Amicus Curiae Brief — Borough of Duryea v. Guarnieri

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No O8.1476 LOrscroe

Jn the Supreme Court of the Anited States

-_———s - - _—--+-— —

BOROUGH OF DURYERA, PENNSYLVANIA, et al

Pefidioners,

CHARLES | GUARNIERL JR,

On Writ of Certioran to the Umited States Court of

Appeals tor the Third Cireunt

Brief of Florida, Alabama, Colorado, Delaware,

Hawaii, Illinois, Indiana, Louisiana, Maine,

Michigan, Mississippi, New Jersey, Ohio,

Oklahoma, Pennsvivania, South Dakota,

Tennessee, Texas, Utah, West Virginia and

Wrvyoming In Support of Petitioners

~- —————— ee «

BILL MECCOLLUM

Attorney General of Flomda

SCOTT D MAKAR’

Sohertor General

RONALD A LATHAN

Deputy Sohoutor General

PL-O1, Phe Capitol

Tallahassee, FL 2499 1050

BHO-4 14-3800

ShH0-410-2072 tan

Counsel tor Amie: Curiae

, , 7 .

( OUNSEE O Re are:

Trov King

Attorney General

State of Alabama

S00 Dexter Avenue

Montgomery, AL. 36130

John Suthers

Attorney General

State of Colorado

1o25 Sherman Street

Denver, CO 80208

Joseph Ro Biden, 111

Attorney Genera!

State of Delaware

S20 NN) French Street

Wilmington, DE Pos)

Russell A Suzuki

Acting Attorney General

State of Hawan

425 Queen Street

Honelulu, HT 986803

Lasa Madigan

Attorney General

State of Hiinors

LOO W Randolph st.

Ivth Floor

Chiceage, TL 60601

Gregorv FL Zoeller

Attorney General

State of Indiana

202 WW Washington

Street

IGC- South. Fitth Floor

Indianapohs IN teva

eames D “Buddy”

Caldwell

Attorney General

State of Louisiana

Lomstana Department

of dustice

PO) Box 84005

Raton Rouge, LA *OSO4

sanet To Mills

\ttorneyv General

State of Maine

Six State House Station

Augusta, ME O4303

Machaclh A Cox

Attorney General

State of Michigan

POO Box deel.

Lansing, MI 48909

dim tood

ttornev General

State ot Mississippi

Post Office Bon 220

Jackson, MS 38205

Paula TO Dow

Attornes General

State of New Jersey

Richard J Hughes

Justice Complex

Yo Market Street

PO Box O98

Trenton, Neb OS625

Richard Cordray

Attorney General

State of Ohio

30 East Broad Street

17> Floor

Columbus, OH 438215

WA) Drew Edmondson

Attorney General

State of Oklahoma

S313 NE 21M Street

Oklahoma City, OK

P3VOD

Thomas W. Corbett. Jr

Attorney General

State of Pennsvisania

loth Floor, Straw berrs

Square

Harrisburg, PA 1/1 to

Marty | dackles

Attorney Genera!

State of South Dakota

1302 FE Highway 14,

Sure 1

Pierre, SD S7507-8501

Robert Eo Cooper, dr

Attorney General

State of Tennessee

Office of the Attornes

General

425 Fifth Avenue North

Nashvalle, TN O/243

Greg Abbott

\ttorney General

State of Texas

PO Box 12548

Austin, TN 78711-2548

Mark L. Shurtlet?

Attorney General

State of Utah

Utah State Capitol

Suite #230

PO Bow 142a20

Salt Lake Citv, UT

S4ti4

Darrell Vo MeGraw, dr

Attorney General

State of West Virginia

Office of the Attorney

General

State Capitol,

Room Je k

Charleston, WW 28305

Bruce A Salvbure

Attorney General

State of Wvoming

\ttorneyv Generals

Office

1G State Capitol

Chevenne, WY S2oor

‘

QUESTION PRESENTED

Can pubhe emplovees sue their emplovers under the

Petition Clause for adverse employment actions

Allegedly resulting from the emplovees’ petitionmy on

matters of purely private concern”

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

STATEMENT OF AMICL INTEREST

SUMMARY OF ARGUMENT

ARGUMENT

lL = =Retahation Claums Under the Petition

Clause on Matters that Amount to

Personal Grievances Contravene this

Court’s Precedents and Ll ndermine State

and Local Laws Addressing These

Common Workplace Disputes

A. Restraints on or discipline for publhe

emplovees workplace speech or

petitwoning are permissible where

emplovees do not speak or petition as a

“oizen” and their speech or petitioning

mnpheoeates no matters of “puble

concern”.

