No In The. Kristina Kiehle, On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit

Transcription

1 No In The Kristina Kiehle, v. Petitioner, County of Cortland et al., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF IN OPPOSITION Donald S. Thomson (Counsel of Record) Davidson & O Mara, P.C. 243 Lake Street Elmira, NY (607) dthomson@omaralaw.com

2 QUESTION PRESENTED This Court held in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. The Question Presented is: Should this Court overrule Garcetti with respect to government employees testimonial speech?

3 ii TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF THE CASE REASONS FOR DENYING THE WRIT I. Petitioner s Claimed Circuit Conflict Is Illusory II. A. There Is No Conflict With The Precedent Of The Third Or Seventh Circuits B. The Second And Eleventh Circuits Have No Relevant Binding Precedent That Is Inconsistent With The Rule Petitioner Proposes This Case Presents An Isolated And Unimportant Question III. This Case Is A Bad Vehicle To Address Garcetti s Application To Various Forms Of Governmental Employee Testimony IV. The Second Circuit Correctly Applied This Court s Decision In Garcetti A. Petitioner Testified Voluntarily As Part Of Her Job As A DSS Caseworker And Thus Her Claim Does Not Survive Garcetti s Threshold Test B. Petitioner s Public Employee Speech Is Not Rendered That Of A Private Citizen Simply Because It Involves Sworn Testimony Conclusion

4 iii TABLE OF AUTHORITIES CASES Beckinger v. Township of Elizabeth, 434 F. App x 164 (3d Cir. 2011) Borough of Duryea v. Guarnieri, 131 S. Ct (2011) , 21, 23, 24 Bowie v. Maddox, 642 F.3d 1122 (D.C. Cir. 2011), reh g en banc denied, 653 F.3d 45 (D.C. Cir. 2011), cert. denied, 132 S. Ct (2012)....7, 12, 14 Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192 (2d Cir. 2007) Brown v. Montgomery Cnty., 470 F. App x 87 (3d Cir. 2012) Carr v. City of Camden, Civ. A. No (NLH) (KMW), 2012 WL (D.N.J. Sept. 13, 2012)..15 Cheek v. City of Edwardsville, 324 F. App x 699 (10th Cir. 2008), cert. denied, 130 S. Ct. 60 (2009) , 12 Connick v. Myers, 461 U.S. 138 (1983) Chrzanowski v. Bianchi, No. 12-c-50020, 2012 WL (N.D. Ill. July 6, 2012) Dahlia v. Rodriguez, 689 F.3d 1094 (9th Cir. 2012), reh g en banc granted, No , 2012 WL (9th Cir. Dec. 11, 2012) Dangler v. New York City Off Track Betting Corp., 193 F.3d 130 (2d Cir. 1999) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) Evans v. Hous. Auth. of Benicia, No. 2:07-cv-0391 (JAM)(EFB), 2008 WL (E.D. Cal. Sept. 8, 2008)

5 iv Fairley v. Andrews, 578 F.3d 518 (7th Cir.), reh g en banc denied, 578 F.3d 518 (7th Cir. 2009), cert. denied, 130 S. Ct (2010) , 13 Garcetti v. Ceballos, 547 U.S. 410 (2006) passim Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979) Green v. Barrett, 226 F. App x 883 (11th Cir.), cert. denied, 128 S. Ct. 439 (2007) , 14, 15, 16 Heil v. Santoro, 147 F.3d 103 (2d Cir. 1998) Hook v. Regents of Univ. of Cal., 576 F. Supp. 2d 1223 (D.N.M. 2008), aff d, 394 F. App x 522 (10th Cir. 2010) Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009) , 8, 11, 15 Johnson v. LaPeer Cnty., No , 2006 WL (E.D. Mich. Oct. 11, 2006) Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th Cir. 2012) Kirby v. City of Elizabeth City, 388 F.3d 440 (4th Cir. 2004), cert. denied, 126 S. Ct (2006) Knight v. Drye, 375 F. App x 280 (3d Cir.), cert. denied, 131 S. Ct. 463 (2010) , 11, 12 Matrisciano v. Randle, 569 F.3d 723 (7th Cir. 2009) Matthews v. Lynch, No. 3:07-cv-739 (WWE), 2011 WL (D. Conn. Apr. 11, 2011) Morales v. Jones, 494 F.3d 590 (7th Cir. 2007), reh g en banc denied, 494 F.3d 590 (7th Cir. 2007), cert. denied, 128 S. Ct. 905 (2008) , 12 Moore v. Money, No. 2:11-cv-122, 2011 WL (S.D. Ohio Nov. 29, 2011)

