Amicus Curiae Brief — Borough of Duryea v. Guarnieri

No. 09-1476

IN THE

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Supreme Court of the United States

BOROUGH OF DURYEA, PENNSYLVANLA, ef al

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Petitio scrs,

CHARLES J. GUARNIERI,

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On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF THE STATE AND LOCAL

LEGAL CENTER AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

L. RACHEL HELYAR

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AMIT KURLEKAR

AKIN GUMP STRAUSS

HAUER & FELD LLP

2029 Century Park East

Los Angeles, CA 90067

(310) 229-1000

RHe.var@AkinGump.com

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Attorneys for Arucus Curiae

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................

INTEREST OF AMICI CURIAE .........

INTRODUCTION AND SUMMARY OF

IIE eistnsiocaisksatevassaceenceeseasen

ARGUMENT..

1.

CON

THE THIRD CIRCUITS DECISION

UNDERMINES THIS COURTS BROAD

JURISPRUDENCE PROTECTING

PUBLIC OFFICIALS FROM LITIGA-

TION THAT WOULD INTERFERE

WITH THE PERFORMANCE OF

THEIR DUTIES...

A. Connick And Its Progeny Are Based

On The Recognition That Public

Employers Could Not Function [ft All

Of Their Personne! Decisions Were

Subject To Federal Judicial Review.. .

B. Like the Connick Rule, The Doctrine

Of Qualified Immunity Was Estab-

lished To Ensure That Public

Officials Can Function Effectively...

C. The Third Circuit's Arbitrary Dis-

tinction Between Public Emplovees’

Speech And Petition-Based First

Amendment Claims Exposes Public

Officials To The Very Interference

From Which This Court Consistentiy

Has Sought To Protect Them

CLUSION ..

lM

“st

14

20

n

TABLE OF AUTHORITIES

ASES Page

Anderson dscns 483 U.S. 635

Te NR ces a ed ied Ne eae. 13-14, 15

BE & A Constr. Co. v. ‘Nat? Labor

Relations Ba., 5386 US. 516 (2002)........... 17

Bull Johnson's Restaurants, Inc vo Nat’

Labor Relations Bd. 461 U.S. 731

| SERRE 17

City of San D: €£0, Cal. . Roe. 543 US

ERC SIAR onan ie an iia > 9

Connick v. Myers, 461 U.S. 138 (19885). .. passim

Cornelius v. NAACP Legal Def & Ed

Fund, Inc., 473 U.S. 788 (1985)............... 7

Davis v. Scherer, 468 U.S. 183 (1984)... 12

Engquist v. Or. Dep't of Agric.. 553 US

EE CIE ic tiicecusosaskicasoccanesets Fas ane SEMA E

Foraker v. C haffinc A, $01 F.3d 231 (3d Cir.