Bo The Third Circuit's approach imores the

Important protections of state and local

“whistleblower” laws and collective

bargaining agreements

The effieacy of state whistleblower

laws and anti retahation provisions

mav be undermined by Petition

Clause retahation clarms related to

personal matters

2 The etfheacy of collective bargaming

agreements, labor laws, and related

common law dectrines mav be

undermined by Petition Clause

retahation claims related to personal

matters red eat 2a

4 te EL lh aE ae eo ene ree oa 25

TABLE OF AUTHORITIES

Cases

Adair v. Charter Cnty. of Wayne,

452 F.3e 462 (th Cir. 2006) ooo... ccccccicceecccccccscece. 4

Brennan v. Norion,

oe ee ee ae oe, BONS. Oe eg

Connick v. Myers,

1G1 U.S. 138 (1963)... cies ccccccccecccecceeee MESSE

Fla. Dept of Transp. v. Fla. Comm'n on Human

Relations,

S842 So. 2d 253 (Fla. Dist. Ct. App. 2003).........17, 19

Foraker v. Chaffinch,

Soe eae ee Ge Ge, Bee... ee ee 4

Garcett: v. Ceballos,

547 U.S. 410 (2006)... mse chia aed saulaiecleec mn

Griglev v. Atlanta,

136 F.3d 752 (ith Cir. 1998) rer

Hoffmann vo Mayor, Councilmen, & Citizens of

Liberty,

905 F.2d 229 (8th Cir, 1990) ed 1D

Kirby vo. Elreabeth City, N-C.,

O88 F.8d 440 (4th Cir, 2004) sian tin aca cence causa dees a

Martin Cnty. v. Edenftela,

GOY So. 2d 27 (Fla. 1992). 00. adibobcvem ae

Martin v. Del City,

179 F.3d 882 (l0th Cir. 1999) woos 4

MeDonald v. Smith,

re ee ee i ixicencccesecensccnrectassansnnnsdustauueersescune 14

Pickering v. Ba. of Educ.,

SE a I a Seeeens ciebawanaseusadammmens 7

Rathyen v. Litchfreld,

Be Oe ee ee ee, BEIIOD veeveccccncccosccensscssnctesseseces 4

Rendish v. Tacoma,

RZD F.DG LDIS CHC Cit. ROBT) o.cccnccccccsccccccessocescecseses A

Rosa v. Dept of Children & Families,

915 So. 2d 210 (Fla. Dist. Ct. App. 2005)............... 18

San Diego v. Roe,

a an Se ITI asi sicerenetcashasntcrciineansunens veatieenseneiioausowsle 6

San Filippo v. Bongiovanni,

30 F.3d 424 (3d Cir. 1994)......................... 4.5, 10, 11

Stone v. Everglades City, Fla.,

2007 WL 1247979 (M.D. Fla. April 30, 2007)........ 18

Tang v. RL, Dep't of Fiderly Affairs,

fe wei ft SR reen en proE 4,12

United States v. Natl Treasury Emps. Union,

Se atts GE A araicciepniaetrcerpeemnassassiscssuesamiatonand 6.15

Walker v. Dept of Veterans Affairs,

925 So. 2d 1149 (Fla. Dist Ct. App. 2006).....0000..... 19

White Plains Towing Corp. v. Patterson,

991 F.2d 1049 (2d Cir. 1993)...................0.:.s0ccsseeseeee 4

Yatvin v. Madison Metro. Sch. Dist.,

840 F.2d 412 (7th Cir. 1988) ......... Sl aaeaeae hanearnay 4,12

Statutes

5 Ill. Comp. Stat. 315/10(a)(3).......0.. eee 22-23

43 Pa. Cons. Stat. § 1101.1201(a)(4)....0 ee 23

Alaska Stat. § 23.40.110(a)(4)..0000 oe. 22

Cal. Gov't Code § 36.19(a).....................cccccccsscccsecseseeee 22

Conn. Gen. Stat § 4-Gldd ........................ccecccceeccssecoees 20

Conn. Gen. Stat. § 5-272(a)(5) «0.0.0... eee ceceeeeseeeeeeenee DZ

Conn. Gen. Stat. § 31-51 ou... eet ce ecececceseeeees 20

D.C. Code Ann. § 1-617.04(a)(A) oo... ccc cece cee eee ee 22

Del. Code Ann. tit. 19, § 1307(a)(4) ........00000..eeeeee. 22

Del. Code Ann. tit. 29, § 5115 (20038).........000.0... ee. 20

ae, Se, SH DRO Ce ov ccicsccsnsccnsccsccnscosssccccscascuss 20

Fla. Stat. § 112.3187(2) .ccccccccocccoccscccssseseseseseseseseeveve 17

eh, SO, BE er Piessccccticecenasonsscsesiessunndaucsen 17

Bs BE Oe Be I wis ccictsdeecasectncsstncoensccastesdecss 17

Vill

a GE, SD iiscstsiennscasevcissccsrcssetesessniscce 17

Ps ls Se IR iiiicscncnsssnsrvsecesieieseniinncesioess 18

i, es Oe Be ilicccccrccdsnssinestevacnsccocessctesesses 18

Pia. Stat. § 11BS.DISSECUNMG)........ccccccosccsccccocscccscscecceees 19

Eh, BOGS. BF Ra Soin sscccnccsccnccnesseccsonsssnssoneses 19

SP, Se te IED visiiiicsdcmcsccenesnvesinndecsccneocssnniies 22

Fla. Stat. §§ 448.101-448.105 .o...ccccccccececececececsesceeeeees 17

OE EER peal ant nee Dae ae 20

FS, TEs Te MII i icrenissincicccsinssantncdatesenanevubessieident 22

Haw. Rev. Stat. § 378-61 (1993) .......00. eee eee 20

Towa Code § 20.10(2)(d)...............cccccccsscscceccsscesccsecceees 23

Kan. Stat. Ann. § 75-4333(b)(4) ..0....0 cece cece cence eee eee 23

Ky. Rev. Stat. Ann. § 61.101 (West 2005) ................. 20

Mass. Gen. Laws ch. 149, § 185 (West 2004) ............ 20

Mass. Gen. Laws ch. 150E, § 10(a)(4)............00.00...005. 23

Md. Code Ann. State Pers. & Pens. § 3-306(a)(5) ..... 23

Me. Rev. Stat. tit. 26, § 979-C(1)(D) ......0. eee 23

Me. Rev. Stat. tit. 5, § 4572-A....................c.ccccceccsssees 20

Mich. Comp. Laws § 423.209 ................eceeeeceeeeeeeeeeeees 23

vin

Minn. Stat. § 179AL13¢2)(4).0000000....

ae et) | Rae

Mont. Code Ann. § 89-81-401¢4) ....

N.D. Cent. Code § 34-01-20...

N.H. Rev

NH. Rev.

N.H. Rev.

N.J. Stat.

N.. Stat.

Stat. Ann. § 273-A:S(1)\(d)

Stat. Ann. § 275-E:1 (Supp. 2008) ..

ean

Amit S 34: TSA-5. 46RD) 5 ooeccecisscecscecccenss.

FN WE vss sven eas se<cccavccecveosvecevncansn mM

Eee capiigdaa sears ames

Ses I II Oh Te OO sesiiesno nis caiweacncanGasvadesucs ae

N.Y. Civ. Serv. Law § 209-a(1Xc)......................00..

Neb. Rev.

Nev. Rev.

Ohio Rev.

Stat. & S1-1386Q2MA) occ en

BO, MPN I sao 5a sic tc sexes ccvistunstavaceesaemecencet

Stat. § 48-11 14.........

Be UE 8 Ce vn caves va caccesesssasseinvean

oe Le ” : Ree Ree anes re

Code Ann. § 4113.51 (Lexis 2001) 0.0...

Ohio Rev. Code Ann. § 4113.52( 4001)

Ohie Rev. Code Ann. § 4117. 11044).

Or. Rev. Stat. § 243.67201)0) ........

Or. Rev. Stat. § GHYALOO0

RU. Gen. Laws § 28-50-4

Ro. Gen. Laws § 28-7-1308)

S_D. Codified Laws § 38-18-38. 104)

Tenn. Code Ann. § 50- 1-304 (2005)

Vt. Stat. Ann. tat. 3. § 861(4)

Wash. Rev. Code § 41.56.140

Wis. Stat. § TLTO6 DIY)

Other Authorities

Bureau of Labor Statistics. United States Dept of

Labor, Career Guide to Industries, 2010-11 Edition,

State & Local Gov't, Except Educ. & Health,

http: www bls. gov eco eg cgst 12. htm...

