*1 PENNSYLVANIA, et al. v. DURYEA, BOROUGH OF GUARNIERI 20, 2011 June Argued 2011 Decided
No. 09-1476. March *3 Daniel R. Ortiz argued the cause for With petitioners. Toby Ryan, Heytens, E. J. the briefs were James him on Goldberg, Elwood, Mehalchick, T. P. Karoline David John and Mark T. Standi.
Joseph R. Palmore argued United the cause States curiae as amicus On the brief of petitioners. support Attorney Katyal, Acting Assistant Solicitor General were Kruger, Acting Deputy Ann West, General General Solicitor E. Robinson. Kanter, and Michael O’Connell, William argued Schnapper respondent. Eric cause for With Cynthia him on the brief was L. Pollick* opinion of the court. Kennedy delivered Justice Among rights other to freedom, essential the First protects people Amendment “the of ... grievances.” of Government for S. redress U. Const., protection, 1. Arndt. This case concerns the of the extent if any, grants employees that the Petition Clause rou- disputes government employers. tine with Petitions are a expression, employees form of who invoke the Petition Speech Clause in most cases could invoke as well employer an First Amendment. To show that inter- employee, fered Clause, under general rule, must show that his was on matter urging *Briefs of amici curiae were reversal filed the State of Flor- McCollum, by ida et al. Attorney Florida, Bill Makar, General of Scott D. General, Lathan, Solicitor General, A Deputy Ronald Solicitor Suzuki, A. Attorney Hawaii, Russell Acting of General the Attor- neys General for respective Troy King their of Alabama, States as follows: John of Colorado, Joseph Delaware, Suthors R. Bidón III of Lisa Madigan Illinois, Gregory F. Indiana, “Buddy” Zoeller of D. James Caldwell of Louisiana, Maine, Janet T. Mills of Michigan, A Michael Con Jim Hood Mississippi, Paula T. Jersey, Dow Cordray Ohio, of New Richard A Corbett, Jr., W. Drew Oldahoma, Edmondson of of Pennsyl- Thomas W. vania, Marty Dakota, Jr., Jackley J. Cooper, of South E. Robert Tennes- see, Greg Texas, Utah, Abbott of McGraw, Mark L. Darrell V. Shurtleff Jr., of Virginia, A Salzburg Wyoming; West and Bruco for the National *4 Legislatures by Conference of State Helyar; et al. L. Rachel and for the by Jr., National School Negrón, Boards Association M. Francisco Naomi Gittins, E. Sonja H. Trainor. of *Briefs amici urging curiae for affirmance were filed the American Civil by Liberties Union Phillips, Troth, et al. G. Carter Rebecca K. Wi- Walczak, Kreimer; told J. Steven Shapiro, R. F. and Seth for American Federation Congress Organizations by of Labor Lynn of Industrial K. Rhinehart, Wade, Copposs, Angelia Gold; James B. D. and Laurenco Juaticc and Freedom Fund L. Janies IHrsen mid Deborah J. Dew- art; and for the National of Larry Fraternal Order Police et al. H. James and L. Christina Corl. precedents in the is defined as that term concern, is whether that the issue test Here and other courts. this employee applies the Petition Clause. invokes when the Appeals among to have addressed the the Courts Alone Appeals Circuit has held the Third for' issue, the Court limit Petition Clause does not that the concern test by public employees. below, stated the reasons For claims is this conclusion incorrect.
I challenging grievance his filed a union Charles Guarnieri borough Duryea, police for the termination as chief of Pennsylvania. persons in 4,600 town of about northeastern police pursuant grievance proceeded to the His to arbitration collective-bargaining agreement. The arbitrator union body Duryea’s legislative borough council, found that the entity responsible termination, committed for Guarnieri’s procedural termination; errors connection engaged in miscon- also found Guarnieri the arbitrator that ” including "attempting to intimidate Council members. duct, App. ordered Guarnieri reinstated 37, The arbitrator 38. disciplinary suspension. Id., at 38. after a job, Upon to the the council issued 11 return Guarnieri’s performance instructing in the his directives Guarnieri attorney explained that council duties. The council’s going understood what chief was “wanted to be sure that the (Apr. expected upon return.” Tr. 19:12-14 of him his be 2008). working prohibited from Guarnieri 16, One directive “express permission.” App. overtime without the council’s police ¶ “[t]he car is to be used 59, 1. Another indicated only.” ¶ third Id., 60, at 9. A stated official business building “Duryea municipal smoke free build- exempt.” ing” “police department Id., is not and that ¶ that, because these and 10. Guarnieri testified welcoming “coming a warm other back wasn’t directives, his 2008). feeling.” (Apr. Guarnieri filed sec- Tr. 65:7-8 grievance challenging The arbi- ond union the directives. *5 modify trator instructed the council to or withdraw some of grounds they vague, the directives on the that were inter- authority contrary mayor, fered with the of the or were collective-bargaining agreement. borough, Guarnieri filed this lawsuit the bor- ough council, and individual the council members of under § § Rev. Stat. U. S. C. 1983. Guarnieri claimed that grievance protected
his first union was a the Peti- alleged tion First he Amendment, and that the upon directives issued his reinstatement were retaliation for protected activity. that request by
After this suit was filed, the council denied Depart- Guarnieri for in $338 overtime. The United States investigated ment of Labor and concluded that Guarnieri was paid. entitled to be The council offered Guarnieri a cheek accept the amount, but Guarnieri refused to Instead, it. encompass complaint Guarnieri amended his the denial of § alleged overtime. Guarnieri that his 1983 lawsuit was a petition and that the denial of overtime constituted retalia- having tion for his filed lawsuit.
