~reme q~aurt e[ t~e ~nite~ ~tate~ BOROUGH OF DURYEA, PENNSYLVANIA, et al., Petitioners, V. CHARLES J. GUARNIERI, JR., Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit BRIEF IN OPPOSITION CYNTHIA L. POLLICK 363 Laurel Street Pittston, PA 18640 (570) 654-9675 ERIC SCHNAPPER* School of Law University of Washington P.O. Box 353020 Seattle, WA 98195 (206) 616-3167 [email protected]Counsel for Respondent *Counsel of Record COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831
Transcript
~reme q~aurt e[ t~e ~nite~ ~tate~
BOROUGH OF DURYEA, PENNSYLVANIA, et al.,
Petitioners,V.
CHARLES J. GUARNIERI, JR.,
Respondent.
On Petition For A Writ Of CertiorariTo The United States Court Of Appeals
For The Third Circuit
BRIEF IN OPPOSITION
CYNTHIA L. POLLICK363 Laurel StreetPittston, PA 18640(570) 654-9675
ERIC SCHNAPPER*School of LawUniversity of WashingtonP.O. Box 353020Seattle, WA 98195(206) [email protected]
Does the right of access of the courts embodied inthe Petition Clause protect
(a) an individual who while not a publicemployee prevailed in an arbitration pro-ceeding against a city, who later becomes acity employee and is retaliated against, or
(b) a public employee who is retaliatedagainst by a city for having filed an action infederal court under section 1983,
without regard to whether the subject matter of thatarbitration and lawsuit was a matter of public con-cern?
AppendixDistrict Court Decisions in the Third Circuit
Since San Filippo Applying the Connick Pub-lic Concern Standard ..............................................la
Third Circuit Decisions Since San FilippoApplying the Connick Public Concern Stand-ard .......................................................................... 14a
iii
TABLE OF AUTHORITIESPage
CASES
Baranowski v. Waters, 2008 WL 728366(W.D.Pa.) .................................................................12
Barnes Foundation v. Township of LowerMerion, 982 F.Supp. 970 (E.D.Pa.1997) .................21
Bill Johnson’s Restaurants Inc. v. NLRB, 461U.S. 731 (1983) ....................................................9, 28
Bradshaw v. Township of Middletown, 296F.Supp.2d 526 (D.N.J.2003) ...................................12
California Motor Transport Co. v. TruckingUnlimited, 404 U.S. 508 (1972) ..........................9, 28
Connick v. Myers, 461 U.S. 138 (1983) ..............passim
Cooper v. Cape May County Bd. of SocialServices, 175 F.Supp.2d 732 (D.N.J.2001) .............12
Dewees v. Haste, 620 F.Supp.2d 625(M.D.Pa.2009) .........................................................21
Edwards v. South Carolina, 372 U.S. 229(1963) .......................................................................10
Foraker v. Chaffinch, 501 F.3d 231 (3dCir.2007) .......................................................... passim
Hill v. Borough of Kutztown, 455 F.3d 225 (3dCir.2006) ..................................................................10
Howard v. Bureau of Prisons, 2008 WL 318387(M.D.Pa.) .................................................................21
Karchnak v. Swatara Township, 2009 WL2139280 (M.D.Pa.) ..................................................12
iv
TABLE OF AUTHORITIES - Continued
PageLivingston v. Borough of Edgewood, 2008 WL
5101478 (W.D.Pa.) ..................................................12Marrero v. Camden County Bd. of Soc. Ser-
vices, 164 F.Supp.2d 455 (D.N.J.2001) .......20, 21, 22McDonald v. Smith, 472 U.S. 479 (1985) ......27, 28, 29Miller v. Weinstein, 2008 WL 4279817
(W.D.Pa.) .................................................................12Moore v. Darlington Township, 690 F.Supp.2d
378 (W.D.Pa.2010) ..................................................22N.A.A.C.P. v. Claiborne Hardware Co., 458
U.S. 886 (1982) .................................................. 10, 28Oi’.sen v. Ammons, 2009 WL 2426060 (M.D.Pa.) ........21Perna v. Township of Montclair, 2006 WL
2806276 (D.N.J.) .....................................................11Pollock v. City of Ocean City, 968 F.Supp. 187
(D.N.J.1997) ............................................................20Price v. MacLeish, 2006 WL 2346430 (D.Del.) ..........12San Filippo v. Bongiovanni, 30 F.3d 424 (3d
Appellants’ Petition for Rehearing En Banc orBy The Panel, No. 06-4086 (3d Cir.) ......................11
Blank Page
STATEMENT
This litigation concerns respondent Guarnieri’sservice as Police Chief of the Borough of Duryea,Pennsylvania. Duryea is a small town with only twofull time police officers; the Police Chief spends asubstantial portion of his time doing regular policework, rather than administration. Under the applica-ble borough ordinance the seven member BoroughCouncil has the authority to hire and fire the PoliceChief; supervision of the Chief, on the other hand, isthe responsibility of the Borough’s Mayor. The rela-tionship between the Borough and the Police Chief isgoverned in part by a collective bargaining agreementbetween the Borough and Duryea Police Association,which is represented by the Fraternal Order of Police.That agreement provides, in certain circumstances,for a grievance process that can lead to bindingarbitration.
