Amicus Curiae Brief — Borough of Duryea v. Guarnieri

No. 091476

an the Supreme € ourt of the Umted States

Bary OF DORYE A PENNSY VON 4 ‘

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BRIPE POR THE UNTTED STATES

As AMIC ES CURTAR SE PRPORTING PETITIONERS

QUPSTION PRESENTED

Whether the First Amendment protects a pubbe em

ployee from disciplinary acuion by his employer for peu

toning the government on matters of purely private

conee rn

TABLE OF CONTENTS

Intemet of the United States

Statement .

Summary of anrunent

Anrument

The Petutaon Clause of the First Amendment does

mot shirk? public employees from disciplinary achon

when they petivion the governmwnt on mation not

of publi concern ...... coseaeas “-

A. The First Amendment does not protect puble

employers from dasciplinary acuon hasat on

speewh about matters of purely private interns!

BK The public concern moquirement apples to

peQbons for the nxdiss of emevanes as i

apples to other form of emphyee expressan

Conchusior

TABLE OF AUTHORITIES

Cases

Andrew v. Clark, S01 FAG 1 th Cir. AD...

Arnett v. Aennedy, 416 US Sgr

Beaw v. Tow of Minoagna, SS Fld LOS 7th Cir,

DN aaa det tdedetcinveeunss

Bishop v. Woad, 428 US. M1 976)

Cafetena & Resi, Womters Locus aS v. MeBiroy, 307

Ree is hauatan

Calroruta Motor Transport Cov. Trucking Usson

Mo, GOODE. FEBS) 5 ois sesevccvccscces:

Connick v. Myers, 461 US. 188 1988

DV Angelov. School Ba , 497 FXG TS Lith Cir, AW)

di

Page

parser)

Cases Continual Page

Day v. Sonth Part Jaden Sch Dist, TAS FG OS

oth Cir. 1980), cert. dem, 474 US. TOT 888) 2 2

Brggntst v. Oregon Dept of Agne, MOUS. a0]

Ga ...... Sepa ea errs fo Ye

(rarreti: v. Cedallas, M7 US. 410 (AID oo... Shee

Gunter v. Mormson, 497 FLAG SAS Sth Cir AW) 0 8

Harms v. Misstssipm Valley Stale Une ST3 So. Od

IID x0 cok Coucgdeebisacakwaeesicasvecs

Hofmann v. Mayor, Conneimen & Citizens of

Liberty, MS F.2d 29 (Sth Cir. WD) 2, 21

Jendons Vv. Rook Hull Local Sch. Dist, S13 Fd AND

6th Cir), cert. denied, AS UUS. LQG AMS) 9

Marten v. City of Del Cidy, 179 FXG SO 10th Cir,

DUE oc viabageucacdresdnsecukceuabsceceessssh sass 9

McAniifte v. Mayor of New Badtoni, DONE OLT

PIE aG.bvcnankeacts shessancdcchecucsences 10

McDonald v. Smith, AT2 US. AM IMS) oo... 6.15, 18

MeDowvll v. Napoltiano, SH Pld TIS (NM. 198) 0. 9

NAACP v. Button, 371 US. 415 19RD). Wi

Proxeming v. Baan of Bdue., 31 US. 68

DR css occa ol tank cas ncebadonnaqmaisast S11, 12

Pott v. Ottwm, 761 ADd 313 (Me. MOD)... es 9

Rathren v. Litchfield, STS F.2d S36 Sth Cir. IO)... 9

Rendish v. City of Tacoma, 125 F.3d 1216 Sth Cir.

1997), cert. denied, MAUS. MO UMS... Y

San Fuipno v. Bongrorannt, 0 Fad 424

MG Cir. 194), cert. denied, 913 US. 1082

NR ee Oe en ere 3, 4, 18 19. 4, 21

Cases Continual: Page

Smitth v. Bates Technraa! Coll. 9 P2d 118) Wash.

re tre tere Ua wae eee ae cere ed 9

Tang v. Department of Fideniy APairs, 103 Fd 7

IE ah Nel ates at ed art tine tae ans s

Thomas v. Coldins, 323 US. 516 IMD) «oe. 16

Urofshy v. Gtlmory, 216 F.3d 401 (4th Cir, 2000),

cert. denied, 531 US. 10M NOD) 2. 21

Waiters v. Churchill, 511 U.S. 661 19M)... ee. s

Wayte v. Untied States, 410 US. SQ8 (IMS) oe... 16

While Plans Towrng Corp v. Patterson, 991 F.2d

149 (2d Cir.) cert. denied, 910 U.S. S65 (1998) 0... s

Constitution and statutes:

PEA IEW a8 Ss'uk eee cdeecvateacseseus jaassty

IN cn concuaceacsdececsaceceses 6, 9, 16, 1S

PINE osqvcs caucdcupccisunccnenacs prassty

SIN Pe AA, SR gM A 3, 21

SC MS vcs chackvesesesaveuseeGecucdsguceus 21

Miscellaneous:

RE, CUED 0 6 csccke desseccsnsnincsce 7

2 Bernand Schwartz, The Bill of Rights A Doewnien-

IIE 444 os accencuxsssssesveccccees vi

In the Supreme Court of the United States

No. 09-1476

BokoUGH OF DURYEA, PENNSYLVANIA, ET AL.