| SAMEEREN SES A RRS R GS OB dre ONT eS 19

Garcetti v Ceball los, 547 U s 410 (2006)... 9,16

Harlow v. Fitzgerald, 457 US. 800

~ J

(| eS ee .10, 11, 12, 14

Hill v. Borough of Kntetows n, 455 EF. 3d 22

(3a Cir. 2006) .. eee erate =

Hunter v. Bryant, 502 U. S. 204 (1991). 12, 13, 19

Kelley v. Johnson, 425 U.S. 238 (1876)... 6

McDonald v. Smith, 472 U.S. 479 (1985)... 17,18

Mitchell v. Forsyth, 472 U.S. 511 (1985). 12

Natl Ass'n for Advancement of Colored

People v. Claiborne Hardware Co, 458

U.S. 886 (1982)............ Seana 17

Natl Treasury Employees: U nion v. Von

Raab, 489 U.S. 656 (1989)... adie 6

Owen v. City of Independe RCE, Mo.., 445

of RL TSR Sa ease ee fa ation 8 ura 4

il

TABLE OF AUTHORITIES— Continued

Page

Pearson v. Callahan, 129 S. Ct. 808

(2009)... ee Lh i AUR a anal i2

Pickering v. Board of Education of

Township High Se hool Distric . 205, Wili

County, lii, 391 U.S. 563 (1968 aaa aL 5,6

Rankin v. McPherson, 483 US. 378 ng S7) 7

Rutan v. Republican Party of Nl. 497 US

Be CD ovine ceeccnccccceveces 2 tae 2

San Filippe v. Bongiovanni, 30 F.3d 424

CGD. BEE onissacsciccaveccscsscesses OR: EB, BE BB,

Saucier v. Katz, 533 US. 194 ¢ 2001). iva ao, 2

Scheuer v Rhoades, 416 US. 232 (1974)......9, 10,11

Thomas v. Collins, 323 U.S. $16 (1945) ...... 17

United Mine Workers of Am., Dist. 12 v. li

State Bar Ass'n, 389 U.S. 217 (1967) ..... 17

U.S. Civil Serv. Comm'n v. Nat? Ass'n of

Letter Carriers AFL-CIO, 413 US. 548

i Seen Satish eats eel Hane aS 6

Waters v. € *hurchill. 511 US. Gil

RU Sieh eee he TL fe

Wayte v. United States, 470 US. 598

(1985). FRR AAAS RARE =PDe 17

Wood v. Strickland, 420 Us 308 (3975)..... 10, 33

CONSTITUTION

. Const. amend. 1........... | -.. PASSIM

re

t “7

I J

IN THE

Supreme Court of the United States

No 09-1476

BOROUGH OF DURYEA, PENNSYLVANIA, ef al,

Petitioners,

Va

CHARLES.) GUARNIFRI,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF THE STATE AND LOCAL

LEGAL CENTER AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

Amici are organizations whose members include

municipal, county, and state governments and offi-

cials throughout the United States.’ These onganiza

tions regularly file amicus briefs in cases that, like

this one, raise issues of vital concern to the nation’s

cities, counties, and states.

’ Pursuant te Supreme Court Rule 37.6, arucs affirm that no

counsel for a party authored this bnmef in whole or un part and

that no person other than aruci and their counse) made a mone:

tary contnbution to its preparation or submission. Pursuant to

Supreme Court Ruce 37.3, the partes’ letters consenting to the

filing of this bnef have been filed with the Clerk's office

»

In Connick v. Myers, 461 US. 188 (1985), this

Court held that pubhe employees’ speech is protected

under the First Amendment only when it involves a

matter of public concern.

In the present case, the Court is asked to decide

whether the Third Circuit—in disagreement with

every other circuit court and every state court of last

resort that has considered the question—correctly

held that the First Amendment's Petition Clause

nonetheless protects a private workplace gnevance

that does not implicate a matter of public concern

merely because the gnevance ts aired through some

formal dispute resolution mechanism.

If this Court adopts the Third Circuit's view, it

will open the door for state and local government

employees to make “a federal case” out of every

garmden vanety employment dispute, seriously under-

mining the purpose and effect of the rule the Court

recognized in Connick.

The resolution of this question will impact every

state and local government because of its potential

to unleash a torrent of federal lawsuits by public

employees against their government emplovers based

on purely pnvate employment matters. For this

reason, the amici have a substantial interest in this

case and a unique perspective on its proper resolu-

tion.

The individual amici organizations are as follows

The National Conference of State Legislatures

(NCSL) is a bipartisan organization that represents

state legislatures throughout the United States. One

of NCSL’s core missions is to improve the quality and

effectiveness of thase bodies.

3

The National League of Cities (NLC) was estab-

hshed in 1924 by and for reform-minded state

municipal leagues. Today it represents more than

19,000 cities, villages, and towns across the country.

NLC’s mission is to strengthen and promote cities as

centers of opportunity, leadership, and governance; to

provide programs and services that enable local lead-

ers to better serve their communities, and to function

as a national resource and advocate for the municipal!

governments it represents.

The National Association of Counties (NACo) is the

only national organization that represents county

governments in the United States. Founded in 1935,

NACo provides essential services to the Nation's

counties. It advances county-related issues with a

unified voice before the federal government and

assists counties in finding and sharing solutions

The International City/County Management Asso-

ciation is a non-profit professional and educational

organization for chief appointed managers, adminis-

traters, and assistants in cities, towns, counties, and

regional entities. Its mission is to create excellence

in local governance by advocating and developing

the professional management of local governments

worldwide.