Guarnieri was initially hired in September 2000.In February 2003 the Borough Council voted todismiss Guarnieri, an action precipitated in partwhen Guarnieri rejected a request from the CouncilChair that he lobby the mayor to sign a proposedordinance that was unrelated to the Police Depart-ment.1 Two weeks after his dismissal Guarnieri filed
D.Ex. 29 (Arbitration Decision of Dec. 28, 2004), at 11:[C]ouncil’s attempt to reorganize the Sewer Authoritymay have been a critical turning point. Ms. Dommes[the Council Chair] and Mr. Guarnieri concurred thatshe had asked him to intervene with the Mayor in an
(Continued on following page)
2
a grievance challenging his termination. The Mayor,who had no power to overturn that dismissal, none-tbLeless indicated his support for Guarnieri.~ Thedispute ultimately was referred for binding arbitra-tion under the terms of the applicable collectivebargaining agreement.
The arbitral process, conducted under the auspi-ces of the American Arbitration Association, hadmany of the facets of a trial. The dispute was heardby the arbitrator over several days of hearings inAugust and September 2004, with a number of wit-nesses being examined and cross-examined, and arange of documents being presented. Both sides wererepresented by counsel; Guarnieri was represented bycounsel for the union. Each side submitted post-hearing briefs. In December 2004 the arbitratorissued a detailed 23 page opinion which concludedthat the dismissal was improper. The arbitratorordered that Guarnieri be reinstated with back pay.Guarnieri returned to work on January 21, 2005.
effort to prevent a veto of Council’s bill. Mr. Guarnierirefused the request, and the Mayor vetoed the bill.Although Mr. Guarnieri had wanted to keep himselfand the Police Department out of politics, it did proveimpossible. Mr. Guarnieri and the Mayor were nowseen as allies, and Mr. Guarnieri made no effort todispel that view. As relations between the Mayor andCouncil deteriorated, so, too, did relations betweenMr. Guarnieri and Council.
2 Id. at 17 ("Mayor Moss replied ... ’I wish to advise you thatI agree with you in this matter. At this time I am advising you toproceed to the next step of the grievance procedure’.").
3
The Retaliatory Directives
Guarnieri alleged, and a jury ultimately found,that when Guarnieri returned to work the BoroughCouncil immediately retaliated against him forhaving filed the grievance and pursued the successfularbitration. The Council retaliated by adopting anunprecedented set of "directives" controlling theactions of the Police Chief. Some of the directives hadthe effect of limiting how much the Chief could earn;for example, it forbade Guarnieri to work or earnovertime. Others constrained the Chief’s ability to dohis job; the Chief was ordered, for example, to leavework and "go home" at 3 p.m. each day, an order thatapplied regardless of whether at that point in timethe Chief might be dealing with an emergency, con-ducting an investigation, or making an arrest.3
Guarnieri initiated two separate challenges tothese directives. On January 29, 2005, Guarnieri fileda new grievance under the collective bargainingagreement, this one challenging the disputed direc-tives. That grievance ultimately led to binding arbi-tration at the request of the Police Union. In July2005, Guarnieri commenced the instant action infederal court, alleging inter alia that the directiveswere the result of an unconstitutional purpose to
3 In a number of instances a directive was disputed becauseit provided that the Police Chief would be personally responsiblefor any violation of a rule by one of his subordinates, a form ofstrict liability which Guarnieri claimed was not imposed onother department heads. D.Ex. 18 (P.Ex. F), at 19, 23.
4
retaliate against him for pursuing the earlier griev-a~Lce and arbitration, retaliation which Guarnieriasserted violated the Petition Clause of the FirstAmendment.
In a decision in February 2006 regarding thissecond grievance, the arbitrator sustained many ofthe challenges raised by Guarnieri and the Union tothe disputed directives. The arbitrator concluded thata number of the directives were invalid to the extentthat the Borough Council had usurped the role of theMayor in attempting to supervise the work of thePc, lice Chief.4 A subsequent arbitration decision
at 18-24:[T]he Mayor may determine that the Chief is neededto perform duties [for more than eight hours in a day,or 40 hours in a week] when an additional officer isrequired and cannot be procured .... [I]t is clearly be-yond the authority of Borough Council, as its attorneyacknowledged, and the Borough President agrees, torequire that any employee must "go home" at the endof his or her shii~.
[T]o the extent that the Chief of Police might be re-quired to attend a Council meeting(s) .... he must becompensated.
The absolute requirement [that a particular officer bepresent at a specified school at certain hours] may in-terfere with other duties required of the ... officer orthe Mayor’s direction of the manner in which the per-sons assigned to the various ... ranks ... shall performtheir duties.
(Continued on following page)
5
regarding this grievance, in July 2006, resolved anumber of issues that were not fully addressed in theFebruary 2006 decision. The combined effect of thesearbitration decisions was to resolve the disputebetween the Borough Council and Guarnieri regard-ing the conditions governing the work of the PoliceChief, and thus mooted any request in the section1983 action for injunctive relief regarding the direc-tives. The section 1983 action challenging the originaldirectives proceeded to discovery and trial withregard to Guarnieri’s claims for monetary reliefarising out of the retaliatory directives. A jury foundthat the Borough Council had imposed the disputeddirectives for the purpose of retaliating againstGuarnieri for having pursued the earlier grievanceand arbitration regarding his 2003 dismissal. Thejury awarded Guarnieri $45,000 in compensatorydamages and $24,000 in punitive damages.
[T]o require the Chief to be out of his office 4-5 hoursper day, on patrol, may not allow him time to performother critical police duties without incurring overtime.
[I]f the Mayor determines there is an operational ne-cessity to work a different shift [than the day shiftmandated by a Directive]... the Chief may be so as-signed ....
6
Retaliatory Denial of Overtime
In December 2006 the Borough Council refusedto pay Guarnieri overtime for fourteen and one-halfhours he had worked. Guarnieri alleged, and a juryla’Ler found, that the Borough did so to retaliateagainst him for having filed the instant section 1983action.
