Argument preview: A tale of two clauses

The Supreme Court has long held that an adverse employment action by the government violates the Speech Clause of the First Amendment only when it is taken in retaliation for an employee’s statements on a matter of public concern. Today, in Borough of Duryea v. Guarnieri (09-1476), the Court will consider whether broader protection is available through the First Amendment’s Petition Clause.

Facts and Procedural History

In February 2003, the Council for the Borough of Duryea, Pennsylvania dismissed respondent Charles Guarnieri from his position as Chief of Police.  He responded by filing a union grievance.  The grievance led to an arbitration, which, in turn, eventually resulted in Guarnieri’s reinstatement.

Upon Guarnieri’s return in 2005, the Council issued eleven directives, requiring, for example, that Guarnieri personally patrol four to five hours per shift and that he not work more than forty hours per week.  Guarnieri filed a second union grievance.  That filing led to another arbitration, at which the arbitrator ordered the Council to modify or abandon some of the directives.  Other disputes, which the Third Circuit later characterized as “petty,” continued to arise between Guarnieri and the Council.

Guarnieri filed suit against the Borough of Duryea (and other defendants) under  42 U.S.C. § 1983, alleging (among other things) that the Borough had issued the  directives to retaliate for Guarnieri’s initial union grievance.  Such retaliation, he contended, violated his First Amendment right to petition the government for redress of grievances.

In December 2006, Guarnieri submitted a request for $338 in overtime, which the Council denied.  After an investigation by the Department of Labor concluded that the denial was illegal, Guarnieri amended his complaint to include the overtime denial as a retaliatory act.

The Borough moved for summary judgment, which the district court granted in part.  It denied summary judgment, however, on Guarnieri’s Petition Clause retaliation claim, holding that the Third Circuit’s decision in San Filippo v. Bongiovanni (1994) foreclosed the Borough’s argument that the Petition Clause protects government employees from retaliation only when their petitions address matters of public concern

At trial, the jury found that the Council had issued its directives and withheld overtime in retaliation for activity protected by the Petition Clause, the jury awarded Guarnieri both compensatory and punitive damages.  The district court denied the Borough’s motion for judgment as a matter of law and for a new trial, and the Third Circuit affirmed.  The Borough filed a petition for a writ of certiorari, which the Court granted on October 12, 2010.

The Parties’ Arguments

In its brief on the merits, the Borough emphasizes the Court’s holding in Connick v. Myers (1983), that the First Amendment’s Speech Clause protects government employees from adverse employment action only when such action is taken in response to an employee’s expression “as a citizen on a matter of public concern.”  The Borough then argues, relying on the Court’s decision in McDonald v. Smith (1985), that “[n]either the text nor history of the Petition Clause affords any basis for granting greater constitutional protection to statements made in a petition.”  Moreover, the two rationales underlying the public-concern requirement – that all employers (including governments) require discretion in dealing with work-related complaints and that the First Amendment’s primary purpose is to foster democratic self-governance – apply equally when an employee’s complaint takes the form of a petition.

If Guarnieri is correct, the Borough argues, plaintiffs could circumvent Connick simply by characterizing their complaints as petitions.  This would allow government employees to turn employment disputes into constitutional cases, which would in turn often require government employers to choose between retaining a disruptive employee and enduring costly litigation.  Moreover, the Borough asserts, plaintiffs already have remedies available under state and federal law and through collective bargaining agreements that are well-suited to take into account job type, employer size, and the nature of an employee’s claims.  And Guarnieri’s position – if correct – would intrude on the ability of state and local governments to resolve these matters.

In his brief on the merits, Guarnieri counters that the Petition Clause protects petitions seeking redress of private grievances.  This was the common understanding of Founding-era Americans, he explains, as evidenced by the fact that the “overwhelming majority of petitions received by the First Congress were private claims.”  Indeed, Guarnieri asserts, many of those petitions were filed by current and former federal employees seeking wages, raises, and moving expenses.

Guarnieri rejects the Borough’s efforts to rely on Smith, which he characterizes as distinguishable because the defendant in that case argued only that the Petition Clause did not protect “intentional and reckless falsehoods” contained in the plaintiff’s petition.  Here, by contrast, the Borough retaliated against Guarnieri because he filed union grievances and a Section 1983 lawsuit – that is, for his acts of petitioning rather than for any particular statements contained within his petitions.  And, while noting that Connick’s public-concern rule is necessary to ensure that every governmental employment decision does not lead to constitutional litigation, Guarnieri argues that the same is not true in the context of petitions for redress.  Petitions, he explains, are a relatively uncommon subset of “statements” on which a government employer might base an adverse employment action, and they can be addressed on a case-by-case basis without raising difficult issues.

The United States filed an amicus brief in supporter of the Borough.  Deeming it well-established that the government may, without violating the First Amendment, “discipline a public employee based on speech that does not involve a matter of public concern,” the federal government argues that its interest in “promoting the efficiency of the public services that it performs through its employees” mandates the same result even when the speech for which an employee is disciplined takes the form of a petition for redress of grievances.  Indeed, if anything, the government argues, “expression through a petition may be more disruptive to the government’s operations than expression through informal speech.”