Under the law of Circuit, could defendants not ob- judgment tain as a matter of law on the that the basis lawsuit grievances were not on a matter concern. The proceeded jury. attorney argued case to a Guarnieri’s “sending message through the council was to” Guarnieri might the directives and the denial of overtime: “You have your you.” won arbitration, but we control Tr. 53:24-25 2008). (Apr. jury The District Court instructed grievances “protected activity... the lawsuit and union were jury under the constitution,” and that could find de- adequate fendants liable if it found an connection between protected activity alleged Id., retaliation. jury 61:17-20; 62. The in found favor of Guarnieri. The jury compensatory damages $45,000 awarded in and $24,000 punitive damages in directives, for the as well as $358 compensatory damages punitive damages $28,000 *6 $45,000 awarded The District Court of overtime. the denial renewed attorney’s defendants’ motion fees and denied judgment a law. as matter of ground griev appealed that Guarnieri’s the
Defendants on public of concern. matters ances and lawsuit did not address allegedly have held that outside the Third Circuit Courts employers against gov retaliatory government actions liability employees may give under rise the ernment petition employee’s related a Petition unless the Clause City, g., Kirby See, v. Elizabeth matter of e. concern. (CA4 2004); Tang Island, v. Rhode 388 F. 3d 448-449 440, (CA1 1998); Dept. Elderly 7, 3d 11-12 163 F. Affairs, of Towing Corp. Patterson, v. 2d 1049, Plains 991 F. White (CA2 1993). rely overlap aon substantial 1059 These courts ap justify the between the of precedents plication Speech to Petition Clause of Clause grievance They that, the is consid claims. reason whether Speech Clause, ered Clause or the Petition under employer to take action is entitled adverse dispute employee involves a matter of unless public concern. Appeals
Rejecting here that affirmed view, Court although compensatory damages, found insuf award punitive damages. award of ficient to sustain the evidence public employee Appeals ‘“a that concluded Court through petitioned a formal mecha who has grievance protected filing a or lawsuit nism such as the activity, retaliation under the Petition from solely private a con matter even if concerns 2010) (CA3 (quoting Appx. 753 Fora 749, cern.’” Fed. 364 (CA3 2007)). The deci 3d 236 ker v. F. Chaffinch, Appeals the rule was consistent with sion of the Court of Bongi Filippo adopted explained by v. court in San (1994). granted Court certio- ovanni, F. This 424, 442 3d Appeals. 562 rari to in the Courts resolve the conflict (2010). S. 960 ( hH I— public employee government employer When a a sues employee under the Clause, First Amendment’s spoke must public that he a show or she citizen on matter Myers, S. concern. Connick 461 U. employee speak citizen,
If an or does not as a does not ad dress a matter of concern, “a federal court is not the appropriate per forum in which to review the wisdom of by public agency allegedly sonnel decision taken reaction employee’s employee to the if behavior.” Ibid. Even an *7 speak public does as a citizen on a of concern, matter the employee’s speech automatically privileged. is not Courts employee balance the First of Amendment the interest employer, promot “the of State, interest the an ing efficiency performs through the of the services employees.” Pickering Township its Board Ed. v. of of High (1968). Cty., Dist. 205, School 563, Will 391 U. S. 568 employee’s right “reconcile[s] This framework the to en gage government employer’s right pro and the legitimate performing tect its own interests in its mission.” (2004) curiam). Diego (per San v. Roe, 543 U. 82 77, S. rights There are some so fundamental to freedoms lib erty they bargained away cannot be in a contract for that public employment. responsibility “Our is to ensure that deprived by [these] citizens are not of fundamental working government.” supra, virtue of Connick, for the Keyishian Regents sec also 147; v. Board Univ. State of of (1967). N. Y.,385 S. 589, 605-606 a Nevertheless, citi accepts public employment accept zen who “must certain limitations on his or her Ceballos, freedom.” v. Garcetti 547 (2006). government U. S. 410, The has substantial in ensuring operations terest in that all its are efficient and may authority require That effective. interest broad to su pervise public employees. the conduct of “When someone paid salary who agency’s so she will to an contribute operation begins say things effective to do or that detract operation, agency’s em- from the effective power ployer restrain her.” Waters v. must have some (1994)(plurality opinion). Re- Churchill, 661, 511 U. S. by employ- justified nature of the the consensual straints unique govern- relationship by nature of ment ment's interest. Clause, not the Petition
This case arises under the premise litigated parties the case on Clause. petitions protected by grievances lawsuit are
Guarnieri’s precedents confirm that the Petition Clause. This Court's protects right appeal individuals the Petition and other forums established courts right legal disputes. “[T]he of access to for resolution aspect wrongs is an First Amend- courts redress government.” Sure-Tan, Inc. ment (1984);see also BE&K Cnnstr. NLRB, 467 U. S. 896-897 (2002); NLRB, Bill Johnson’s 516, 525 Res- Co. v. 536 U. S. (1983); taurants, 731, 741 NLRB, Inc. v. 461 U. S. California Trucking Transport Unlimited, 404 U. S. Motor Co. v. a, government employer Although retaliation employee's of access to the exercise may implicate protections Clause, of the Petition