Elleta Sangrev Callahan & Terry Morehead, Pe

Staite of State Whistleblower Proftechion,

38 Am. Bus. Lad. 99 (2000) ..

“-

“e-

. 19-20

Lais A. Lofgren, Whistleblower Protection: Shoulda

lesisiatures and the Courts Provide a Shelter to

Public and Private Sector Emplovees who Disclose

the Wrongdoing of Emplovers?,

OO B.GF. Us. OV. SIG COGBS) oo. ns5cccccesecciscnseeess 19

Robert G. Vaughn, State Whistleblower Statufles and

the Future of Whustleblower Protection.

51 Admin. lL. Rew. S81 (1999) 0

STATEMENT OF AMICLINTEREST

The Amie: States have an interest in this case

due te ats potential to define the boundaries of the

First Amendment rights of ther emplovees and

because of its ability to impact emplovers’ capacity to

efficiently manage their workplaces ' States as puble

emplovers make a htanv of personnel decisions every

dav. many invelving private grmevances of their

emplovees The Third Cireuit’s holding, that a publhe

emplovee can bring a Petition Clause challenge on a

matter that amounts to a private RrieVanee, creates

the potential for transforming relatively minor

employment disputes inte constitutional litigation im

tederal courts that will impede the abilitw of the

States to efficiently administer their workplaces to

better serve Cherr citivens

The Third Cireuit’s view of the scope of the

Petition Clause is contrary to everv court that has

considered the issue) The interest of Che Amict States

Is to ensure that the Petition Clause is read no more

broadly than its neighbor, the Free Speech Clause, so

that publ sector emplovers can manage their offices

without the fear that routine managemal decisions

invelving private grevanees will result i federal

constitutional claims

‘State and local governments are ofter the larrest emplovers in

their urisdictions See Bureau of Labor Statisties. United States

Dept of Labor, Career Guide to Industries, 20120 22) Baition,

State & Local Govt, Exowpt Fauc & Health. available at

http www bls gow oomeg egsO42 btm CExcluding education and

hospitals, State and leeal governments employ S32 mJdhen

workers, placim them amongst the largest emplovers in the

economy ") last visited Dec Tk. 2010)

*’

SUMMARY OF ARGUMENT

The Third Cireuit’s holding that ao pubhe

emplovee has a cognizable Petition Clause claum even

where the underlving gmevance does not involve an

issue of publie concern is faulty for several reasons

First. the threshold inquiry as to whether a

challenged restraint violates a public emplovee's First

Amendment myhts is whether the speech invelves a

matter of pubhhe concern This Court's precedents have

held that runof the mall intraceffice disputes have no

Kirst Amendment protections where no issues of

public concern are umpheated. Conmick vo Mvers, 461

US. 188, 1443-48 (1983) Here. the underlving issue ts

an oallegation that ao pubhe emplover retahated

against an emplovee for filing a grmevance about a

Wholly personal workplace matter) Ordinariv, this

type of grievance involving mo oassue of pubhe

concern would not support a First Amendment

claam of anv kind by the emplovee For the same

reasons that free speech mgehts are not unpheated

when matters of private concern underlie grievances,

Petition Clause rights are not impheated under

sumilar circumstances

Second, the Third Cireunt erred in reasoning

that the Petition Clause has broader appheation than

other First Amendment mghts in the emplevment

context. This distinction has no textual basis in the

constitution, it also goes against the principle that

courts should not transform minor emplovment

matters mto constitutional disputes absent the

presence of issues of pubhe concern tor which core

First Amendment protections are intended

’

Finally, as a practical matter, public emplovees

have recourse under state and local laws to challenge

workplace uypropmeties that fall short of matters of

pubhe concern) For imstanece. a litany of pubhe sector

Whistleblower laws allow emplovees the opportunity

to raise workplace concerns These statutes generally

do not require that the speech at issue involve a

matter of pubhe concern) Ino addition, manv States

and local governments have collective bargaining

agreements that permit public sector emplovees te

raise claims alleging thev have suffered adverse

personnel decisions because they filed gmevances

Given the protections afforded, both by these laws and

the First Amendment generally for matters of publhe

concern, the expansion of the Petition Clause to create

a new type of constitutional claim ais misguided The

Third Cireuit’s decision should be reversed

‘

ARGUMENT

l. Retahation Claims Under the Petition

Clause on Matters that Amount to

Personal Grievances Contravene this

Court's Precedents and Undermine State

and Local Laws Addressing These

Common Workplace Disputes.

The Third Circuit's preeedents.- which hold

that a public emplovee may bring a retahation claim

under the Petition Clause when the alleged],

protected speech mnvolves a private Workplace dispute,

are outhers: ten other circuit courts have considered

this issue and reached results contrary to the Third

Circuit’ These decisions demonstrate that the Third

Circuits reasoning is moonsistent wath this Court's

Free Speech Clause jurisprudence, which holds that

the thresheld inquiry to determine whether a publhe

emplovees speech ois oimsulated from emplover

- Ser Brennanaiov Norton, 250 F tad 898, 417 Cid Cir VOOR San

Biiippo o Rongiooanns, 20 F Sd 424 (38d Cir 1994), see alse

Foraker > Chatfinck, 50) F 8a 232 (8d Cir YOO)

The ten other circuit courts that have considered this question

have held that a pubhe emplovee’s claim under the Petition

Clause must invelwe a matter of pubhe comeern See Adair 4

Charter Cnty of Wayae, 452 Fld as82) 482 (6th Cir 2O0G), Aird

Blicaheth City. NC. 388 F 3d 440. 446 (4th Cir 2004), Martin

t Del City, 179 F 3d S82. SS7-89 (lOth Cir 1999). Tanga A?

