Clause to the principle respondent offers for it and

recognize only lawsuits as petitions for purposes of

adverse job actions. That view of petitions would not

cover much of respondent's own case, of course, but

it would have the virtue of fitting the theory that

supposedly supports it. Its other defects, however,

would clearly outweigh this single benefit. Even this

seemingly limited standard would logically include

less formal aspects of a lawsuit, such as announcing

an intention to file a claim. See Bradshaw, 296 F.

Supp. 2d. at 546. That would mean that a simple

oral “TU sue! —perhaps never to be acted on—would

receive more protection than more formal, written

communications to government bodies seeking to

invoke formal redress procedures other than a

lawsuit. More importantly, this “narrow” rule would

undercut many pubhe employment dispute

resolution mechanisms which rely on informal

methods to avoid divisive formal disputes that can

be damaging to work morale. If only those who

sued—or threatened to sue—to resolve a

disagreement could make out a later constitutional

claim, public employees would seek initial resolution

through the court system, not informal mechamsms.

Most of these approaches to the threshold inquiry

of what counts as a cognizable petition will,

moreover, impose substantial burdens on courts and

public employers. Courts will be forced to devote

scarce judicial resources to determining whether a

particular emplovee gripe constitutes a “petition.” In

many situations, this will be no easy task. As

experience with the Third Circuit's own standard

shows, judges frequently cannot agree over this basic

issue. Compare Foraker, 501 F.3d at 237-238

(internal email complaints are not petitions), with

id. at 247-248 (Greenberg, J., concurring) (internal

email complaints are petitions); compare AKarchnak

v. Swatara Twp., No. 07-CV-1405, 2009 U.S. Dist.

LEXIS 58834. at *35-36 n.11 (M.D. Pa. July 10,

2009) (supporting another employee's lawsuit is not

petitioning), with Lohman, 2007 U.S. Dist. LEXIS

87720, at *33 (assisting another employee in filing a

grievance is petitioning); compare Perna v. Twp. of

Montclair, No. 05-4464 (JLL), 2006 U.S. Dist. LEXIS

70518, at *23-25 (D.N.J. Sept. 27, 2006), dismissed,

2009 U.S. Dist. LEXIS 78173 (D.N.J. Aug. 26, 2009)

(having an attorney send a letter warning of possible

claims is not petitioning), with Cipriani, 177 F.

Supp. 2d at 324 n.17 (consulting with an attorney

qualifies as petitioning). Others simply refuse to

address a difficult issue of application. See, e.g.,

Snavely v. Arnold, No. 1:08-cv-2165, 2009 U.S. Dist.

LEXIS 51415, at *9-10 (M.D. Pa. June 18, 2009)

(declining to decide whether a_ claim for

unemployment benefits constitutes a petition).

It is unfortunate that one circuit now labors

under such uncertainty; expanding the confusion to

all jurisdictions would be intolerable. If this Court

exempts adverse job action claims brought under the

Petition Clause from Connick’s pubhe concern

requirement, courts evervwhere, including this one,

will seen face the mymad questions of the new

constitutional law of pubhe emplovee frustration,

which will require ao sprawhng “junsprudence of

minutiae,” see Countv of Aileghenv vo ACLU, A492

U.S. 573, 674 C1989) (Nhennedy, J. concurring in the

judgment and dissenting in part), to answer.

While courts wrestle with these uncertainties,

public emplovers will have to. predict what

constitutes a petition in order to manage their risk of

litigation. This would add vet another level of

uncertainly to making an adverse’ personnel

decision. Answering incerrectly would either result

in emplover habilitv or deter the making of a

legitimate employment decision. As set forth below,

see infra at 51, the rmsk of guessing incorrectly may

lead emplovers to avoid taking necessarv adverse

personnel actions, and the necessity of having to

decide the question will impose costs for the liawvers

who must consider it). Maimtaimungy parity among the

First Amendment's Petition and Speech Clauses, by

contrast, avoids burdening both courts and pubhe

emplovers with unprincipled, uncertain, and

unworkable standards

lL WHERE A PUBLIC EMPLOYER HAS

PETITIONED THE GOVERNMENT ABOUT

A MATTER OF PURELY PRIVATE

INTEREST, ANY RESULTING ADVERSE

EMPLOYMENT ACTION IS NOT SUBJECT

TO FIRST AMENDMENT REVIEW

This Court has leng reeogmized the “erucial

difference * * * between the government: exercising

‘the power to regulate or heense, as lawmaker, and

the povernment acting ‘as proprietor, to manage [its]

internal operation’ ” Enequist v. Or, Dept of Agric.

O53 US. O81, S88 (2008) (quoting Cafeteria & Res!

