Nahmod Law

Borough of Duryea v. Guarnieri: § 1983, Public Employees and the Petition Clause

The Supreme Court in 2011 handed down Borough of Duryea v. Guarnieri, 131 S. Ct. — (2011), which expressly rejected the minority position of the Third Circuit–see San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)–and adopted that of the other circuits. Specifically, the Court held that a public employee who claims government employer retaliation in violation of the Petition Clause must demonstrate that his or her petition raises a matter of public concern and is not just a private grievance. Otherwise, the public employee may not rely on the Petition Clause.

The Decision

In the case before the Court, the § 1983 plaintiff, a former police chief, alleged retaliation because he had both filed a grievance and brought his § 1983 action against the defendant borough. A jury awarded compensatory damages to the plaintiff and the Third Circuit affirmed, relying on its position that the Petition Clause may be used in public employee retaliation cases even if grievances and lawsuits giving rise to the alleged retaliation involved matters of private concern.

The Court, in an opinion by Justice Kennedy, reversed. It assumed that both grievances and lawsuits were generally protected by the Petition Clause but emphasized that its decision in this case related only to Petition Clause claims by public employees against their government employers. It then went on to rule that in the public employment setting, the Petition Clause was no broader in scope than the Free Speech Clause which had long had a public concern requirement. See Connick v. Myers, 461 U.S. 138 (1983).

(See also Pickering v. Board of Educ., 391 U.S. 563 (1968), dealing with balancing where public employee speech involves a matter of public concern, and Garcetti v. Ceballos, 547 U.S. 410 (2006), which excluded Free Speech Clause protection from government employer retaliation for public employee speech that is part of the employee’s job responsibilities; I extensively criticize Garcetti in my post of December 8, 2009).

Like speech, the Court argued, petitions could interfere with the efficient and effective operation of government; indeed, lawsuits were often even more disruptive than speech because they called for a government response. Further, judicial second-guessing and intervention imposed significant costs on government employers. Where a petition such as a grievance raised only an issue of private concern, the public employee was not acting as a citizen but was rather complaining to the government as employer, not as sovereign. Such a public employee should accordingly not be protected by the Petition Clause any more than a public employee raising an issue of private concern was protected by the Free Speech Clause under Connick.

The Court maintained that its view of the Petition Clause derived considerable support from the historical record. It pointed out that many petitions historically had dealt with matters of public concern, even if others may have raised matters of private concern only.

The Court then vacated and remanded, noting that the public concern issue had not been addressed by the lower courts.

The Opinions of Justices Thomas and Scalia

Justice Thomas concurred in the judgment. He questioned whether lawsuits were even petitions for Petition Clause purposes, and also stated (in agreement with Justice Scalia on this point) that the Petition Clause was not applicable to petitions by public employees unless they were addressed to the government in its capacity as sovereign.

Justice Scalia concurred in the judgment in part and dissented in part. Among other things, he disagreed with the Court’s application of the public concern requirement of the Free Speech Clause to the Petition Clause. Interestingly, and in an apparent attempt to provide some unique content to the Petition Clause, he argued instead that the proper inquiry in Petition Clause cases was whether the public employee’s claim under the Petition Clause was addressed to the government in its capacity as employer or sovereign. If the former, it could not go forward; if the latter, then it could. Thus, in this case the plaintiff’s Petition Clause claim based on his grievance could not go forward, while the claim based on his § 1983 lawsuit could conceivably go forward because he was not an employee of the federal government to whom the § 1983 lawsuit was addressed.

Comments

1. Guarnieri was not a surprising decision either in result or in its reasoning. The Third Circuit was out there all alone on this issue. Also, it was Justice Kennedy, the author of Garcetti, who wrote Guarnieri.

2. As a practical matter, the Supreme Court in Guarnieri brought public employee Petition Clause claims in line with its approach to both public employee Free Speech Clause claims and public employee Equal Protection Clause claims. See Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008), on the last. In all three of these public employee situations, the Court’s decisions, which cut back on the scope of the applicable constitutional right, reflected a weighty concern with efficient government and the costs of judicial intervention that trumped the individual rights implicated.

4. Observe, finally, the Guarnieri imposed a public concern requirement only on § 1983 Petition Clause claims brought by public employees against their governmental employers, and not on § 1983 Petition Clause claims generally.