6 v Morris v. Phila. Hous. Auth., No , 2012 WL (3d Cir. July 6, 2012) Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) , 22 Perry v. Sindermann, 408 U.S. 593 (1972) Pickering v. Bd. of Educ., 391 U.S. 563 (1968)....19, 21, 22 Proper v. Sch. Bd. Of Calhoun Cnty., No. 5:10-cv-287-RS- EMT, 2011 WL (N.D. Fla. Aug. 12, 2011).. 16 Ramirez v. Cnty. of Marin, No. C (WHA), 2011 WL (N.D. Cal. Oct. 25, 2011) Rankin v. McPherson, 483 U.S. 378 (1987) Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008), cert. denied, 129 S. Ct (2009) , 8, 10, 15 San Diego v. Roe, 543 U.S. 77 (2004) (per curiam) Serianni v. City of Venice, No. 8:10-cv-2249-T-33TBM, 2011 WL (M.D. Fla. Jun. 27, 2011) Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008) United States v. Nat l Treas. Employees Union, 513 U.S. 454 (1995) Waters v. Churchill, 511 U.S. 661 (1994) Whitfield v. Chartiers Valley Sch. Dist., 707 F. Supp. 2d 561 (W.D. Pa. 2010) STATUTES New York Family Court Act, Article , 24 RULES 2d Cir. Local R th Cir. R

7 vi OTHER AUTHORITIES Leslie Pope, Comment, Huppert v. City of Pittsburg: The Contested Status of Police Officers Subpoenaed Testimony After Garcetti v. Ceballos, 119 Yale L.J (2010)

8 STATEMENT OF THE CASE Petitioner, a probationary child protective caseworker, had a pervasive history of bad judgment and poor performance. She was ultimately terminated after she decided to testify in her official capacity in a Family Court proceeding, without having studied all the relevant facts and without complying with a policy requiring a subpoena before testifying. Petitioner sued respondents, alleging that her termination violated the First Amendment. The district court granted respondents summary judgment, both because petitioner had acted pursuant to her official duties as a public employee and also because she had testified on a matter of private concern. Pet. App. 14a-15a. The Second Circuit affirmed in a non-precedential, summary order. Id. 1a. 1. Petitioner Kristina Kiehle was employed by respondent County of Cortland ( County ) Department of Social Services ( DSS ) as an at-will probationary caseworker from April 7, 2008, to August 18, C.A. J.A. 9. During the probationary period, DSS was evaluating whether to hire her as a permanent caseworker. Id DSS caseworkers investigate and assist troubled families. C.A. J.A A caseworker s official responsibilities include that he or she regularly [p]etitions, testifies, and reports to Family Court. Id Petitioner s training included two days of legal instruction, C.A. J.A. 141, during which she was directed that her job included testifying in Family Court, id. 149, and that junior caseworkers give factual testimony, not personal opinions or conclusions, id In addition, petitioner was instructed that although caseworkers appear in court on behalf of DSS, caseworkers appear on behalf of families only when subpoenaed and, furthermore, testify on behalf of families only after consulting with a DSS supervisor and/or a County attorney. Id. 195, 263, 312. Petitioner herself marked a

9 2 training document covering subpoenas with a star, writing talk to supervisor in the margin. Id Petitioner s probationary employment at DSS was marked by many incidents of poor judgment. Prior to the incident at issue in this case, petitioner was admonished for attempting to express the official position of the County in a Family Court proceeding without consulting her supervisor. C.A. J.A She twice failed to arrange transportation for her clients to and from mental health appointments. Id She allowed a child to have an unauthorized overnight parental visit that resulted in the child s hospitalization, and she misled a child in foster care as to whether he would be returning to his family. Id. Based on these and other performance failures, in two separate evaluations, petitioner s score on every one of ten performance metrics, with the exception of attendance and physical fitness, was below competent. C.A. J.A Her scores declined after her first subpar evaluation. Id. Both times she received her lowest score in judgment. Id. Her supervisors expressed concern about her lack of progress, id , and, as the district court noted, the County indicated that there was a 50/50 chance that petitioner would not pass probation even before the events giving rise to this case, Pet. App. 7a. Among the ten families to whom petitioner was assigned as a probationary caseworker was a mother with a son in foster care and a daughter initially in her own care. C.A. J.A. 87. While petitioner was away for a week of mandatory training, events occurred that required DSS to remove the daughter from the mother s care. Id Although the details are not specified in the record, a determination by DSS to remove a child reflects the agency s significant concerns about neglect and abuse. Id The mother then filed a