Dep tof Riderly Affairs, 1638 F 8d 7. 11-12 (ist Cir 19988), Grigley

Atlanta, 1386 Fad 7a2. TSS (lth Cir, 1998), Renadish 3:

Tacoma, 123 BF &d lie L220 eskth Cir 1997) Waite Plains

ownage Corp oo Paterson, 991 F 2d 1049) 1059 (2d Cir 1993),

Hoffmanne Maver, Council, & Citizens of Liberty, 95 F 2d 229,

234 (Sth Cir 199O), Rathjpen oo LitcAneld, 878 F 2d Sae, 841 (ath

Cir 198%) Yatoan oc Vadison Meira Sch Mst. S40 F Od 412

(7th Cir, 198s)

discrpline involves determining whether the emplovee

Was speaking as a “ertiven” about a matter of “publie

concern” See Garcetin oo Cebailos, 547 US. 410, 417

(2006), The First Amendment does not imsulate

emplovee speech from disciplinary sanctions when

speaking on subjects that relate exclusively to offteral

wb responsiiuhties See rd at 424

The Third Cireuit distinguishes the Petition

Clause from the Free Speech Clause on the grounds

that the former has, histomeally, been understood to

afford broader protections. See San Filippo, 30 F 3d at

442-4428 (desenmbing the common law oryins of the

Petition Clause and observing that at) was) more

expansive in appheation and protections than. the

Free Speech Clause) The Third Crreuit’s approach.

however, ws flawed for two reasons: (1) this Court's

First Amendment precedents do not recogmizve a

broader scope of protection under the Petition Clause

Where the balance of emplover-emplovee rights is at

stake and private disputes are at issue, and (2) it

disregards the wide swath of existing state and local

protections for emplovees such as whistleblower

statutes and collective bargaiming agreements, which

protect publa sector emplovees trom unjust

discrimination based oon the tihng of | private

grievanees. Given these flaws, no reason exists te

uphold the addition of another laver of protection for

private disputes under the Petition Clause

A. Restraints on or discipline for public

emplovees’ workplace speech or

petitioning are permissible where

employees do not speak or petition as

a “citizen” and their speech or

petitioning implicates no matters of

“public concern.”

Pubhe emplovees do not relinquish their First

Amendment mghts by accepting an offer to work tn

the public sector, See United States vo. Natl Treasury

Rmps Union, '13 US. 454. 465 (1995) Nor are such

rights untettered) Rather, the limiting principle on

the exercise of First Amendment myghts is that pubhe

emplovees are not entitled to protections when the

exercise of their mghts invelves a minor personal

grievance between emplover and emplovee The

threshold ainquirv regarding whether a pubhe

emplovees speech is insulated from disciphne

involves determining whether the speech at) issue

unpheates a matter of “pubhe concern.” See, eg, San

Diego v. Roe, 5438 ULS. 77, 82-88 (2004) (citing Corrnick

v Myers, 461 US) 1388, 1438 (1983))) As this Court has

recognized, competing principles come into play when

public emplovees speech is balanced against the

important interests of the government as an

emplover. This Court has sought to bridge these

principles in a series of cases addressing the scope of

First Amendment rights of public emplovees. These

cases do not provide any principled basis to jettison

the limiting principle that in determining the First

Amendment rights of public emplovees, courts must

scrutinize whether a matter of pubhe concern was

involved. The degree of protection atforded by the

kirst Amendment should not turn on the manner in

Which the speech is) denominated, petitioning

activities should Hot be = entitled to greater

constitutional protections than speech activities

In Connick o Myers, a public emplovee (Mvers)

opposed being transterred to a different division by

her supervisor 461 US. at 140. In response, Myers

circulated a questionnaire in her office, asking fellow

employees, among other things, how thev would

characterize office morale and whether the emplovees

had any confidence in their supervisors Myers was

subsequently terminated, ostensibly because she had

refused to accept her transfer. In analyzing Mvers’

First Amendment claim, this Court invoked the

balancing test apphed ino Pickering cv. Board of

Education’ to determine whether Mvers’ speech was

protected from discipline. This Court noted that

Myers’ dispute with her emplover did not impheate a

matter of pubhe concern simply because the

"Peckerine > Board of Education, 391 US. 563 (1968), involved

a school teacher (Pickering) who sent a letter to the local

newspaper challenging expenditures made by the local Board of

Education Pickering was emtical of measures that had been

enacted to increase revenue for the school district. These

ericisms, as at turned out, were erroneous. He was dismissed

trom hus teaching position on the basis that his letter threatened

the effective functioning of the Board's admimstration of ots

schools Jad at 964-66 Recogmizing the competing interests of the

Board, which was required to effectively manage tts schools, and

Pickermng'’s mht to speak out as a citizen on matters of puble

importance, this Court observed that a balance needed to be

struck “between the interests of the teacher, as a citizen, in

commenting upon matters of pubhe concern and the interest of

the State, as an emplover, in promoting the effimency of the

public services it performs through its emplovees”” Jd at S68.

The court held. absent a showing that Pickering’s false

statements were “knowingly and recklessly made by him, his

right to speak to issues of pubhe importance jcould| not furnish

the basis for his dismissal from pubhe employment.” Jd. at 574

questionnaire related to the internal dynamnies of the

Listmet Attorney's Office. ld. at 143.

The Court held that “when a publhe emplovee

speaks not as a citizen upon matters of public concern,

but imstead as an emplovee upon matters only of

personal interest, absent the most unusual

circumstances, a federal court is not the appropriate

forum in which to review the wisdom of a personne!

decision taken by a public agenev allegedly in reaction

to the employee's behavior.” Connick, 461 US. at 147.

The determination whether a matter was one of

“public concern” is gauged from the “content, form,

and context of a given statement. as revealed by the

whole reeord.” Jd. The Court) found that the

questionnaire at issue related to a matter of personal

concern. Myers’ unwillingness to accept a transfer

The questionnaire was not of public concern because

the questions did not amply that the Distnet

Attorney's Office had engaged in malfeasance. /d. at

148. In ruling against Myers, the Court noted that it

must ensure “that citizens are not deprived of

fundamental mghts by virtue of working for the

government; this does not require a grant of immunity

for employee gmevances not afforded by the First

Amendment to those who do net work for the state”

ld. at 147.

Two hmiting principles from Connick apply

here as well. First, it can equally be said that when a

pubhe employee administratively files a gmevance

“not as a citizen upon a matter of public concern, but

instead as an emplovee upon matters only of personal

interest” the federal courts are not available “to

review the wisdom of the personnel decision taken by

a public agency allegedly in reaction to the emplovee’s

behavior.” 461 U.S. at 147. Second, while this Court

must ensure that Petition Clause rights are not lost

simply because an employee works for the

government, no “grant of immunity for employee

grievances becomes available under the First

Amendment simply because the employee works for

the government. Ja.

These principles were further discussed in

Garcetti v. Cebellos, a case exploring the contours of a

public emplovee’s mght to speak out against alleged

improprieties by a public employer. 547 U.S. 410

(2006). Ceballos, who was emploved with the Los

Angeles District’ = Attorney’s) = Office, received

information about a pending criminal case suggesting

that information underlying an affidavit used to

secure a search warrant was inaccurate. /d. at 413-14.