Guarnieri challenged this denial of overtime payin two ways. First, Guarnieri amended his pendingsection 1983 complaint, adding a new claim whichal].eged that the retaliatory denial of overtime payviolated his rights under the Petition Clause of theFirst Amendment. Second, Guarnieri complainedabout the denial to the Wage and Hour Division of theUnited States Department of Labor, asserting thatthe denial of overtime violated the federal Fair LaborStandards Act. The Department of Labor investigatedGuarnieri’s complaint, and concluded that the denialof overtime pay violated the FLSA. The Boroughentered into a written agreement with the Depart-ment of Labor in which it promised to pay Guarnieri$338.53 for the overtime he had worked.
The Borough, however, failed to pay Guarnierithat $338.53. The section 1983 claim therefore pro-ceeded to trial on this claim. The jury found that theCc,uncil’s original denial of overtime was the result ofa retaliatory purpose. The jury awarded Guarnieri onthis claim $358 in damages; the jury also awardedpunitive damages on this claim.
7
The Appeal
On appeal the Borough argued that none of theproven retaliatory conduct violated the PetitionClause. The Borough contended that the PetitionClause does not forbid reprisals against public em-ployees for petitioning activity unless that activityinvolves a matter of public concern. The Boroughargued specifically that the protections accorded topublic employees by the Petition Clause are the sameas the protections accorded by the Free SpeechClause of the First Amendment, and are thus subjectto the limitation in Connick v. Myers, 461 U.S. 138(1983), which requires a plaintiff to show that theassertedly protected activity involved a matter ofpublic concern.
The Third Circuit rejected this contention. Thecourt of appeals applied that circuit’s earlier decisionin San Filippo v. Bongiovanni, 30 F.3d 424 (3dCir.1994). San Filippo had concluded that when apublic employee files a lawsuit, or invokes someanalogous formal remedial mechanism, the employeeis protected by the right of access to courts embodiedin the Petition Clause. 30 F.3d at 433-43. This Court’sdecisions regarding the right of access to courts hasnever been limited to lawsuits (or other similarproceedings) regarding matters of public concern.Under San Filippo the Connick public concern re-quirement remains applicable in the Third Circuitto all public employee Petition Clause claims
8
that do not involve access to courts or other similarformal remedial mechanisms.
REASONS FOR DENYING THE WRITI. THE QUESTION PRESENTED DOES NOT
WARRANT REVIEW BY THIS COURT
The narrow issue raised by the decision in SanFi,!ippo does not warrant review by this Court. Be-ca~ase of the limited scope of that decision, the over-whelming majority of First Amendment claims bypublic employees in the Third Circuit continue to begoverned by the public concern requirement ofConnick. Even where San Filippo applies, that ruleregarding the right of public employees to access tocourts often is not outcome determinative; frequentlycases to which this standard has been applied wouldin any event have satisfied the public concern re-quirement, or involved retaliatory acts that werealready illegal under some other provision of law. Thequestion presented is thus of insufficient practicalimportance to warrant expenditure of this Court’sscarce resources.
(a) Under San Filippo First Amendment claimsof public employees remain subject to the Connickpublic concern standard except where the employee’sprotected activity was filing a lawsuit or invokingsoIne similar "formal mechanism of redress." Forakerv. Chaffinch, 501 F.3d 231, 236 (3d Cir.2007).
9
This narrow rule is expressly rooted in thisCourt’s repeated decisions that the Petition Clauseguarantees access to the courts. In California MotorTransport Co. v. Trucking Unlimited, 404 U.S. 508,510-11 (1972), the Third Circuit noted, this Courtheld that "[t]he right of access to the courts is ... oneaspect of the right to petition." San Filippo, 30 F.3d at436. The Third Circuit relied as well on Bill Johnson’sRestaurants Inc. v. NLRB, 461 U.S. 731, 741 (1983),which also held that "the right of access to the courtsis an aspect of the First Amendment right to petitionthe Government for redress of grievances." See SanFilippo, 30 F.3d at 437 (quoting Bill Johnson’s).Neither California Motor Transport nor Bill John-son’s Restaurants suggested that the lawsuits at issuein those cases did (or needed to) involve matters ofpublic concern. This Court’s decisions in those casesheld in light of the Petition Clause that all lawsuits -not merely lawsuits regarding issues of public con-cern - could not give rise to a claim under the federalanti-trust law or under the National Labor RelationsAct, at least absent a showing that that lawsuit was amere sham. The Third Circuit correctly concludedthat the right of access to the courts is not limited toplaintiffs who want to use litigation to express theirviews on some public debate. 30 F.3d at 441.
Because the Third Circuit rule derives from theright of access to the courts, it is expressly limited toinvocation of some "formal mechanism for redress ofgrievances," San Filippo, 30 F.3d at 440 n.18, such asa lawsuit or a formal grievance and arbitration
10
process under a collective bargaining agreement. ThisCourt’s decisions make clear that the Petition Clauseapplies to a far wider range of activities, such asdemonstrations or other public protests,5 that wouldfail1 outside the narrow rule in San Filippo. SanFilippo made clear, for example, that a simple letterfrom a worker invoking no such mechanism wouldcontinue to be governed by Connick.
[I]f the "petition" at issue w[ere] simply a let-ter imposing on the government no obliga-tion to respond, it w[ould] properly [be]analyzable under the conventional Connickrubric applicable to speech.