10 3 motion in Family Court for the return of her son, id , which DSS opposed, id Petitioner returned from training on Friday, August 15, C.A. J.A. 11. The Family Court had scheduled a hearing on the mother s motion for the next business morning. Id. Consistent with ordinary practice for the removing employee with direct knowledge of the reasons for the removal to provide the DSS testimony, petitioner s supervisor, rather than petitioner, was scheduled to testify at the hearing. Id. On petitioner s return, her supervisor instructed her to attend the hearing to take notes, as opposed to testifying personally. C.A. J.A. 11. Despite the significant events that had occurred during her absence, petitioner did not update or review her case file or even read the removal petition filed by DSS or the intervening progress notes on the family. Id , As petitioner concedes, she did not know how long the family had been receiving parental counseling, or whether any diagnosis had been made with regard to the children s mental health. Id She did not know how often the son s behavioral problems had been documented. Id Indeed, petitioner did not even know the legal standard for removal of a child from the home. Id. 77, 422. Nonetheless, without consulting with her supervisor or requiring the issuance of a subpoena, petitioner agreed to testify in support of the mother s request for the return of her son. C.A. J.A , From the outset of her testimony, petitioner identified herself not as a member of the public but as a DSS caseworker assigned to the family. Id She opined that the mother was not neglectful and recommended to the court that the child be returned home. Id The court rejected her conclusions and ordered that the child remain in foster care. Id. 459.

11 4 Respondents determined that petitioner s choice to testify without being subpoenaed, without consulting her supervisor, and without familiarizing herself with the facts demonstrated another huge lapse of judgment. C.A. J.A Petitioner s conduct was the final straw. Id. The County determined to end her probationary period and not hire her as a permanent caseworker. Id Petitioner sued respondents in federal district court under 42 U.S.C and 1988, alleging that her termination violated the First Amendment. Pet. App. 4a. The parties deposed numerous key witnesses and conducted document discovery. C.A. J.A The district court granted respondents summary judgment, applying this Court s holding in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. The district court found that petitioner had testified as a government employee, reasoning that her testimony concerned her observations of, and opinions about, the circumstances of a family that was part of her caseload, Pet. App. 12a-13a, and that the choice to testify was undertaken in the course of... performing [her] primary employment responsibility, id. 13a (citation omitted) (internal quotation mark omitted). Further, the channel of discourse utilized by [petitioner] the offering of an opinion about the suitability of a parent in a Family Court return of child hearing would not be available to non-employee citizens. Id. 14a. As a result, the district court held that petitioner s testimony was speech made pursuant to her official duties and was not made as a citizen. Thus there is no First Amendment protection for [her] speech. Id.

12 5 The district court independently held that petitioner s claim must also be dismissed on an alternative ground. Under this Court s decision in Garcetti, if the employee does not speak on a matter of public concern, then the employee has no First Amendment cause of action based on his or her employer s reaction to the speech. 547 U.S. at 418. Here, the district court found that petitioner s First Amendment claim must fail because she spoke on an issue of isolated significance to the family that was the subject of the Family Court proceeding. Pet. App. 14a-15a. 3. Petitioner appealed, arguing that published Second Circuit precedent predating Garcetti holds that the First Amendment protects public employees sworn testimony. Pet. C.A. Br. 19. The Second Circuit affirmed in a brief nonprecedential, summary order, which did not address the court s prior published precedent. Pet. App. 1a-3a. The court s order contains only two paragraphs of analysis. Id. 2a-3a. The court of appeals reasoned that, based on the indisputable facts, petitioner testified pursuant to her official duties as a caseworker. Id. 3a. Her testimony was offered voluntarily and without a subpoena, she introduced herself as a DSS caseworker, and she did not distinguish her personal views from those of DSS. Id. 2a-3a. Moreover, her conclusions were based on information she obtained during the course of her public employment. Id. 2a. As a result, the Second Circuit affirmed the dismissal, holding that such speech was not protected under Garcetti. 4. Petitioner s motion for rehearing and suggestion of rehearing en banc was denied. Pet. App. 16a. REASONS FOR DENYING THE WRIT The petition for certiorari should be denied. The Second Circuit s order does not conflict with the precedent of any other court of appeals, this case is a poor vehicle in which to decide the question presented, and the ruling below

13 6 faithfully applies this Court s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). The decisions that petitioner claims are in conflict with the order below are in fact inapposite. Whereas petitioner would have this Court overrule Garcetti with respect to all public employee conduct related to sworn testimony, Pet. 2, the courts of appeals have instead correctly focused on the precise conduct and form of testimony at issue in each case. That approach tracks this Court s admonition in Garcetti that [t]he proper inquiry is a practical one. 547 U.S. at 424. In any event, review is particularly unwarranted in this case because it is obvious that petitioner s claim fails on multiple other grounds. Finally, petitioner offers no justification for broadly insulating all employee testimony from this Court s Garcetti holding, particularly so soon after this Court s ruling in that case. I. Petitioner s Claimed Circuit Conflict Is Illusory. This Court held in Garcetti that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes. 542 U.S. at 421. In applying that test to the facts of this case, the Second Circuit recognized that petitioner s testimony was offered voluntarily,... without a subpoena, that petitioner did not distinguish her personal views from those of DSS, and that her conclusions were based on information she obtained during the course of her public employment. Pet. App. 2a-3a. Given these indisputable facts, the court found it plain that petitioner did not testify as a private citizen. Id. 2a. [R]ather, she testified as a government employee as a DSS caseworker. Id. Petitioner contends that certiorari is warranted because the Second Circuit s order conflicts with decisions of other circuits adopting a sweeping rule that all public employee testimony is protected by the First Amendment. Pet. 8. However, since Garcetti, no court of appeals has ruled that a