PETITIONERS

v.

CHARLES J. GUARNIERI

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURLAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether the First

Amendment protects a public employee from disciplin-

ary action by his employer for petitioning the govern-

ment on mat* ers of purely private concern. Because it

is the nation’s largest public employer, the United

States has a substantial interest in the proper resolution

of that question.

STATEMENT

1. In February 2003, the Duryea Borough Council,

a local government entity in Pennsylvania, dismissed

respondent from his position as chief of police. Pet. App.

4a, 57a. Respondent subsequently filed a union griev-

(1)

2

ance that challenged his termination. /bid. Two years

later, after an arbitration, respondent was reinstated as

police chief. /bid. Upon his return, the Council issued

11 directives to respondent, which provided instructions

for carrying out his duties as police chief. Jd at 4a,

57a-59a.' In response, respondent filed a second union

grievance, which led to another arbitration. /d at 4a,

59a. The arbitrator ultimately directed the Council to

modify or abandon some of the directives. /bid.

Respondent also sued petitioners under 42 U.S.C.

1983, alleging, among other things, that petitioners had

retaliated against him for having filed the initial griev-

ance challenging his dismissal, thereby infringing his

First Amendment right to petition the government. Pet.

App. 4a-5a. Respondent’s First Amendment retaliation

claim rested largely on the issuance of the directives,

but he later amended his complaint to include a subse-

quent denial of $338 in overtime pay as another retalia-

tory act. Jd. at 5a."

' The directives provided that respondent: (1) should work no more

than eight hours per day; (2) could attend Borough Council meetings as

a private citizen, but would not be paid for attending the meetings as

police chief; (3) should follow the purchase order system; (4) should en-

sure that the day shift officer observes arrival and dismissal of students

at the Holy Rosary School; (5) should patrol for four to five hours of his

shift; (6) should follow instructions relayed to him by the Borough soli-

citor; (7) should provide a weekly report of his activities to the Borough

secretary; (8) should provide the Borough secretary with a monthly

police department schedule; (9) could use the police car only for official

business; (10) should enforce a municipal no-smoking rule within the

police department; and (11) would work the 7 a.m. to 3 p.m. day shift.

Pet. App. 57a-39s.

* Although the court of appeals stated that the amount at issue was

$338, petitioners note that the actual amount in dispute was only $284,

2. a. Petitioners moved for summary judgment.

The district court granted the motion in part, but denied

summary judgment on respondent's Petition Clause re-

taliation claim. Pet. App. Sha-9aa. The district court

acknowledged that under this Court's precedent, when

a public employee exervises his right to free speech, the

First Amendment does not protect him from disciplinary

action by his employer unless the speech addressed a

matter of public concern. Ja at Tha (citing Comnicé v.

Myers, 461 U.S. 188, 147 (1988). Relying on the Third

Cireuit’s decision in San Filtppo v. Boxgtorannt,

Fad 424 (1984), cert. denied, 313 U.S. 1082 (1985), how-

ever, the district court held that when a publx employee

Ales a formal grievance pursuant to the Petition Clause,

that action “is protected [by the First Amendment] with-

out regand to whether the petition addresses a matter of

public concern.” Pet. App. 78a.

db. In San Fiipno, a university professor fled a suit

under 42 U.S.C. 1988 in which he alleged that he had

been dismissed in retaliation for, among other things.

having filed various grievances and lawsuits. A divided

court of appeals held that, inasmuch as the plaintiff's

“expressive conduct” included “activities that implicate

the petition clause, rather than the free speech clause.

of the first amendment,” those activities were protected

reganiless of whether they addressed a matter of public

concern. XO F.ad at 434-48); see fl at 434-448: ef. Con

wick, 461 U.S. at 147. Although the court acknowledged

that every other court of appeals to consider the issue

had reached a contrary conclusion, it concluded that a

public employee's lawsuit or grievance “of the sort that

becsuse $M of the clam was for overtime naquested by another em

ployee. See Pet Br Sn 4 icing C A Apa AXBT AWE

constitutes a _ within the meaning of the first

amendment” Toys categorical constitutional proter-

tion, San Filipno, 30 Fidd at 441-442. The court rea.

soned that “[i]f government could. gua employer, freely

discharge an employee for the reason that the employee,

in order to present a non-sham claim against the

government-employer, invokad * * © 3 mechanism

{that the government created], the peuuon clause of the

first amendment would, for public employees seeking to

vindicate their employee interests, be a trap for the

unwary—and a dead letter.” Ja at 442. The court fur-

ther measoned that “the right to petition has a pedigree

independent of —and substantially more ancient —than

the freadoms of speech and press.” and that “[t]here is

no persuasive reason for the right of petiuon to mean

ess today than it was intended to mean in Fngland

three centuries ago.” Jd at 448.