courts appli- necessity provides the correct to consider this case no *8 beyond that context. cation of the Petition Clause Although proceeds the Petition Clause, under this ease alleged easily employer just that his have as could Guarnieri speech contained his the within retaliated him for subject grievances have been That claim would and lawsuit. already Because Guar- to the concern test described. proceed Clause, however, Petition nieri to under the chose generous Appeals applied a rule. Follow- the more Court Filippo, ing Appeals in San the decision of the Court of protection supra, to was deemed entitled 443, Guarnieri petition long not a “sham.” his was from retaliation so as employers other rule, Under that and defendants might the same even if liable under the Petition Clause be give liability Speech
conduct would not rise under the to question presented by Clause. The this is whether the case history purpose justify and the Petition Clause im- position liability employee of broader when an invokes its protection protection Speech instead of the afforded the Clause. necessary say
It not to is that the two Clauses are identical purpose acknowledge in their to mandate or their effect and rights speech petition that share the and substantial com- ground. right speak mon This has to Court said that the right petition “cognate rights.” and the to are Thomas (1945); Wayte Collins, 516, 323 U. S. see also v. United States, S. n. “It was not acci- rights speech dent or coincidence the to freedom and coupled press single guaranty were in a with the people peaceably petition and to assemble for redress grievances.” speech Thomas, S., 323 U. at 530. Both petition integral and process, although to the democratic necessarily way. right petition in the same express hopes, allows citizens ideas, their and concerns to their representatives, their elected whereas speak public exchange fosters the of ideas that integral democracy is to deliberative as well whole Beyond political realm ideas and human affairs. sphere, speech petition personal expres- both advance although generally sion, concerned expression seeking directed to redress grievance. aof presume always
Courts should not there is an essential equivalence prece- in the two Clauses or necessarily every dents and in case resolve Petition Clause ibid, (rights claims. See are “not identical”). Interpretation of must Petition Clause be guided by objectives aspirations that underlie the right. petition conveys special A concerns its author *9 government requests by and, form, in its action usual Sure-Tan, See concerns. those to address supra, Inc., at 896-897. Smith, U. S. 479 opinion
This in McDonald Court’s interpreted to mean that the (1985), has sometimes been than the petition no farther can extend only speech contained within speak; held but McDonald subject petition for defamation standards to the same is petition. In circum- those and libel as outside greater granting “no sound basis the Court found stances in a protection made to statements constitutional expressions.” Id., at 485. . . than other First Amendment . special of may concerns the Peti- where the There arise cases analy- provide for a distinct a sound basis tion Clause would principles that define the if that is the rules and sis; so, rights might emphasis and formulation. differ in two recognized, Appeals however, of have As other Courts employees by public do not call for this claims retaliation supra, divergence. The close connection be- at 385. See Appeals other than the these has led Courts tween developed apply test concern Third Circuit by public Speech claims Clause em- Clause cases to Petition approach justi- explained farther, ployees. this As will be ground in the definition and fied the extensive common shape rights. considerations delineation these public employees application employees apply equal under those to claims force the Petition Clause. justify a cau- interests that
The substantial speech by protection approach tious restrained just public employees public employees when as relevant proceed Petitions, no less than under the Petition Clause. opera- speech, and effective the efficient can interfere with may government. seek to achieve results tion A impair proper governmental policies or that “contravene governmental performance Garcetti, 547 functions.” authority, appro- must have at 419. Government S., *10 390
priate employees peti- circumstances, to restrain who use progress they tions to frustrate toward ends have been petition, speech, hired to achieve. A like other forms of can bring employer professionalism the “mission of the and the disrepute.” of its officers into Roe, serious U. atS., 543 81. public employee might, pur- A instance, for use courts to personal general sue vendettas or to harass members of the public. That behavior could cause a serious breakdown government employees. confidence in the and its speech ifAnd or were directed at or concerned other public employees, it could a have serious and detrimental effect on morale.
