In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

EDWARD R. LANE,Petitioner,

v.

STEVE FRANKS, IN HIS INDIVIDUAL CAPACITY,AND SUSAN BURROW, IN HER OFFICIAL CAPACITY

AS ACTING PRESIDENT OF CENTRAL ALABAMACOMMUNITY COLLEGE,

Respondents.

On Writ of Certiorari to the United StatesCourt of Appeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE THE INTERNATIONALMUNICIPAL LAWYERS ASSOCIATION, INC. AND THE

INTERNATIONAL PUBLIC MANAGEMENT ASSOCIATIONFOR HUMAN RESOURCES IN SUPPORT OF

RESPONDENT STEVE FRANKS

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

Charles W. Thompson, Jr.INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

7910 Woodmont Ave.Suite 1440Bethesda, MD 20814(202) 742-1016

Neil ReichenbergINTERNATIONAL PUBLIC

MANAGEMENT ASSOCIATION

FOR HUMAN RESOURCES

1617 Duke StreetAlexandria, VA 22314(703) 549-7100

Matthew J. Delude Counsel of RecordPRIMMER PIPER EGGLESTON

& CRAMER, PC900 Elm St., 19th FloorManchester, NH 03105(603) 626-3324mdelude@primmer.com

Counsel for Amici Curiae

NO. 13-483

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TABLE OF CONTENTS

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

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 2

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. The First Amendment Should Not Provide aCause of Action Where an Employee Claims Hisor Her Employer Retaliated Against SpeechRelated to the Performance of the Employee’sJob Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. The Application of the First Amendment tothe Government Employment Context Is aRecent Development, and That ExpansionRemains Only a Qualification to the OriginalProhibition . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. This Court Has Consistently RecognizedThat the Government Is Subject to Far LessConstitutional Restrictions When Acting AsAn Employer Than When Acting As aSovereign . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. The First Amendment Should Not Provide aCause of Action Where the Speech at IssueRelates to the Performance of an Employee’sJob Responsibilities . . . . . . . . . . . . . . . . . . . 12

D. The Fact That Lane’s Speech Was Offered Ina Testimonial Context and In Response to aSubpoena Should Not Alter the Analysis . . 16

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II. Providing a First Amendment Cause of Actionfor Speech Related to the Performance of One’sJob Duties Would Amount to Constitutionalizingthe Employee Grievance and Harm GovernmentEmployers and the Public at Large . . . . . . . . . . 20

A. Constitutionalizing the Employee GrievanceAs Petitioner Requests Would NeedlesslyEnshrine a Rigid and Unchangeable Cause ofAction Into the Government EmploymentContext to Address a Perceived ProblemBetter Left to the Democratic Process . . . . . 21

1. Numerous Statutory and Common LawRemedies are Available to AddressPetitioner’s Perceived Problem . . . . . . . . 22

2. Federal, State, and Local LegislaturesAre the Appropriate Bodies to AddressPetitioner’s Perceived Problem to theExtent Existing Remedies Fall Short . . . 27

B. Constitutionalizing the Employee GrievanceAs Petitioner Requests Would EngenderSignificant Legal Uncertainty forGovernment Employers and Lead toSuffocating Judicial Oversight . . . . . . . . . . . 33

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

iii

TABLE OF AUTHORITIES

CASES

Adler v. Board of Education, 342 U.S. 485 (1952) . . . . . . . . . . . . . . . . . . . . . . . 9

Ashcroft v. Iqbal, 556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . 7, 26

Bishop v. Wood, 426 U.S. 341 (1976) . . . . . . . . . . . . . . . . . . . . . . 33

Bush v. Lucas, 462 U.S. 367 (1983) . . . . . . . . . . . . . . . . . . . . . . 31

Ceballos v. Garcetti, 361 F.3d 1168 (9th Cir. 2004), rev’d, 547 U.S. 410 (2006) . . . . . . 3, 13, 18, 22, 30

Connick v. Myers, 461 U.S. 138 (1983) . . . . . . . . . . . . . 10, 12, 27, 33

Davidson v. Commonwealth, Dept. of Military Affairs, 152 S.W.3d 247 (Ky. App. 2004) . . . . . . . . . . . . 23

Enquist v. Oregon Dept. of Agr., 553 U.S. 591 (2008) . . . . . . . . . . . . . . . . . . passim

Ex Parte Amoco Fabrics and Fiber Co., 729 So.2d 336 (Ala. 1998) . . . . . . . . . . . . . . . . . 25

Garcetti v. Ceballos, 547 U.S. 410 (2006) . . . . . . . . . . . . . . . . . . passim

Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala. 1987) . . . . . . . . . . . . . . . . . 25

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International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) . . . . . . . . . . . . . . . . . . . . . . 12

Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005) . . . . . . . . . . . . . . . . . . . . . . 29

Krocka v. Police Bd. of City of Chicago, 762 N.E.2d 577 (Ill. App. Ct. 2001) . . . . . . . . . . 19

Lawson v. FMR LLC, 134 S. Ct. 1158 (2014) . . . . . . . . . . . . . . . . . 25, 28

McAuliffe v. Mayor of New Bedford, 155 Mass. 216 (1892) . . . . . . . . . . . . . . . . . . . 9, 17

Pickering v. Bd. of Educ. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968) . . . . . . . . . . . . . . . . . 9, 10, 15

Raphael v. Okyiri, 740 A.2d 935 (D.C. 1999) . . . . . . . . . . . . . . . . . . 23

Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) . . . . . . . . . . . . . . . . . . . . . . . 12

Smith v. Robbins, 528 U.S. 259 (2000) . . . . . . . . . . . . . . . . . . . . . . 24

Taylor v. Memorial Health Systems, Inc., 770 So.2d 752 (Fla. App. 5 Dist. 2000) . . . . . . . 23

U.S. v. Gilman, 347 U.S. 507 (1954) . . . . . . . . . . . . . . . . . . . . . . 31

U.S. v. Kokinda, 497 U.S. 720 (1990) . . . . . . . . . . . . . . . . . . . . . . 11

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U.S. v. Schmitz, 634 F.3d 1247 (11th Cir. 2011) . . . . . . . . . . . . 5, 7

United States Civil Service Comm’n v. Nat’l Ass’n of Letter Carriers AFL-CIO, 413 U.S. 548 (1973) . . . . . . . . . . . . . . . . . . . . 9, 17

Waters v. Churchill, 511 U.S. 661 (1994) . . . . . . . . . . . . . . . . . . . 11, 21

CONSTITUTION

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

STATUTES

5 U.S.C. § 2302(a)(2)(C) (2004) . . . . . . . . . . . . . . . . 27

18 U.S.C. §§ 1512-14 (2014) . . . . . . . . . . . . . . . . . . 26

18 U.S.C. § 1514A (2010) . . . . . . . . . . . . . . . . . . . . 28

ALA. CODE § 13A-10-124 (2014) . . . . . . . . . . . . . . . 26

ARK. CODE ANN. § 21-1-601 et seq. (Michie 2013) . 22

CAL. GOV’T CODE § 53298(a) et seq. (West 2014) . . 23

CONN. GEN. STAT. ANN. § 31-51m(b) (West 2014) . 23

FLA. STAT. ANN. § 448.102 (West 1981 & Supp. 1995) . . . . . . . . . . . . . . . . . 23