Ceballos investigated the matter for himself and

agreed that some of the information it contained was

unreliable and relayed his concerns to his superiors.

Id. at 414. He also drafted two separate memos for the

benefit of his emplover. The first described the flawed

contents of the affidavit: the second described the

conversation Ceballos had with the warrant affiant.

Id. The office nevertheless proceeded with the case,

and Ceballos was called by the defense to testify about

his concerns with the affidavit’s factual veracity. Jd.

at 414-15. Ceballos alleged that as a result he was

subjected to a series of retahatory measures by his

emplover. Jd. at 415. He ultimately sued in federal

court alleging that, among other claims, his First

Amendment rights had been violated.

In finding no violation, this Court noted that

Ceballos was simply speaking out about matters that

related to his official job responsibilities, i.e... the

proper disposition of a case. The Court observed that

“{rlestricting speech that owes its existence to a public

employee's professional responsibilities does not

infringe any liberties the employee might have

enjoyed as a private citizen.” Garcetti, 547 at 421-22.

As such Ceballos’ employers could permissibly

discipline him if they believed his memo was

needlessly inflammatory. /d. at 423. He was not

speaking as a citizen on an issue of public concern;

instead, he was simply speaking out about an issue

that arose in the course of doing his_ job.

Consequently. “the First Amendment does not

prohibit managerial discipline based on an employee's

expressions made pursuant to official

responsibilities.” Jd. at 424.

The Third Circuit’s approach gives insufficient

weight to the competing interests of public employers

and employees by permitting an employee to bring a

First Amendment retaliation claim even though the

speech does not involve issues of public concern. Its

interpretation turns on a_ perceived distinction

between the First Amendment’s Free Speech and

Petition Clauses. San Filippo, 30 F.3d at 441-442. The

Petition Clause, it is argued, provides broader First

Amendment protections than the Free Speech Clause

because the Petition Clause embraces claims that do

not require that a matter of public concern be

implicated. Id. at 142. So long as the public employee

has availed him or herself of a formal grievance

mechanism, that employee is insulated from employer

retaliation and may bring a claim under the Petition

Clause despite the grievance involving no matter of

public concern. Jd. This result is ill-considered and

invites a host of problems.

From a public employer's perspective, the Third

Circuit’s view of the breadth of the Petition Clause

raises serious management concerns. A real and

substantial risk exists that public employees will

simply use formal grievance mechanisms as a pretext

for a First Amendment claim against employers.

Consider a simple, yet common, situation that occurs

in the context of public employment. A_ public

employee is aware that his employer is seeking to

reduce staff for the upcoming fiscal year due to budget

cuts. The employer has concomitantly announced

plans to institute a comprehensive review and the

review process will dictate staff reductions. Cognizant

of his tenuous employment status, the employee

preemptively files a non-frivolous (yet trivial)

complaint to his superiors about an entirely personal

matter of relevance only to the employee. Under San

Filippo and its progeny, the employee has likely

inoculated himself from any type of discipline, even

when desperately necessitated, simply by making

prospective use of internal grievance procedures. 30

F.3d at 441-42 (“(I]t would seem to undermine the

Constitution’s vital purposes to hold that one who in

good faith files an arguably meritorious ‘petition’ . . .

may be disciplined for such invocation by the very

government that in compliance with the petition

clause has given the particular mechanism its

constitutional imprimatur.”). Moreover, if the public

employee suffered any adverse consequences

subsequent to the review process, under the Third

Circuit’s reasoning the employee would have a

cognizable retaliation claim under the Petition

Clause. Id. (observing that a “non-sham” grievance or

lawsuit was entitled to constitutional protection

irrespective of the fact that the underlying matter did

not involve an issue implicating public concern).

The Third Circuit's approach would lead to

unacceptable results under a wide range of

applications, including those underlying Garcetti v.

Ceballos. This Court held that because Ceballos’

memorandum was drafted in the course of his job

duties, he did not have a cogmzable claim under the

Free Speech clause for anv discipline that occurred as

a consequence of drafting it. However. under the

Third Cireuit’s view, a different outcome could result

if Ceballos had filed a claim under the Petition

Clause. If Ceballos drafted the identical memorandum

in the form of an internal or administrative grievance.

and later suffered discipline as a result. he would

have a cognizable constitutional claim. Ao similar

claim brought under the Free Speech clause weuld

result ina dissimilar outcome.

Indeed, the Third Circuit’s approach, if apphed

to the fact patterns of the cases considered by the

crreunt courts who have ruled differently. would open

a Pandora’s Box of htigation over commonplace

workplace gnevances that have no place in federal

court. See, e.g., Tang v. RL, Dep't of Elderiv Affairs.

163 F.3d 7, 12 (ist Cir. 1998) (observing that Petition

Clause claims simply invelved “individual personal

complaints about working conditions”); Griglev v.

Atlanta, 136 F.3d 752. 755 (1th Cir. 1998) (rejecting

pubhe emplovee's claim that his testumony constituted

protected speech under the Petition Clause, given the

testimony concerned a private domestic altercation

the emplovee had with a co-worker at his home):

Hoffmann v. Mavor, Councitimen, & Citizens of

Liberty, 905 F.2d 229, 233 (Sth Cir. 1990) (recognizing

that emplovee's claim was “wholly personal” because

it involved “a gmevance complaint pursuant to the

City’s personnel rules complaining of his dismissal’):

Yatoin v. Madison Metro. Sch. Dist., $40 F.2d 412. 419

(7th Cir. 1988) (public emplovee's lawsuit specifically

related to the denial of a job promotion — the lawsutt

Was not attempting to vindicate greater mghts).