Judge Becker dissented. In his view, the court of

appeals’ loge “palejd] by comparison with the reasoning

of the other cimuits a and mymp » inexorable loge of Me

Dowaid v. Smith, 472 U.S. 479 (1985)," which held that

“there is no sound basis for granting greater consttu-

vonal i tection to statements made ina petiuon * * *

than other First Amendment expressions.” Saw Friip

po, 0 F.3d at 449 (Becker, J., dissenting). He further

opined that the decision was “an invitation to the wary

to formulate their speech on matters of private concern

&S a lawsuit oF gTievance in omer to avoid Deing dise!

plined.” Jdid.

¢. After a trial, the jury found that issuance of the

employment directives and withholding of SS in over-

time pay constituted retaliation for protected First

Amendment activity and awarded compensatory and

punitive damages. Pet. App. da, 17a-1Sa. The district

-

court denied pettione ets’ motion for judgment as a mat

ter of law and fora new trial, Ja at Idaoda. Again re

lying on San Filippo, the court mojected petiboners’ ar

gument that they were entitled to Judgment as a matter

of law because respondent’s petition did not addmwss a

matter of public concern, Jad at 27a.

The court of appeals affirmed. Pet. App. la-laa,

l ke the district court, the court of appeals held that

peUuoners’ neon that “the F - a rdment does

not protect government employees from retaliation for

the filing of petitions unless they iia matters of

public concern,” ta. at Ta, was foreclosed by the court of

appeals’ prior holding in Saw Frlivne, ta at Sa-9a.

SUMMARY OF ARGUMENT

When the government acts as employer, ifs Interests

in Pogulating speech are far different than when it negu-

lates the speech of the general puble Pac is besery seitied

that the government does not violate the rst Amend-

ment dy disciplining a public employee abe on speech

hat does not involve a matter of puble concern to the

community. There is no basis for a different result in

cases where a public employee petiuons the government

about a purely private matter.

A. Public employees do not relinquish sll First

Amendment rights when they accept employment with

the government. Nevert cheless, this Court has long rev-

ognized that when a public employee's expressive cor

duct does not implicate the basic concerns of the First

Amendment, the employee's claimed ryght of expression

must give Way tot the government's interests in efficient

provision of public services. In the First Amendment

content, the Court has identified as the “basic concern”

of the First Amendment the assurance of an “unfettend

intervhange of ideas for the bringing about of polincal

and social change desired by the people.” Connick v,

Myers, 481 US. 138, 144-145 C1989). When a pubdbe em

ployee’s expression does not involve a matter of public

concern, the employee is not protectad from disciplinary

action by the First Amendment.

This rule reflects this Court's recognition that the

claimed constiiuuonal rights of pubhe employees must

be considered in light of the government's intenest in

carrying out its function as a public emplover. The gov.

ernment has a strong interest in promoting the eff)

ceney of the public services that it performs through its

employees. Private employment gmevanees brought by

public employees do not implicate the basic concerns of

che First Amendment, and the employee's interwsis

therefore must give way to the government's nead to

—— perform its duties. Allowing First Amend

ment claims based on - ate employee grevances lke

those at issue here would constituuionalire the gnevanee

press for Lage smployees and make the federal

courts arbiters of government employment disputes, a

result this Court has pefused to tolerate.

B. The court of appeals’ evtension of First Amend

ment protection to private gnevances filed by public

employees is not justified by - difference between =

Speech Clause and the Petinon Clause. To the contra

this Court has held that “F) inst Amendment aan an

inseparable, and there is no sound basis for granting

gTeater constitubonal protection to statements made in

a peuuon to the President than other iret Amendment

expressions.” Me Donald v. Smigh, 422 US. 479) IN

(1985). There is no reason for analyzing union griev

ancos, arbitrations, or lawsuits differently.

The court of appeals’ concern that refusing to afford

First Amendment prolection to pubbe employee pet

tons would undermine the histomeal importance of the

Petiuon Clause ynors this Court's careful preservauon

of the core rights of public employees as citrens in its

puble employment cases. Morwover, the court's coneern

that wy ing First Amendment protection to public em

ployees for their invocavon of formal remedial mecha

nisms woukd undermine the effectiveness of thase mech.

anisms overlooks the a ternative avenues under federal

and state law for protecting workers’ access to available

remedies.

The court of appeals’ decision is also gente ty

any difference in the balance of interwsts when public

employee speech takes the form of a petition. In fact,

expression through a peuden may be more disruptve to

the government's operations than expression through

informal speech, because the pe must expend

time and resources responding to First Amendment

based grievances. Patending First Amendment proue

ton to everyday employment gmevances brought by

public employees would also expand the constitutional

rurhts of government workers far bevond those mghts

enjoyed by employees in the private sector, and it would

emate an anomalous distinction between employees who,

perhaps fortuitously, express (heir private concerns in

the form of a grievance and those who voice their con

cerns through other means.

