(CN) – Government employees who sue for retaliation under a clause of the First Amendment that protects grievance petitions should have to prove that they spoke on a matter of public concern, the Supreme Court ruled Monday.
An arbitrator had found that the Duryea Borough Council in northeast Pennsylvania committed procedural errors in firing police chief Charles Guarnieri, though it also found that Guarnieri had tried to intimidate council members and committed other types of misconduct.
With orders to reinstate Guarnieri, the council issued 11 directives Guarnieri was required to follow upon his return. One directive required Guarnieri to get the council’s express permission before working overtime. Another clarified that the police department is not exempt from a smoking ban in the Duryea municipal building.
Guarnieri managed to modify or throw out the directives with a second union grievance, then filed a civil action, claiming that the directives were issued in retaliation to his grievance over the firing – in violation of the petition clause of the First Amendment, which establishes the right to petition the government for redress of grievances. He later added a claim for unpaid overtime, which he claimed was denied on the same basis.
A jury awarded Guarnieri $24,000 in punitive damages for the directives, as well as $358 in compensatory damages and $28,000 in punitive damages for the unpaid overtime. The District Court awarded $45,000 in attorneys’ fees and denied defendants’ renewed motion.
On appeal, the 3rd Circuit affirmed all but the award of punitive damages, citing insufficient evidence.
The Supreme Court reversed on Monday, saying that the Guarnieri should have been required to prove that he spoke as a citizen on a matter of public concern – as is required under the First Amendment’s speech clause.
“The right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process,” Justice Anthony Kennedy wrote for the majority. “It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts.”
The majority noted that the unrestrained application of the petition clause would pose serious risks to government efficiency.
“Employees may file grievances on a variety of employment matters, including working conditions, pay, discipline, promotions, leave, vacations, and terminations,” Kennedy wrote. “Every government action in response could present a potential federal constitutional issue. Judges and juries, asked to determine whether the government’s actions were in fact retaliatory, would be required to give scrutiny to both the government’s response to the grievance and the government’s justification for its actions. This would occasion review of a host of collateral matters typically left to the discretion of public officials. Budget priorities, personnel decisions, and substantive policies might all be laid before the jury. This would raise serious federalism and separation-of-powers concerns. It would also consume the time and attention of public officials, burden the exercise of legitimate authority, and blur the lines of accountability between officials and the public.”
“It is precisely to avoid this intrusion into internal governmental affairs that this Court has held that, ‘while the First Amendment invests public employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance,'” Kennedy added.
The public-concern test was created precisely to ensure that disgruntled employees do not impermissibly affect the government’s interest in managing its internal affairs.
“The framework used to govern Speech Clause claims by public employees, when applied to the Petition Clause, will protect both the interests of the government and the First Amendment right,” Kennedy wrote. “If a public employee petitions as an employee on a matter of purely private concern, the employee’s First Amendment interest must give way, as it does in speech cases. When a public employee petitions as a citizen on a matter of public concern, the employee’s First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. If that balance favors the public employee, the employee’s First Amendment claim will be sustained. If the interference with the government’s operations is such that the balance favors the employer, the employee’s First Amendment claim will fail even though the petition is on a matter of public concern.”
Justice Clarence Thomas wrote separately to concur in the judgment, saying that he doubts the court should consider lawsuits as “petitions” under the First Amendment. Since the majority did not decide the case on that basis, however, he agreed that the majority made the correct move in vacating and remanding.
Justice Antonin Scalia echoed Thomas in a separate opinion that concurred in the judgment and dissented in part.
“Under what I think to be the proper test, the Third Circuit judgment before us here should be reversed in part and affirmed in part,” Scalia wrote. “The portion of it upholding Guarnieri’s claim of retaliation for having filed his union grievance must be reversed. A union grievance is the epitome of a petition addressed to the government in its capacity as the petitioner’s employer. No analogous petitions to the government could have been filed by private citizens, who are not even permitted to avail themselves of Guarnieri’s union grievance procedure. Contrariwise, the portion of the judgment upholding Guarnieri’s claim of retaliation for having filed his §1983 claim must be affirmed. Given that Guarnieri was not an employee of the Federal Government, it is impossible to say that the §1983 claim was addressed to government in its capacity as his employer. I think it clear that retaliating against a state employee for writing a letter to his Congressman about his state job would run afoul of the Petition Clause. Assuming that the§1983 lawsuit should be treated like a letter to a Congressman for Petition Clause purposes – a proposition which, I again emphasize, is doubtful, but which the parties do not dispute in this case – retaliation for having filed his lawsuit also violates the Clause.”