LA. REV. STAT. ANN. § 42:1169 (West 2013) . . . . . . 22

MISS. CODE ANN. § 25-9-171 et seq. (2013) . . . . . . . 22

N.H. REV. STAT. ANN. § 275-E:2 (2014) . . . . . . . . . 23

N.M. STAT. ANN. § 28-17-19 (Michie 1999) . . . . . . . 22

PA. STAT. ANN. tit. 43, § 1422 (West 2014) . . . . . . . 23

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R.I. GEN. LAWS ANN. § 9-17-3 (West 2013) . . . . . . . 20

VA. CODE ANN. §§ 40.1-51.2 (Michie 2013) . . . . . . . 22

WASH. REV. CODE ANN. § 42.41.010 et seq. (West 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

W. VA. CODE, § 6c-1-2 (2014) . . . . . . . . . . . . . . . . . . 23

WIS. STAT. 230.83(2) (2013) . . . . . . . . . . . . . . . . . . . 23

DENVER MUN. CODE § 2-106 . . . . . . . . . . . . . . . . . . 22

ST. PAUL ADMIN. CODE § 42.01 . . . . . . . . . . . . . . . . 22

OTHER AUTHORITIES

Richard D. Alaniz, Managing the Rise of BaselessWhistleblower Retaliation Claims, ACCOUNTINGWEB, July 12, 2013, available at http://www.accountingweb.com/print/222071 . . . . . . 29

Elletta Sangrey Callahan & Terry MoreheadDworkin, The State of Whistleblower Protection,38 AM. BUS. L.J. 99 (2000) . . . . . . . . . . . . . . . . . 22

Tracy Gordon, State and Local Budgets and theGreat Recession, THE BROOKINGS INSTITUTION,Dec. 2012, available at http://www.brookings.ed

u/research/articles/2012/12/state-local-budgets-gordon (last accessed on April 7, 2014) . . . . . . 6-7

The Great Recession, THE STATE OF WORKINGAMERICA, available at http://stateofworkingamerica.org/great-recession (last accessed April 7,2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Larry Morandi, Eminent Domain Legislation: Post-Kelo Update, NAT’L CONFERENCE OF STATELEGISLATURES, Jan. 1, 2012, available athttp://www.ncsl.org/documents/natres/EminentDomainPost-Kelo.pdf (last accessed April 7,2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Charles J. Muhl, The Employment-At-Will Doctrine:Three Major Exceptions, MONTHLY LABORREVIEW 4 (2001), available at http://www.bls.gov/opub/mlr/2001/01/art1full.pdf . . . . . . . . . . . . . 25

10 J. Richardson, Messages and Papers of thePresidents 98-99 (1899) . . . . . . . . . . . . . . . . . . . . 9

Kermit Roosevelt III, Not as Bad as You Think:Why Garcetti v. Ceballos Makes Sense, 14 U. PA.J. CONST. L. 631 (2012) . . . . . . . . . . . . . 32, 33, 34

Genna H. Rosten, Annotation, Wrongful DischargeBased on Public Policy Derived FromProfessional Ethics Codes, 52 A.L.R. 5th 405 (1997) . . . . . . . . . . . . . . . . . . 25

U.S. DEPT. OF LABOR, U.S. BUREAU OF LABORSTATISTICS, REP. 1025, EXTENDED MASS LAYOFFSIN 2009 (2010), available at http://www.bls.gov/mls/mlsreport1025.pdf . . . . . . . . . . . . . . . . . . . . . 6

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INTEREST OF THE AMICI CURIAE1

The International Municipal Lawyers Association(“IMLA”) is a non-profit, professional organization ofover 2,500 local government entities, including cities,counties, and special district entities, as represented bytheir chief legal officers, state municipal leagues, andindividual attorneys. Since 1935, IMLA has served asa national, and now international, clearinghouse oflegal information and cooperation on municipal legalmatters. IMLA’s mission is to advance the responsibledevelopment of municipal law through education andadvocacy by providing the collective viewpoint of localgovernments around the country on legal issues beforethe federal and state courts.

IMLA has a strong interest in apprising the Courtof the significant adverse consequences facing thenation’s local governments if the decision below isreversed. Local governments are collectively one of thenation’s largest employers, and employ more peoplewho are called upon to testify in court than any otheremployer. As such, local governments will be strappedwith significant unanticipated and unbudgeted costs ifthe decision below is reversed by turning state courtwrongful termination cases into federal constitutionaltorts. Private employers will face no similarramifications. In addition to the economicconsequences, the IMLA has a strong interest in

1 No counsel for any party has authored this brief in whole or inpart, and no party or counsel for a party has made a monetarycontribution to the preparation or submission of this brief. SeeSup. Ct. R. 37.6. Petitioner and both Respondents have filedblanket consents with this Court to the filing of all amicus briefs.

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ensuring that local government employers are able toeffectively manage their workplaces, and the EleventhCircuit’s decision supports their ability to do so withoutturning federal courts into super personnel grievanceboards for public employees.

The members of the International PublicManagement Association for Human Resources(“IPMA-HR”) are human resource professionals andhuman resource departments at the federal, state, andlocal levels of government. IPMA-HR has a longhistory of involvement in public sector employmentlitigation. The Association’s members recognize theimportance of maintaining the proper balance betweenthe First Amendment rights of employees and therights of public employers to ensure efficient andeffective government operations.

SUMMARY OF THE ARGUMENT

The undersigned Amici condemn the retaliatorydismissal of a government employee by its employer forsimply providing truthful testimony. Amici alsocondemn the discharge of employees who aresubpoenaed to testify as fact witnesses whether theyare government or private employees or whether theyare witnesses to a crime, accident, or any other event.

But this case is not about whether a governmentemployer should be allowed to dismiss an employee fortestimony the employee provides. The issue here iswhether a government employee should be permittedto assert a constitutional claim based on the FirstAmendment when that employee alleges that his or heremployer retaliated for speech related to theperformance of the employee’s job duties. Amici submit

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that providing such a right conflicts with theprecedents from this Court and would have profoundlynegative effects on the numerous governmentemployers in this Country, as well as the general publicas was so presciently noted by Judge O’Scannlain whenhe urged this Court to adopt the rule it did in Garcettiv. Ceballos, 547 U.S. 410 (2006) for on-the-job workrelated speech. See Ceballos v. Garcetti, 361 F.3d 1168,1192-93 (9th Cir. 2004) (O’Scannlain, J., concurring),rev’d, 547 U.S. 410 (2006). Instead, consistent withGarcetti this Court should clarify that a publicemployee cannot assert a constitutional FirstAmendment cause of action for speech related to theperformance of that employee’s job duties.

For much of our nation’s history, public employeescould not assert a First Amendment cause of actionagainst their employer for retaliation based on theemployee’s speech. While this Court subsequently“qualified” the absolute exclusion of the FirstAmendment from the government employment context,it has nevertheless been appropriately reluctant toexpand the First Amendment’s reach too far inrecognition of the difference between the governmentacting as an employer and the government acting as asovereign.

Consistent with its prior precedents, this Court’sdecision in Garcetti explained that the FirstAmendment does not provide a cause of action where agovernment employee acts pursuant to his or her jobduties. The factual focus of Garcetti gave this Court nooccasion to specifically address whether speech relatedto the performance of one’s job duties that is made in acontext where the employee does not typically speak as

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part of their job duties is also outside the reach of theFirst Amendment, but this Court’s precedents compelthe same treatment for such speech. Furthermore, theanalysis does not change because speech is made aspart of testimony or in response to a subpoena;particularly given that protection of that speech willlikely increase the litigation burden faced by localgovernments, and will lead to suffocating federal courtoversight of government employment disputes.