ARGUMENT

THE PETITION CLAUSE OF THE FIRST AMENDMENT

DORS NOT SHIELD PURLICO EMPLOYERS PROM DIscl

PLINARY ACTION WHEN THEY PETITION THE GOVERN

MENT ON MATTERS SOT OR PUBLIC CONCERNS

It is well established that “the government as em

ployer ° © ° has far broader powers than does the gor

ernment as sovervign.” Nsggwis! v. Orrgon Dep't of

Age, OS US, a9 1, ASS (QS) (quoting Waters v. Chae

chad, SULULS. 661, 871 ISS) (panility opimen)). In the

content of frexadom of speech, this Court has long recog

nimni that the government's interests as an employer in

nogulating the expression of eas by its employees “du

fer significantly from those it possesses in connecbon

with reguiauion of the speech of the chusenry in ger

eral.” Pickering v. Board of Bde, 81 US. O88, ons

(1988). The Court has accordingly made clear that, a

though the First Amendment protects “the ryhts of

pubbe employees to participate in public affairs.” it does

not prohibit the government from disciplining its em

plovees saneelh on their expression of views on pure)

private matters. Connick vo Myers, 461 US. DAs, 144

147 ISSS). With respect to the public employment con

text, thenefore, “[wihen employee expression cannot be

fairly considered as melating to any matter of polibea’,

social, or other concern to the community, government

officials © * * enjoy wide latitude in managing their

offices, without intrusive oversight by the Judiciary in

the name of the First Amendment.” Ja at 146

Contrary to the holdings of every other court of ap

peals to have considered the issue,’ the court of appeals

* See Tangy Demartwend oo Siders [Mares IMF RET 1D ist Cor

TAS) White Plgess Toweng Cost vy Pattemenn, 98) Fo Lage, los

in this case held that when a public employee's expres

sion impheates another ryght guaranteed by the First

Amendment namely, the right to petition the govern

ment for the redress of grievances the First Amend

ment shields the employee from diseiplinary acbon m

gardless of whether the employee's peutbon relates to a

matter of pubbe concern. That holding is wrong. A pub

ne employee is entiuled to no grater First Amendment

prtecuon when he files a peubon for the redress of

didinagsre: than he possesses when he engages in other

orms of First Amendment expression. The Petition

Clause, like the Speech Clause, protects a puble em

ployee from disciplinary acon umpasad by his employer

only if he peutons the government about a matter of

public concern

A The Pirst Amendment Dees Not Protect Public Employ.

ces Prom Disciplinary Action Rased (nm Speech (hou!

Matters Of Purely Private Interest

The First Amendment protects public employees

from disciplinary acbon based on their speech only when

that speech involves a matter of pubhe concern. That

LARS Md Car) cert. grmead S10 US SD TPR), Aedewe vy Gort, 8)

FAG DST Re dth Cor AD), Rathee v J vlogtend, STS Fi NA SO

bub Cyr TS) Jenirsey Hand Hal Lana Sea Deel STS F ALAR ST

Rub Cor) cert. deme AND US TA CANIS) Aediy Toa of Merson,

Nos PoE TAA ERO Teh Or TS Cater Morraon 497 F AG SS,

ST (Nh Cir RT), Rendesd v Cp of Taoowns, 153 F Xd 1216, 1

LED eh Cir 17) cert. demad VU S SO RS), Meetra ny Ouy on

De. Ong. OY FAG SE SST 1th Or RR, D Asari ve Seka

Ra, 27 FP Ad DA LOT th Cor AOD), sew also Patty Often,

AMSA RI Me AUD) Hays, Viseuseroe ) aieg Stade User SS

Se Dd 970, S84 Mase DM), MeDoews vy Nanaiiass, SH) Pod DIS,

DS NM 1) Sawa y Aotee Trckeoal Coll 81 Pod 1X).

Lid 1147 Wash

Ww

rule preserves the core purpose of the First Amend

ment, and protects the interwst of the government in

eMc ‘ unning its oMfiees and agencies,

This Court has consistently recognimal that

hl is acrucial difference, with mespect to comsutu

tional analysis, between the government evervising ‘the

power to regulate or leense, as lawmaker, and the gov

ernment acting ‘as proprietor, to manage (its! internal

operation.” Anggutst, ASU. S. at OMS (quoting Ca‘ete

ma & Rest. Workers, Local 47S vo McElroy, 367 US

N86, 886 (1901)) (brackets in original). In the content of

public employment in particular, this Court has made

clear that “‘oonsttutional meview of government —.

ment decisions must mest on different principles tha

review of |. . restraints imposed by the government as

sovereign. "Ia at oO (eitatbion omitted).