14 7 public employee s testimony, given in the course of the employee s job duties, on a private matter, is entitled to First Amendment protection, and this Court has denied seven petitions for certiorari asserting the claim that sworn testimony should be treated differently from other public employee speech under the First Amendment. 1 No different result is warranted here. Petitioner s assertion that third parties have recognized the circuit split claimed by the petition is incorrect. Those authorities actually discuss an arguable disagreement in the courts of appeals over the distinct, narrow question of the First Amendment s application where there is an independent legal duty to speak (in our case, to testify before the grand jury pursuant to a subpoena). Huppert v. City of Pittsburg, 574 F.3d 696, 722 (9th Cir. 2009) (Fletcher, W., J., dissenting); see also Leslie Pope, Comment, Huppert v. City 1 See Bowie v. Maddox, 642 F.3d 1122 (D.C. Cir. 2011), reh g en banc denied, 653 F.3d 45 (D.C. Cir. 2011), cert. denied, 132 S. Ct (2012) (Assistant Inspector General refusal to sign an affidavit justifying a colleague s termination); Knight v. Drye, 375 F. App x 280 (3d Cir. 2010), cert. denied,` 131 S. Ct. 463 (2010) (police officer s complaint about another officer s behavior); Cheek v. City of Edwardsville, 324 F. App x 699 (10th Cir. 2008), cert. denied, 130 S. Ct. 60 (2009) (police officers meetings with FBI and attorney general investigators about department affairs); Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008), cert. denied, 129 S. Ct (2009) (police officer s testimony at colleague s corruption trial); Green v. Barrett, 226 F. App x 883 (11th Cir. 2007) (chief jailer testimony at a transfer hearing regarding jail conditions), cert. denied, 128 S. Ct. 439 (2007); Morales v. Jones, 494 F.3d 590 (7th Cir. 2007), reh g en banc denied, 494 F.3d 590 (7th Cir. 2007), cert. denied, 128 S. Ct. 905 (2008) (police officer s subpoenaed deposition testimony at a trial of police chief); Kirby v. City of Elizabeth City, 388 F.3d 440 (4th Cir. 2004), cert. denied, 126 S. Ct (2006) (police officer s testimony at an administrative hearing investigating fellow officer).

15 8 of Pittsburg: The Contested Status of Police Officers Subpoenaed Testimony After Garcetti v. Ceballos, 119 Yale L.J. 2143, 2143 (2010) (describing purported circuit split as to whether a police officer who testifies truthfully regarding information learned on the job in response to a subpoena speaks as a citizen or as an employee ). Petitioner s decision to testify for an adverse party as a county employee voluntarily, in violation of the County s policy of requiring a subpoena, distinguishes these circumstances from those in which a public employee faces the dilemma of choosing between contempt for failure to comply with a subpoena and retaliation by an employer. See Huppert, 574 F.3d at 722 (Fletcher, W., J., dissenting) (describing the Catch 22 of retaliation or contempt of court confronting subpoenaed officers). To the extent that a conflict warranting this Court s attention exists over cases involving such an independent legal duty, that question is at issue in the Ninth Circuit s pending en banc review of Dahlia v. Rodriguez, 689 F.3d 1094 (9th Cir. 2012), reh g en banc granted No , 2012 WL (9th Cir. Dec. 11, 2012). The particular cases on which petitioner rests her claim of a conflict all involve a specific factual circumstance different from the case at hand: law enforcement officers, under subpoena, testifying as whistleblowers on internal affairs. See, e.g., Reilly, 532 F.3d 216; Huppert, 574 F.3d at 722. The First Amendment may well apply differently to testimony by law enforcement officers, particularly with respect to internal investigations and other matters that resemble whistle-blowing activities. In stark contrast to the public s abiding interest in the integrity of the police force, petitioner s testimony related to a private matter affecting a single family. With regard to this matter, petitioner served as a probationary caseworker, testifying in the ordinary course of her job responsibilities regarding the conditions of individual children. In this