aWhen takes the form of a lawsuit government employer, may disruptive. particularly be response. Unlike sorts, other a lawsuit demands Mounting may a defense to even frivolous claims consume government employer. the time and resources of the Out public employment, recog side context of this Court has protect nized that the “objectively Petition Clause does not “ litigation directly baseless” that seeks to ‘interfere with the ” relationships competitor.’ business of a Real Professional Investors, Estate Inc. v. Industries, Columbia Pictures Inc., (1993) (quoting 49, 508 U. S. 60-61 Eastern Railroad Presi Freight, dents Inc., v. Noerr Motor 365 U. S. Conference (1961)). recognition imposed 144 In of the substantial costs by litigation, Congress required rights plaintiffs has also civil whose suits are or without “frivolous, unreasonable, founda s pay attorney’s tion” to fees incurred defendants. Chri tiansburg (1978); EEOC, Garment Co. v. S. (providing see also Fed. Rule Civ. Proc. sanctions for “presented improper purpose,” [an] claims that are friv lacking evidentiary support). olous, or significant disciplining public likewise has interest in em ployees judicial process. who abuse the application
Unrestrained of the Petition Clause in the government employment subject context of would a wide to invasive judicial superin- range operations on a file may grievances variety tendence. Employees matters, conditions, dis- including working pay, employment and terminations. See leave, vacations, cipline, promotions, Association as Amicus Cu- Boards. Brief National School riae 5. action in could response present Every government Judges juries, constitutional issue. federal potential *11 actions were asked to the government’s determine whether to be required give scrutiny fact would retaliatory, to the and the grievance both the government’s response would actions. This occa- its government’s justification matters left typically sion review of a host of collateral person- Budget priorities, the discretion officials. public all be laid nel decisions, policies might substantive before This would raise serious federalism the jury. It also concerns. would consume
separation-of-powers officials, time and attention of burden exercise the lines of be- accountability and blur authority, legitimate the public. tween officials and these risks and costs. at-
This case illustrates Guarnieri’s to review details myriad govern- torney jury invited the council’s decision ment She decisionmaking. questioned than Tr. 66 orally, (Apr. directives in rather writing, issue mayor to consult before 2008); the council’s failure 14, id., 2008); 15, at 105 the amount the directives, (Apr. issuing to defend lawyers” of money spent employ “Philadelphia id., at 191 to Guarnieri’s 193:7-10 (Apr. legal challenges, wisdom of council’s 2008), 16,2008); and the (Apr. 152-153 System decision to to install Global spend money Positioning id., (same). cars, Finally, devices on at 161-162 police to evaluate the council’s decisions invited the attorney jury on behalf Guarnieri’s “little of an light appeal emotional Id., and half Shitsu.” fluffy little white Hercules, dog dog 2008). to avoid this in- at It is precisely 49:13-14 (Apr. this Court affairs trusion into internal governmental invests public the First Amendment that, has held “while employees rights, empower with certain them does not employee grievance.’” to 'constitutionalize Garcetti, 154). (quoting S., Connick, S., U. at 420 at apply If the Petition Clause were to even where matters are involved, concern that would be unneces- sary, disruptive, already protection or even when there is rights public employees grievances to file and to liti- gate. adopt statutory can and often does regulatory protect employ- mechanisms against improper discipline, ees preserv- retaliation or while ing important government supra, Garcetti, interests. Cf. enactments”). (noting “powerful legislative network of Employees employment who sue under state federal and generous quite- laws often benefit from detailed anti- provisions. e.g., retaliation See, Ann., Pa. Tit. 43, Stat. 1101.1201(a)(4)(Purdon § 2009); §1101.1302. These statu- tory protections subject legislative can revision and designed unique be State, local, for the needs of or Federal special particu- Governments, as well as the circumstances of *12 governmental agencies. lar offices The Petition Clause public employees is not an instrument for to circumvent legislative pursuing these enactments when claims based on ordinary workplace grievances. light government’s public employ
In in the interests surprising ment context, it would be by public employees if Petition Clause claims necessary protect were not limited to employer’s beyond responsibilities. functions and Even “govern explained Clause, this Court has significantly greater leeway dealings ment has its in with' employees brings sovereign citizen than its it does when power large.” Oregon Engquist bear on citizens Dept. Agriculture, (2008); U. S. see also govern Nelson, NASA v. 134, 148-149 U. S. The managing.its requires ment’s interest in internal affairs proper employees restraints on the invocation of workplace when employer’s responsi- or the may no reason to think There is be affected. bilities exception. an Clause should be Petition developed protect public was these concern test Adoption of a different interests.
substantial
ready
provide a
means
Petition
claims would
rule for
protections.
employees
test’s
circumvent the
original
Myers,
plaintiff in
Con-
who was
Consider Sheila
soliciting
questionnaire
“a
views
nick. She circulated
office matters. 461
on various
her fellow staff members”
Myers’ claim for retalia-
S., at 141. The
held
Court
questionnaire
because
tion failed the
concern test
griev-
employee
accurately
as an
characterized
was “most
policy.”
concerning
Id., at 154. It
office
internal
ance
principle if a different result would
would undermine that
using
Myers
those same claims
have obtained had
raised
employer “reasonably
Myers’
grievance procedure.
formal
disrupt
[Myers’ complaints]
office,
under-
believed
would
working
destroy
relationships.”
authority,
close
mine
his
significant
no less
in the con-
concerns would be
Ibid. These
Employees
grievance.
should not
able
be
of a formal
text
by wrap-
the Connick case
in
the rule articulated
evade
speech
ping
of the Petition Clause.
the mantle
their
separate
for the Petition Clause
test
Articulation of a
government’s
aggravate potential
inter-
harm
would
compliance
with the
compounding
Consti-
ests
the costs
Amendment claim
each First
A
rule
tution.
different
petitions
require employers
separate
from other
would
that,
treatment;
them different
to afford
in order
expense
compli-
complexity would
turn,
add to the
petitions might
Identifying
be
ance with the Constitution.
procedures,
grievance
easy
employees employ formal
when
*13
petitions lodged
right
petition
to
not limited
but
g.,
Louisiana,
procedures.
Brown
e.