Ultimately, this Court should decline Petitioner’sinvitation to move away from Garcetti. Constitutionalizing employee grievances like the one atissue here would “jeopardize the delicate balance”between the rights of public employees and theinterests of government employers established by therelevant legislative bodies, and unnecessarily graft arigid and inflexible framework over the governmentemployment sphere. See Enquist v. Oregon Dept. ofAgr., 553 U.S. 591, 607 (2008).

Leaving cases such as this out of the constitutionalrealm will allow the democratic process to continue totweak and tailor appropriate statutes to balance thepublic policy concerns this Court expressed in Garcetti. As Garcetti recognized, the public has an interest insome speech of government employees. See Garcetti,547 U.S. at 419. Critically, however, it is the public’sinterest and therefore it is the public’s job to expressthat interest through its democratically electedrepresentatives. The Court can and should rely on thelegislative process to ensure that the public’s interestis protected in the manner the public determines mostappropriate.

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STATEMENT

Petitioner Edward Lane (“Lane”) held a position asthe Director of the Community Intensive Training forYouth Program (“CITY”) at Central AlabamaCommunity College (“CACC”) from September 2006 toJanuary 2009. Pet. App. at 2a-3a. The appointmentwas probationary. Id. at 10a. As part of his job, Laneran CITY, including day-to-day operations, hiring andfiring of employees, and making financial decisions. Id.at 10a.

Shortly after beginning his job at CITY, Lanediscovered Suzanne Schmitz (“Schmitz”) was listed onCITY’s payroll but was not reporting for work and hadnot otherwise performed work for CITY. Id. at 2a, 11a. Evidently both of Lane’s predecessors had sought tocorrect this problem, including enlisting the assistanceof the College President who supported their efforts. U.S. v. Schmitz, 634 F.3d 1247, 1253-55 (11th Cir.2011). Lane ultimately fired Schmitz on October 19,2006, pursuant to his job responsibilities, after sherefused to report to work. Id. Lane was not fired aftertaking that action. As the decision below recognized,“[n]o one disputes that Lane was acting pursuant to hisofficial duties as CITY’s Director when he investigatedSchmitz’s work activities, spoke with Schmitz andother CACC officials about Schmitz’s employment, andultimately terminated Schmitz’s employment.” Id. at7a; see also id. at 10a.

On November 13, 2006, following an investigationby the FBI, Lane testified before a grand jury againstSchmitz. Id. at 12a. Lane was not fired after hetestified at the grand jury. Then again, in August of2008, Lane was subpoenaed to testify and did testify in

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Schmitz’s criminal trial in federal court about hisinteractions with Schmitz in his capacity as hersupervisor. Pet. App. at 2a-3a, 12a-13a. Lane’stestimony concerned information that Lane learnedwhile performing his duties as director of the CITYprogram and that led to his ultimate decision to fireSchmitz. Pet. App. at 3a. Specifically, “the subjectmatter of Lane’s testimony touched only on acts heperformed as part of his official duties.” Pet. App. at7a.

Approximately four months after Lane testified atSchmitz’s 2008 criminal trial, on January 9, 2009,Respondent Steve Franks asserts that Lane waseffectively laid off from his position, along with 28other CITY employees for financial reasons. Pet. App.at 3a-4a, 12a-14a. The layoffs occurred at a time whennationwide layoffs were regular news in a period werefer to as the “Great Recession.” U.S. DEPT. OF LABOR,U.S. BUREAU OF LABOR STATISTICS, REP. 1025,EXTENDED MASS LAYOFFS IN 2009 (2010), available athttp: / /www.bls .gov/mls /mlsreport1025.pdf . 2 Respondent Steve Franks asserts that he thereafterrescinded the layoff of certain employees due to anambiguity in their probationary service. See Pet. App.at 3a-4a, 16a. Approximately seven months later theentire CITY program upon which Petitioner’s job wasbased was eliminated due to budgetary issues and theremaining employees were laid off. Id. at 15a-16a; seealso Tracy Gordon, State and Local Budgets and the

2 In 2008 and 2009, the U.S. labor market lost 8.4 million jobs. SeeThe Great Recession, THE STATE OF WORKING AMERICA, availableat http://stateofworkingamerica.org/ great-recession (last accessedApril 7, 2014).

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Great Recession, THE BROOKINGS INSTITUTION, Dec.2012, available at http://www.brookings.edu/research/articles/2012/12/state-local-budgets-gordon (lastaccessed on April 7, 2014) (discussing dramatic drop instate and local revenues during Great Recession andnoting that even with stimulus, “federal funds did notoffset state and local revenue losses”).

Sometime after Lane was dismissed he was againsubpoenaed to testify and once again testified atSchmitz’s February 2009 trial. Pet. App. at 12a-13a;U.S. v. Schmitz, 634 F.3d 1247, 1253-55 (11th Cir.2011). Nearly two years later, and with no priorwarning to his employer, Lane brought suit in districtcourt alleging a First Amendment retaliation cause ofaction against Respondent Steve Franks. See Pet. App.at 18a; Resp. Steve Franks Br. at 13.3

3 Amici submit that plausibility and rationality collide against theidea that Petitioner’s employers: (1) did not fire him for ignoringtheir counsel on the issue of Schmitz’s employment; (2) did not firehim for firing Schmitz; and (3) did not fire him for testifying at theGrand Jury in 2006, but instead waited over two years after hetestified at the Grand Jury to base the firing decision on the factthat he testified about his termination of Schmitz for misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This is particularlyso, given that such action would risk prosecution from the UnitedStates Attorney for obstruction of justice, especially if Lanebelieved his termination prior to the February 2009 trial wasretaliatory.

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ARGUMENT

I. The First Amendment Should Not Provide aCause of Action Where an Employee ClaimsHis or Her Employer Retaliated AgainstSpeech Related to the Performance of theEmployee’s Job Duties.

Amici support Respondent Steve Frank’s positionthat Garcetti should be read to support the “citizenanalogue” framework for determining whether theFirst Amendment should apply to particular speechmade by the employee.4

Amici further argue that this Court should not turna state court wrongful termination case into a federalconstitutional tort by limiting Garcetti as Petitionerand his amici suggest. Instead, this Court shouldclarify that pursuant to Garcetti public employeescannot assert a First Amendment cause of action basedon retaliation for speech made by a public employeethat is related to the performance of that employee’sjob duties.

A. The Application of the First Amendment tothe Government Employment Context Is aRecent Development, and That ExpansionRemains Only a Qualification to theOriginal Prohibition.

For much of our nation’s history, governmentemployers did not have to concern themselves with theapplication of the First Amendment to their

4 Amici also agree that Respondent Steve Franks is entitled toqualified immunity.

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managerial decisions. See Garcetti, 547 U.S. at 417. Indeed, it was recognized that the First Amendmentdid not apply to government retaliation for employeespeech. As Justice Holmes famously explained whilesitting on the Supreme Judicial Court inMassachusetts, a policeman “may have a constitutionalright to talk politics, but he has no constitutional rightto be a policeman.” McAuliffe v. Mayor of New Bedford,155 Mass. 216, 220 (1892) (Holmes, J.). That viewreflected the view held by this Court for decades untilas recently as 1952. See, e.g., Adler v. Board ofEducation, 342 U.S. 485 (1952).

In fact, the common and accepted practice for asignificant portion of our nation’s history actuallyconditioned government employment on therelinquishment of free-speech rights. See United StatesCivil Service Comm’n v. Nat’l Ass’n of Letter CarriersAFL-CIO, 413 U.S. 548, 557 (1973) (describing “spoilssystem” under which federal employment “depend[ed]upon party service and changing administrations,rather than meritorious performance”). Even ThomasJefferson once approved an order that prohibitedofficers of the Executive Branch from participating in“electioneering” or in any way attempting “to influencethe votes of others.” Id. (quoting 10 J. Richardson,Messages and Papers of the Presidents 98-99 (1899)).