16 9 capacity, her testimony demonstrated her own incompetence in numerous ways. First, she showed an inability to recognize circumstances warranting a child s removal from the home. Second, she showed her incompetence by not having reviewed the family history in sufficient detail to have the family history as it related to the mother s ability to act as a parent to her children. Third, she showed clearly deficient reasoning by her stated understanding that she was to consult her supervisor if subpoenaed to testify, but was not required to do so if merely asked by the adverse party to testify as a government employee. DSS has a vital interest in ensuring that its caseworkers exercise sound judgment and recognize parental neglect when it occurs. Further, unlike in any of the cases the petition cites, it was the fact of petitioner s decision to represent herself as an official of DSS, without having learned the relevant facts and contrary to DSS policy, that required her termination. Indeed, the government s interest in controlling employee speech is at its apex in a case like this one, in which DSS has a recurring presence before the Family Court, and it is as a consequence essential that the court have a clear and unambiguous understanding of DSS s position in each case. An employee who speaks as the official representative of the government serves a different role, and conceivably warrants different First Amendment protection, than one who blows the whistle on internal malfeasance. See Garcetti, 547 U.S. at 425 ( Exposing governmental inefficiency and misconduct is a matter of considerable significance. ); id. at 435 (Souter, J., dissenting) ( [I]t is fair to say that only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee's favor. ); see also San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam) (emphasizing the importance of allowing public employees to speak on the operations of their public employers ).

17 10 A. There Is No Conflict With The Precedent Of The Third Or Seventh Circuits. 1. Petitioner principally contends that the order below conflicts with Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008), cert. denied, 129 S. Ct (2009). The plaintiff police officer in Reilly testified at a former colleague s corruption trial under subpoena, then was disciplined in retaliation. Id. at The Third Circuit held that Garcetti did not foreclose the officer s First Amendment claim. Id. at 231. The facts of this case are easily distinguished from those of Reilly. Petitioner is not a law enforcement officer. Respondents took action principally as a result of her poor judgment to testify voluntarily without knowing the relevant facts and contrary to DSS policy. Petitioner nonetheless relies on broad language in Reilly to the effect that courtroom testimony meets the threshold inquiry that speech be... offered in one s capacity as a citizen. Id. at 231 n.6. Contrary to petitioner s assumption, however, the Third Circuit has not elevated that language to a legal rule. Later Third Circuit cases conspicuously absent from petitioner s submission to this Court have understood that Reilly s rationale is instead much more narrowly limited to compelled testimony in criminal proceedings. As the court explained in Beckinger v. Township of Elizabeth, 434 F. App x 164, (3d Cir. 2011), after Garcetti and prior to our decision in Reilly... the status of First Amendment protection for government employee attendance at hearings as part of employment duties was uncertain. To the extent that Reilly clarified the issue, it did so in the context of testimony presented under compulsion of a subpoena in a criminal trial. Reilly, therefore, does not stand for the proposition that a law enforcement officer has a First Amendment right to

18 11 attend voluntarily a parking ticket adjudication hearing in derogation of direct orders to the contrary. Another recent Third Circuit case quotes Reilly for the proposition that [t]he First Amendment does not prohibit managerial discipline based on an employee s expressions made pursuant to official responsibilities. Brown v. Montgomery Cnty., 470 F. App x 87, 89 (3d Cir. 2012) (quoting Reilly, 532 F.3d at 226). Cf. Huppert, 574 F.3d at 722 (Fletcher, W., J., dissenting) (recognizing that Reilly hold[s] that where there is an independent legal duty to speak,... the employee has First Amendment protection ). Although these later decisions are unpublished and nonbinding, they nonetheless establish that later Third Circuit panels are not required to and indeed are unlikely to give the isolated language petitioner cites from Reilly the broad reading which she attributes to it. Thus, contrary to petitioner s submission, the Third Circuit has never embraced petitioner s categorical rule that all public employee activity related to testimony is protected by the First Amendment. Petitioner cites two unpublished Third Circuit cases, but both involved internal reporting, not testimony, and both distinguished their facts from Reilly. See Morris v. Phila. Hous. Auth., No , 2012 WL , at *3 (3d Cir. July 6, 2012) (noting, in rejecting First Amendment claim, that [t]he Supreme Court has decided... that we should not constitutionalize management disputes between the government and its employees ); Knight v. Drye, 375 F. App x 280, 283 (3d Cir. 2010) (rejecting First Amendment claim). To the extent that petitioner s broad reading of the language in Reilly does in fact have merit, this Court should defer its review until the Third Circuit has an opportunity to consider the question presented en banc. In the interim, there is no reason to assume the existence of a circuit conflict and