See,
under formal
(1966).
employee
could
in Connick
Indeed,
There however, no merit to the apply lic concern test cannot under the Petition Clause be- majority legislatures petitions cause the to colonial ad- purely private analogous dressed matters In concern. cases under the Clause, this Court has noted the special “Constitution’s concern threats participate political supra, citizens to affairs,” Connick, though likely any age, even it is in this that, other purely most private proper concerns matters. The scope application of the Petition Clause likewise cannot merely by tallying petitions be up determined to the colonial legislatures. identify Some effort musl made to be the his- principles toric and fundamental led the enumeration among in the Amendment, First other liberty. fundamental to *14 an added dimension assume Petitions to political, they social, other ideas of or when seek to advance community Petition, word, as a a whole. to interest concept, safeguard of ancient freedom, of a an essential Anglo-American legal significance English law and the in the g., Blackstone, *143. Commentaries e. See, tradition. W. right petitions applied to the petition from nobles The to to people King, King, to and from from to the Parliament personal inju- discrete, both and concerned Parliament, great ries and matters of state. Magna petition origins Carta, its
The traces petition King. of barons which confirmed the Commentary Magna on A the Great McKechnie, W. Carta: 1958). (revi Magna King ed. The 2d John 467 Charter King to a from answer Carta itself was John’s Right Petition of 1628 Id,., Later, barons. at 30-38. Magna upon a Carta as model of tradition drew centuries plea, that the demand, or even a for the Parliament issue (1627), 1, ch. 3 Car. refrain certain actions. Crown from Right Petition stated The 5 Statutes of the Realm 23. principal grievances: without consent of Parlia- four taxation billeting quartering imprisonment; arbitrary of sol- or ment; passage imposition law. After its of martial diers; and the the Petition received the Parliament, both Houses of England. King’s part law See assent and became and the Puritan Revolu- Gardiner, Two Stuarts S. The First Right Petition of pp. The oc- tion, 1603-1660, 60-61 history cupies superseded place English constitutional in Magna only by importance, perhaps, Carta itself and the in Right Declaration of of 1689. petitions following years use mass address saw History Eng- Hume, 8 D. See
matters of concern. Caesar the Revolution from of Julius land the Invasion (“Tumultuous (1763) petitioning... p. was an admi- 1688, 122 uniting spreading expedient... discontent, for rable clamour”). any popular instance, In nation regarding signed persons 15,000 more than summoning major “one of the Parliament, dissolution political agitating Knights, issues the nation.” London’s *15 (1993). Petition, ‘Monster’ 39, 36 Historical Journal 40-43 years Right illegal Nine the later, Declaration of listed the sovereign rights acts of the and set forth certain of the King’s subjects, petition one of which was the to sovereign. Right Subjects the It stated that “it is the of the King to and all Commitments and Prosecutions Petitioning Illegall.” for such 1 W. 6 M.,& ch. 2, Stat- utes of see 143; Realm also L. The Schwoerer, Declara- (1981). Rights, pp. tion of 1689, 69-71 Independence The Declaration of 1776 in arose the same listing specific grievances tradition. After other wrongs, complained, every stage Oppressions “In of these We have Petitioned for in most Redress humble terms: repeated by only repeated Our Petitions have been answered injury.” Independence ¶ The Declaration of 30. independence, petitions
After on matters of concern part contemporary continued to be an essential in debates country’s early history. years this adoption Two before of the Constitution, James Madison's Memorial and Remon against Religious strance important Assessments, an docu history in ment pre Clause, Establishment was Assembly sented the General of the Commonwealth of Virginia petition. Layeock, Religious Liberty: as a See 1 D. History (2010); Overviews and 90 Arizona Christian School Organization (2011). Tuition Winn, 125, 140-141 563 U. S. signatures. Laycock, It swpra, 1,000 attracted over at 90, During n. 153. the ratification debates, Antifederalists cir petitions delegates urging adopt culated not to the Constitu by Boyd, tion rights. absent modification a bill of Antifeder- Acceptance Pennsylvania, alists and the of the Constitution: 1979). pp. 1787-1792, (Spring Publius, No. 2, 123, 128-133 Legislature played Petitions to the National also a central part legislative subject slavery in the debate on the years Arguing before the Civil Miller, War. W. See (1995). participation Slavery allowed Petitions About groups governance from the excluded even democratic Vestigial The His- Constitution: Mark, The See franchise. Right
tory Significance Petition, 66 Ford. (1998). petitions women instance, For Rev. L. suffrage early seeking woman’s role in the vote had Ginzberg, Cogan Petition for Wom- See & movement. Suffrage, Convention, 22 Constitutional an’s New York State Signs is in some 437-438 rights, petitions fundamental the source other sense request recogni- provided citizens a vital means have existing rights new assert tion of sovereign. bodies can likewise ad-
Petitions the courts similar public import. great In the context of the matters of *16 dress provided litigation a means for “the movement, civil minority group to the ideas and a contribution of distinctive society.” Button, U. S. of our NAACP beliefs litigation may “engag[e] as in a also Individuals expression political association, as for effective vehicle communicating to information the a of useful as means well (1978). Litigation public.” Primus, 412,431 U. In re 436 S. pub- may public the informed facilitate of concern
on matters society. participation of democratic a that is cornerstone lic pursue ends direct desired It also allows individuals charged applying appeal government the law. officials employer may government its role as un- misuse not process. duly Garcetti, 547 See distort this deliberative employees “the members of a com- at 419. Public S., U. opinions” munity likely definite informed most to have directly indirectly, range or related, about a wide matters Pickering, S., employment. at 572. Just as 391 U. to their public employees, public views a to hear the the has employees’ par- public of those has a the benefit the may activity. “allow the ticipation petitioning Petitions “promote the evolution airing disputed public facts” by supporting development legal of the law the theories,” (internal quotation BE&K Co., Constr. S., 536 U. at 532 omitted), may marks and these other benefits accrue knowledgeable pre- if one class of and motivated citizens is engaging activity. public petitioning vented from When a employee participate, process seeks to citizen, in the democracy, through speech petition, deliberative either or “it necessary regard [employee] the as the member of the general public Pickering, supra, he seeks be.” at 574. govern Speech