The Third Circutt’s approach elevates the form

of the emplovee’s gmevance over the substance of

whether it involves a matter of pubhe concern. It

creates simply too fine ai line im. distinguushing

between the scope of the Petition Clause versus the

Free Speech Clause in the employment context. The

“public coneern” test. albert) not perfect ino its

admimstration, provides a clearer line for both puble

emplovers and public emplovees. Public emplovers

should be afforded the necessarv leeway te make

managerial decisions (and 1n necessary cases Impose

discipline) without fear of becoming embroiled in a

federal constitutional dispute

The Third Cireuit’s reasoning is problematic

because it does not fully weigh the interests of public

emplovers, who are distinct from. private sector

emplovers. This Court has been willing to allew

speech restrmetions instituted by pubhe emplovers im

the name of institutional efficrency. See Garcetti, 547

US. at 422 (Our helding hkewise 1s supported by the

emphasis of our precedents on affording government

emplovers sufficient discretion to manage their

operations.”). Requiring that pubhe emplovees’ First

Amendment claims be based on matters of pubhe

concern is a reasonable hmiting principle on these

types of legal claims

From a public emplover’s perspective, the Third

Circuit's approach creates the potential for routine

managenal decisions having ne public import to

assume constitutional status. Cf id at 420

CUnderlying our cases has been the premise that

While the First Amendment invests public emplovees

with certain rmyghts. it does not empower them to

‘constitutionalize the emplovee gnevance.”) (quoting

Conmrick, 461 U.S. at 154). The Third Circuit's

approach places federal courts in the position of

weighing the propriety of managemal decisions

Whenever an emplovment gmevance arises and a

claim is filed

The simple act of fling a lawsunt or grevance

should not, m itself. confer a greater quantum of

constitutional protection than other forms of speech

No reasoned basis exists to suggest that the Petition

Clause was intended to assume a superior status vis-

a-vis the Free Speech Clause in Bia employment

context. See McDonald vo Smith, > US. 479, 482

(1985) CThe mght to petition is cut from the same

cloth as the other guarantees of [the First]

Amendment, and is an assurance of a particular

freedom oof expression”) Why should pubhe

emplovees who file an administrative “grievance” not

have to establish hke others who exercise First

Amendment rights — that their grievances satistv the

test for “matters of public concern”? Under the Third

Circuit's approach, a court will not inquire into the

context of the grievance, such as whether it invelves

an allegation of corruption, bribery. wide-spread

ractal discrimination, personal improprieties, biased

hiring so practices, fiscal nusmanagement. 9 or

malfeasance. Instead, as long as the dispute ts

denominated as a “gmevance” or the hke. no inquiries

need be made about the content or context of the

dispute.

This reasoning is pecuhar because it seems

Ncongruous to hold that the manner in which the

speech was stvled predominates over the analvsis of

us substance. Consider that under the Third Cireuit’s

paradigm. Ceballos’) “memorandum” involving the

proper disposition of a ocase and Myers’

ie)

“questionnaire” about office morale would be entitled

to lesser constituhional protection than Mr

Guarmert's “grievance” challenging a series of new yob

directives without, if seems, anv actual inquiry as

to the substance of the underlving claims

In summary, the Third Cirewt’s view

contravenes this Court's pmor precedents which have

held that a matter of publre concern must be at issue

See Natl Treasury Emps. Union, 513 US. at 466

observing that a pubhe emplovee was entitled to

First Amendment protections “only when the

emplovee spoke ‘as a ciiizen upon matters of publie

eoncern rather than as an emplovee upon matters only

of personal interest.”) (quoting Conmck, 461 US. at

147) The Petition Clause should provide qualitatively

no broader constituhional protection for publi

emplovees compared with other First Amendment

protections. The First Amendment's Petition Clause

should not serve as ai vehicle to challenge all

measures of emPlover-emplovee interactions. Said

differentiv. every private workplace dispute that

ultimately works to the disadvantage of the

government emplovee does not constitute an

impingement on the emplovees First Amendment

rights

B. The Third Circuits approach ignores

the important protections of state and

local “whistleblower” laws and

collective bargaining agreements.

The Third Cireuit’s approach raises the concern

that constitutionahzing Petition Clause claims for

workplace gmevances not involving matters of publie

concern will thwart or marginalize ca) laws enacted by

state and local governments that address pubhe

emplovees’ private workplace gmevances as well as

(b) collective bargaining agreements that create and

protect emplovees’ mghts. As this Court has noted, a

“powerful network of lemslative enactments -- such

as Whistle blower protection laws and labor codes

lare] available to those who seek to expose

wrongdoing.” Gareetti, 547 US. at 425. The Third

Circuits view, that emplovers will have the ability to

suppress the petitioning activities of emplovees

absent broader First Amendment protections, 1s

unpersuasive in light of these laws. Moreover. the

recopmtion of a federal Petition Clause claim creates

an imeentive to bypass these state and local

protections in favor of a federal lawsuit

1. The eMfiecacy of state

whistleblower laws and anti-

retaliation provisions may be

undermined by Petition Clause

retaliation claims related to

personal matters.

Everv State affords its workers, whether in the

private or public sector, some form of protection from

retahation for exposing emplover misconduct

Characterized as “whistleblower laws,” these statutes

S See Flletta Sangrev Callahan & Terry Morehead, The State of

Siate Whistichlower Protection. 38 Am. Bus L499) 100 (2000)

CO Whistleblower protection statutes have been enacted in each of

the “Rv states

Qdentifving the wide vanetv of whostleblower protections

available throughout the United States)

An example as the Flomda Pubhe Sector

Whistleblower Act CFlomda Whastleblower Act"),

whose legislatiwe intent “iso to prevent. retaliatory

action against emplovees who disclose misconduct on

the part of pubhe offeials” Fla, Dept of Transp:

Ea. Comm'n on Human Relations, S842 So. 2d 253,

256 (Pla. Dist. Ct) App. 20038) * The Act 1s remedial in

nature and “construed hberally in taver of granting

access to the remedy” Martin Cnty. vo. Fdenfield, 609

So. Ld 27, 29 (Fla. 1992). It apphes to “anv state,

regional, county, local, or mumeipal government

entity, whether executive, pudieial, or legislative, anv

oMeal offieer, department, division, bureau,

commussion, authoritv. oor political | subdivision

therem, or anv pubhe school, community college, or

state umiversitv.” Fla. Stat. § 112 3187(3\(a)

The Flomda Whistleblower Act states that “[ajn

agenev or independent contractor shall mot dismiss,

discipline, or take any other adverse personne! action

agamst an emplovee for disclosing information

pursuant to the provisions of this section” Fla Stat

SUIVSISTAyad* oko protects disclosures of

Plomda has a Private Sector Whistleblower Act. which is

similar te the Florida Pubhe Sector Whistieblower Act in many

respects See Fla Stat §$§ $48 101-448 loo

* The Flomda Pubhe Sector Whistleblower Act prohibits

retahation agaist anv andiwidual “who disclases information to

an appropmate agency alleging improper use of governmental

oMee, gross waste of funds, or anv other abuse or gross neglect of

dutv on the part of an agenev, publa oMfeer, or emplovee ~ Fia

Stat $112 3187 (2)