In 1968, this Court qualified the established dogmaby holding that “public employees do not surrender alltheir First Amendment rights by reason of theiremployment.” Garcetti, 547 U.S. at 417 (citingPickering v. Bd. of Educ. of Township High School Dist.205, Will Cty., 391 U.S. 563, 568 (1968)). But even asit qualified the long-standing exclusion of the First

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Amendment from the government employment contextin Pickering, this Court still recognized that “the Statehas interests as an employer in regulating the speechof its employees that differ significantly from those itpossesses in connection with regulation of the speech ofthe citizenry in general.” Pickering, 391 U.S. at 568.

Following Pickering, the Court was careful toensure that the critical distinction between the role ofgovernment as employer and sovereign wasmaintained, and that the First Amendment did notconstitutionalize public employee grievances. Accordingly, in Connick, the Court held that thedischarge of a former assistant district attorney forcirculating a questionnaire did not violate the FirstAmendment and noted that “the First Amendment doesnot require a public office to be run as a roundtable foremployee complaints over internal office affairs.” Connick v. Myers, 461 U.S. 138, 149 (1983). Likewise,in Garcetti this Court noted the prior establisheddogma and explained that it had been “qualified inimportant respects” such that “in certaincircumstances” the First Amendment may protectpublic employee speech. Garcetti, 547 U.S. at 417. TheCourt then held that the facts before it did not sufficebecause “the First Amendment does not prohibitmanagerial discipline based on an employee’sexpressions made pursuant to official responsibilities.” Id. at 424.

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B. This Court Has Consistently RecognizedThat the Government Is Subject to Far LessConstitutional Restrictions When Acting AsAn Employer Than When Acting As aSovereign.

The historical treatment of the First Amendment inthe government employment context is due in largepart to the unique role played by the government whenacting as an employer and not a sovereign. This Courthas consistently and regularly recognized that thecritical distinction must be maintained because“[g]overnment employers, like private employers, needa significant degree of control over their employees’words and actions” or “there would be little chance forthe efficient provision of public services.” Garcetti, 547U.S. at 418. That is why this Court has traditionally“afford[ed] government employers sufficient discretionto manage their operations” and emphasized theimportance of ensuring there is no “displacement ofmanagerial discretion by judicial supervision.” Id. at422-23. As a result, the Court has explained that “thegovernment as employer . . . has far broader powersthan does the government as sovereign.” Waters v.Churchill, 511 U.S. 661, 671 (1994).

In fact, in many contexts it has long been held thatthe Government is subject to a lower level ofconstitutional scrutiny when it is not exercising itspower to legislate, regulate or license. U.S. v. Kokinda,497 U.S. 720, 725 (1990) (citations and quotationsomitted). Indeed, “[w]here the government is acting asa proprietor, managing its internal operations, ratherthan acting as lawmaker with the power to regulate orlicense, its action will not be subjected to the

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heightened review to which its actions as a lawmakermay be subject.” International Soc. for KrishnaConsciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). This fundamental truth has been recognized “in manycontexts, with respect to many different constitutionalguarantees.” Rutan v. Republican Party of Illinois, 497U.S. 62, 94 (1990) (Scalia, J., dissenting).

But perhaps the most fundamental result of theunique role of the government specifically acting asemployer is that this Court has repeatedly rebuffedattempts by public employees to “constitionalize theemployee grievance.” Garcetti, 547 U.S. at 420 (quotingConnick, 461 U.S. at 154). Accordingly, and “[g]iventhe ‘commonsense realization that government officescould not function if every employment decision becamea constitutional matter,’ ‘constitutional review ofgovernment employment decisions must rest ondifferent principles than review of . . . restraintsimposed by the government as sovereign.’” Enquist,553 U.S. at 599 (citations omitted).

C. The First Amendment Should Not Providea Cause of Action Where the Speech atIssue Relates to the Performance of anEmployee’s Job Responsibilities.

Consistent with the above-cited precedents, thisCourt held in Garcetti that “when public employeesmake statements pursuant to their official duties, theemployees are not speaking as citizens for FirstAmendment purposes, and the Constitution does notinsulate their communications from employerdiscipline.” Garcetti, 547 U.S. at 421. According to theCourt, “[r]estricting speech that owes its existence to apublic employee’s professional responsibilities does not

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infringe any liberties the employee might have enjoyedas a private citizen.” Id. at 421-22 (emphasis added).

Here the speech offered in Petitioner’s testimonyclearly “owe[d] its existence to [his] professionalresponsibilities” while working as an employee ofCACC. See id. His job was to run the CITY program,including day-to-day operations, hiring and firing ofemployees, and making financial decisions. Pet. App.at 10a. Part of those day-to-day operations includedsupervising and managing Schmitz. Id. at 2a, 11a. After he fired her pursuant to his duties, he wasultimately asked to testify about those duties and thecircumstances that led to her termination. Id. at 12a.

His testimony concerned information he learnedwhile performing his duties as director of the CITYprogram and “touched only on acts he performed aspart of his official duties.” Pet. App. at 3a, 7a. Hisspeech in this context held no personal opinion; itmerely recounted his interactions with Schmitz andothers while performing his job. See Ceballos, 361 F.3dat 1188-89 (O’Scannlain, J., concurring) (“While it hasrarely been stated explicitly by the Supreme Court, theimplicit premise underlying the First Amendment’shostility toward viewpoint-driven rules abridging thefreedom of speech is that such constraintsimpermissibly infringe upon individuals’ freedom ofchoice to express their personal opinions or to otherwiseexpress themselves.”) (emphasis in original).

It is true, as Petitioner claims, that the statementat issue in Garcetti was made as a direct result ofCeballos’ performance of his typical job duties. Garcetti, 547 U.S. at 421. Petitioner uses this fact to

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criticize the decision below, Pet. Br. at 26-34, but justbecause this Court determined that the FirstAmendment did not apply to situations such asCeballos’ does not mean that all other job relatedspeech is now covered by the First Amendment. Infact, the evolution of this area of law demonstrates theopposite to be true.

As Garcetti explained, the prior “unchallengeddogma” “that a public employee had no right to objectto conditions placed upon the terms of employment –including those which restricted the exercise ofconstitutional rights” has not been abandoned. Garcetti, 547 U.S. at 417; see also supra Part I.A. Instead, that default rule has simply “been qualified inimportant respects” and now “in certain circumstances”the First Amendment protects a public employee’s rightto speak as a citizen on matters of public concern. Garcetti, 547 U.S. at 417. After Garcetti, those“circumstances” clearly do not include speech madepursuant to a government employee’s job duties wherethe employee was performing a task the employeetypically performs as part of his or her job. See id. at421. Given the factual focus in Garcetti, this Court didnot discuss whether speech related to the performanceof a government employee’s job duties made in acontext where the employee does not typically speak aspart of his or her job duties is protected by the FirstAmendment.

This Court can now clarify Garcetti by holding thatspeech related to the performance of one’s job duties isalso not covered by the First Amendment even if thatspeech is made in a context where the employee doesnot typically speak as part of his or her job duties

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because that speech “owes its existence” to theperformance of that job duty. See id. at 421-22. Thiscase presents a perfect opportunity for this Court tomake such a clarification because Petitioner’stestimony expressed no personal opinion and relayedsolely factual information about the performance of hisjob duties. Pet. App. at 3a, 7a. As a result, he did nottruly step outside his role as an employee by expressingany personal opinions.