2. As imerpreted for mast of the nation’s history,

the First Amendment placed no limitation on a public

employer's ability to make personne! decisions on the

basis of an employee's expression. The First Amend

ment was thought to apply when the government acted

as sovereign with respect to ciuizens, but not when i

actual as emplover with respect to employees. “The clas

sic formulation of this position was that of Justice

Holmes, who, when sitting on the Supreme Judicial

Court of Massachusetts, observed: ‘| A polheeman) may

have a constitutional ryght to talk poles, but he has no

constitutional right to be a policeman” Connick, 461

U.S. at 143-144 (quoting McAnlite vo Mawor of New

Redford, 8 NE S17, O17 (Mass. ISM) \brackets in orig

imal); see td at 144 (citing decisions from first half of

twentieth century).

The Court modified its view, however, in “a series of

cases arising from the widespread efforts in the 1940's

ll

and early 1460's to require public employees, particu.

larly teachers, to swear oaths of loyalty to the State and

reveal the groups with which they associated.” Commies,

AST ULS. at May see thid. (citing cases), In those cases,

the Court invalidated statutes and actions that condi.

uioned pubhie employment on general oaths of loyalty

and the disclosure of private associations, thereby

“suppress|ing] the right of public employees to parties

pate in public affairs.” Jd. at 144-145. Those decisions

reflected the Court's understanding that the First

Amendment accords special protection against “threats

to the right of citizens to participate in political affairs.”

fd at 14; see tid. ("| The Court has frequently reaf-

firmed that speech on public sues occupies the “hyhest

rung of the hierarchy of First Amendment values,’ and

is entitled to special protection.”) (citation omitted).

The Court's decision in Pickering, supm, “followed

from this understanding of the First Amendment.”

Connick, 461 US. at 145. The plaintiff in Pickering was

a public-school teacher who was fired for writing a letter

to a newspaper that criticized the way the school board

had attempted to raise revenue. In upholding the

teacher's First Amendment claim, this Court said that,

insofar as the lower court had concluded that publie-

schoo! teachers “may constitutionally be compelled to

relinquish the First Amendment rights they would oth-

erwise enjoy as citimns to comment on matters of public

interest in connection with the operation of the public

schools,” the decision rested on a premise that has been

rejected by the Court. Prekering, 391 ULS. at S88. At

the same time, the Court recognized that “it cannot be

vainsaid that (he State has interests as an employer in

regulating the speech of its employees that differ signifi.

cantly from thase it possesses in connection with regula-

IZ

tion of the speech of the citizenry in general.” Jord. To

resolve a First Amendment claim in a case of this type,

the Court said, it is Chus necessary to balance “the inter-

ests of the [employee], as a citizen, in commenting upon

matters of public concern” and “the interest of the State,

as an employer, in promoting the efficiency of the public

services it performs through its employees.” /dtd.

Fifteen years after Pickering, in Connick, this Court

“meturn(ed] to thle] problem” of striking a balance be-

tween the interests of a public employee and those of a

public employer. 461 U.S. at 140. In rejecting the First

Amendment claim in Connick, the Court explained that

“(t]he repeated emphasis in Pickering on the right ofa

public employee ‘as a citizen, in commenting upon mat-

ters of public concern, was not accidental.” Jd. at 143.

That language, the Court said, “reflects both the histori-

cal evolvement of the rights of public employees, and the

common-sense realization that government offices could

not function if every employment decision became a con-

stitutional matter.” /did. Thus, when a public employee

is not speaking “as a citizen upon matters of public con-

cern,” his First Amendment claim should be rejected

without any balancing of the interests of the employee

and the employer. /d. at 147. This Court's responsibil-

ity, Connick makes clear, is merely to “ensure that citi-

zens are not deprived of fundamental rights by virtue of

working for the government.” did.

The plaintiff in Connick was an assistant district at-

torney who was told she would be transferred and then

cireulated a questionnaire soliciting the views of her

colleagues on office transfer policy, office morale, the

need for a grievance committee, the level of confidence

in supervisors, and whether employees felt pressured to

work in political campaigns. She was fired as a result.

13

The Court held that, with one exception,‘ the questions

in the questionnaire were “mere extensions” of the

plaintiff's “dispute over her transfer,” and thus did not

“fall under the rubric of matters of ‘public concern.”

461 U.S. at 148. Because the questions did not address

a matter of public concern, the Court found it “unneces-

sary * * * toserutinize the reasons for [the plaintiff's]

discharge.” Jd. at 146.

3. The rule articulated in Connick reflects this

Court's recognition that public employees’ assertion of

First Amendment rights must be considered in light of

“the realities of the employment context.” Engquist,

553 US. at 600. As this Court explained in Connick:

|T)he Government, as an employer, must have wide

diseretion and control over the management of its

personne! and internal affairs. This includes the pre-

rogative to remove employees whose conduct hinders

efficient operation and to do so with dispatch. Pro-

longed retention of a disruptive or otherwise unsatis-

factory employee can adversely affect discipline and

morale in the work place, foster disharmony, and

ultimately impair the efficiency of an office or

agency.