INTRODUCTION AND SUMMARY

OF ARGUMENT

In Connick v. Myers, 461 U.S. 1388 (1983), this

Court held that when a government emplover discip-

lines an employee for speech that is not a “matter of

public concern,” such discipline is not considered an

abndgement of the employee's First Amendment

nights because the employee's speech is not protected

by the First Amendment (the “Connick rule”). The

4

Connick rule was crafted to protect government

officials from the fear that their routine employment

decisions would subject them to lawsuits and poten-

tial lability for constitutional torts. /d. at 143. The

Connick rule therefore keeps those officials on the

same plane as nongevernmental employers, who are

free to discipline employers without any such fear.

Id. at 147.

The Third Cireuit has held, contrary to settled law

in the vast majonty of the country, that the Connick

rule does not apply when an employee is disciplined

for “petitioning” activity rather than “speech.”

Respondent asks that this Court affirm the Third

Circuit, thereby carving out petition claims from

the ambit of the Connick rule. As Petitioners’ brief

demonstrates, such a carve-out is untenable because

the Petition and Speech Clauses must be considered

in parity with one another. See Pet. Br. 16-25, 39-40.

The flaws in the Third Circuit's position become

even more evident when the Connick rule is viewed

as part of a larger body of law safeguarding the

ability of government officials to perform their duties

effectively, such as the qualified immunity doctrine.’

This Court's reasoning in the qualified immunity

context strongly supports consistent application of

the Connick rule to all Nrst Amendment claims,

* Amici recognize that qualified immunity does not apply to

local governments, as opposed to the officials who work for

such entities: Owen v. City of Independence, Mo , 445 US. 622

(1980). Amici are not suggesting that quahfied tmmunity

apphes to the Borough of Duryea” Their point is rather to put

Connick into a larger context by examining the principles that

underlie beth the Connick rule and the qualified immunity

doctrnne

5

whether they anse from the Free Speech or the Peti-

tion Clause.

By forcing public officials to make employment

decisions based on a guess as to whether a disgrun-

tled employee is “petitioning” or just “speaking,” the

Third Cireuit has exposed officials to the very legal

uncertainty that this Court consistently has sought

to minimize. The Third Circuit's misguided policy

should not be allowed to become the law of the land.

The decision should be reversed.

ARGUMENT

l. THE THIRD CIRCUITS DECISION

UNDERMINES THIS COURTS BROAD

JURISPRUDENCE PROTECTING PUBLIC

OFFICIALS FROM LITIGATION THAT

WOULD INTERFERE WITH THE PER-

FORMANCE OF THEIR DUTIES.

A. Connick And Its Progeny Are Based On

The Recognition That Public Employers

Could Not Function If All Of Their

Personnel Decisions Were Subject To

Federal Judicial Review.

Until the mid-20th century, “a public emplovee had

no nght to object to conditions placed upon the terms

of employment —including those which restricted the

exercise of constitutional rights.” Connick, 461 U.S.

at 143. This Court departed from that position in a

series of decisions culminating in Pickering v. Board

of Education of Township High School District 205,

Will County, Jil., in which the Court held that the

First Amendment protects a public employee's mght

to speak on issues of public importance. 391 U.S. 563,

574 (1968). At the same time, this Court recognized

6

that “the State has interests as an employer in regu-

lating the speech of its employees that differ signifi-

cantly from those that it possesses in connection with

regulation of the speech of the citizenry in general.”

Id. at 568. Accordingly, this Court emphasized

that even where a public employee is “commenting

upon matters of public concern,” the employee's

right to do so must be balanced against “the interest

of the State, as an employer, in promoting the

efficiency of the public services it performs through

its employees.” Jd.

For the next fifteen years, this Court repeatedly

stressed the importance of safeguarding the interests

of public employers for the reasons stated in Picker-

ing. See, e.g., U.S. Civil Serv. Comm'n v. Natl Ass'n

of Letter Carriers AFL-CIO, 413 U.S. 548, 564 (1973)

(upholding constitutionality of Hatch Act’s prohibi-

tion against active political campaigning by federal

employees); Kelley v. Johnson, 425 U.S. 238, 244-

245 (1976) (upholding police department's personal

appearance standards).

It was “the common sense realization that govern-

ment offices could not function if every employment

decision became a constitutional matter” that led this

Court to establish the Connick rule, limiting public

employees’ First Amendment rights under Pickering

to speech on matters of public concern. Connick, 461

U.S. at 143; accord, e.g., Rutan v. Republican Party of

1ll., 497 U.S. 62, 99 (1990); Natl Treasury Employees

Union v. Von Raab, 489 U.S. 656, 666 (1989). As this

Court explained in Connick, “a federal court is not

the appropriate forum in which to review the wisdom

of a personnel decision taken by a public agency

allegedly in reaction to the employee’s behavior.”