Such a rule would not require a departure from thisCourt’s decision in Pickering because governmentemployees would be able to express their opinions ongeneral information they learned while at work. SeePickering, 391 U.S. at 570-72. And, as in Pickering,they would be able to speak in public forums and inpublic debate and bring suit to advance the public’sinterest on matters of public concern. They wouldsimply not be entitled to a constitutional cause ofaction based on the First Amendment for speechconcerning the performance of their job duties. Such arule would also align partially with the approachadvocated by Co-Respondent Susan Burrow, because itwould exclude from the First Amendment only speechrelated to what an employee had been paid by thegovernment to do, and not more generally anyinformation obtained in the course of employment. SeeResp. Susan Burrow Br. at 14-21.

That clarification recognizes the fundamental truththat most government employers and employees wouldconsider responding to a subpoena for testimonyrelated to their job duties to be part of their job even ifit is not formally described in an official policy. SeeGarcetti, 547 U.S. at 424-25 (“Formal job descriptions

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often bear little resemblance to the duties an employeeactually is expected to perform, and the listing of agiven task in an employee’s written job description isneither necessary nor sufficient to demonstrate thatconducting the task is within the scope of theemployee’s professional duties for First Amendmentpurposes.”) (emphasis added).

D. The Fact That Lane’s Speech Was OfferedIn a Testimonial Context and In Responseto a Subpoena Should Not Alter theAnalysis.

Petitioner and his amici focus on the claim thatPetitioner testified truthfully, and claim that suchspeech must be protected by the First Amendment. While truthful speech has undoubtedly been anessential part of our democracy since its inception, ithas also been subordinated for much of our nation’shistory to the interests of the government acting in therole of an employer. As noted above, the application ofthe First Amendment to the government employmentcontext remains a relatively recent phenomenon. Seesupra Part I.A. As this Court explained in Garcetti,that historical treatment has not been whollyabandoned, but rather “qualified in importantrespects.” Garcetti, 547 U.S. at 417.

Indeed, Amicus Curiae First Amendment Coalitioncites to statements from both Thomas Jefferson andJustice Holmes in support of the historical appreciationof the importance of truthful speech. First AmendmentCoalition Br. at 3. As noted above, however, both ofthose great men recognized that government in the roleof the employer was not subject to the restrictions ofthe First Amendment. See supra Part I.A. Justice

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Holmes is particularly known for his position thatgovernment employees cannot use the FirstAmendment to shield them from retaliatory action,McAuliffe, 155 Mass. at 220 (Holmes, J.), and ThomasJefferson certainly acted in a manner consistent withthat view. See United States Civil Service Comm’n, 413U.S. at 557.

By constitutionalizing the employee grievance in themanner they advance, Petitioner and his amici wouldturn state court wrongful termination cases intofederal constitutional torts and effectively seek to havethe judiciary make nuanced and context-sensitivejudgments about the quality of speech or its socialappropriateness. Petitioner and his amici attempt todownplay the dangerous potential for increased andconstitutionalized litigation by claiming meritlessclaims will be relatively easily disposed of, yetPetitioner’s own implausible claim belies thatargument, and as this court explained in Enquist, sucharguments are “beside the point.” Enquist, 553 U.S. at608.

The practical problem of constitutionalizedemployment litigation is not whether claims willultimately succeed, but “that governments will beforced to defend a multitude of such claims in the firstplace, and courts will be obliged to sort through themin a search for the proverbial needle in a haystack.” Id.; see also Garcetti, 547 U.S. at 449 (Breyer, J.,dissenting) (“the ability of a dissatisfied employee tofile a complaint, engage in discovery, and insist thatthe court undertake a balancing of interests . . . itselfmay interfere unreasonably with both the managerialfunction . . . and with the use of other grievance –

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resolution mechanisms, such as arbitration, civilservice review boards, and whistle-blower remedies, forwhich employees and employers may have bargained orwhich legislatures may have enacted.”). The resultingdamage to the efficient functioning of state and localgovernment employers would be particularly cripplingbecause state litigation would become federalized anddrain their already limited resources.

Petitioner and his amici create a viscerallyappealing argument that in an environment of politicalcorrectness seeks to have the Court announce someform of immunity under the First Amendment forgovernment employee testimony. Yet, that span ofimmunity surely cannot be protective of all speech. SeeCeballos, 361 F.3d at 1191-92 (O’Scannlain, J.concurring) (“The majority’s response is long on policy,but short on the law. Its argument is seductivelysimple: Because whistleblowers play an important rolein rendering government accountable, the FirstAmendment must protect their whistleblowingactivities. How can anyone disagree with that generalprinciple? . . . This case – and the doctrine it ratifies –thus implicates more than the too-common tendency ofwell-intentioned jurists to squeeze a policy-orientedsquare peg into a round constitutional hole.”) (citationsomitted).

All agree that untruthful speech should get noprotection, and we assume Petitioner would agree thattestimonial speech admitting to a crime finds no FirstAmendment protection from criminal prosecution. Butwhat about speech where employers should be able todismiss employees for their testimony concerning theperformance of their job duties: an employee divulging

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his own misconduct on the job or where an employeeadmits in testimony during an administrativeproceeding or a divorce to having an affair while on theclock?5

While Petitioner assumes that the truthful natureof an employee’s testimony is known or easilyknowable, the following hypothetical demonstrates thatdetermining whether speech is truthful can be anuncertain and arduous inquiry. Suppose a city decidesto employ armed police officers to protect its schoolsfollowing the tragedies of school massacres. Policeofficers A, B and C are all employed to fill thesepositions. During a scuffle outside a school where allthree are employed, the officers engage an unrulyteenager who they ultimately arrest for resisting arrestand assault. Officers A and B testify in the criminaltrial that the teenager was aggressive, assaultedOfficer A, and was arrested for the assault and forresisting arrest. Officer C testifies that Officer A wasactually the aggressor and that both A and B used forceafter the teen was subdued. The teenager is acquittedat trial and brings a Section 1983 action against thecity and its Officers A and B. The officers all testify asthey had in the criminal trial and a jury determines

5 See, e.g., Krocka v. Police Bd. of City of Chicago, 762 N.E.2d 577,587 (Ill. App. Ct. 2001) (“The hearing officer heard Krocka statethat he testified in federal court that he had patronized prostituteswhile on duty, falsified his departmental health appraisal,consumed alcohol while on duty, and used vulgar language towardor about an assistant corporation counsel while in federal court. The Board also received a copy of Krocka’s sworn federal courttestimony.”).

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that none of the officers or the city have liability,rendering a defense verdict.

Due to the Great Recession and poor financialmanagement, the city’s new administration ends theprogram and Officers A, B and C are each laid off. Allclaim retaliation. Officer C claims retaliation for histestimony against the city and Officers A and B claimretaliation because they believe the city felt it shouldnot have lost the criminal trial and that theirtestimony exposed the city to liability.

Under this scenario, a court might reach differentconclusions over which testimony was truthful A’s, B’s,or C’s. Under the rule proposed by the Petitioner onlythe officer whose testimony the court concludes wastruthful finds the safe harbor of immunity fromdischarge. Establishing a rule based on such valuejudgments simply does not work.6

II. Providing a First Amendment Cause of Actionfor Speech Related to the Performance ofOne’s Job Duties Would Amount toConstitutionalizing the Employee Grievanceand Harm Government Employers and thePublic at Large.