30 F.3d at 439.
Most complaints and statements by governmentworkers simply do not fall within this narrow ruleregarding access to the courts and similar formalremedial processes. Of the four Third Circuit casescited by petitioners, half actually rejected a plaintiff’sclaim precisely because it did not involve such aformal mechanism. Foraker, 501 F.3d at 237 ("theplaintiffs’ complaints up the chain of command didnot constitute petitioning activity. [The plaintiffs]complained internally; they did not petition a stateagency qua agency. They appealed to their employer,which also happened to be a state agency, throughintbrmal channels."); Hill v. Borough of Kutztown,
5 E.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886
(1982); Edwards v. South Carolina, 372 U.S. 229 (1963).
11
455 F.3d 225, 242 n.24 (3d Cir.2006) ("Hill appears toallege that his report to the Borough Council could beprotected ... as ’petitioning activity.’ ... We have neverheld, however, that a report of a supervisor’s miscon-duct to a legislative body when the legislative body isalso the reporter’s employer constitutes ’petitioningactivity.’ ") The Petition points to the denial of rehear-ing en banc in Foraker as an indication that the ThirdCircuit is implacably committed to an overboardinterpretation of the Petition Clause. (Pet. 28). Infact, however, rehearing was sought in Foraker, notby the defendants, but by the unsuccessful plaintiffs,who objected that the panel had applied the PetitionClause in an unduly narrow manner.~
District courts in the Third Circuit have repeat-edly rejected Petition Clause claims by public em-ployees because their actions did not involveinvocation of some formal remedial mechanism.
[T]he Petition Clause does not protect infor-mal grievances such as memoranda, letters,and verbal complaints .... Plaintiff[’s] ...grievances consisted of verbal complaintsand internal memoranda, which are not pro-tected by the Petition Clause.
Perna v. Township of Montclair, 2006 WL 2806276 at*6 (D.N.J.).
6 Appellants’ Petition for Rehearing En Banc or By ThePanel, No. 06-4086 (3d Cir.), at 11-14.
12
Plaintiff’s speech at issue does not implicatethe Right to Petition ... because his meetingwith union representatives and [an agencyofficial] is not in the nature of a formalgrievance procedure .... Plaintiff expressedhis speech in many informal settings, includ-ing letters, phone calls, and meetings ....
Cooper v. Cape May County Bd. of Social Services,1715 F.Supp.2d 732, 746 (D.N.J.2001); see Price v.MacLeish, 2006 WL 2346430 at *9 (D.Del.) ("Plain-tiffs’ ’petitions’ up the chain of command were notthrough a formally-adopted mechanism .... Clearly, theplaintiffs’ petitioning activities do not fall under thesafe harbor provided by San Filippo"); Bradshaw v.Township of Middletown, 296 F.Supp.2d 526, 546(D.N.J.2003) ("[i]nformal conduct such as letters,phone calls, memoranda and meetings" are not pro-tected); Karchnak v. Swatara Township, 2009 WL2139280 at *9 n.ll (M.D.Pa.) (actions not protectedbecause plaintiff did not personally file or participatein lawsuit); Baranowski v. Waters, 2008 WL 728366at *25 (W.D.Pa.) ("Baranowski’s statement ... did notconstitute petitioning activity. Baranowski com-plained internally, speaking only with his superiors ....A public employee’s informal complaints are nottransformed into petitioning activity merely becausehe or she happens to be employed by the govern-ment"); Livingston v. Borough of Edgewood, 2008 WL511)1478 at *3 (W.D.Pa.) (soliciting union to file agrievance insufficient); Miller v. Weinstein, 2008 WL42".79817 at "21 (W.D.Pa.) (email appeal to employerinsufficient).
13
(b) The petition repeatedly7 describes the ThirdCircuit rule in a manner that omits that rule’s narrowlimitation to petitions invoking some formal remedialmechanism. The Question Presented, for example,describes the Third Circuit as
holding that state and local government em-ployees may sue their employers for retalia-tion under the First Amendment’s PetitionClause when they petitioned the governmenton matters of purely private concern ....
(Pet. i). "[T]he Third Circuit refused to extend thepublic concern requirement that this Court applied tofree speech retaliation claims in Connick to similarpetition claims." (Pet. 4). In fact, as noted above, SanFilippo expressly does apply the Connick publicconcern requirement to petitions that do not involve aformal remedial mechanism. Petitioners object thatanomalous results would ensue if the Petition Clauseinterpreted "to protect all public employee petitionsfrom retaliation regardless of their purely privatenature" (Pet. 11) (emphasis added). But San Filippoclearly does not exempt all such cases from the publicconcern requirement.
The petition at times edits quotations from ThirdCircuit decisions in ways that obscure their meaning.For example, the petition describes one passage inSan Filippo in the following manner:
But not invariably. See Pet. 7.
14
To disallow a retaliation claim because it ad-dressed purely private concerns, the majorityasserted, would make "the petition clause ...a trap for the unwary - and a dead letter."
(Pet. 4-5). This suggests that the Third Circuit com-ment was about all petitions, and that that Circuitthought (oddly) that failing to protect petitions onnoa-public concerns would somehow be uniquelyunfair. In fact, however, the quoted twelve words fromSan Filippo are in a discussion about the "formalgo’~ernmental adoption of a mechanism for redress ofgrievances." 30 F.3d at 442.
If the government could ... freely dischargean employee for the reason that the employ-ee ... invoked such a mechanism, the petitionclause of the first amendment would, forpublic employees seeking to vindicate theiremployee interests, be a trap for the unwarya - and a dead letter.
Id. The "trap" described in the opinion consists ofinx~iting workers to invoke some formal government-created mechanism, and then firing them for havingdone so.