461 U.S. at 147. Like their private counterparts,

7

“government officials should enjoy wide latitude in

managing their offices, without intrusive oversight by

the judiciary in the name of the First Amendment.”

Id. at 146-147 (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”); accord, e.g., Engquist v. Or. Dep't

of Agric., 553 U.S. 591, 600 (2008). In this Court’s

eves, this “wide latitude” requires “a wide degree of

deference to the employer's judgment”; government

employers can discipline employees for speech acts

based on the risk of a possible disruption, without

having to establish that a disruption has taken place.

Connick, 461 U.S. at 152 (“we do not see the necessity

for an employer to allow events to unfold to the

extent that the disruption of the office and the

destruction of working relationships is manifest

before taking action”).

This Court echoed Connick’s concern with protect-

ing public officials in subsequent cases. In Cornelius

vu. NAACP Legal Def. & Ed. Fund, Inc., for example,

this Court recognized that “(t]he federal workplace,

like any place of employment, exists to accomplish

the business of the employer.” 473 U.S. 788,

805 (1985) (upholding government's limitations on

employees’ participation in charity drive because

“(t]he Government, as an employer, must have wide

discretion and control over the management of its

personnel and internal affairs”) (internal quotations

omitted). Two years later, in Rankin v. McPherson,

this Court similarly acknowledged that “public

employers are employers, concerned with the efficient

function of their operations; review of every person-

nel decision made by a public employer could, in the

long run, hamper the performance of public func-

tions.” 483 U.S. 378, 384 (1987).

8

The next major evolution of the Connick rule

occurred in Waters v. Churchill, 511 U.S. 661 (1994),

in which this Court held that Connick bars a public

employee’s free speech claims as long as the employer

reasonably believed that the speech was not about a

matter of public concern, even if that belief was

mistaken.’ In doing so, this Court for the first time

squarely considered the question: “What is it about

the government’s role as employer that gives it a

freer hand in regulating the speech of its employees

than it has in regulating the speech of the public at

large?” Id. at 671 (plurality opinion of O’Connor, J.).

In an extensive review of this Court’s jurisprudence

regarding the First Amendment rights of public em-

ployees, the four-Justice Waters plurality explained

that even when employee speech is “nondisruptive”

or “of value to the speakers and the listeners,”

this Court has “declined to question government

employers’ decisions on such matters.” ZJd. at 674.

“When someone who is paid a salary so that she will

contribute to an agency’s effective operation begins to

do or say things that detract from the agency’s

effective operation, the government employer must

have some power to restrain her.” Jd. at 674-675.

* The four-Justice plurality, joined by two dissenting Justices,

held that an employer's mistaken belief that an employee's

speech was not of public concern would only trigger the Connick

rule if that belief was reasonable. Id. at 677-79 (plurality opinion),

685 (Souter, J., concurring) (noting that the two dissenting

Justices shared this position), 697 n.4 (Stevens, J., dissenting).

The three remaining Justices—Justices Scalia, Kennedy and

Thomas—joined the plurality in holding that the Connick rule

applies to an employer's “mistaken belief,” but would have

applied the Connick rule to any instance of an employer's

mistaken belief, whether the mistake was reasonable or not. 7d.

at 686-694

9

Otherwise, a public official would be left to ask “not

what conclusions she, as an experienced professional,

can draw from the circumstances, but rather what

conclusions a jury would later draw.” Id. at 676.

Over the last fifteen years, this Court has not

swerved from the principles animating the rules set

forth in Connick and Waters. In City of San Diego,

Cal. v. Roe, for example, this Court observed that the

absence of the Connick rule “could compromise the

proper functioning of government offices” and upheld

a police department’s imposition of discipline on an

officer for posting an online masturbation video. 543

U.S. 77, 82-83 (2004) (per curiam). Even more

recently, in Garcetti v. Ceballos, this Court noted the

“emphasis of our precedents on affording government

employers sufficient discretion to manage their oper-

ations,” and echoed the Connick court’s warnings

against empowering public employees to “constitu-

tionalize” their grievances. 547 U.S. 410, 417-423

(2006) (quoting Connick, 461 U.S. at 154) (holding

that a deputy district attorney could be disciplined

under the Connick rule for speech in an office

memorandum made pursuant to his professional

duties). In sum, the creation and evolution of the

Connick rule has consistently been guided by the

Court’s recognition that public officials cannot

function effectively if they are constantly threatened

by the specter of constitutional litigation over their

employment decisions.