461 U.S. at 151 (quoting Arnett v. Kennedy, 416 U.S,

134, 168 (1974) (Powell, J., concurring)); see also Gar

cetti v. Cebalias, 547 US. 410, 418 (2006) (“Government

* The one question that did touch on a matter of public concern, in

the Court's view, was whether assistant distmet attorneys ever felt

pressured to work in political campaigns. The Court thus went on to

balance the employee's interest in commenting on that matter against

her employer's interest in workplace efficiency. Striking the balance in

favor of the employer, the Court deferred to the district attorney's

judgment thst the quesuonnaire was “an act of insubordination which

interfered with working relationships.” Cowntck, 461 US. at 151.

l4

employers, like private employers, need a significant

degree of contro] over their employees’ words and ac-

tions; without it, there would be little chance for the effi-

cient provision of public services.”).

The Connick rule strikes an appropriate balance be-

tween those practical realities and the rights of public

employees by asking “whether the asserted employee

right implicates the basic concerns of the relevant con-

stitutional provision, or whether the claimed right can

more readily give way to the requirements of the gov-

ernment as employer.” Engquist, 553 U.S. at 600. In

the context of the First Amendment rights of expres-

sion, whose basie concern is to “assure unfettered inter-

change of ideas for the bringing about of political and

social changes desired by the people,” Connick, 461 U.S.

144-145, an employee's asserted First Amendment right

must “give way” to the government's interest as an em-

ployer unless the right concerns the employee's right as

a citizen to participate in public affairs.

While the Court's “responsibility is to ensure that

citizens are not deprived of fundamental rights by virtue

of working for the government,” the First Amendment

“does not require a grant of immunity for employee

grievances not afforded by the First Amendment to

those who do not work for the state.” Connick, 461 U.S.

at 147. The Court has repeatedly admonished that “a

federal court is not the appropriate forum in which to

review the wisdom of a personnel decision.” /d. at 147;

see Garvetti, AT US. at 420 (“Underlying our cases has

been the premise that while the First Amendment in-

vests public employees with certain rights, it does not

empower them to ‘constitutionalize the employee griev-

ance.’”) (citing Connick, 461 U.S. at 154); Bishop v.

Wood, 426 U.S. 341, 349 (1976) (“[ F Jederal court is not

15

the appropriate forum in which to review the multitude

of personnel decisions that are made daily by public

agencies.”). Applying Connick’s public concern require-

ment to a public employee's expressive activities pre-

vents this unwarranted result, and protects the careful

balance achieved in this Court’s public employment

cases between the interests of public employees and the

government's need to efficiently perform its duties.

B. The Public-Concern Requirement Applies To Petitions

For The Redress Of Grievances As It Applies To Other

Forms Of Employee Expression

The court of appeals in this case did not question the

general principle that the First Amendment protects an

employee from disciplinary action based on his speech

only if that speech was expressed as a citizen on a mat-

ter of public concern. Relying on its earlier decision in

San Filippo, however, the court held that the First

Amendment protected respondent from disciplinary

action based on his expression, regardless of whether it

concerned a matter of public concern, because that ex-

pression took the form of a union grievance. Pet. App.

8a-9a. If that result is to be reconciled with this Court’s

cases, it must be based on some relevant distinction be-

tween the First Amendment right of free speech and the

right to petition the government. No such distinction

exists.

1. The Petition Clause of the First Amendment pro-

tects “the right of the people * * * to petition the Gov-

ernment for a redress of grievances.” U.S. Const.

Amend |. Like the other rights provided by the text of

the First Amendment, “(t]he right to petition * * * is

an assurance of a particular freedom of expression.”

McDonald vy. Smith, 472 U.S. 479, 482 (1985).

16

This Court has never intimated that the right to peti-

tion the government is entitled to greater protection

than any other right secured by the First Amendment.

To the contrary, this Court has repeatedly stated that

“(a]lthough the right to petition and the right to free

speech are separate guarantees, they are related and

generally subject to the same constitutional analysis.”

Wayte v. United States, 470 U.S. 598, 610 n.11 (1985).