Another passage in the petition asserts that
the San Filippo majority distinguished peti-tion claims from free speech claims. "Whenone files a ’petition,’" the majority argued,"one is not appealing over the government’shead to the general citizenry: when one filesa ’petition’ one is addressing government andasking government to fix what, allegedly,
15
government has broken or has failed in itsduty to repair."
(Pet. 4) (quoting San Filippo, 30 F.3d at 442). Thissuggests that the Third Circuit held that all PetitionClause claims should be exempt from the Connickpublic concern rule. In fact, however, the term "peti-tion" appears in quotation marks in this passagebecause the Third Circuit was referring only to peti-tions that invoke formal remedial mechanisms. Thequoted passage is preceded by a sentence that drawsprecisely that distinction, using quotation marksaround the word "petition" for that very purpose.
[W]hen government ... formally adopts amechanism for redress of those grievancesfor which government is allegedly accounta-ble, it would seem to undermine the Consti-tution’s vital purposes to hold that one whoin good faith files an arguably meritorious"petition" invoking that mechanism may bedisciplined for such invocation by the verygovernment that in compliance with the peti-tion clause has given the particular mecha-nism its constitutional imprimatur.
30 F.3d at 442.
The petition describes the Third Circuit decisionin Foraker in the following manner:
The Third Circuit contends that providingthose who petition broader protection fromretaliation than those who speak "is legiti-mate because the Petition Clause is not
16
merely duplicative of the Free Speechclause." Foraker, 501 F.3d at 236.
(Pet. 12). But Foraker does not call for or defendproviding broader protection to all "those who peti-tion"; the fifteen words quoted from Foraker wereoffered only as a justification for broader treatmentfor public employees who file lawsuits or invoke otherformal remedial mechanism.
Formal petitions are defined by their invoca-tion of a formal mechanism of redress ....[W]hen a formal petition is made, the em-ployee need not show that the subject matterof the petition involved a matter of publicconcern. [San Filippo, 30 F.3d] at 442. Thisdistinction is legitimate because the PetitionClause is not merely duplicative of the FreeSpeech Clause.
Foraker, 501 F.3d at 236.
(c) The petition repeatedly predicts that byaccording protection under the Petition Clause tolawsuits and other formal mechanisms not involvingmatters of public concern the Third Circuit willeviscerate the rule in Connick. "[T]he Third Circuitrule creates an easy end run around Connick’s publicconcern requirement." (Pet. 24).8 Under San Filippo,
8 "[The Third Circuit] rule would permit public employeesto raake an end run around the public concern requirement forfree speech retaliation claims simply by couching their expres-sion in the form of a petition." (Pet. 11).
17
petitioners contend, public employees can evade thatrequirement "simply by couching their expression inthe form of a petition" (Pet. 11), or "through thecommonplace step of filing a grievance" (Pet. 15).
As other courts of appeals have recognized,permitting [retaliation claims that lack amatter of public concern] would open thefederal floodgates to all manner of petty per-sonal disputes." Altman [v. Hurst, 734 F.2d1240,] 1244 [(7th Cir.1984)].
(Pet. 21) (bracketed material in petition).
The fatal problem with these dire predictions isthat San Filippo was decided sixteen years ago.Petitioners do not contend that any of these predictedconsequences have in fact occurred. Petitioners do notassert that there has been an avalanche of shamlawsuits or grievances used to concoct Petition Clauseprotections for otherwise unprotected statements.Indeed, the Third Circuit standard expressly does notapply to sham proceedings,9 and petitioners do notcontend that the courts in that circuit have identifiedany such problems. Petitioners do not, of course,contend that Guarnieri’s 2003 grievance was merely acontrivance to obtain protection for statements criti-cizing the Borough Council; to the contrary, there isno dispute that the grievance and subsequent arbi-tration were a bona fide (and ultimately successful)effort to win back Guarnieri’s job as Police Chief.
9 San Filippo, 30 F.3d at 436-37.
18
The petition identifies three appellate decisionsin the sixteen years since San Filippo that haveapplied the standard in that case (including Foraker,which held the plaintiffs’ actions in there were notprotected by the Petition Clause). (Pet. 2). During thesame period, however, appellate decisions in theThird Circuit applied the Connick public concernstandard in 32 cases.1° The petition identifies fourdistrict court decisions in the Third Circuit whichhave applied the standard in San Filippo during theyears since that case was decided in 1994. (Pet. 26).Du:ring the same sixteen year period, however, dis-trict court decisions in the Third Circuit applied the
11Connick public concern standard in 158 cases.Despite petitioners’ predictions that San Filippowould largely supplant Connick as the controllingcriterion in public employee First Amendment cases,nothing of the sort has occurred. To the contrary,Connick’s public concern standard continues to gov-ern the overwhelming majority of public employeeFirst Amendment cases in the Third Circuit. Thecoraparative handful of cases to which San Filippohas been applied are not important enough to war-rant investment of this Court’s scarce time andresources.
~o We set forth a list of those cases in an appendix to this
brief.~ We set forth a list of those cases in an appendix to this
brief.
19
That San Filippo has had only a marginal impactis not difficult to understand. Most of the gripes ofpublic (or private) employees do not result in litiga-tion because the underlying complaints simply do notinvolve any arguable violation of federal or state law.Petitioners hypothesize that state and local employ-ees might file lawsuits solely for the purpose of voic-ing in an assertedly protected civil complaint somedisagreement that they might have with their em-ployers. But public employees generally lack the tensof thousand of dollars that would be needed to hire anattorney to litigate such a lawsuit, and no sensiblelawyer would take such a case on a contingent feebasis. Similarly, most dissatisfactions on the part ofemployees would not support a colorable formalgrievance and request for arbitration under a collec-tive bargaining agreement (if any such agreementeven existed), and ordinarily only a union - not anindividual member - can press a grievance to thepoint of arbitration.