B. Like the Connick Rule, The Doctrine

Of Qualified Immunity Was Estab-

lished To Ensure That Public Officials

Can Function Effectively.

This Court first articulated the doctrine of “quali-

fied immunity” in Scheuer v. Rhodes, 416 U.S.

10

232, 247-248 (1974) (abrogated in part by Harlow

v. Fitzgerald, 457 U.S. 800 (1982)). As initially

conceived, an official enjoyed qualified immunity

when she committed a constitutional violation based

on a “good-faith belief” that her conduct was legal, as

long as there were “reasonable grounds for the belief

formed at the time and in light of all the circums-

tances.” Id. at 247-248.‘

In Scheuer, this Court recognized “two mutually

depéndent rationales” for the historical existence of

official immunity: “(1) the injustice, particularly in

the absence of bad faith, of subjecting to liability an

officer who is required, by the legal obligations of his

position, to exercise discretion; [and] (2) the danger

that the threat of such liability would deter his

willingness to execute his office with the decisiveness

and the judgment required by the public good.” Jd. at

240. Implicit in the second of these rationales “is a

recognition that [public officials] may err,” and “that

it is better to risk some error and possible injury from

such error than not to decide or act at all.” Id. at 242;

see also id. at 245 (“a policeman’s lot is not so

unhappy that he must choose between being charged

with dereliction of duty if he does not arrest when he

has probable cause, and being mulcted in damages if

he does”) (internal quotations omitted).

In Wood v. Strickland, 420 U.S. 308 (1975), this

Court explained that denying qualified immunity to

public officials would “unfairly impose upon [them]

the burden of mistakes made in good faith in the

course of exercising [their] discretion within the scope

* The Scheuer court distinguished qualified immunity from

“absolute” immunity, under which no inquiry is made into the

official's belief or its basis. Id. at 242-243.

11

of [their] official duties.” and “undoubtedly deter even

the most conscientious [official] from exercising his

judgment independently, forcefully, and in a manner

best serving the long-term interest of the [publhe].”

Id. at 319-320. Indeed, the “most capable candidates

might be deterred” altogether “trom seeking office

if heavy burdens upon their pmvate resources from

monetary liability were a likely prospect dunng their

tenure.” Jd. at 320. Wood nevertheless held, in line

with Scheuer, that a qualified immunity defense

could be overcome in one of two ways: eifher (a)

objectively, by showing that the defendant should

have known of the illegality of her act based on

clearly established law at the time; or (b) subjec-

tively, by showing that the defendant had “the mah-

clous intention to cause a deprivation of constitu:

tional rights.” Jd. at 321-322

In 1982, this Court expanded the qualified

immunity doctrine to better serve the goal of

protecting pubhe officials by climinating the subjec-

tive prong of the Scheuer/Wood test. Harlow v

Fitzgerald, 457 U.S. 800, 815-819 (1982). The

Harlow Court observed that a meritless suit aginst

public officials would cause harm “not enly to the

defendant officials, but to society as a whole,”

including “the expenses of litigation, the diversion of

official energy from pressing public issues, .. . the

deterrence of able citizens from acceptance of public

office,” and *the danger that fear of being sued will

dampen the ardor of all but the most resolute, or the

most irresponsible public officials, in the unflinching

discharge of their duties.” Jd. at 814 Uinternal quota-

tions omitted). Because subjective good faith is often

an issue of fact for a jury. allowing qualified immun-

ity to be defeated by an inquiry into a defendant's

subjective motives would increase the msk that a

12

menmtless suit could continue all the way through

tmnal. dd at SISS816. This Court reasoned that

removing this risk “should avoid excessive disruption

of government and permut the resolution of many

insubstantial claims on summary judgment.” Jd. at

S18; accord Saucier v. Katz, 533 US. 194, 202 (2001)

(abrogated in part on other grounds in Pearson v

Callahan, 1298. Ct. 808 (2009).