Workers vo McElroy, 367 US) S86, S96 (191). As

this Court recently explained

[T]he extra power the government has in this

area comes from the nature of the government's

Mission as emplover * * *

interest in achieving its goals as eflectiwelw and

efhoently as possible is elevated from a relatively

The government's

subordinate interest when it acts as sovereign to

a significant one when it acts as emplover

lind (quoting Walters vo Churediill, S11 US 6681, 674

B75 (i894) (plurahtyv | opimen)) Thus, “the

government as emplover indeed has far broader

powers than does the government as severeign.”

thia. (quoting Waters, 511 US) at 674 (plorahty

opmon)), and “constitutional review of government

employment decisions must rest on different

principles than review of * * * restraints imposed bv

the government as sovereign” Waters, 511 US at

O74 (plurality opimoen) This Court has consistently

adhered to that bedrock principle whether an

emplovee’s claim ous) brought under the Equal

oyty

Protection Clause of the Fourteenth Amendment,

see, c.g., Engquist, 553 US. at S598, the Due Process

Clauses of the Fitth and Fourteenth Amendments.

see, e.. Arnet! vo Aenned@y, 416 US. 184 (1974), or

the Speech Clause of the First Amendment, see, ex),

Connick vo Myers, 461 U.S. 138 (1983)

Vhe Third Crreuit and respondent would have the

Court disregard this crucial distinction when an

emplovee alleges a violation of the Petition Clause ot

the First Amendment, arguing that) a publhe

emplovee’s claums of adverse action in reaction to the

fhog of a gmevance, lawsuit, or other petition should

not be sulmect to the “pubhe concern” requirement of

Conmmick vo Myers, 461 US. at 147. That argument

fundamentally musunderstands this Court's

precedents The rationales underlving Connick and

its progeny apply with equal force to Petition Clause

clams) Moreover. because pubhe emplovees could

easily recast aintormal complaints as official

grievances oor lawsuits, respondents — proposed

standard would open an end-run around Cornrmick's

pubhe concern requirement Adopting such a rule

would “constitutionalive the emplovee grievances id

at 154. invite unprecedented judicial involvement in

routine employment decisions, dramatically merease

the volume and cost of pubhe employment htization,

and compromise the government's ability to serve

the pubhie

Ao This Courts Public Emplovee Speech

Cases Counsel Applying Connick v.

Myers’s Public Concern Requirement To

Petition Clause Claims

Though “publhe emplovees do not surrender all

their First Amendment mghts bv reason of their

employment.” Garce?ti vo Ceballos, d47 US. 410, 417

(2006), this Court's precedents embody the “common

sense reahzation that government offices could not

function af everv emplovment deeiston became a

constitutional matter.” Conmmick, 460 US at 1430 In

Fnaequist, this Court identified two principles that

underhe its pubhe employment decisions

kirst, although government emplovees do not lose

their constitutional mehts when thev accept their

positions, those rmehts must be balanced against

the realities of the employment context. Second,

In striking the appropriate balance, we consider

whether the asserted emplovee right implheates

the basic concerns of the relevant constitutional

provision, or whether the clarmed raght can more

readily give wav te the requirements of the

soOVernNment as emplover

9983 US. O81, 6A0) (2008) In Anaqguist. these

principles required revecting “class of-one” equal

protection claims rm pubhhe emplowment. fd at o94

S96 Here, they require that pubhe emplovee

petitions address a matter of publo boncern before

an emplovee will be entitled to First Amendment

review of an adverse employment action

.7 ,

The “basic concern” of the First Amendment is

expression “relating to anv matter of political, socral,

or other concern to the community Cormick, 461

US. at 146. This special solicitude tor expression on

matters of pubhe concern follows from the First

Amendment's underlving geal of | “assurling!

unfettered exchange of ideas for the bringing about

of political and social changes desired by the people ”

Iq at 148 (quoting Roth vo United States, 854 US

476, 484 (1997) This understanding of the First

Amendment us evident ino this Court's emplovee

speech framework, established in Pickering vo Badal of

Rawc. SYL ULS. S83 (1968). Connick, and Garcett:

The first part of the inquirv under that framework

considers whether an emplovee allegedly subject to

adverse job action because of expression was

speaking “as a citizen upon matters of publhe

concern” Connick, 461 US at 147 It so. a court

proceeds to so-called Pickering balancing, in which

the full measure of the emplovee’s interests as a

eitivenis weighed against the government's interests

asemplover Aickermmg, 8381 US. at obs

Where, however, an emplovee was not speaking

as a& cilizen or Was speaking on matters of private

concern, the adverse employment action is not

subect to First Amendment review in tederal court

Connick, 461 US at 146. This rule honors the

“eruecimal ditterence’ between the government as

soverentn and the government as emplover When

an emplovee speaks “as a citizen” the risk that the

government as sovereytn mav be “leveraghing} the

employment relationship.” Garceiti, 947 US. at 419,

to restrict speech necessitates tudicial review. but

“Iwhhen emplovee expression cannot be fairly

considered as relating to any matter of political,

social, oor other concern to the community,

government officials should enjov wide latitude in

managing thew offices.” Fmaquist, 553 US at 600

(quoting Commick, 461 US. at 146) When acting as

emplover, the yoOVerHnmMent must, like oa private

emplover, be free to act decisively and effectively

See Gareett, S47 US at 418 (CGovernment

emplovers, hke private emplovers, need a significant

degree of control over therr emplovees) words and

actions, without at, there would be little chance tor

eMeoent provision of puble services.) This Court

reaffirmed this principle an Careeffi, warning

agaimst giving courts “a oonew, permanent, and

intrusive role. mandating oudheial oversight” ot

pubhe employment, writing Chat “[t}his displacement

of managerial discretion bv pudbeial supervision finds

no support m our precedents ” Jd at 423

The rationale underlying the emplovee speech

eases apphes with equal, uo not greater, force to

expression covered by the Petition Clause. First, as

explained im Seetion LA. supra, the Petition and

Free Speech Clauses are “intimately connected both

mn ormmn and in purpose” United Mine Workers \

lil. State Bar Ass'n, 389 US 217, 222 C1967), accord

McDonald, 472 US at 482) The Clauses thus share

the same basic First Amendment goal of “assurjing]