Petitioner and his amici would have this courtbelieve that by not extending the First Amendment to

6 Additionally, Petitioner’s focus on subpoenas would not assist inthat situation if all of the officers were subpoenaed. In any event,the relative ease with which a subpoena can be obtained makes itan odd choice on which to base constitutional distinctions. See,e.g., R.I. GEN. LAWS ANN. § 9-17-3 (West 2013) (providing that evena notary public can issue a subpoena).

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provide public employees with a cause of action againsttheir employers for retaliating against their testimonialspeech their employers will have the right to terminatethem with impunity. But we are not writing on a blankslate here. Numerous statutory and common lawremedies exist to provide public employees relief undersuch circumstances. See Garcetti, 547 U.S. at 425(explaining that a “powerful network of legislativeenactments – such as whistle-blower protection lawsand labor codes [are] available to those who seek toexpose wrongdoing.”).

By attempting to constitutionalize the employeegrievance in the manner they propose, Petitioner andhis amici “jeopardize the delicate balance” Federal,State and local governments have struck concerningthe treatment of whistleblowers. See Enquist, 553 U.S.at 607.

A. Constitutionalizing the EmployeeGrievance As Petitioner Requests WouldNeedlessly Enshrine a Rigid andUnchangeable Cause of Action Into theGovernment Employment Context toAddress a Perceived Problem Better Left tothe Democratic Process.

“[N]ot every procedure that may safeguardprotected speech is constitutionally mandated.” Waters, 511 U.S. at 670. Petitioner and his amiciadvance a “problem” that they assert is in need of asolution, but numerous non-constitutional remedies areavailable to address a retaliatory dismissal of anemployee in response to his or her testimony. Furthermore, because they are not constitutionalremedies, they are flexible to adapt to the changing

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interests sought to be advanced by the public asexpressed through their elected representatives.

1. Numerous Statutory and Common LawRemedies are Available to AddressPetitioner’s Perceived Problem.

All fifty states, and the District of Columbia, haveenacted some form of whistleblower protection laws. See Elletta Sangrey Callahan & Terry MoreheadDworkin, The State of Whistleblower Protection, 38 AM.BUS. L.J. 99, 108 (2000).7 Most states have adopted ageneral comprehensive whistleblower law, but somehave elected to target specific provisions of the law orparticular industries. Id.; see, e.g., N.M. STAT. ANN.§ 28-17-19 (Michie 1999); VA. CODE ANN. §§ 40.1-51.2(Michie 2013).

Additionally, several municipalities have adoptedordinances that protect whistleblowers. See, e.g., ST.PAUL ADMIN. CODE § 42.01; DENVER MUN. CODE § 2-106. State statutes also commonly extendwhistleblower protections to municipal, as well asstate, employees. See, e.g., ARK. CODE ANN. § 21-1-601et seq. (Michie 2013); LA. REV. STAT. ANN. § 42:1169(West 2013); MISS. CODE ANN. § 25-9-171 et seq. (2013).

To be sure, these laws and their treatment in eachstate are not uniform. The Florida whistleblowerstatute, for example, requires the employee to show a

7 See also Ceballos, 361 F.3d at 1192 (O’Scannlain, J., concurring)(“How strange it must now be for the hundreds, if not thethousands, of legislators throughout this country who have votedto enact or to retain [whistleblower] laws now to discover that theirvotes were essentially meaningless”).

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violation of a statute. See Taylor v. Memorial HealthSystems, Inc., 770 So.2d 752, 754 (Fla. App. 5 Dist.2000) (interpreting FLA. STAT. ANN. § 448.102 (West1981 & Supp. 1995)). Some states require theemployee to first inform their employer of the problemto afford the employer an opportunity to correct it. See,e.g., N.H. REV. STAT. ANN. § 275-E:2 (2014). Somestates do not protect whistleblowers who act in“consideration of personal benefit.” PA. STAT. ANN. tit.43, § 1422 (West 2014); W. VA. CODE, § 6c-1-2 (2014);see also WIS. STAT. 230.83(2) (2013) (offering protectionunder certain circumstances). Different states haveallocated the burden of proof differently as well. Compare Davidson v. Commonwealth, Dept. of MilitaryAffairs, 152 S.W.3d 247, 251 (Ky. App. 2004) withRaphael v. Okyiri, 740 A.2d 935, 957 (D.C. 1999).

Other States have also adopted whistleblowerstatutes that apply specifically to the employees ofmunicipal governments. See, e.g., CAL. GOV’T CODE§ 53298(a) et seq. (West 2014); WASH. REV. CODE ANN.§ 42.41.010 et seq. (West 2014). In fact, Connecticut,for example, provides greater protection for employeesof lower levels of government than for employees of theState. See CONN. GEN. STAT. ANN. § 31-51m(b) (West2014).

Amicus Government Accountability Project (“GAP”)asserts that the existing protections for employees areinsufficient because “existing state whistleblowerprotection laws are a patchwork” and “[o]n the statelevel, protections vary widely with respect to thecategories of government employees covered, theemployee activity that can constitute protected

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‘whistleblowing,’ and other requirements.” Gov.Accountability Project Br. at 3-4, 16-17.

But what Amicus GAP fails to appreciate is thatthose nuances and variations are the appropriateproduct of the democratic process in our federal system. Rather than a one-size-fits-all solution to thecompeting concerns inherent in the encouragement ofwhistleblowing, the various States have taken differentapproaches to balance the competing concerns ofpotential whistleblowers and their employers. SeeSmith v. Robbins, 528 U.S. 259, 273 (2000) (noting thisCourt’s “established practice, rooted in federalism, ofallowing the States wide discretion, subject to theminimum requirements of the Fourteenth Amendment,to experiment with solutions to difficult problems ofpolicy.”).

Petitioner similarly claims that existing protectionsare insufficient simply because Petitioner’swhistleblower claim failed below. See Pet. Br. at 23n.7. But the citizens of Alabama have made a policydecision not to extend certain whistleblower protectionsto certain employees. They are free by legislativeaction to weigh the interests of employers andemployees and fashion their own solution to the issue.

While Amicus GAP and Petitioner decry thepotentially disparate treatment of whistleblowers, theyoffer no explanation as to why government employeesshould be afforded constitutional relief forwhistleblowing in the form of the First Amendmentwhile their private employee counterparts are left torely solely on statutory relief. Indeed, Amicus GAPlaments the fact that “Enron was able to engage inretaliation against employee whistleblowers based on

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a gap in then-existing law.” Gov. AccountabilityProject Br. at 16 (citing Lawson v. FMR LLC, 134 S. Ct.1158, 1162 (2014)). But Enron was not a governmentemployer, so the First Amendment would not haveafforded any relief to those employees even under theexpansive application offered by Petitioner and hisamici.