In McDonald, the Court rejected the petitioner's

argument that the Petition Clause provided absolute

immunity in a libel action concerning letters he had writ-

ten to the President of the United States about a poten-

tial candidate for United States Attorney. The Court

explained that accepting the petitioner's libel defense

“would elevate the Petition Clause to special First

Amendment status.” 472 U.S. at 485. In refusing to do

so, the Court explained that the Petition Clause “was

inspired by the same ideals of liberty and democracy

that gave us the freedoms to speak, publish, and assem-

ble,” and that “[t]hese “First Amendment rights are in-

separable.” /bid. The Court concluded that “there is no

sound basis for granting greater constitutional protec-

tion to statements made in a petition to the President

than other First Amendment expressions.” [bid.; see id.

at 488-489 (Brennan, J., concurring) (stating that distin-

guishing between the Free Speech and the Petition

Clauses is “untenable,” and that “(t]he Framers envi-

sioned the rights of speech, press, assembly, and peti-

tioning as interrelated components of the public’s exer-

cise of its sovereign authority”); see also Thomas v. Col-

lins, 323 U.S. 516, 530 (1945) (“It was not by accident or

coincidence that the rights to freedom in speech and

press were coupled in a single guaranty with the rights

of the people peaceably to assemble and to petition for

ly

redress of grievances. All these though not identical,

are inseparable. They are cognate rights, and therefore

are united in the First | Amendment's) assurance.”)

Respondent has attempted to reconcile the court of

appeals’ decision in this case with MceDonadd by empha-

sizing that the court of appeals’ rule applies to a Kind of

Petition Not at issue in Me Donaid—namely, petitions

that take the form of lawsuits or invocations of similar

formal remedial mechanisms. Br. in Opp. 8-12.27. The

court of appeals’ protection for such pet ‘thons, Tespor-

dent notes, is “expressly rooted in this Court's repeated

devisions that the Petinon Clause guarantees access to

the courts.” 7d at 9: see California Moi >» Transpo

Co. v. Tenching Undimited, 444 US. NS, 510 (1972)

(identifying access to the courts as one aspect of the

right to petition).” But nothing in in this Court's cases sug-

gests that a petition implicating the right of access to

the courts warrants greater First Amendment protec-

tion than any other type of petition. And while a public

OMpPloyvee’s eNercise af the right to seek Judicial nadress

of grievances certainly may implicate mat ters “ —

concern, see. c.g.. NAACP v. Ratton, S71 US. 413, 429-

480 (1983) (concluding that Htgation by MAAC “ is “A

form of political expression” because it is “not a tech-

* Atthoggh this Court's cases mane claar thst the mh. of saves

the qaumts i one aspect of ube mht to peGuor, hastomeal evidene sug

gests that the cenmtal gurnase of the Penton Clause was aooass to the

jegacstam. See 1 Anaas of Cong TRS NS) James Macisor explar

re ng curing congressional Sedate on the Finst Amendment thst the Pea

aon Clause ensunes thst people “may sommuneste thet wll” theugt

Gowet petQons fo the legislate and goverment officals’, sae ale

2 Remand Schwarts, Te Bel of Rigs A Doewmescary Hig 1D

IST) stating that Pequon Clause was desymmed to onotest the noes

meh: to apoly So the Legiaistare by pethoms, or remonscmana, for

nadtess of Lhe gmevances™

Is

nique of resolving private differences: it is a means for

achieving the lawful objectives of equality of treat.

ment”), that will not invariably be so. Formal remedial

mechanisms exist for the msolution of a wide variety of

disputes, including re arpa about terms and conditions

of employment unrelated to “any matter of political, so-

cial, or other concern to the community.” Comte, 461

Us at 147.

. The court of appeals in Sas Filtpne wentified two

bases for distinguishing between the Speech Clause and

the Petiuon Clause in the content of retaliation claims

brought dy public employees. Neither is persuasive.

First, the court of appeals cited the distinct origins

of the Petition Clause as justification for special treat-

ment of the right to petition. Tracing the right to peti-

tion to “the Bill of Rughts exacted of w iiiam and Many.

the court emphasiani that Partiament provided that “all

committments | st¢) and prosecutions for such petition-

ing are illegal.” San Filipne v. Bougtoranst, 0) FA

24, 448 (XG Cir. 198) ctiations omitted; brackets in

original), cert. denied, 513 U.S. 1082 (1995). The court

concluded that “[t There is no persuasive reason for the

a of petition to mean - today than it was intended

© mean in England three centuries ago.” Jdid.

The court of appeals’ emphasis on the historical sig-

nificance of the Petition Clause ignores this Court's om

peated observations that the Petition Clause was “eut

from the same cloth as the other guarantees of (the

First] Amendment,” and that thase guarantees are no’

subject to & constitutional hierarchy. McDonald, 472

US. at 482. Limiting First Amendment protection to

matters of publk soneern in the public employment cor-

te cext would not, in any event, mean that the Pewiion

Clause “mean|s) less taday” than it did before the rat’-

IY

cation of the Bil of Rights. The rule araculated

in Comuteaé protects the “hasic concerns” of the First

Amend ment, but recognizes that the Constitution does

not apply in the same way when the government acts in

the employment content (as opposed to as a sovereign’

due to “the requirements of the government as em-

plover.” Baggwtst, MS ULS. at GO.

Seound, the San Filipno court stated that the Pet.

tion Clause would become a “trap for the unwary” or “a

dead letter” if the government could discipline an em-

ployee who uses mechanisms that the government itsel/

has created for the fling of grievances. 30 F.3d at 442.