unfettered interchange of ideas tor the bringing

about of political and somal changes desired by the

people.” Commack, 461 US at 145 Tt tollows from

this shared woal that the Petition Clause, lke the

Speech Clause, has as its basic concern expression

“relating to anv matter of political, social, or other

coneern to the commumityv” Connick, 461 US. at

4Q)

147. Because this same basic concern animates the

Free Speech and Petition Clauses, 1t makes no sense

to stmke aio different constitational balance.

particularly an othe narrow context of pubhe

emplovment.)— Accordingly, as with Free Speech

Clause claims, when an emplovee does not petition

tor redress as a citizen on a matter of pubhe concern,

that emplovee’s interests “can more readily give way

to the requirements of the government as emplover,”

Fngquist, 553 US. at 600

Second, the practical challenges of — the

government's role as emplover are at least as

substantial when oan emplovee files a formal

grievance or lawsuit as when that emplovee lodges

In public emplowment cases this Court has typically

identified the “basi concerns” of a constitutional provision ata

hath level of gemnerahty See eg, Comme’ 461 US at 147

odentifving expression on a matior “of political, sowudl, or other

concern to the community as the primary concern of the Pirst

Amendment generally) Paygguist, S58 US at 601 unternal

quotations omitted) Cdentifving governmental classi ications

that affect some groups of catueens differently than others” as

the baste concern of the Fqual Protectior Clause) Been af the

bast concerns of the Petition Clause were drawn more

Narfowly, respondent points to nothing toe sugwest that the

right to petition ones ermplover on poupels private matters

would ampheate them Indeed. the central focus of the Framers

was oon petitioning the Jegisiature, not ones emplover See

Stephen A Higginson, Note, A SAort History of the Rught to

Pegiion Gonerament for the Readress of Grievances, 96 Yale LJ

142, Lo8 (1986) (cating 2 Bernard Schwartz, The Bil of Rights

A Documentary History 1026 (1971) (quoting ames Madison?)

Put samply, any construction ef the Petitwn Clauses basic

Oonocerns narrow enough to distinguish ot trom the Speech

Clause ou stil mowhenm vear broad enough te embrace

respondents activity

an informal complaint or simply engages im speech

Indeed, even the Third Circuit, the lone court of

appeals to rerect ao puble coneern requirement

recognized that “emplovee hiwsuits and gmevances

against a pubhe emplover can * * * be divisive in

much the same wav that emplovee speech can” San

BRiippo, SO F 8d at 441 Phe consequences of

“constitutionaliziing} othe emplevee gmevance,

Garcett:, 547 US. at 420. are thus yust as sermous—if

not more so on the content of the Petition Clause

This Court has cautioned that “the First

Amendment does not require a pubhe office te be run

as a roundtable for emplovee complaints over

internal office affairs” Conmick, 461 US at lay

Yet that us exactly what would occur in this context

in the absence of a pubhe concern requirement he

availability of jyudraal review will encourage

emplovees to fashion routine complaints as formal

gmevanees or lawsuits See pp 4-47, onfra

Grievances and lawsuits are likely to be even more

disruptive and pelanzing than less formal

communication, whose verv informalhty can lead to

consensus or voluntarv compromise Even the most

mundane workplace dispute could —and, in the

Third Cireurt, often Aas—become a federalcase The

fear of htigation wall forseeably foree publi offienals

to focus on the risk of constitutional tert hability at

the expense of effectively and etheently managing

the workplace And the demands of htigation wall

smultaneousiv distract managers trom their duties

See, eg. Harlow vo Pifegerald, 457 US. S00, S06

(’MsZ) ClOlur decisions consistently have held that

government officials are entitled to some form of

mmunity from suits * * * to shield them from undue

interference with their dutues and trom potentially

disabling threats of habihtv”)

Lastly, the tigation costs of Petition Clause

chams could be empphng. particularly for local

governments, hke the Borough, with modest

budgets. Whithout a pubhe concern requirement,

everv dispute over adverse employment action im a

case in which an emplovee is deemed to have filed a

“petition” could result) ino complicated, often fact.

intensive htiation At the least. numerous cases

would result in some variation of Piekering

balancing, requiring courts to weigh the interests of

the emplovee against the government's interests as

emplover® One of Conmek’s underlying geals.

however, Was to sereen out certain emplovment

disputes without resort to such balancing, because

“Itlo require Scher: balancing in every case where

speech by a pubhe emplovee is at issue * * * could

COMPpPromise the proper functhoning of government

oMeces.” City of San Diego vo Roe, 543 US. 77, 82

(2004) (per curmam)