19 12 grant review at this time. Consistent with that view, this Court denied certiorari not only in Reilly itself, but also in three subsequent cases claiming this very supposed conflict. See supra at 7 n.1 (Bowie v. Maddox, 642 F.3d 1122 (D.C. Cir. 2011); Knight v. Drye, 375 F. App x 280 (3d Cir. 2010); Cheek v. City of Edwardsville, 324 F. App x 699 (10th Cir. 2008)). 2. Nor is there merit to petitioner s claim that the Second Circuit s order conflicts with the precedent of the Seventh Circuit. That court consistently applies Garcetti s official duties analysis to public employee testimony. For example, in Morales, 494 F.3d 590, the plaintiff police officer was reassigned unfavorably after testifying about allegations of illegal conduct by his superiors. Id. at 592. The Seventh Circuit held that the officer s testimony was protected by the First Amendment because [b]eing deposed in a civil suit pursuant to a subpoena was unquestionably not one of [his] job duties because it was not part of what he was employed to do. Id. at 598; see also Matrisciano v. Randle, 569 F.3d 723, 731 (7th Cir. 2009) ( [W]e find no evidence that Matrisciano spoke to the [Prison Review] Board pursuant to his official duties.... ) (overruled on other grounds); Tamayo v. Blagojevich, 526 F.3d 1074, 1091 (7th Cir. 2008) ( [I]f Ms. Tamayo's testimony before the House Gaming Committee was given as part of her official duties, then her speech was not protected by the First Amendment. ). Petitioner errs in contending that the Seventh Circuit held that the First Amendment categorically protects public employee testimony in Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009), reh g en banc denied, 578 F.3d 518 (7th Cir. 2009), cert. denied, 130 S. Ct (2010). The Seventh Circuit in Fairley did not adopt petitioner s broad categorical rule, as to have done so would have conflicted with the settled precedent of that court just discussed. The Seventh Circuit should not be read to have turned its precedent inside out

20 13 based on a single phrase which was not necessary to the outcome of the case. In fact, Fairley is easily distinguished. The plaintiff prison guards in that case claimed that their First Amendment rights were violated when other guards threatened them over potential testimony about inmate abuse. In holding that Garcetti did not bar the plaintiff s claim, the Seventh Circuit focused on the defendants only contention that no one retaliated against plaintiffs for testifying, because the insults, assaults, and threats all preceded plaintiffs deposition. Id. at 525. This case is very different. Petitioner is not a law enforcement officer, her testimony was made in the ordinary course of her regular duties rather than as a whistle-blower, and there is no issue here relating to any act by respondents prior to petitioner s testimony. Petitioner nonetheless relies on dictum in Fairley to the effect that, [e]ven if offering (adverse) testimony is a job duty, courts rather than employers are entitled to supervise the process. A government cannot tell its employees what to say in court, nor can it prevent them from testifying against it. 578 F.3d at 525 (citation omitted). That language was unnecessary to the court s decision because the Seventh Circuit seemingly accepted that [t]estifying against the Jail was not part of the plaintiffs job responsibilities, and hence was protected by the First Amendment under Garcetti. Id. at (emphasis added). No decision of the Seventh Circuit subsequent to Fairley has treated that language as stating a legal rule. In any event, petitioner misunderstands the import of even the dictum she cites. The Seventh Circuit there addressed the special First Amendment treatment that might be applied to testimony adverse to a public employer, in the sense of implicating the employer in tortious or even criminal

21 14 conduct. Id. at 525 (emphasis added). This case, in which petitioner merely decided to testify regarding whether a single child should be returned to her mother, implicates no such concerns. DSS was the petitioner in the Family Court to effectuate the statutory duty of child protection for the benefit of a particular child. See NY Family Court Act, Article 10. To the extent any doubt remains, this Court should give the Seventh Circuit the opportunity to resolve any inconsistency in its own precedent. Accord Bowie v. Maddox, 642 F.3d 1122, reh g en banc denied, 653 F.3d 45 (D.C. Cir. 2011), cert. denied, 132 S. Ct (2012) (denying review to petition claiming a circuit conflict on the basis of Fairley and Third Circuit s decision in Reilly). B. The Second And Eleventh Circuits Have No Relevant Binding Precedent That Is Inconsistent With The Rule Petitioner Proposes. Petitioner s claim of a circuit conflict fails for another reason as well: the Second Circuit s unpublished order in this case does not establish binding precedent for the Second Circuit. In that court of appeals, like others, [r]ulings by summary order do not have precedential effect. Summary Order; 2d Cir. Local R The order in this case would thus present no obstacle to a later panel of the Second Circuit adopting the very rule that petitioner advocates. Indeed, petitioner herself argued below that the court of appeals published precedent supports her position. Pet. C.A. Br. 19. Petitioner maintains that the order below is consistent with the rule applied by the Eleventh Circuit in Green v. Barrett, 226 F. App x 883 (11th Cir. 2007) (per curiam) (chief jailer fired because, at a prisoner transfer hearing, she testified that the jail was unsafe). But that decision was similarly unpublished, so it does not establish binding precedent for the Eleventh Circuit. See 11th Cir. R. 36-2