* Under section 112. 3187(5\c) an “adverse personne! action” ts

charactenzed as) “[T]he discharge. suspension. transfer. or

(Continued .)

information including “Any violation or suspected

violahion of federal, state, or lJoeal law. rule, or

relation committed by an emplovee or agent of an

agency or independent contractor Which creates and

presents a substantial and speefie danger to the

pubhe’s health, safety or welfare” as well as “[a]ny act

or suspected act oof gross mismanagement,

malfeasance, misfeasance, gross Waste of pubhe funds,

suspected or actual Medieaid fraud or abuse, or gross

neglect of dutv committed by an emplovee or agent of

ano agenev oor independent contractor” dd

S$ LIL SISTA) ad (hy)

In manv respects the Flomda Whistleblower

\et, and analogous state whistleblower laws, provide

broader protections to pubhe emplovees than are

available under the First Amendment See Sfone v

Poerglades City, Fla, 2007 WL 1247979, at *3 (MLD.

Bla April S30, 2007) (Flomda’s Whaistle-blower'’s Act is

thus not limited to speech protected by the First

Amendment”) The Flomda Whuistleblower Aet, for

example, does not mandate that the public emplovee’s

grievance involve a matter of public concern See Rosa

v0. Dept of Children & Families, 915 Sa. 2d 210, 212

(Fla, Dist. Ct) App 2005) (conceding that emplovee's

allegations could reasonably be considered a personal

“rant” against an oemplover or allegation of

misfeasance, but that this issue was for a jury to

decide)

To have a colorable cause of action under the

Flonda Whistleblower Act, no requirement exists that

demotion of anv emplovee or the withholding of bonuses, the

reduction in salarv or benefits, or anv other adverse action taken

against an employee within the terms and conditions of

employment by an agency or independent contractor ”

the public emplovee speak as ai “citizen on oa

newsworthy matter See eg. Walker oo Dept o/

Veterans Affairs, 925 So. 2d 1149 (Fla. Dast Ct. App

20086) (emplovee alleged that he was retahated

against tor raising concerns about the safety of a van

he was driving) Instead. a state emplovee has sixty

davs within which to tile a tormal complaint alleging

that he was discharged, disciphned or suffered an

adverse personnel decision as a consequence of

engaging in conduct protected under the statute See

Fla Stat. § 11231895 C1 a) The statute requires that

to have a colorable claim, the complainant must

satisty the following criteria: ““CL) prior to [the adverse

personnel decision] the emplovee made a disclosure

protected by the statute; 2) the emplovee was

lsubjected to an adverse personne! decision); and 3)

the disclosure was not made in bad faith or tor a

wrongful purpose, and did not occur after an agenev's

personnel action against the emplovee ~ Walker, 925

So. 2d at 1150 (quoting Ala) Dep't of Transp., 842 So

2d at 255) Following receipt of the complaint, the

Flomda Commission on Human Relations bears the

responsibilty for investigating the allegation of

reprisal, Fla Stat. § 112 3189842\a)

The Flornda Whistleblower Act typifies efforts

by other state legislatures in the hist several decades

to protect opubhe emplovees from retahatory

consequences for disclosures of | governmental

)

wrongdoing. waste, or abuse.'!’ These States allow

% See eg. Lars A) Lofgren, Whistledlower Pyotection Shoulda

legisiatures and the Courts Provide a Shelter to Public and

Miuate Sector Emplovwes who Msclose the Wrongdoing of

Emplovers?, 38 SDL Rew. 3816. 319-327 (1993) (discussing the

evolution of state and tedera. whistleblower protection Laws since

the 1960s) See also Callahan & Morehead, supra note 5. at 132.

(Continued cue

emplovees to give voice bo concerns about matters that

may impact the proper functioning of the workplace,

thereby improving governmental operations. States

have different degrees of protection for their pubhe

sector employees. For example, some provide

protections for all publhe sector emplovees '! Others

provide protections for both private and pubhe

emplovees and/or emplovers.'!- State whistleblower

laws have their own administrative requirements

regarding the exhaustion of remedies. For example,

an emplovee in Connecticut is required to initially file

a whistleblower complaint with the Auditor of Pubhe

Accounts whereas an employee in New Jersey is first

required to provide notice of wrongdoing to the

appropriate supervisor to address the underlying

matter in oan expeditious manner. Compare Conn

Gen. Stat § 4-6ldd (discussing Connecticut's

administrative requirements), wih Nod. Stat. Ann.

to. Appa A (enumerating state whistleblower laws), Robert G

Vaughn, State Whistleblower Statutes and the Future of

WhistleSlower Protection, 51 Admin Lo Rev. 581, 582 n3 (1999)

(isting hundreds of state statutes protecting whistleblowers)

"See Garcett:, 547 US. at 440 1 8 (Souter, J. dissenting) (citing

Del Code Ann tit 29, § 4115 (2003), Fla. Stat. § 112.3187

(2003), Haw Rev Stat. § 378-61 (1993), Ky. Rev Stat Ann

$ 61.101 (West 2005), Mass Gen Laws ch 149, § 185 (West

2004), New Revo Stat § 281 611 (20038). NCH) Rew Stat. Ann

§$275-E 1 (Supp 2005); Ohno Rev. Code Ann. § 4113.51 (Lexis

L001). Tenn Code Ann. § 50-1-304 (2005)

‘7 Nee, eg. Conn. Gen Stat §§ Al-Silm. 4-61ldd, Fla Stat

$§ 1128187, 448 102. Haw. Rev. Stat. § 378-61, Me Rev Stat

ut. 5. § 4572-A, Minn. Stat. § 181.931, Neb Rev. Stat §§ 48.

Li02, 48-1114. NOH. Rev. Stat. Ann. § 275-Eo2, Nid. Stat. Ann

§$ 3419-3, ND Cent. Code § 34-01-20. Ohio Revo Code Ann

S$ 41138 52(A1), 124 341. Or Rev. Stat § 659A D200, RI Gen

Laws § 28-o0-4, Tenn Code Ann. § 50-1-304.

$34:19-1 (outlining New Jerseys administrative

requirements before a complaint can be filed with a

pubhe body).