"In éNcherong, this Court directed lower courts to balance

re interests of the [emplovee], as a citiren. in commenting

upon matters of public concern anc the interest of the State. as

an emplover, in promoting te efficiency of the pubhe serviows it

performs through as emplovees — Pokermmg, J8T US at Sos

OF course. af Petition Clause retahation claims were not sutrect

toa threshold pubhe concern requirement, fNoxerinags curective

to weyh an emplovees “interests **° as a citizen, om

commenting on omaiers of public concern” would be

nonsensical A Petitwon Clause standard without ao public

concern requirement would presumably require some new

formulation of the balance between emplovee and emplover

interests

The Third Cireints approach is more onerous

still, because it does not even consider the

government's interests as emplover before allowing a

claim to proceed See, ¢.4.. Marrero vo Camden

County Ba. of Soc Servs., 164 Fo Supp. 2d 455, 468

(DN 2001) Courts in the Third Cireuit thus must

always undertake a tact-intensive imnquirv. into

whether ao pubhe emplover’s adverse action was

motivated by an emplovee’s petition. Resolving such

tactbound disputes can create a sigmificant drain on

pubhe resources In this case, for example,

respondent appears poised to collect over $100 000 in

attorneys fees from Durvea, representing over a

tenth of the total Borough budget, and that sum does

not even include the tens of thousands of dollars

Durvea spent defending itself See pp. 9-11 & m6,

supra) Simply arbitrating Guarmeris first grievance

cost Durvea $30,000 in legal fees -nearlv three

times ats entire annual litigation budget -and

required the Borough to dip into ats capital

improvement funds CA App AQUbEL Opening the

door to lawsuits related to such gmevances. and to

the attornevs’ fees that come with them. could

Impose a cripphng burden on local governments

Simply put, there is no basis tor holding that the

government's interests as emplover are not entitled

to determinative werght when an emplovee has

petitioned about a subject of purely private interest

lo the contrary, in a wide variety of contexts, see pp

37-39. supra, this Court has accommodated the

yovernment’s interests so long as the government ts

not using its power over public emplovees to

suppress speech unrelated to its interests as an

emplover

Respondent's proposed standard would ignore

these similarities because of purported doctrinal

distinctions between the Petition and Free Speech

Clauses But those distinctions—-for example, that

the Petition Clause, unhke the Speech Clause,

“encompasses only activity directed to a government

audience,” Foraker, 501 F.3d at 237, or that the

Clause is intrinsically concerned with access to the

courts —are irrelevant here Ultmately, the only

considerations that carry weight in the public

emplovee context are the “basic concerns of the

relevant constitutional provision.” Engquist, 903

US at 6OO, and the government's interests as

employer. As demonstrated above, these questions

wield) adentical answers for both — previsions.

Accordingly, even if respondent were correct that the

Free Speech and Petition Clauses differ in some

respects, respondent presents no compelling reason

that adverse employment action claims under the

Petition Clause should not be subject to the same

standard as similar Free Speech claims. Exempting

emplovees’ Petition Clause claims from the pubhie

concern requireme:t would be inconsistent with the

principles this Court has consistently apphed in the

pubhe emplovee context and would — hobble

governments ability to serve the public.

B. Recognizing Petition Clause Claims For

Adverse Job Action Taken In Response

To Petitioning About Matters Of Purely

Private Concern Would Permit

Circumvention of Connick

Permitting clams under the Petition Clause to

proceed even if they do not involve matters of public

concern would have implications far beyond the

narrow context of that clause. Because plaintiffs

could easily recast other types of disputes as Petition

Clause claims. circumventing Conmick’s — pubhe

concern requirement would become a simple matter,

which would threaten to constitutionalize routine

employment disputes and undermine the efheiency

of government agencies.

In order to constitutionalize a dispute with a

government emplover, an emplovee would need

merely to formahze his complaint as a petition. He

could then characterize any subsequent adverse

action by the emplover in response to the initial

dispute as retahation for the petition. Thus, through

the simple expedient of formalzing a complaint, a

disagreement involving a matter of purely private

concern would suddenly gain access to federal court

and become entitled to full First Amendment

protection. The threshold for a formal complaint to

qualify as a “petition” can be quite low. While

respondent suggests that only formal grievances and

lawsuits would qualify as “petitions,” see Br. in Opp.

9-10, he identifies no principled basis for that

limitation, and, in fact, courts have held that far less

significant steps suffice, see p. 31, supra. An

emplovee has nothing to lose and everything to gain

by filing a petition, which essentially serves as a

hedge against a judicial determination that what

would otherwise be a Free Speech case involves a

matter of only private concern.

It is difficult to overstate the scope of claims that

emplovees could transform in this way. It is not just

those savvy enough to immediately formahze an

incipient employment dispute who could capitalze

on the absence of a public concern requirement; in

many such disputes the emplovee will already have

communicated in a way that could be recast as a

petition. See, e.g, Br. in Opp. la-2a (citing to

Cicchiello v. Beard, No. 3:07ev2338, 2010 WL

2891523 (M.D. Pa. July 21. 2010) (written

complaint); Clayton v. City of Atl. City, Civil Action

No. 09-3045 (JED, 2010 WL 2674526 (D.N.J. June

30, 2010) (unfair labor claim to New Jersey Public

Employee Relation Commission); Aarchnak sv.