Additionally, whistleblower statutes are not theonly remedy available for government employees whohave been retaliated against for their testimony as “[a]majority of states have adopted a public-policyexception to the employment-at-will rule. The public-policy exception states that an employee will have aclaim for wrongful discharge if the dischargecontradicts public policy.” Genna H. Rosten,Annotation, Wrongful Discharge Based on Public PolicyDerived From Professional Ethics Codes, 52 A.L.R. 5th405 (1997). While Alabama has not recognized thepublic policy exception to at-will employment, it hasrecognized the implied contract exception and thecovenant of good faith and fair dealing exception. SeeCharles J. Muhl, The Employment-At-Will Doctrine:Three Major Exceptions, MONTHLY LABOR REVIEW 4(2001), available at http://www.bls.gov/opub/mlr/2001/01/art1full.pdf; Ex Parte Amoco Fabrics and Fiber Co.,729 So.2d 336 (Ala. 1998); Hoffman-La Roche, Inc. v.Campbell, 512 So.2d 725 (Ala. 1987). In fact, Alabamais one of only eleven states to recognize the covenant ofgood faith exception. See Muhl, supra at 4. Additionally, Alabama has specifically outlawedwitness tampering and defined the crime broadly asthe “attempt[] to induce a witness” to “[t]estify falselyor unlawfully withhold testimony, or [a]bsent himselffrom any official proceeding to which he has been

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legally summoned.” ALA. CODE § 13A-10-124 (2014). Furthermore, it is a reckless employer who terminatesa federal witness in retaliation for testimony in acriminal trial so as to subject themselves to criminalliability for obstruction of justice. See, e.g., 18 U.S.C.§§ 1512-14 (2014).8

It is simply not the case that the absence of FirstAmendment protection here means that governmentemployers will gain the “right” to retaliate againsttheir employees for testimony they give. Thoseemployers will remain subject to the existing rules andregulations applicable to them. See Garcetti, 547 U.S.at 425 (explaining that a “powerful network oflegislative enactments – such as whistle-blowerprotection laws and labor codes [are] available to thosewho seek to expose wrongdoing.”). In fact, thetestimonial context is a particularly appropriate one inwhich to rely on existing statutes, as retaliatorydismissal for truthful testimony could specificallyimplicate obstruction of justice and witness tamperingstatutes that would not be relevant with other claimsof retaliatory discharge. See, e.g., 18 U.S.C. §§ 1512-14(2014); ALA. CODE § 13A-10-124 (2014).

8 The Schmitz case was a highly publicized and significantprosecution involving political corruption in Alabama. The UnitedStates prevailed after a lengthy investigation and two criminaltrials in bringing Schmitz to justice and in exposing a corruptlegislature. Nothing in Petitioner’s or his amici’s submissionssuggest that Petitioner ever sought protection from the UnitedStates Attorney under these laws, nor is there any reason tobelieve that if noticed, the United States Attorney would havedeclined to protect Petitioner. Amici suggest the claim ofretaliation here was an afterthought, discrediting the plausibilityof Petitioner’s lawsuit. See Ashcroft, 556 U.S. at 678.

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2. Federal, State, and Local LegislaturesAre the Appropriate Bodies to AddressPetitioner’s Perceived Problem to theExtent Existing Remedies Fall Short.

This Court has recognized the importance oflegislatures in fashioning the appropriate remediesavailable to government employees. In Enquist thisCourt rejected the employee’s attempt to “jeopardizethe delicate balance governments have struck betweenthe rights of public employees and the government’slegitimate purpose in promot[ing] efficiency andintegrity in the discharge of official duties.” Enquist,553 U.S. at 607 (citations and quotations omitted). TheCourt offered the example of the Civil Service ReformAct, which covers most federal employees butspecifically excludes some groups of employees from itsprotection as an example of the legislative processfinding a better solution. Id. (citing 5 U.S.C.§ 2302(a)(2)(C) (2004)).

According to the Court, applying the EqualProtection Clause to review allegedly arbitraryemployment action would “undo[] Congress’s (and theStates’) careful work.” Id. Quoting a First Amendmentemployment context case, the Court explained that itsdecision was guided by “the ‘common-sense realizationthat government offices could not function if everyemployment decision became a constitutional matter.’” Id. (quoting Connick, 461 U.S. at 143). Petitioner andhis amici seek to fashion a one-size-fits-all remedy, butfail to see that doing so would “jeopardize the delicatebalance governments have struck” in enactingwhistleblower statutes and other protections againstretaliatory discharge. See id.

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The Enron example provided by Amicus GAPdemonstrates precisely why the “problem” presented byPetitioner and his amici does not require aconstitutional solution. As this Court explained in itsrecent decision in Lawson v. FMR LLC, following theEnron scandal “Congress identified the lack ofwhistleblower protection as ‘a significant deficiency’ inthe law” and enacted Section 806 of Sarbanes–Oxley to“address[] th[at] concern.” 134 S. Ct. 1158, 1162-63(2014); see also 18 U.S.C. § 1514A (2010). In that samedecision the Court responded to concerns raised by oneof the parties and noted that if its interpretation of aprovision of that statute generated a flood of claims“Congress c[ould] easily fix the problem by amending§ 1514A explicitly to remove personal employees ofpublic company officers and employees from theprovision’s reach.” Lawson, 134 S. Ct. at 1173. Ofcourse, such a revision would not be possible with aconstitutional resolution of the issue.

So while the statutory protection at the time of theEnron scandal may have proved inadequate, therelevant legislative body was able to adjust toexperience and fashion a new statutory remedy tostrike a more appropriate balance between theinterests of the employer and the interests of thepotential whistleblower employees. In doing so, it hadaccess to all the policy tools unique to the legislativebranch of government to weigh all relevantconsiderations when reaching the appropriate balance. Likewise, if this Court’s most recent decision in Lawsonjeopardizes Congress’s delicate balance in Sarbanes-Oxley, Congress is free to amend it to stem any flood ofclaims that could result.

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The “powerful network of legislative enactments”presently available are more than sufficient to addressPetitioner’s perceived problem, and if more is requiredthe democratically elected legislatures can passadditional statutes. Garcetti, 547 U.S. at 425.9 Morecritically, legislatures are free to flexibly address theproblem in a comprehensive manner to ensure a“delicate balance” is struck between the needs of thegovernment and the needs of its employees. SeeEnquist, 553 U.S. at 607. Such a balance includesmaking appropriate distinctions between types ofemployees, types of criticisms, areas of employment,and other relevant factors in a way not achievable inthe court system.

That flexibility has never been more important thannow, as concerns grow concerning the dramaticexpansion in the number of meritless whistlebloweractions that have been brought against governmentemployers. See Richard D. Alaniz, Managing the Riseof Baseless Whistleblower Retaliation Claims,ACCOUNTING WEB, July 12, 2013, available at http://www.accountingweb.com/print/222071 (last accessedApril 7, 2014) (noting “according to OSHA’s own

9 For example, the public response and resulting legislationfollowing this Court’s decision in Kelo v. City of New London,Connecticut, 545 U.S. 469 (2005) demonstrates how quickly thepublic can act through its legislative bodies when it perceives aproblem with a recent judicial interpretation as long as theinterpretation permits such legislative remedies. See LarryMorandi, Eminent Domain Legislation: Post-Kelo Update, NAT’LCONFERENCE OF STATE LEGISLATURES, Jan. 1, 2012, available athttp://www.ncsl.org/documents/natres/EminentDomainPost-Kelo.pdf (last accessed April 7, 2014) (discussing amendments oflaws and state constitutions in response to the Kelo decision).

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statistics, a mere 2 percent of claims were found tomerit agency action”). Time will tell if this wave ofbaseless whistleblower actions is a serious issue inneed of a legislative response, or simply the product ofthe most recent recession; but what is unquestionablytrue is that the fact that such causes of action arestatutory and not constitutional means they can beadjusted and adapted as society sees fit.

In addition to providing a malleable and adjustableframework rather than a fixed and rigid constitutionaltort, the legislature, with access to hearings, publiccomment, and other policy tools, can fashion remediesthat are clear and easy to follow by both employers andemployees alike. It is no secret that judicial tests andlimits can sometimes be difficult to predict and followin practice. It is further no secret that the pace ofjudicial change can often be glacial and fallsignificantly behind the needs of society.