The Third Circuit's approach has the potential

to undermine these public sector whistleblower laws,

which stmke a workable balance between rights of

public emplovees to expose workplace misconduct and

nghts of pubhe sector employers to administer

services efficiently. Consequently, federal courts

should not be needlessly forced, under an overly broad

view of the scope of the Petition Clause, into resolving

intra-office disputes that amount to private

yrievances

By allowing public employees to raise First

Amendment claims under the Petition Clause without

regard to the content of the speech, the Third Circuit

undermines the incentive for individuals to first use

applicable state whistleblower statutes. The Third

Circuit holds that as long as a pubhe emplovee has

filed a non-trivolous gmevance or complaint, that

employee may have a cogmvzable retahation claim

under the Petition Clause. This) behef seems

predicated on the concern that, without broad

protections, public employees will not have the ability

to challenge emplover misconduct. This approach,

however, has unintended consequences. For example,

any time a pubhe employee files an administrative

grievance should an employer assume that an entirely

unrelated adverse administrative or = diseciphnary

acuion is never permissible? If an employee beheves

he wall automatically have a federal forum to raise

concerns about alleged workplace improprieties, why

bother to pursue rehef under whistleblower statutes”

And, if the Petition Clause provides duplicative

protections with state whistleblower laws, what need

exists for the latter?

Pubhe sector whistleblower laws exist, In many

respects, to provide pubhe emplovees with a

mechanism to expose misconduct — whether a public

concern or not — without the fear of incurring an

adverse personnel decision. By eliminating the

requirement that a public employee's grievance must

involve a matter of public concern, the Third Circuit's

approach undermines state whistleblower laws and

potentially makes federal courts the first avenue for

relief, versus the last, for matters that do not involve

public concerns.

2. The efficacy of collective

bargaining agreements, labor

laws, and related common law

doctrines may be undermined by

Petition Clause retaliation claims

related to personal matters.

Publhe emplovees, particularly those who work

in state government, have a raft of contractual

protections that safeguard them from retahation for

engaging in protected activity. A non-exhaustive

listing of state statutes evidences that a majority of

States permit public emplovees to engage in collective

bargaining with their employers regarding matters

including filing formal grievances or complaints

without fear of discharge or discrimination from the

emplover.''

' See, eg. Alaska Stat. § 23.40.110(a)(4); Cal. Govt Code

§ 3519%a), Conn. Gen. Stat. § 5-272(a\5); Del. Code Ann. tit. 19,

§ 1307(a\4); D.C. Code Ann. § 1-617.04(a\4); Fla. Stat

§ 447.501(1d): Haw. Rev. Stat. § 89-13; 4 Ill Comp. Stat

(Continued ...)

These protections derive from collective

bargaining agreements, which allow employees to

engage in certain protected activities without fear

that their activities will lead to dismissal. Under most

collective bargaining agreements, or similar statutory

provisions, public employees are permitted to file

grievances related to their employment conditions.

Consequently, if an employer has undertaken conduct

that is alleged to violate the terms of these collective

agreements, employees (or their representatives) may

seek redress by filing a grievance. Indeed, Mr.

Guarnieri took advantage of grievance mechanisms

and prevailed twice. His experience is a good example

of the efficacy of these types of collective bargaining

agreements.

This Court has cautioned that the protections

accorded by the Free Speech Clause “do[ | not require

a public office to be run as a roundtable for employee

complaints over internal office affairs.” Connick, 461

U.S. at 149. The Third Circuit’s approach, however,

would lead to this result. Here, a simple dispute

involving a series of additional job responsibilities has

315/1Ma\(3); Towa Code § 20.10(2)d): Kan. Stat. Ann. § 75-

4333(b)(4); Me. Rev. Stat. tit. 26, § 979-C(1)(D); Md. Code Ann.

State Pers. & Pens. § 3-306(a)(5); Mass. Gen. Laws ch. 150K.

§ 10{a)(4); Mich. Comp. Laws § 423.209; Minn. Stat.

§ 179A.13(2)(4); Mont. Code Ann. § 39-31-401(4); Neb. Rev. Stat.

§ 81-1386(2\(d); N.H. Rev. Stat. Ann. § 273-A:5(1\(d); N.J. Stat.

Ann. § 34:13A-5.4(a)(4); N.M. Stat. Ann. § 10-7E-19; NY. Civ.

Serv. Law § 209-a(1)(c): Ohio Rev. Code Ann. § 4117.11(A)(4); Or.

Rev. Stat. § 243.672(1)(d); 43 Pa. Cons. Stat. § 1101.1201(a)¢4):

R.1. Gen. Laws § 28-7-13(8): S.D. Codified Laws § 3-18-3.1(4); Vt.

Stat. Ann. tit. 3, § 961(4); Wash. Rev. Code § 41.56.140; Wis.

Stat. § 111.06(1)(b).

taken on constitutional dimensions. Cf. id. at 146

(‘When employee expression cannot be fairly

considered as relating to any matter of political,

social, or other concern to the community, government

officials should enjoy wide latitude in managing their

offices ... .”). The Third Circuit’s approach effectively

undermines public sector collective bargaining

agreements, which already prohibit employers from

discriminating against employees for filing a

grievance or complaint.

Federal courts should not be forced to referee

minor workplace disputes that are better suited for

disposition under state whistleblower laws or

collective bargaining protections. Was overtime pay

improperly denied? Was an emplovee disciplined as a

consequence of refusing to accept a job transfer? Were

assigned work duties beyond the purview of

contractual obligations? Was the time allotted for

lunch insufficient? Each of these may be a legitimate

basis for filing a personal grievance or pursuing a

state remedy; but each should not be a federal claim

absent a showing of public concern. Collective

bargaining agreements, labor laws, and whistleblower

statutes — not the First Amendment’s Petition Clause

— are better suited to deal with these issues, as well

as allegations of employer retaliation relating to

wholly personal issues. The Third Circuit’s approach

minimizes the importance of these legal protections.

Reversing the Third Circuit will not reduce the ability

of public employees to vindicate the exercise of First

Amendment rights on matters of public concern; nor

will it leave public employees without redress. Rather,

reversal would simply bring the Third Circuit into

accord with the ten circuits that have considered this

issue, and give breathing space to the state and local

laws that permit public sector employees to pursue

grievances and remedies for personal employment

matters in the workplace.

CONCLUSION

For all of the above reasons, this Court should

reverse the decision of the United States Court of

Appeals for the Third Circuit.

Respectfully submitted,

BILL MCCOLLUM

Attorney General of Florida

SCOTT D. MAKAR’

Solicitor General

RONALD A. LATHAN

Deputy Solicitor General

PL-01, The Capitol

Tallahassee, FL 32399-1050

850-414-3300

850-410-2672 fax

Counsel for Amici Curiac

*Counsel of Record

December 13, 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.