Swatara Twp., No. 07-CV-1405, 2009 WL 2139280

(M.D. Pa. July 10, 2009) (nternal affairs report);

Ravitch v. City of Phila., Civil Action No. 06-3726,

2009 WL 878631 (E.D. Pa. Mar. 31, 2009)

(grievance)). In such situations, all a disgruntled

employee must do is identify a sufficiently petition-

like communication before he can characterize every

subsequent adverse government action as taken in

response to his “petitioning.”

Such a result would be contrary to this Court's

repeated admonitions that “federal court is not the

appropriate forum in which to review the multitude

of personnel decisions that are made daily by public

agencies.” Bishop v. Wood, 426 U.S. 341, 349 (1976);

accord Garcetti, 547 U.S. at 420 (“[W]hile the First

Amendment invests public employees with certain

rights, it does not empower them to ‘constitutionalize

the employee grievance.” (quoting Connick, 461 U.S.

at 154)); Connick, 461 U.S. at 149 (“To presume that

all matters which transpire within a government

office are of public concern would mean _ that

virtually every remark * * * would plant the seed of

a constitutional case.”); see also Engquist, 553 U.S.

at 607. This Court has declined to transform the

Fourteenth Amendment into a “font of tort law,”

Town of Castle Rock v. Gonzales, 545 U.S. 748, 768

(2005); there is no warrant for making the Petition

Clause a font of public employment law.

The dynamics of the employment context make it

uniquely contentious and thus likely to spawn

litigation. The “workplace is full of friction,

discomforts, and hierarchy.” DeHart v. Baker

Hughes Oilfield Operations, No. Civ.A. H-04-2233,

2005 WL 3005641, at *4 (S.D. Tex. Nov. 8, 2005).

Personnel decisions are “quite often subjective and

individualized, resting on a wide array of factors

that are difficult to articulate and quantify,”

Engquist, 553 U.S. at 604, which can make even

legitimate decisions seem arbitrary to the affected

employee. As a result, “practically every employee

* ** is bound to be convinced at some point that he

or she is getting the short end of the stick.”

Campagna v. Mass. Dep't of Envtl. Prot., 206 F.

Supp. 2d 120, 127 (D. Mass. 2002). The close daily

interactions required by the workplace can

aggravate the friction from an adverse employment

action. In most torts, parties may interact neither

before nor after the incident. But as this case

illustrates, in the employment context, existing

disputes may color every subsequent interaction.

See Lauth v. MeCollum, 424 F.3d 631. 633 (7th Cir.

ZOOS) (Posner, J.) C{ Personal motives lecannot] be

purged from all official action, especially in’ the

frequently tense setting of labor relations.”

Permitting every dissatisfied pubhe emplovee

alleging retahation for a formal complaint an

oppertumity to seek redress in federal court will

foreseeably lead to a significant increase in htigation

over garden-variety disputes

Connich’s pubhe concern requirement was

designed to alleviate the burden of litigation on

pubhe employers. Allowing suits to proceed only in

cases involving issues of pubhe concern places a

practical hmit on the amount of htigation a pubhe

emplover will confront. But if any adverse job action

claim involving a petition on a matter of private

concern can become a federal case, the potential for

litigation wall expand exponentially. Thus, allowing

such private disputes into federal court through the

back door—through the contrivance of filing a

grievance, lawsuit, or other petition “would open

the tederal floodgates to all manner of petty

personnel disputes.” Altman vo Hurst, 734 F.2d

1240. 1244 (th Cir, 1984). "[Gjovernments wall be

forced to detend a multitude of such claims in the

first place, and courts will be obliged to sort through

them inoa search for the proverbial needle ina

haystack.” Engquist, 553 U.S. at 608

Contrary to respondent's claim, Br. in Opp. 19,

the concern that pubhe employees will bring petty

disputes in federal court is not a hypothetical one.

In the Third Circuit, district courts have had to

entertamy Petition Clause claims amsing out of (1) an

Internal affairs complaint for the recovery of unpaid

towing service invoices, Schlier vo Arce, B80 Fo Supp

2d 458 (M.D Pa. 2007); (2)a tort elaim) notice

Involving alleged dress code violations, Marrero, 164

Supp. 2d at 460, (3) a lawsuit challenging a police

foree suspension arising from an incident in which a

poheeman’s exyurifmend wrongly accused a private

security emplovee of having sex with her. ex-

bovfriend, Morgan vo Covurngion Twp... Ne. 3:07-e.