Accordingly, Marlow reformulated the qualified

immunity inquiry so that the only relevant question

is Whether a puble official's conduct was objectively

reasonable because it did not violate “clearly estab-

hshed law” at the time of her decision. 457 US. at

S18; see also Mitchell v. Forsyth, 472 US. 511, 525-

526 (1985) “The conception animating the qualified

immunity doctrine as set forth in Harlow .. . is that

Where an offictal’s duties legitimately require action

in Which clearly established rights are not implicated,

the public interest may be better served by action

taken with independence and without fear of conse-

quenees”™) (quoting Harlow, 457 US. at 819 unternal

quotations omitted)).

Since Harlow, the Court's qualified immunity jurt-

sprudence has increasingly focused on the fact that

public officials can be paralyzed not only by the fear

of mermtiess suits, but also by the concern that they

might unknowingly commit constitutional violations

when the governing legal rules are uncertain. In

Davis v. Scherer, for example, the Court “recognized

that officials can act without fear of harassing litiga-

tion only if they reasonably can anticipate when their

conduct may give mse to lability for damages and

only if unjustified lawsuits are quickly terminated.”

468 U.S. 183, 195 (1984); accord Hunter vo Brvant,

502 U.S. 224, 229 (1991) (qualified immunity doctrine’s

13

“accommodation for reasonable error exists because

officials should not err always on the side of caution

because they fear being sued”) (internal quotations

omitted), Anderson oo Crewhton, 483 US) 635, 639

(1987) (question of whether appheable law was

clearly established at time of alleged constitutional

violation must be evaluated based on a specific

conception of the violated right, as hathty based on

a generalized conception would “makle] it impossible

tor officials reasonably to anticipate when = their

conduct may give mse to habihty for damages”)

anternal quotations omitted)

A comparison of the Conmick rule and the qualified

immunity doctrine demonstrates that both carefully

balance the mghts of indiiduals to vindicate legit

mate constitutional claims against the public's need

for assertive and efficient government action. Both

seek to give government officials wide latitude in

pertorming their duties in order to minimize costly

disruption from courts, even to the extent of shielding:

such officials when their conduct is not demonstrably

justified. Compare, eg, Connick, 461 US. at 146

147, 152 (*we do not see the necessity for an employer

to allow events to unfold to the extent that the

disruption of the office and the destruction of working

relationships is manifest before taking action”), sith

Hunter, 502 US. at 229 (qualified immunity

doctrine’s “accommodation for reasonable error exists

because officials should not err always on the side of

caution because they fear being sued”) (internal

quotations omitted) And both highlight the damage

caused when officials are uncertain about what they

ean and cannot do in the pertormance of their duties

Compare, eg., Waters, 511 U.S. at 676, with Ander

son, 483 US. at 639.

14

C. The Third Circuit's Arbitrary Distine-

tion Between Public Employees’ Speech

And Petition-Based First Amendment

Claims Exposes Public Officials To The

Very Interference From Which This

Court Consistently Has Sought To

Protect Them.

The Connick rule's placement in a larger body of

law that shields public officers from litigation is not

simply a point of acadenne interest. It highluhts the

Third Cireuit’s error in refusing to apply the Connick

rule to petition-based retaliation claims

First, in San Filippo vo Bongiovanni—the opinion

in which the Third Cireurt first refused to apply

Connick to petition clams—the Third Cireuit justi

fied its conclusion prmarniy by distinguishing the

First Amendment's) Free Speech and Petition

Clauses. 30 F.3d 424, 4389-443 (Sd Cir. 1994). But,

even if the Third Cireuit’s proffered distinctions were

vahd—-we agree with Petitioners that they are not,

see infra—they do not explain why petition claims

are any different from the wide vanety of other types

of claims against which puble officials are protected

by qualified immunity

Second, Uus Court's caselaw governing qualitied

unmunity makes clear that legal standards tor

government officials should apply “across the board,”

rather than in a manner contingent on the employee

interests at issue. Anderson, 483 US. at 642 (quot-

ing Harlow, 457 US) at 821 (Brennan, J., concur.