Petitioners assert that "the plaintiff in Connickcould simply have filed her questionnaire in a griev-ance in order to have received First amendmentprotection." (Pet. 24). This comment illustrates pre-cisely why San Filippo has had so little impact.Including that questionnaire in a grievance wouldhave been utterly pointless. What the plaintiff inConnick wanted was for her fellow employees actual-ly to read and fill out the questionnaire; there is nopossibility that the plaintiff’s co-workers would havegone to the arbitrator, obtained a copy of that ques-tionnaire, and filled it out. And there is nothing in
20
Connick suggesting that the employer in that caseeven had some sort of formal grievance and arbitra-tio~.~ mechanism that the plaintiff could have invoked.
(d) Even when it is applied, San Filippo often isnot outcome determinative. In some instances courtsholding that a plaintiff’s statements were protectedby the Petition Clause have noted that the state-ments, in any event, involved matters of public con-cern and would have been protected under Connick.12For example, petitioners point to Marrero v. CamdenCounty Bd. of Soc. Services, 164 F.Supp.2d 455(DiN.J.2001), as an example of a "run-of-the-millemployment dispute[ ]" that did not belong in federalcourt. (Pet. 26). Marrero concerned the dismissal of acou.nty worker because she had filed an administra-tiw~ complaint and lawsuit alleging sexual harass-ment and other gender based discrimination.13 ThedislLrict court noted that a complaint of sexual har-assment constituted "speech on a ’matter of public
15 E.g., Pollock v. City of Ocean City, 968 F.Supp. 187, 192(D.N.J. 1997) (~San Filippo remains the law of this Circuit ....Inany case, ... plaintiff’s allegations - regarding personal favorit-ism. nepotism, and ultra vires acts on the part of City officials -probably suffice to implicate public concerns").
1~ 164 F.Supp.2d at 460-61. The petition refers to this caseas merely involving ~a tort claim notice involving alleged dresscode; violations." (Pet. 26). The dress code at issue was relevantonly because it was part of the context in which the allegedgender-based discrimination and harassment occurred. Theplaintiff alleged she was retaliated against for filing suit infederal court (which the Petition does not mention) and filingthe tort claims notice; that notice was "a required precursor toher lawsuit." 164 F.Supp.2d at 468.
21
concern’ that was protected by the First Amendmentregardless of whether a formal petition was everfiled." 164 F.Supp.2d at 468 n.10.
Even where a plaintiff establishes that his or herconduct was indeed protected (only) by the PetitionClause, that often has no impact on the outcome ofthe litigation. Decisions recognizing that a plaintiffengaged in such protected activity routinely grantsummary judgement to the defendant, either on theground that there is insufficient evidence of an un-constitutional motive,TM or because the defendants
¯ ¯ 15have lmmumty, or because the asserted retaliationwas too insignificant to be actionable.TM
The core justification asserted by petitioners fordenying constitutional protection to lawsuits andother formal proceedings regarding matters not ofpublic concern is to accord state and local govern-ments the latitude to punish or prohibit such actionsif they are deemed inconsistent with the efficientoperation of government. "The decision below ...critically undermines the ability of state and local
14 Olsen v. Ammons, 2009 WL 2426060 at *4 (M.D.Pa.);Snavely v. Arnold, 2009 WL 1743737 at *4 (M.D.Pa.); Howard v.Bureau of Prisons, 2008 WL 318387 at "16 (M.D.Pa.); Walsifoerv. Borough of Belmar, 2006 WL 2990364 at "9-’11 (D.N.J.);Barnes Foundation v. Township of Lower Merion, 982 F.Supp.970, 1002-03 (E.D.Pa.1997).
15 Dewees v. Haste, 620 F.Supp.2d 625, 636 (M.D.Pa.2009).~6 Snavely v. Arnold, 2009 WL 1743737 at *4 (M.D.Pa.).;
Howard v. Bureau of Prisons, 2008 WL 318387 at "15 (M.D.Pa.).
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governments to manage their work forces" (Pet. 3),and impairs "the ability of state and local govern-ments to manage their employees efficiently." (Pet.14; see id. at 10 (according protection under thePetition Clause would obstruct "necessary flexibilityas employers"), 27 (according protection under thePetition Clause would impair "the efficient function-ing of state and local governments")).
But precisely because San Filippo is limited toinvocation of formal remedial mechanisms, the retal-iatory practices at issue in these cases - far frombeiag an ordinary tool of efficient management - areoften forbidden by state or federal law in order tosafeguard those very mechanisms, and thus arealready unavailable to the state and local employersat issue. Marrero v. Camden County Bd. of Soc.Services, on which petitioners rely, involved retalia-tion against a county worker for filing an administra-tiw~ complaint and lawsuit under the New JerseyLaw Against Discrimination. 164 F.Supp.2d at 468-69. The terms of that very statute forbade the use ofsuch reprisals. N.J.S.A. 10:5-12(d); see Marrero, 164F.Supp.2d at 472-73. In Moore v. Darlington Town-ship, 690 F.Supp.2d 378 (W.D.Pa.2010), also relied onby :petitioners, the plaintiff had been fired because hesought and obtained an award under the state work-ers~’ compensation statute. Under Pennsylvania lawsuch retaliatory dismissals, far from being an accept-ed method of reducing employer costs, were illegal.Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231 (Pa.1998).