As Garcetti acknowledged, the public has aninterest in “receiving the well-informed views ofgovernment employees engaging in civic discussion.” Garcetti, 547 U.S. at 419. But the advancement of thepublic’s interest in that regard is better left to thepublic to address through its democratically electedlegislatures. It is not the province of this Court to craftsolutions to such policy issues, particularly in light ofthe policy tools available to legislative bodies to fashionand later adjust the perfect remedies to problemspresented. See Ceballos, 361 F.3d at 1192-93(O’Scannlain, J., concurring).

As this Court has recognized, “[t]he relationsbetween the United States and its employees havepresented a myriad of problems with which the

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Congress over the years has dealt . . . Governmentemployment gives rise to policy questions of greatimport, both to the employees and to the Executive andLegislative Branches.” U.S. v. Gilman, 347 U.S. 507,509 (1954). In declining to create a new nonstatutoryBivens remedy in that context, this Court explainedthat Congress had already created “an elaborateremedial system that has been constructed step bystep, with careful attention to conflicting policyconsiderations.” Bush v. Lucas, 462 U.S. 367, 388(1983). The Court explained that Congress was in a“far better position” to consider the policy ramificationsof a new ground for relief because “it . . . may informitself through factfinding procedures such as hearingsthat are not available to the courts.” Id. at 389. TheCourt declined to create a new Bivens action“permit[ing] a federal employee to recover damagesfrom a supervisor who ha[d] improperly disciplined himfor exercising his First Amendment rights . . . because[the Court was] convinced that Congress is in a betterposition to decide whether or not the public interestwould be served by creating it.” Id. at 390.

In light of this, it is not surprising that this Court’sdecision in Garcetti recognized that while “[e]xposinggovernmental inefficiency and misconduct is a matterof considerable significance,” the sound judgment ofpublic employers and a “powerful network of legislativeenactments – such as whistle-blower protection lawsand labor codes – [are] available to those who seek toexpose wrongdoing.” 547 U.S. at 425. Thoseprotections, and numerous others, “protect employeesand provide checks on supervisors who would orderunlawful or otherwise inappropriate actions.” Id. at426. An additional extension of the First Amendment

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into the government employment context was thereforeunwarranted in that case. It is equally unwarranted inthis case.

If this Court nevertheless remains concerned thatthe rule proposed by the undersigned would stiflelegitimate citizen speech, this Court could still adoptthat rule but add to it a “safe harbor” option akin to theone found in the rule suggested by Professor KermitRoosevelt III in an article that sought to quell thelament in the world of academia and at the Plaintiff’sbar over the decision in Garcetti:

[T]he solution I prefer, the problem of the blurryline between speech as a citizen and speech asan employee could be solved by creating a safeharbor for employees who want to speak ascitizens. Such a safe harbor could require thatthe employees speak to the public, do so outsidethe workplace, and make clear that they are notspeaking for their employer. Speech in this safeharbor would, ideally, be protected not by theanemic Connick-Pickering balancing test but bysomething closer to the ordinary FirstAmendment analysis, with carveouts for speechthat either demonstrably disrupts workingrelationships or suggests an unfitness for thejob.

This would be a space where we could approachtrue parity between government employees andordinary citizens. This approach would use theFirst Amendment to protect speech that hasFirst Amendment value. It would leaveprotection of other speech to devices that are

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tailored to the needs of the differentcircumstances in which it occurs.

Kermit Roosevelt III, Not as Bad as You Think: WhyGarcetti v. Ceballos Makes Sense, 14 U. PA. J. CONST.L. 631, 659-60 (2012) (citations omitted).

B. Constitutionalizing the EmployeeGrievance As Petitioner Requests WouldEngender Significant Legal Uncertainty forGovernment Employers and Lead toSuffocating Judicial Oversight.

As this Court explained in Enquist, “absent themost unusual circumstances, a federal court is not theappropriate forum in which to review the wisdom of apersonnel decision taken by a public agency allegedlyin reaction to the employee’s behavior.” 553 U.S. at600 (quoting Connick, 461 U.S. at 147). Accordingly, inthat case the Court reasoned that “ratifying a class-of-one theory of equal protection in the context of publicemployment would impermissibly ‘constitutionalize theemployee grievance.’” Id. at 609 (quoting Connick, 461U.S. at 154). The Court’s reasoning was consistentwith its prior determination that “[t]he federal court isnot the appropriate forum in which to review themultitude of personnel decisions that are made daily bypublic agencies.” Id. (quoting Bishop v. Wood, 426 U.S.341, 350 (1976)).

Petitioner proposes a rule that truthful testimonyrelated to matters of public concern that is not offeredpursuant to the employee’s official duties is protectedby the First Amendment. According to Petitioner, “[i]nsuch cases, employers may impose discipline for thetestimony only if they show that the testimony’s

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disruptive effects on the workplace outweigh theemployee’s interest in testifying, and society’s interestin hearing the testimony.” Pet. Br. at 8. Such a testwould place an intolerable litigation burden ongovernment employers and severely impact the properand efficient function of those employers. ProfessorRoosevelt insightfully noted this difficulty:

Generally speaking, our First Amendmentdoctrine is good at making the government keepits hands off. It is not good at supervisingnuanced and context-sensitive judgments aboutthe quality of speech or its socialappropriateness; indeed, the Court’s decisionsrepeatedly proclaim that the Amendment doesnot allow the government to make suchjudgments. But the government cannot behands-off with its employees and agnostic as tothe quality of their work product: employersmust be able to evaluate employee jobperformance. Garcetti’s carveout is sensible interms of both First Amendment values andmanagerial efficiency.

Roosevelt, supra at 659 (citations omitted).

In addition to the inquiry of whether testimony canbe considered part of the employee’s official duties,Petitioner’s rule would require searching inquiry ofnumerous questions. It would need to be determined:(1) whether the testimony at issue is even truthfultestimony – an often subjective determination;(2) whether the matter testified to is an issue of publicconcern; (3) whether the testimony’s disruptive effectsoutweigh the employee’s interest in testifying;(4) whether the testimony’s disruptive effects outweigh

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society’s interest in hearing the testimony; (5) what theemployee’s interest in testifying even is; and (6) whatsociety’s interest in hearing the testimony even is. These numerous and searching inquiries must all beconsidered, according to Petitioner’s rule, prior to agovernment employer deciding whether to dismiss anemployee. Furthermore, any one of these inquiriescould generate or prolong significant litigation from adisgruntled employee.

Under such a system, federal courts would becomesuper personnel boards charged with the unenviabletask of sifting through numerous grievances to find anymerit in the disputes before them. As constitutionalcauses of action, such grievances would be federalized,rigid, and unchangeable, and bring with them tofederal court a myriad of attendant state law claimsthat do not belong there.

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CONCLUSION

For the foregoing reasons and the reasons containedin Respondent Steve Franks’ brief, the decision of thecourt below should be affirmed.

Respectfully submitted,

Matthew J. DeludeCounsel of Record

PRIMMER PIPER EGGLESTON & CRAMER, PC900 Elm St., 19th FloorManchester, NH 03105(603) 626-3324mdelude@primmer.com

Charles W. Thompson, Jr. INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION 7910 Woodmont Ave.Suite 1440Bethesda, MD 20814 (202) 742-1016

Neil ReichenbergINTERNATIONAL PUBLIC MANAGEMENT ASSOCIATION FOR HUMAN RESOURCES1617 Duke StreetAlexandria, VA 22314(703) 549-7100

April 9, 2014 Counsel for Amici Curiae