The framework used to Clause claims public employees, applied when to the Petition Clause, will protect the both interests and the First right. public employee petitions Amendment If a as an em- ployee purely private employee's on a matter of concern, the give way, First Amendment interest must as it does in public cases. Roe, S., 82-83. When em- ployee petitions public as a citizen on a matter of concern, employee’s First Amendment must interest be balanced countervailing interest in the management effective and efficient of its internal affairs. Pickering, supra, at 568. If that balance favors the employee, employee’s First Amendment claim will be government’s opera- sustained. If the interference with employer, tions is such balance favors the em- ployee’s though First Amendment claim fail even will is on matter of concern. employee’s
As peti- under the Clause, an whether *17 public tion depend relates to a matter of concern will on “the petition], [the content, and form, context of as revealed the whole record.” Connick, S., 147-148, 461 U. and n. 7. petition lodged The forum in which a is will be relevant to the determination of whether relates to a matter public Snyder Phelps, concern. See 562 U. S. 454- (2011). using employer A filed with an an inter- grievance procedure many nal in will not seek cases to com- public political point municate to the a or to advance or social beyond employment of view context. may always public be interested in one sense course
Of performing their duties. are officers in how Pickering has that will evolved, test But as the Connick public .always concern. A matter of a suffice show not petition complaint nothing than a about more that “involves employee’s a change does not relate to in own duties” a “may accordingly give rise to concern matter any justifica- special imposing discipline burden of without employer.” States v. Treas- United on tion right ury Employees, The 454, 466 S.U. par- employee is the Petition Clause under activity, through petitioning in
ticipate the demo- as a citizen, everyday process. transform em- is cratic It not litigation ployment disputes constitutional into matters for courts. in federal
Ill (cid:127) necessary apply it find did not Because the Third Circuit determination as how framework, there has been no this parties apply The did of this case. in the context would response, opening brief or the the issue in the not address in the issue its brief not address the United did States petitioners suggest reply brief, In their as amicus curiae. and resolve it in address issue Court this should petitioners sought opening brief Yet in their
their favor. only need consider this This vacatur and remand. Court parties. by the of foil benefit briefs issue without the Appeals judgment vacated, is and the of the Court of proceedings consistent with case remanded further opinion. this
It is so ordered. judgment. concurring Thomas, in Justice seriously I Scalia, For the set forth Justice reasons original “petitions” mean- within the doubt that lawsuits ing First Amendment. See of the Petition Clause part judgment (opinion concurring in post, at 403-404 contrary dissenting part). statements Unreasoned *18 400 prior
in this Court’s do me decisions not convince otherwise. question Like Court, however, need that I not decide today parties litigated “[t]he premise because on the the case grievances petitions pro- that Guarnieri’s are and lawsuit tected the Petition Ante, Clause.” 387. largely agree
I also
with
about
frame
Justice
Scalia
assessing public employees’
work for
retaliation claims under
“public
the Petition Clause. The
concern” doctrine of Con
Myers,
(1983),
v.
nick
But I would end the after that sovereign. was addressed to the as Recognizing employment “the context,” realities we “government significantly greater leeway have held that has dealings employees in its citizen than does when it brings sovereign power large.” its to bear on citizens at Engquist Oregon Dept. Agriculture, 591, 553 S. 600, public employee petitions 599 Even where a capacity sovereign, in its I would balance employee’s sovereign against government’s employer interest in the as an effective and management efficient affairs. its internal Cf. Garcetti (2006) (noting employ v. Ceballos, U. S. “speaking ees as citizens matters of about concern” necessary still must “face . . . restrictions employers operate efficiently effectively”); for their Treasury Employees, United States v. 513 U. S.
(1995) (“In (Rehnquist, dissenting) conducting J.,C. this bal- *19 consistently we have [in context], the Clause an.ce employers’ weight reason- given substantial disruption, predictions when the involved even of able concern”); Ortega, of O’Connor was on a matter (1987) opinion) (balancing (plurality 480 S. 721-722 U. “legitimate pri- workplace” the of the the “realities public employees” vacy that a conclude of interests disrupt “seriously routine requirement warrant would burdensome”). unduly In “be conduct business” and assessing Clause, the Petition under claim retaliation in instances that, when courts be able to conclude should might especially disruptive, be, as some lawsuits govern- weigh may in favor of the balance of interests employer. ment judgment
Applying I would vacate the framework, this respect Appeals erred and remand. The Court § grievance his 42 S. U. C. both Guarnieri’s union petition, grievance assuming was First, suit. even capacity government in its as was local addressed to the J.). (opinion employer. post, at 408 Scalia, See Guarnieri’s § suit to the Federal Second, his 1983 Guarnieri addressed sovereign, capacity not to the local as Government in its employer. But the ibid. as See Court his government’s Appeals in- the local whether did consider effectively achieving goals employer its as terest as an “in outweighs efficiently possible” Guar- nevertheless petitioning re- the Federal Government in nieri’s interest Engquist, supra, garding employment. at 598 his local omitted). (internal quotation re- I would vacate and marks analysis Appeals in to conduct mand for the Court of the first instance. judgment part concurring in Scalia,
Justice dissenting part. reasoning. disagree aspects the Court’s
I with two “precedents our is incorrect to state First, Court protects right confirm that the Petition Clause of individ appeal uals to government and other courts forums established legal disputes.” Ante, at
for resolution of
387.
opinion clearly saying
Our first
that lawsuits are “Petitions”
years ago.
under
Petition
came less
than
In
Transport
Trucking
Motor
Unlimited,
Co.v.