23
The instant case illustrates with particularclarity why San Filippo often has little if any impacton the ability of state and local officials to overseetheir employees. Although petitioners insist that theBorough Council should have been permitted, with-out federal intervention, to implement the disputeddirectives (Pet. 26), those very directives had beenlargely invalidated by an arbitrator long before thiscase went to trial; the decision below did not limit"the Borough’s right" to issue such directives, becausethe arbitrator had already effectively resolved thedisputes about those directives. Petitioners do notrefer to or defend the retaliatory denial of overtimethat occurred in 2006. Again, however, the Boroughclearly had no "right" to deny that overtime pay; theDepartment of Labor concluded that the Borough’sactions had violated the Fair Labor Standards Act, adetermination which the Borough does not contest.
II. THIS CASE IS NOT AN APPROPRIATEVEHICLE FOR RESOLVING THE QUES-TION PRESENTED
The particular circumstances of this case make ita poor vehicle for resolving the question presented.
First and foremost, Guarnieri was not a publicemployee at the point in time when he engaged in theassertedly protected activity. Guarnieri was fired onFebruary 7, 2003, filed the grievance on February 20,2003, participated in the arbitration hearings inAugust and September 2004, and was not rehired
24
until January 21, 2005. Petitioner asserts that thedecision below "conflicts with decisions of this Court,which have held that when ’a public employee speaks... as an employee upon matters only of personalinterest," that speech is not protected by the freespeech clause. (Pet. 2).17 But when Guarnieri filed thegrievance and pursued the arbitration that are at theheart of this case, he simply was not "a public em-plo:gee speak[ing] ... as an employee." The decision inConnick deals with statements made by individualswhiile in the employ of a government entity. 461 U.S.at 146 ("employee expression"), 147 ("an employee’sspeech"; "[w]hen a public employee speaks"), 149("criticism by [public] employees"), 152 "the employ-ee’s speech").
Nothing in Connick purports to establish astandard for cases such as this in which an individualacted or spoke only as a private individual, and latersuffered retaliation when he or she became a publicemployee. Connick makes clear that even speechabout matters not of public concern ordinarily enjoysconstitutional protection. 461 U.S. at 147. An individ-ual may to some degree prospectively waive the rightto exercise some of those rights as a condition ofpublic employment, but assuredly individuals do notby taking a government job tacitly agree to beingpunhshed for speech or other actions that were
17 See Pet. 4 ("when a public employee speaks"), 19 ("publicemployee expression").
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completely protected at the time it occurred. None ofthe opinions which petitioners claim conflict with thedecision below involved the highly atypical circum-stances of the instant case.
If certiorari were granted in this case, there is asubstantial likelihood that Guarnieri would prevailon this ground alone. Were this Court to concludethat the public concern requirement of Connick doesnot apply to statements made by individuals at apoint in time when they were not public employees,the decision below would be affirmed without everreaching the question presented.
Second, in the particular circumstances of thiscase the asserted rationale for denying protection topetitions involving formal remedial mechanisms - theasserted importance of not interfering with retalia-tory action as a method of assuring efficient govern-ance - simply does not apply. The actions challengedin this case had already been invalidated on othergrounds well before this case ever came to trial.Providing a remedy for the asserted Petition Clauseviolation in no way limited to the ability of the Bor-ough to engage in the underlying practices, which ithad long before been compelled to abandon by theactions of the arbitrator (in the second arbitration)and by the United States Department of Labor.
Finally, the second proven retaliatory act (thedenial of overtime compensation) was taken as areprisal for Guarnieri’s filing of a section 1983 civilrights action in a federal district court. Petitioner
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ar~,mes that according protection under the PetitionClause to actions not involving matters of publicconcern would be "inconsistent with sound principlesof :Federalism and the separation of powers." (Pet. 22)(quoting Garcetti v. Ceballos, 547 U.S. 410, 423(20,06)). Whatever force that argument might have inordinary contexts, it makes absolutely no sense whenstate or local officials seek to punish employees whohave sought redress in a federal court for a violationof federal rights. To the contrary, sound principles offederalism weigh heavily against an interpretation ofthe. Constitution which would permit - indeed, ira-munize - actions by state or local officials to obstructor punish access to the federal courts. Similarly, theprinciples of separation of powers are assuredlytrampled, not vindicated, when executive or legisla-tiw~ officials interfere with or retaliate against em-ployees who in good faith seek redress from Article IIIcourts.
III., THE DECISION BELOW IS NOT INCON-SISTENT WITH THIS COURT’S DECI-SIONS IN McDONALD AND CONNICK
Petitioners correctly acknowledge that the ques-tion presented is an issue which this Court has notresolved.
As the Third Circuit observed, this Court"has not discussed the scope of the constitu-tional right to petition in the context of anallegedly retaliatory discharge of a publicemployee." San Filippo, 30 F.3d at 435.
27
(Pet. 13). The petition never discusses, or even men-tions, either the reasoning in San Filippo that thePetition Clause protects access to the courts, or thedecisions of this Court - relied on in San Filippo -regarding that right of access.
The petition nonetheless asserts that the decisionbelow (and in San Filippo) "flouts" the decisions ofthis Court. (Pet. 11). While there may be a colorableargument that the Petition Clause should be inter-preted in the narrow fashion proposed by petitioners,that assuredly is not a question which this Court hasalready definitively determined.