19F2, 2009 WL o8o480 (MLD. Pal Mar. 6, 2009); (4) a

Workmen's compensation claim tor ao work-related

injury, Diana vo Oliphant, No. 3:08-CV-2338, 2007

WL S491856 (M.D. Pal Nov. 13, 2007). and (a

municipal court) ecruminal complaint for assault

stemming from a fight outside a bar. MeGovern v

City of edersev City, No. 98-5186 (ILD). 2007 WI

2898373 (VD Nad. Sept. 2S, 2oO7)

Although —s respondent clams that) public

emplovees would be unable to afford a lawver to

litigate such a ease or to obtaim one on a contingency

basis, Bro in Opp. 19. the examples above prove

otherwise “Phat is hardly surprising. Federal law

mives lawvers an incentive to provide representation

so long as a claim is cogmeable under federal law

Section TYSs(b) of Tithe a2 mives courts discretion to

award attorney's fees to prevaihng plaintiffs on

$1988 claims, and under such cireumstances, there

is essentially a presumption in faver of an award

(nus ve Aane, 565 F.8d 108, 126 (4th Cir 2009): see

also Hensley vo Eckerhart. 461 ULS. 424, 429 (19823)

Attorney's fees are hkewise available for cases

settled by entry of a consent decree. Maher \

Gagne, 448 US. 122, 129-130 (1980). Respendent's

award as oa telling indication of the powerful

Incentive given to trial lawvers. The jury awarded

$45.358 in compensatory damages, but the district

court) determined the lodestar for respondent's

attorney's fees to be SOL. 110 25, Pet) App. oa fala

sum that continues to grow as this case is ltigated,

see note 6, supra

Moreover, permitting ready circumvention of the

pubhe concern requirement would allow more such

suits to survive motions to dismiss and thus to

proceed to diseoverv. An adverse job action claim

alleging First Amendment protection is aio “fact:

intensive inquiry” to begin wath, Thompson vo Dist.

of Columbia, 428 F.3d Y83, 286 (VC) Cir, 200d), see

also Suaree Corp. Indus. vo McGraw, 202 F.3d 676,

G86 (4th Ciro LOOUO) (emphasizing the particular

difficulties in the pubhe emplovment context), so ifia

case ts not dismissed because it does not concern a

matter of pubhe concern, it is unhkely that a court

will be able resolve it before the summary judgment

stage. See Peacock vo Duval, 694 F.2d 644, 646 (th

Cir, 1982) lf such a claim survives a motion to

dismiss beeause there ois ono public concern

requirement, a publ emplover may feel compelled

to settle a case simply to avoid the expense and

distraction of htigation. It is well established that

“even a complaint which by objective standards may

have very little chance of success at trial has a

settlement value to the plamtitt out of anv

proportion to its prospect of success at trial so long

as he mav prevent the suit from being resolved

against him bw dismissal or summary judgment.”

Blue Chip Stamps v. Manor Drug Stores, 421 US.

3, 740 (1979)

Nationahving the Third Cireurt’s rule rmsks over:

deterrence. As this Court has reeogmized ino the

quahtied immunity context, itis not only litization

uself that acts as a drag on pubhe entibes, but the

mere theeat of it as well) Emplovers considering

adverse action against an emplovee must consider

both the odds that at would precimtate a First

Amendment lawsuit and the costs if sueh a suit is

filed Allowing plaintiffs to cireumvent Connick

increases both, Adopting such a rule thus may cause

emplovers to opt) agaist necessary. employment

actions because the msk of protracted and high),

publhe htigation ws too high to bear) Worse, the “most

capable candidates ** * might be deterred from

secking” government managemal and — elected

pesitions wo every emplovment decision carries the

threat oof constitutions! litigation Wood v

Stnckland, 420 US. S08, S20 (1975) This is

particularly true, as here, when the government is a

small locahty that must depend on the supervision of

part-time elected offlaals. [Tf pubhe emplovers tace

the specter) of prolonged federal litigation and

constitutional babihtw whenever thev take adverse

emplovment action against an emplovee who has

formahzed a dispute, they would naturally respond

with timidity. The pubhe concern requirement thus

serves as ano impertant protection to prevent public

emplovers from adopting: a passive stance to avoid

litigation See Scheuer vo Rhodes, 416 US. 232, 241.

242 (A974) CPubhe offierals * * * who fail to make

decisions when thev are needed or who do not act to

vaplement decisions when they are made do not

fully and faithfully: perferm the duties of their

offiees.”)

‘-)

This Court has consistentiv warned against

adopting rules that would commit “federal courts to

A new, permanent, and intrusive role” requiring

“permanent judicial intervention in the conduct of

governmental operations to a degree ineonsistent

with sound principles of federahsm and the

separation of powers” Grareetia, O47 US. at 428

Administrative and, when appropriate. state-law

remedies provide an appropriate mechanism for

resolving: garden-Variety employment disputes The

form of the complhunt—whether at be an. official

grievance or oa casual conversation wath one’s

supervisor—should not make a ditlerence to the level

of protection itis afforded, or to the forum that wall

address the allegations “When emplovee expression

cannot be faarly considered as relating to anv matter

of pohtical, somal, or other concern to the

community, government officials should enjov wade

latitude in managing their offices, without intrusive

oversight by the madireaiary in the name of the First

Amendment” Connick, 461 US at 146

C. Recognizing A Constitutional Claim For

Adverse Employment Action Resulting

From Petitioning On Matters Of Private

Interest Would Displace Carefully

Cratted State Remedies

In recognition of their status as equal severe urns,

the states are afforded substantial “tree|/dom] to

regulate their labor relationships with their public

emplovees.”” Davenpert vo Wash. Fdue Ass'n, 5d)