22 15 ( Unpublished opinions are not considered binding precedent. ). In any event, the result in Green reflects nothing more than a determination that the plaintiff s testimony was part of her required duties. Id. at 886 ( Green does not dispute that she testified at the hearing because she was the Chief Jailer, the public employee responsible for the conditions at the jail.... On these facts, Green s testimony was given pursuant to her official duties.... ). II. This Case Presents An Isolated And Unimportant Question. This fact-bound case presents a straightforward application of Garcetti, not an opportunity to reconsider Garcetti s relationship to all acts of public employees related to sworn testimony. To rule for petitioner, this Court would have to hold that the First Amendment protects a public employee s imprudent decision to testify on behalf of an agency, without adequate preparation, and in knowing violation of agency policy. That question is not the subject of recurring litigation. Petitioner s list of more than thirty post-garcetti cases, Pet. 12, fails to identify any other case involving a similar factpattern. Those cases instead deal with public employee testimony regarding government corruption, 2 the potential misconduct of fellow government employees, 3 and the 2 See, e.g., Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009); Reilly v. City of Atl. City, 532 F.3d 216 (3d Cir. 2008); Evans v. Hous. Auth. of Benicia, No. 2:07-CV-0391 JAM EFB, 2008 WL (E.D. Cal. Sept. 8, 2008); Hook v. Regents of Univ. of Cal., 576 F. Supp. 2d 1223 (D.N.M. 2008), aff d, 394 F. App x 522 (10th Cir. 2010); Matthews v. Lynch, No. 3:07 cv 739 (WWE), 2011 WL (D. Conn. Apr. 11, 2011). 3 See, e.g., Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th Cir. 2012); Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009); Carr v. City

23 16 operation of government policies. 4 Of the three district court decisions that might be loosely analogized to these facts, 5 none involved an employment decision that rested substantially on the employee s decision to testify at all. That is no surprise, as the First Amendment cannot plausibly be read to confer on a public employee the right to decide for herself to represent the views of her employer simply because the representation is made in court. Instead, the government agency has the power to determine who will testify on its behalf and to control the quality of the testimony. Supervisors must ensure that their employees official communications are accurate, demonstrate sound judgment and promote the employer s mission. Garcetti, 547 U.S. at 423. Government agencies must be able to make and articulate clear policies and positions. In this case, for of Camden, Civ. A. No (NLH)(KMW), 2012 WL (D.N.J. Sept. 13, 2012); Chrzanowski v. Bianchi, No. 12 C 50020, 2012 WL (N.D. Ill. July 6, 2012); Proper v. Sch. Bd. Of Calhoun Cnty., No. 5:10 cv 287 RS EMT, 2011 WL (N.D. Fla. Aug. 12, 2011); Serianni v. City of Venice, No. 8:10 cv 2249 T 33TBM, 2011 WL (M.D. Fla. June 27, 2011). 4 See, e.g., Green v. Barrett, 226 F. App x 883 (11th Cir. 2007); Moore v. Money, No. 2:11 CV 122, 2011 WL (S.D. Ohio Nov. 29, 2011). 5 See Ramirez v. Cnty. of Marin, No. C WHA, 2011 WL (N.D. Cal. Oct. 25, 2011) (police officer asked to testify on behalf of police department before grand jury in isolated instance); Whitfield v. Chartiers Valley Sch. Dist., 707 F. Supp. 2d 561 (W.D. Pa. 2010) (assistant superintendent asked to testify on behalf of school district in school board hearing in isolated instance); Johnson v. LaPeer Cnty., No , 2006 WL (E.D. Mich. Oct. 11, 2006) (police officer discharged for unsubstantiated and inaccurate testimony regarding isolated case).

24 17 example, Cortland County Family Court and thus the safety and well-being of children depends on DSS s effective functioning. A key role of DSS is to communicate its policies and positions to Cortland County Family Court. The court in turn relies on receiving quality information from DSS in an orderly and consistent manner so that it may make vital decisions regarding the safety and well-being of vulnerable children. Inconsistent and ill-prepared testimony by DSS employees risks impairment of this DSS function. Here, petitioner inappropriately opined that the child should be returned home despite not even knowing the standard for removal. J.A. 422, 77. Protecting such incompetence would unacceptably undermine DSS s ability to bring its wealth of expertise to bear. Petitioner s purported concern that conscientious public servant[s]... must now seriously weigh the impact of candor and truthfulness on [their] job security, Pet. 14, is hyperbole and is not in any event implicated by the court of appeals unpublished order given in this case. Employees who like petitioner speak in court on behalf of the government need only concern themselves with following office procedure and performing their duties adequately. III. This Case Is A Bad Vehicle To Address Garcetti s Application To Various Forms Of Governmental Employee Testimony. If this Court were otherwise inclined to intervene in what is, at most, a nascent body of law applying Garcetti in diverse factual settings, this case would not present a suitable vehicle in which to do so. First, the content of petitioner s testimony was relevant to the Commissioner s decision to fire her principally because it illustrated her continuing poor judgment in choosing to testify as a DSS caseworker despite knowing that she was unprepared and acting in violation of DSS policy. Pet. 4-5;