(a) The petition asserts that "the Third Circuit’srule violates this Court’s holding in McDonald v.Smith [, 472 U.S. 479 (1985)] that the Petition Clauseprotects expression no more than does the FreeSpeech Clause." (Pet. 14) (capitalization omitted); seePet. 16 (McDonald "held ... that speech and petitionshould be treated alike"). This contention substantial-ly overstates the holding in McDonald. The actualissue in McDonald was far narrower - whether theprotections accorded to statements about matters ofpublic concern by the Petition Clause, like the protec-tions of the Free Speech Clause, are unavailablewhere a defendant sued for libel acted withknowledge that his statements were false or withreckless disregard of their veracity. 472 U.S. at 485.In holding that the Petition Clause and the FreeSpeech Clause are in this particular respect thesame, McDonald relied on the specific history of libelclaims. 472 U.S. at 483-84. That historical analysis is
28
obviously irrelevant in the instant case, which chal-lenges, not the constitutionality of a libel action, butthe constitutionality of a retaliatory dismissal.
Petitioner relies primarily on this Court’s obser-vation in McDonald that the purposes and historicalori~ns of the Petition Clause and Free Speech Clauseoverlap. (Pet. 3, 14). But the Court’s observation is farfrom a holding that the two clauses are identical.Clearly they are not. The Free Speech Clause protectsmany things - such as music, dance, speech unrelat-ed to any possible action by the government - thatwould fall outside of the Petition Clause; there is nological reason which the Petition Clause could notalso apply to some actions not protected (or notprotected to the same degree) by the Free SpeechClause. This Court has repeatedly held that thePetition Clause and Free Speech Clause are "notidentical." NAACP v. Claiborne Hardware Co., 458U.S. 886, 912 (1982); United Mine Workers v. IllinoisState Bar Ass’n, 389 U.S. 217, 222 (1967); Thomas v.Col.~ins, 323 U.S. 516, 530 (1945). Most importantly,McDonald reiterated the very premise of the ThirdCircuit decision in San Filippo, holding that the"filing of a complaint in court is a form of petitioningactivity," citing the same cases - California MotorTransport and Bill Johnson’s Restaurant - relied onby San Filippo itself. Nothing in McDonald suggestedthat the right of access to the courts recognized inCalifornia Motor Transport and Bill Johnson’s Res-tau~,ant is limited to lawsuits regarding matters ofpublic concern.
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The petition describes McDonald as holding that"there is no sound basis for granting greater constitu-tional protection to statements made in a petition* * * than other First Amendment expressions." (Pet.4-5, quoting Mcdonald 472 U.S. at 485). Edited inthis way that passage from McDonald appears toannounce a general rule that the protections accordedto petitions can be no broader than the protectionsaccorded to speech. But the missing words in theellipsis - "to the President" - gives the quoted pas-sage a significantly narrower meaning. That passagestates only that there was no reason to accord to thatparticular petition in McDonald itself greater protec-tion under the Petition Clause than would be accord-ed to the same statement by the Free Speech Clause.Read without this key deletion, the passage inMcdonald clearly does not reach all other situationsto which the Petition Clause might apply, or hold (aspetitioners contend) that the Petition Clause wouldnever accord more protection to an individual filing alawsuit than the Free Speech Clause would accord tothat individual if, while a public employee, he madestatements on the same subject to his supervisor orcolleagues.
(b) Petitioners also argue that the issue in theinstant case is controlled by this Court’s decision inConnick. Connick, however, did not concern or evenmention the Petition Clause.
3O
The petition argues that
The First Amendment Free Speech and Peti-tion clauses ... share a singular purpose: "toassure unfettered interchange of ideas forthe bringing about of political and socialchanges desired by the people." Connick, 461U.S. at 145 (quoting Roth v. United States,354 U.S. 476, 484 (1957) ... ).
(Pet. 17). But the actual quotation in Connick doesnot mention the Petition Clause; it refers, rather, that"the First Amendment." 461 U.S. at 145. In thiscontext "the First Amendment" clearly referred to theFree Speech Clause. Obviously the listed purposeswere not the reason for the adoption of every provi-sion in the First Amendment; they were not, forexample, the purposes for the adoption of Establish-me:at Clause. The full quote from Roth (quoted inturn in Connick) states that the identified purposeis the reason for "the protection given speech andpress," not the rationale for everyone of the provisionsin the First Amendment. The sentence in Connickfollowing the quoted passage refers specifically (andonl:y) to "speech." 461 U.S. at 145.
Petitioners object that the filing of a lawsuit or aformal grievance by a government employee can bedisruptive because it will "engag[e] the government ina time-consuming formal dispute." (Pet. 19). Petition-ers also object that lawsuits can be expensive todefiend. (Pet. 23). Certainly a city could save itselftime and money if it forbade all its employees to suethe city (even in federal court), and if it could dismiss
31
any worker who did so. But this is a very differentgovernmental interest than was relied on by theCourt in Connick. Nothing in Connick suggested thatgovernment employers are entitled to use threats ofreprisal to immunize themselves from lawsuits infederal court by plaintiffs seeking to enforce theConstitution and laws of the United States. Andwhere, as here, a municipal government has madethe considered judgment that its interests as anemployer would best be served by adopting a collec-tive bargaining agreement that includes a right toarbitration, nothing in Connick suggests it would beimportant to construe the First Amendment in amanner that would permit individual city officials topunish or obstruct employees who seek to resort tothe very remedial mechanisms established by thecity’s own agreement.
For thenied.
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CONCLUSION
above reasons certiorarishould be de-
Respectfully submitted,CYNTHIA L. POLLICK
363 Laurel StreetPittston, PA 18640(570) 654-9675
ERIC SCHNAPPER*School of LawUniversity of WashingtonP.O. Box 353020Seattle, WA 98195(206) [email protected]