California
(1972),1
Douglas,
opinion
an
S. 508
Justice
the Court
“[t]he
asserted that
the courts
access to
is indeed
aspect
petition.”
but one
Id.,
As
510.
authority
corpus
Avery,
it cited two
cases,
habeas
Johnson v.
(1969),
parte
(1941),
*20
393 U. S.
Hull,
483
and Ex
.1 quite protected First Amend- “Petition” doubtful. “Congress shall make no states that ment’s Petition Clause petition right people abridging ... of the law .. . . . . the grievances.” The reference of the Government a redress right people” the Petition to “the indicates right, codify pre-existing which individual was intended to practice to determine must look to historical means we scope. Heller, 554 U. 570, Columbia S. its See District of 579, 592 that “Petitions” historical evidence
There is abundant legislative branches were directed to the executive Stamp government, In Act Con- 1765, to the courts. subjects gress “[t]hat it is the British stated King or either House of Parlia- these colonies to Rights Grievances, Art. re- ment.” Declaration Rights: Documentary printed A Schwartz, in 1 B. The Bill petitions (1971); History made no mention di- 195, 198 state to the seven constitutions rected courts. As protected apply *21 to or redress citizens’ legislative petitions. only grievances; to all referred seven Right to Court Under Petition Andrews, A of Access See Right, Defining 60 Ohio of the Amendment: Clause First (1999). Judiciary The Act of 604-605, 557, St. L. J. n. jurisdiction grant trial courts to hear 1789 did not federal any- arising law; is no indication there lawsuits under federal right infringed thought on the this restriction one ever for redress of Federal Government of citizens to grievances. affirmed a First Court never The fact that the unsupported right litigate dictum in until its Amendment years’ having worth of law- 1972—after almost heard might have been affected of which suits, untold numbers give litigate rise First Amendment —should strong suspicion “[A] that no sueh exists. universal long-established prohibiting tradition certain conduct strong presumption prohibition creates a that the constitu- Principles liberty enough tional: have fundamental been readily guarantees embodied within are not constitutional erased from the consciousness.” Nevada Nation’s Comm’n (internal Carrigan, quotation on Ethics at 122 ante, omitted). marks acknowledge,
I however, that scholars have made detailed arguments contrary. g., historical to the See, Andrews, e. supra, Sovereign Immunity at 595-625; Pfander, and the Right Right To Petition: Toward a First Amendment To Against Pursue Judicial Claims Government, 91 Nw. (1997). opinion U. L. Rev. 903-962 As the Court’s parties litigated observes, the have I issue, not and so agree day. we should leave its resolution another practical greater
Second, consequence, disagree and of I apply “public with the Court’s decision to concern” Myers, (1983), framework of Connick v. 461 U. 138 S. retal- brought iation claims under the Petition Clause. The Court correctly Speech holds that the Clause Petition Clause acknowledges, coextensive, ante, It at 388-389. protects personal griev- moreover, that the PetiLion Clause government, ances addressed to the ante, at 394. But that is an acknowledging understatement —rather like that the protects expression. “[T]he primary verbal responsibility of colonial assemblies was settlement of private disputes by petitions.” Higginson, raised A Short History Right of the To Petition Government for the Redress of Grievances, “[T]he 96 Yale L. J. over- whelming majority Congress petitions presented of First private Documentary History claims.” 8 of the First Fed- Congress (K. p. eral States, United 1789-1791, xviii 1998). Bowling, W. diGiacomantonio,& C. Bickford eds. Court employment nonetheless that, holds at least in *22 Speech cases, the Petition Clause and Clause should be Speech identically, Clause does not so that since treated speaking employees against public for on prohibit retaliation the Petition Clause. private does neither concern, matters “[a] gives First, different for this: two The Court reasons . . to the would . add First claim rule for each Amendment compliance complexity expense Constitution” public employees ready provide to for a means “would “[p]etitions to protections,” second, circumvent the test's they seek dimension when an added assume political, of interest or other ideas social, advance community Ante, a 395. as whole.” persuasive. As to the former: The com- is
Neither reason Speech plexity treating Clause Clause the Petition disregard separately to the inconsiderate is attributable judicial displayed those who ratified First convenience separate provisions as consti- both Amendment that included pernicious plaintiff engage rights. A does not tutional precedents Speech when he of our Clause “circumvention” brings premised separate enumerated a claim on precedents inapplicable. those which petitions Perhaps on matters of
As to latter: dimension,” an “added but concern do in some sense involve what has tradi obliterate does not that “added dimension” tionally principal of the Petition Clause. dimension been public-concern in the context of makes sense The limitation speech Speech on matters Clause, because is pro of First Amendment the core concern lies “within Dept. Agriculture, Engquist Oregon tection.” Speech “has its fullest and The 591, 600 U. S. during campaign application urgent uttered most political v. Federal Election office.” United Citizens (internal (2010) quotation marks Comm’n, 558 S. omitted). political speech granted unique protection history grounded Clause, “was which interchange for the of ideas fashioned assure unfettered changes bringing political desired and social about of *23 (internal people.” quotation supra, Connick, at 145 marks omitted). longstanding