The concerns articulated by the court of appeals ar

wrong. as illustrated by the facts of this case. Respon.

dent used the methods available to him to present his

personal gTievances to his employer, and he was suc-

cessful at every turn. He filed a grievance challenging

his dismissal, which resulted in his reinstatement. Pet.

App. 4a. 57a. He filed a second grievance challenging

the directives issued to him by the Council, which m-

sulted in modification of some of the dinectives. 7d. at

4a, Tada. And when the Council subsequently fused

to authorize SAIS in overtime pay, respondent sought

mviress through the Department of Labor and the Coun

ci was ondered to pay him the overtime. Jad at da. Asa

general matter, as respondent himself has nowad, “the

Tetaliatory practices at issue” in San Piprw and subse-

quent cases “are often forbidden by state or federal law

in omer to safeguand those very mechanisms, and thus

ate almady unavailable to the state and local employers

at issue.” Br. in Opp. 22. Placing a pudlic concern lim:-

tagon on the comsiiixfional protacuion affordad to public

employees who peuton the government neither permits

mtaliation that is already forbadden dy state or local

y

law, nor dows 1 prevent state or local legislatures from

enacting such laws. Rather, the public concern limita.

von simply ensums that these private employment dis.

putes like the one in this case ar not litugated in federal

court as constitutional disputes.

3. In any event, whatever distinctions the court of

appeals might have discernad between petitions and

other forms of expression, the prachieal concerns under-

lying the rule articulated in Comstcd remain the same.

To the extent that a public employee's expression

threatens to disrupt the effective management of the

government's offices and agencies, see Conmicd, 461

US. at 151, that expression is no less disrupiive because

it takes the form of a written gmevance or lawsuit. In.

deed, as Judge Becker noted in dissent in San FPiiippe,

Aling of a formal grievance may be more distuptive than

speech, because expression through a lawsun “sul!

mache|s] the public Vawsuits, for example, am matters

of public rewond) and, in addigon, compe!l[s] the [govern

ment employer] to respond to the lawsuit and griev-

ances.” AD Fad at 449-450 (Becker, J., dissenting’.

Moreover, to hold that the First Amendment cate

gorikally shields employees ftom discipline based on

their private employment grievances would extend the

rughts of public employees far bevond thase enjoyed by

their privately employed counterparts. A private em.

ployer could certainly issue a set of job-relatad employ-

mont dinwtiives a previous|y find employee, or deenic

that overtime pay was unauthorized, without raising

First Amendment concerns. If the employer's decision

was unlawful under, for example, state or federal labor

laws, the employee coukd seek nvitess through apprpn.

ate administrative or judwial channels. And indeed,

respondent took advantage of just such procedures in

this case. See p. 19, exon: Respondent's status as a

public empleyee should not allow him to take the ada?

fiomal step of suing his emplover for damages under 42

U.S.C. 1888 for acuons that he perceives as metahatory

or unfair, and to seek attorney's fees under 42 U.S.C.

ISS8S8 should he prevail. Such a rule places public em

Dloyees in a far better pastuon than private sector work.

ors, effectively —— public employees a “First

Amendment reht to dictate to the state how they will do

their jobs.” Urofshy v. Gtimor, ce F.3d 401, 407 ith

Cir, 2D), cert. denied, ST US. 1070 20ND).

Dispensing with the pubhe concern requi rement in

this content would also create an anomalous disuncton

‘ween employees who express thet private concerns

in the form of a formal grievance and those who voice

their concerns by other means. See San Fiitppo, W

FX at 449 (Rocker, J. dissenting) (stating that major

ity Opinion was “an invitation to the wary to formulate

their speech on matters of private concern as a lawsuit

or grievance in onder to avoid being disciplined”). As

other circunts have acknowledged, “special (reatment of

the rmyght to pettion would unustly favor thase who

through foresight or mere fortuity present their speech

es & grievance rather than in some other form.” Seiad v.

Tons of Mimoogwa, SA8 Fld 1238, 1282 (7th Cir. TS88);

accord Hofmann v. Mayor, Cownediien & Cilizens of

Lide my WS rs Dd 228, 234 (Sth Cir. 1990); Day v. Sone

Park inden S h Dist, TOS Fld 888, 708 (Sth Cir. e- ee

cert. denied a 4 US. 1101 (1886). The special 1 statu

afforded to the Petiuion Clause by the court of cae

elevates form over substance, and the result is unjust

hed by any distinction between thase forms of expres.

s}0n

»-

OUNCELESTION

The judgment of the court of appeals should be va

cated and the case remanded for further proceedings.

Respectfully submitted,

Nea Rowan Rate

Acting Solreuor (renee.

Tons West

Assisias! Allomey Gene.

LeoxpsaR K&R oFSs

Acting Depaty Solrotior

ler Gena

ANN OCONEE

Aseisiast fo the Soustior

Cement

WL AWANAN EA

Micuat F Row xsos

Aommezs

Decewnen DO