ring)), accord Saucier, 533 US. at 2038. The plaintiffs

in Anderson argued that qualified immunity should

not apply to Fourth Amendment claims because such

chums already impheate “unreasonable” conduct by

defendants, or alternatively, that certain subsets of

15

such claims should be excepted from immunity based

on common law principles. 483 US. at 642-645. This

Court reyected the plaintiffs’ angument, noting that it

had in the past “been unwilling to complicate quah-

fied immunity analysis by making the scope or extent

of immunity turn on the precise nature of various

officials’ duties or the precise character of the partie:

ular rythts alleged to have been violated.” dd. at 642

“An immunity that has as many variants as there are

modes of official action and types of mghts would not

mve conscientious officials that assurance of protec

tion that itis the object of the doctrine to provide”

ld Because the Anderson plaintiffs could not carry

the “heavy burden” of pustifving why Fourth Amend.

ment claims should be exempted from the qualified

immunity doctrine, the Court declined to carve out

the proposed exceptions Jd at 642-645, see also

Saucier, 533 US) at 203 (refusing to except excessive

force claims trom quahtied immunity)

The same concerns call for “across-the-board”

appheation of the Conneck rule Government

emplovers should not be foreed to fine-tune their

management of personnel based on “the precise

character of the particular mghts alleged to have

been violated.” Anderson, 483 US. at 642. whether

those mgehts spnng trom the Speech Clause or the

Petition Clause

Thind, the Third Cireuit in San Filippo held chat

petiion claims are different from speech claims

because “when one files a ‘petition’ one is not

appealing. over government's head to the general

eiazenry. when one files a ‘petition’ one is addressing

government and asking government to fix what, alle.

gedly, government has broken or has failed in its

duty to repair.” 30 F.3d at 441-442 This conclusion

16

suffers from at least three fatal flaws 9 First, the

Third Cireuit’s starting premise —that an employee

would necessanly be petitioning the same govern:

ment that is employing her is false: often, for

example, a state or local government employee wall

petition a federal agency such as the FEOC, in which

case the employee is in fact going over her employer's

head See, eg. Hull vo. Borough of Autztown, 455 F 3d

225, 242 n 24 (Qd Cir 2006) (noting that borough

manager's complaint to EEOC would have qualified

as petitioning activity) Second, the San Filippo

court’s ruling sweeps too broadly, it is undisputed

that emplovee speech directed toward an emplover is

covered by the Connick rule See, eg, Gareetti, S47

US. at 414 cemployee disciplined for memorandum

directed to supervisors) This undercuts the asser

tion that petitions should be exempt from the Connick

rule merely because they might be directed at the

employer Finally, and perhaps most importantly,

the Third Cireunt’s carve-out of petition claims “is an

invitation to the wary to formulate their speech on

matters of pnvate concern as a lawsuit or gmevance

in order to avod being disciplined,” ano end-run

around Connick that “would undermine the govern-

ment’s special role as an employer” San Fulippo, 30

F 3d at 449 (Becker, J, dissenting) *

Fourth, the end-run decned by Judge Becker is

iHomeal and pernicious yiven this Court's decades old

admonition that petition and free speech mghts “are

* Tras not hand to imagnne that the threat of such an end run

would create perverse incentives for government employers to

mingnace ther employees’ abilities to petition (ie, by reducing

the availability of gmevance procedures! so that emplovers are

net susseptuble to the very oonstituvionalzation of emplovee

gmevances that Connict was designed to prevent

7

inseparable ” Thomas v. Collins, 323 US. 516, 530

(1945) (It was not by accident or comnendence that the

nghts to freedom in speech and press were coupled in

a single guaranty with the nghts of the people peace-

ably to assemble and to petition for redress of griev-

ances”), accord United Mine Workers of Am, Dist. 12

v. dil. State Bar Ass'n, 8389 US. 217, 222 (1967) (right

to petition is “intimately connected both in organ and

in purpose, with the other First Amendment mghts of

free speech and free press”), Nati Ass'n for Advance

ment of Colored People v Claiborne Hardware Co.,

458 US. 886, 911 (1982), see also MeDonald vo Smiuth,

472 US. 479, 482 (1985) The mght to petitien is cut

trom the same cloth as the other gwuarantees of that

Amendment”)

Because of their inseparable nature, claims under

the Petition and Speech Clauses “are reiated and

generally subject to the same constitutional

analysis ” Wayte vo United States, 470 US 598, 610

nll (1985) (citing Clardborne Hardware, 458 US. at

911-915), see also Bull Johnson's Restaurants, Inc. v

Natl Lahor Relations Ba, 461 US) 731, 743 (1983)

“Just as false statements are not immunized by the

First Amendment right to freedom of speech, baseless

Irtuyration is not immunized by the First Amendment

mht to petition”) Unternal citations omitted), accon?