US 77, 18) (2007) Using that freedom. states

have designed robust (protections for pubbhe

emplovees throurh whistleblower, labor. and cival

service statutes—-manv of which contain speciuilived

provisions that would apply here In centrast to a

one sive -fits-all cause of action under the Petition

Clause, states often tailor emplovee rights and

remedies to take into consideration the particular

responsibilities of the emplovee and the types of

conduct at issue In addition, emplover specific

collective bargaining agreements also shield pubhe

emplovees from adverse job action taken for seeking

redress of work-related gmevances. This case thus

presents the question “whether an elaborate

remedial svstem that has been constructed step-bv-

step, with careful attention te contheting pohey

considerations, should be augmented bv the creation

of a new pudieial remedy” Basti vo lucas, 462 US

R87, 888 (1YS3)

The “existing regulatory structure and the

respective costs and benefits that would result tron

the addition of another remedy tor violations of

emplovees First Amendment rights.” Bush, 462 008

at 38S. counsel against recognizing a constitutional

right to damages for claims by pubhe emplovees that

adverse gob action was taken against them om

reaction to them having petiQioned government

regarding purely private matters Imecting: a new,

midieral remedy into this) structure would both

displace careful legislative qudsments and disrupt

the admamistration of existima processes Even

coverage gaps in the existing web of remedies

presumably reflect deguslative balancing of the

“numerous and complex” considerations of labor:

management relations See Avo Fripiovees’ Dep tv

Hanson, 851 US 22d, 2a4 (19d6)

Pennsvivama readily illustrates the remedies

afforded by state and mumieipal law. Pennsvivania

generally prohibits pubhe emplevers — from

‘idhscharming or otherwise discriminating against

an emplove [sic] because he has signed or filed an

aMidavit, petition or cemplaint or given anv

information or testimony under [the Pennsylvania

Pubhe Emplove [sic] Relations Act} 48 Pao Stat

S LICL D201 aKa) (POTO Pubhe emplovees alleging

— actions may ears 2 to the Pennsvivania

Labor Relations Board, $1101 1802. which has

exclusive jurisdiction over such matters hd?

S$ P1OL 1TS01 Phos remedial structure serves

Pennsvivania’s pubhe pohev of promoting “orderly

and constructive relationships between all pubhe

emplovers and their emploves {sic) sulyect * * * to

the paramount mht of the eitizens of [the]

Commonwealth to keep inviolate the guarantees tor

their health, satetv and weliare ” Ja § 1101 101

Balancing these interests, the Penmnsvivania

legislature alse created exceptions to the

comprehensive email service statute. Pohee officers

and firefighters are not covered by the general anti-

retahation statute, 43 Pao Stat § TOT SOT (2010),

and must anmstead rely on) general civil-service

protections, oumlon oarbitration, and whatever

additional safeguards mav enist under their

collective bargaining agreements See id § 217

Pohee civil service protections in Pennsvivania are

further refined based on population and department

sve In) Pittsburgh and Scranton, tor example,

offieers cannot be disiplned “except tor pust cause

which shall not be religous or pohtieal” ld

S2ASI9 Wado Tn boreughs, however. police officers

cannot be fired except tor reasons enumerated by the

bor boroughs with a polee foree smaller than

three members, the crvil-service protections apply

only to “regular full time police offeerjs)” 53 Pa

Stat §$§S11, 812 @Oow) OMeers discharged from

these one. or two-person forces are entitled to a

reinstatement hearing trom the authority that

appointed them and may appeal to the court. of

common pleas Jd. $$ 814-816. Tf the borough has

more than two officers, civil service protections cover

ali persons emploved by the polee — force

lad §$8$ 46171. 46190) In addition, the borough must

create a civibservice commission to conduct

remstatement hearings upon the request of fired,

suspended, or demoted officers. See id. §$ 46172,

40i91L) Appeal to the court of common pleas remains

avatlable to disciplined officers and may also be

pursued bv the borough Jd § 46191 (LOTTO)

Reyardless of the size of the police force, however,

borough officers cannot be terminated for thing a

* lt the borough pohece fone has fewer than three members,

reasons for discuplhinoe are limited te “()) physical or mental

disability affecting fis ability to continue in service. in which

case the person shal. recenve an honorable discharge from

service, (2) neglect or violation of anv atficial duty, (a) violating

of anv law which provides that such violation constitutes a

uisdemeaneor ot felony, (4) ineficreney. neglect. umempecrance,

disobedience of orders. or conduct unbeoomimng an officer, (o)

rntowreation while on duty |fl Pa Stat Sst sre qed $ it

the bonmnugh pobece foree has three or more members. an

additional reason for discipline is “fe}ngaiing or partreapatung

tin conducting of anv political or election campaign otherwise

than to exercise his own right of suffrage la $$ a617°

TETMAG)

ve)