But the mere fact that we a have tradition of heightened granting protection public of concern suggest requirement “public not does that a concern” should provisions. be written into other constitutional would We say religious proselytizing pro- that is more entitled private tection under the Free Exercise than Clause reli- gious worship public proclamations because are “core free activity.” say process exercise Nor due would we that the adjudicator heightened to a neutral in the is context of litigation importance litigation of national such because is process guarantee.” somehow at the “core of the due Like- given petitions private grievances wise, that to redress were high proportion such petitions founding pro- at of a,— portion infinitely higher that is if lawsuits considered petitions say be petitions is ahistorical to that on matters —it petitioning activity.” concern constitute “core In the Court’s view, if Guarnieri had submitted letter one borough Duryea’s protesting of the council members a tax he borough assessment that claimed was and if the mistaken; petition; had fired him in retaliation for that Guarnieri would have no claim for a Petition Clause violation. That has to wrong. be It takes no thus of, frustrates, account principal purpose of the Petition Clause. responds proper scope applica- “[t]he
The Court that tion merely of the Petition . Clause .. cannot be determined by tallying up petitions legislatures,” ante, colonial point. 394, but that misses the The text Petition distinguish petitions Clause does not concern from petitions private Accordingly, concern. there should be no history doctrinal distinction between them unless the or justifies tradition of the Petition Clause it. The mere fact petitions that the Court can enumerate several historical public importance, ante, at 395-397, does not establish such given petitions private griev- tradition, redress hold- vastly Indeed, Court’s them. anees outnumbered contrary ing historical treatment to this Court’s believes) (as assuming Court Clause, Petition litigation: decided innumerable We have embraces litiga- fights respect establishing constitutional cases today hinted has so much as one of them not a tion, until *24 rights enjoys litigation public more of those concern that in the litigation private belief The Court’s concern. than petitions, its importance public and reminiscences social yesteryear, greats ibid., public-petition do of some of the proclamation special justify constitutional not the public petitions. that establishes It is the Constitution rights, what is im- notions of constitutional not the Justices’ top Hit portant, on their Petition Parade. or the numbers believing the Petition Clause is that And there no basis for petitions. gives special protection to “public shoehorning concern” doctrine Rather than fit, that a not we should hold into Clause where it does employees protects public retaliation Petition Clause filing petitions petitions are addressed unless those employer, petitioners’ government capacity its as the in sovereign. capacity As the rather than their Court its as “government significantly long has states, we held have employees greater leeway dealings citizen than it in its with power brings sovereign bear on citizens does when its Engquist, supra, large.” (quoting Ante, at 599; at at 392 omitted). apply quotation To to the Petition internal marks regarding Speech said we have Clause context what petition govern- employee an files Clause: When employer, acting [a] not capacity he is “as ment in its as his purposes,” citize[n] because “there for First Amendment is analogue [petitions] citizens who are not no relevant government employees.” Ceballos, 547 U. S. Garcetti the line between sure, be 423-424 To employer petitioner’s government as the addressed to always sovereign clear, but it is one to it as is addressed fuzzy private no more than the line between matters suggest matters of The I concern.2 criterion would largely legitimate practical resolve the concerns identified recognizing giving Court, ante, 390-393, while effect to the difference between Petition Clauses. proper
Under what I think to be the the Third test, Circuit judgment part before us here should be reversed and af- part. portion upholding firmed in of it Guarnieri’s claim having grievance of retaliation for filed union must be his grievance epitome reversed. A union is the capacity petition- addressed to its employer. analogous petitions er’s No to the by private could have been filed citizens, who are not even permitted grievance to avail themselves of union Guarnieri’s procedure. portion judgment up- Contrariwise, the holding having Guarnieri’s claim of retaliation for filed his §1983claim must be affirmed. Given Guarnieri was not employee an impossible of the Federal Government, it *25 § say that the 1983claim was addressed in its capacity employer. retaliating as his I think it clear employee writing Congress- state for a letter to his 2Compare, g., Hansen, e. Alpha Energy Savers, Inc. v. F. 3d (CA9 2004) (testimony concerning of employment claim discrimination by government publie contractor constituted matter concern because “[litigation seeking expose governmental is, . . . wrongful activity very nature, its concern”), a matter with Padilla v. South Harrison Dist., R- II (CA8 1999) School 992, 997 (teacher’s 181F. 3d testimony approving relationship sexual minor between teacher and wao matter of private concorn it legitimate bocauoc not “does relate the teacher’o dis agreement with a g., Voigt policies”). compare, school board’s And e. v. Saveli, (CA9 1995) F. 1552, 1560 3d (speech regarding judge how han personnel dled two internal publie matters was matter of eoneern because publie “[t]hc an job hao interest court knowing whether its treats applicants fairly”), Maggio Sipple, 1353 (CA11 2000) 211 F. 3d (testimony at hearing concerning employee grievance pri wao matter of ., ¡ vate concern allege corruption because did “not fraud or in [defend implementation ant’s] personnel policies procedures”). ito and appeal the Petition job run afoul would his state man about § treated be should lawsuit Assuming the 1983 Clause. purposes— Petition Congressman ato a letter like doubtful, but emphasize, is again I which, ^proposition a, disputé case—retaliation in this parties do which Clause. violates having also his lawsuit filed