BE & K Constr. Cov. Natl Labor Relations Bd, 536

US. $16, 5380 531 (2002) Following this precedent,

this Court has unequivocally rejected the angument

that the Petition Clause has “special First Amend:

ment status” McDonald, 472 US. at 485. Noting

that “[tlhe Petition Clause . . was inspired by the

same ideals of hberty and democracy that gave us the

freedoms to speak, publish, and assemble,” the

McDonald court held that the mght to petition under

the First Amendment carmes no greater immunity

1s

from defamation suits than the mght to free speech

ld

The argument advanced by Respondent is essen-

tially the same as the one rejected in McDonald

Like the petitioner in McDonald, Respondent asks

this Court to recognize his petition mghts in a context

in which his free speech mghts unquestionably would

not apply. © Respondent's contention fails for the

reasons stated in McDonald

The intertwined nature of speech and petition

riythts renders the Third Circuit's position not only

illogneal, but also destructive to the legal certainty

that government officials need to perform their

duties. See Section 1, supra The line between peti-

tioning and speaking ts a blurry one, see Pet Br. 29-

34, creating a confusion that is apparent ino the

inconsistent treatment Mven to petition claims in

Third Circuit decisions citing San Filippo See, eg.

Ail, 455 F 3d at 242 n 24 (stating without explana-

* The San Filippo court tned to confine McDonald to its facts

ina footnote, 30 Fad at 442 nll, but McDonald's sweeping

language behes any such cramped interpretation of its holding

The Third Cireuit also expressed concern that apphcation of the

Connick rule to petition claims would render the Petition Clause

redundant of the Speech Clause, id at 442-443, bul the consis

tent application of Conniet’s miting male across Mirst Amend

ment claims does not render them “redundant” any more than

the consistent application of qualified ummunmity to ali constitu

ional claims renders all of the provisions of the Constituthon

redundant of one another See id at 450 (Becker. J, dissenting)

Inter alia, the clause would still have use when Chere is a peta

tion, in heu of more conventhonal speech”) Moreover, any

overlap between the Speech and Petruen Clauses is not due to

the whittling away of the Petition Clause, but rather the expan

sion of the concept of speech to cover most if not all petitioning

conduct la

19

tion that “reporting a superor’s misconduct to a

leynslative body when.the legislative body 1s also the

reporter's employer” is not petitioning activity),

Foraker v. Chaffinch, 501 F.3d 231, 237-238 (3d Cir.

2007) (stating that strength of petition mghts depend

on formality of petitioning channels, and holding that

internal gnevances did not constitute petitions)

Under San Filippo, it is unclear what a pubdlic

employer should do if an emplovee submits a

complaint about a matter of personal rather than

public concern: should the employer consider the

complaint to be “speech” or “petitioning™ What if the

employee threatens to fle a formal gnevance in a

letter to the employing agency” In these and other

such ambiyruous situations, the employer's satest

course would be to consider itself prohibited from

disciplining the emplovee because there ts a chance

that the employee's behavior would be considered

“petitioning” rather than speech. But this ts exactly

the kind of decision-making through intimidation

that rules such as qualified immunity and the

Connick rule were meant to prevent) See Hunter, 502

US. at 229 (qualified mmunity doctrine’s “accommo-

dation for reasonable error exists because offic:als

should not err always on the side of caution because

thev fear being sued”) (internal quotations omitted)

In short, the Third Circuit's refusal to apply the

Connick rule to petition claims undermines the

settied interests of government officials long

protected by this Court. It should be overturned

20

CONCLUSION

For the reasons stated in this bnef and in the

Petitioners’ bmef, ths Court should reverse the

judgment of the Court of Appeals.

Respectfully submitted,

L. RACHEL HELYAR

Counsel of Record

ORLY DEGANI

AMIT RURLEARAR

ARKIN GUMP STRAUSS

HAUFR & Feito Lp

2029 Century Park Fast

Las Angeles, CA 90067

(310) 229-1000

RHelvar@AkinGump com

Attorneys for Arcus Curiae

December 13, 2010