lawsuit or internal grevance because neither action

is among the grounds for discipline enumerated by

the legaslature See 53 Pal Stat. S$ STZ, 40190

(2010) In addition, emplovees protected by a just-

cause standard- whether bv statute or under a

collective bargaiming agreement—ordinanly cannot

be subject to retahation for the mere act of filing a

lawsuit or gmevance because that act does not

constitute “yust cause” for diseiphne within the

meaning of most employment contracts. See, eg,

Tacket vo Delco Remy, G59 F 2d 690, 653 654 Ceth

Cir, 1992) (deseribing Indiana law) Deemang

emplovees written gmevances to be “petitions”

imbued with constitutional significance thus often

creates ono extra substantive protection — for

emplovees, ait) merely allows them to evade

administrative procedures the legislature has

carefully: tailored for their circumstances and to

sidestep arbitration remedies, which both state and

federal law prefer as a matter of public poliev See 9

USC $2.43 Pa. Stat. § 217.2 (2010)

As this Court has reeognmized, “[t]he ingredients of

industmal peace and stabihzed labor-management

relations ** * may well varv trom age to age and

from industry to industry.” but “[t]he decision rests

with the pohev makers, not with the judiciary”

Hanson, 351 US. at 234 The Pennsylvania

legislature has made its decision and Guarmert now

seeks to evade its considered yudgment by pursuing

a oudieially ereated federal remedy. Permitting

Guarniert to do so would replace the State's carefully

tailored remedial scheme with ao one-size fits-all

remedy that allows recovery even under

circumstances for which the legislature has

‘or

determined that none should be available

Moreover, as experience demonstrates, see. e.g,

p. 49, supra, dispensing with the pubhe concern

requirement for publhie employee petitions requires

courts to serve as “general-purpose second: guessers

of the reasonableness of broad areas of state and

local decisionmaking: a role that is both ill-suited to

the federal courts and offensive to state and local

autonomy in our federal system” /ennings vo City of

Stillwater, 388° F.8d 11998, 1211 Goth Cir) 2OO4)

(McConnell, J)

Even where current remedies are not. all-

encompassing, “special factors” omayv render

Inappropriate anv “new kind of federal htigatien”

Wilkie vo Robbins, Sd1 US. 587, 550 (2007) (quoting

Rusk, 462 US. at 378). Among these factors are

“sound principles of federahsm and the separation of

powers,” according to which padieral intrusion into

pubhce employment should be minimal. Garceiti, o4¢

US. at 428 Principles of federalism apply wath

particular force to “the special concerns of States and

locahties with respect to [law enforcement

personnel)” such as Guarmer. Garcia vo San

Antonio Metro. Transit Auth., 469 US. o88. 554 nol 7

(1985S) Moreover, Congress's consistent 1udgment

that states should manage relations with their own

emplovees, see id. at S53. suggests that a new

constitutional cause of action would be particularly

inappropniate for pubhe emplovees who have

petinoned their employers merely about) private,

work-related dissatisfaction.

Federal workers likewise could invoke an

expansive Judieially created cause of action under

the Petition Clause to circumvent the carefully

= ,

tailored remedial provisions of the Civil Service

Reform Act of 1978, 5 US.C. § 2801 ef seg. Congress

has decided, for example, that certain remedies for

workplace disciphne should be off lumits to most

intelligence officers, certain) National Guard

techniaans. and emplovees of the Tennessee Valley

Authoritv. See d USC. § 75110) In addition,

Congress determined that some forms of adverse

action do not warrant anv judiaial remedy. See. e.g.,

id. § 7503(a) (suspensions of fourteen days of less);

id S$ Toll UYAY) (adverse action against

probationary emplovees). dust as the Third Circuit's

approach to the Petition Clause would allow state

and mumeipal employees to bvpass finely drawn

anti-retaliation statutes, it would allow many tederal

workers to pursue remedies that Congress has

expressly withdrawn trom them

CONCLUSION

The decision below should be vacated and the

case remanded for proceedings consistent with an

opinion holding that pubhe emplovees cannot sue

their emplovers for retahation under the Petition

Clause unless their petitions involved matters of

public concern.

Respectfully submitted.

JOSEPH A. O'BRIEN DANIEL R. ORTIZ*

KAROLINE MEHALCHICK JAMES E. RYAN

Oltver, Price & Rhodes University of Virginia

P.O. Box 240 School of Law

1212 South Abington Supreme Court

Road Litigation Clinic

Clarks Summit, PA 580 Massie Road

18411 Charlottesville, VA

(570) 585-1200 22908

dro@virginia.edu

(434) 924-3127

MARKT. STANCUHL DAVID T. GOLDBERG

Robbins, Russell, Englert, Donahue & Goldberg,

Orseck, Untereiner & LLP

Sauber LLP 99 Hudson Street,

1801 K Street, N.W. Sth Floor

Suite 41] New York, NY 10013

Washington, DC 20006 (212) 334-8813

(202) 775-4500

JOHN P. ELWooD

Vinson & Elkins LLP

1455 Pennsylvania Ave.,

NW... Suite 600

Washington, DC 20004

(202) 639-6500

*Counsel of Record

December 2010

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.