25 18 J.A , 354, 363, Contrary to petitioner s characterization, petitioner s supervisors expressed disappointment with her choice to testify, not with what she said. J.A. 200, 363. The truth or falsity of petitioner s testimony, and whether it amounted to a criticism of the County, was not the basis for the Commissioner s decision. Second, it would not be necessary for this Court to decide whether petitioner spoke as a citizen rather than as an employee, because it is plain that her First Amendment claim will fail in any event for two reasons that respondents would advance as alternative grounds for affirming the court of appeals judgment. Preliminarily, as the district court held, petitioner did not speak on a matter of public concern. She testified not on broad issues of social services policy but on her observations of the behavior of one family. Her speech affected only the specific family in question and made no contribution to broader public discourse. Pet. App. 14a-15a. This case is far afield from a typical one involving sworn testimony, in which a public employee is reporting, outside of her official duties, on corruption, fraud, or illegality in the government s operations. Her testimony is accordingly not protected by the First Amendment. See, e.g., Connick v. Myers, 461 U.S. 138, 148 (1983) (speech about political campaign contributions was on a matter of public concern, but speech about internal office policies of a government agency was not); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, (1985) (individual s credit report not speech on a matter of public concern because it concerned only the individual interest of the speaker and its specific... audience and was not widely disseminated). Petitioner attempts to suggest that all testimony no matter how trivial is ipso facto on a matter of public concern. That is incorrect. Just last Term, this Court extended the public concern test to the Petition Clause context, holding that when a public employee invokes the

26 19 judicial process via a petition, the fact of his lawsuit does not afford him First Amendment protection. Instead, that employee must show that the particular lawsuit itself involves a matter of public concern. Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, (2011). This Court would also easily reject petitioner s First Amendment claim because the balance of public and private interests favors respondents in their vital role of protecting vulnerable children. See Pickering v. Bd. of Educ., 391 U.S. 563 (1968). The County s interests are superior, given that protection of petitioner s speech impairs discipline by superiors, impedes the performance of the [plaintiff s] duties, or interferes with the regular operation of the relevant governmental entity, Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1207 (2d Cir. 2007), and given as well the extent of the disruption caused by the employee s speech on... the employee s job performance, as well as the responsibilities of the employee within the agency, Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 139 (2d Cir. 1999). If petitioner s decision to testify and her testimony in this case are to be protected, then testimonial speech of any kind by a public employee would be protected. Surely the courtroom setting cannot provide infinite, unfettered insulation to an insubordinate or incompetent employee simply because s/he offers an oath. This Court should save the question of whether some public employee testimony is protected for an occasion in which the speech is offered on a matter of public interest. Such restraint will allow a better opportunity to lay out boundaries of protected testimonial speech. Third, even if petitioner could narrow her First Amendment claim to the assertion that the content of her testimony was constitutionally protected, her retaliation claim

27 20 would fail because the County would likely not have retained her in any event. See Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, (1977). [T]he government can avoid liability if it can show that it would have taken the same adverse action in the absence of the protected speech. Heil v. Santoro, 147 F.3d 103, 110 (2d Cir. 1998) (citing Mt. Healthy, 429 U.S. at 287). Even prior to the events at issue in this case, petitioner received unsatisfactory reviews (particularly her low scores in the area of judgment ) and demonstrated multiple instances of poor judgment, including, for example, her failures to provide needed transportation to and from mental health appointments; her allowing a child to have an unauthorized overnight parental visit, without consulting her supervisor, that resulted in the child s hospitalization; and her misleading a child in foster care as to whether he would return home. J.A Respondents unquestionably acted lawfully in deciding not to retain petitioner as a full-time caseworker based on her persistent poor performance. Requiring DSS to retain such an employee would dangerously impair its ability to support child safety. IV. The Second Circuit Correctly Applied This Court s Decision In Garcetti. A. Petitioner Testified Voluntarily As Part Of Her Job As A DSS Caseworker And Thus Her Claim Does Not Survive Garcetti s Threshold Test. In Garcetti v. Ceballos, 547 U.S. 410 (2006), this Court held that when a public employee speaks pursuant to her official duties, she is not speaking as [a] citizen[] for First Amendment purposes, and the Constitution does not insulate [her] communications from employer discipline. Id. at 421. In this case, petitioner s decision to speak on behalf on the agency was undertaken pursuant to her official duties.

28 21 Testifying in Family Court fell squarely within her job responsibilities, both as a matter of formal policy and more generally under the functional Garcetti test. 547 U.S. at ; see J.A Moreover, as the district court held, the subject matter of petitioner s testimony related precisely to her formal responsibilities. Pet. App. 10a-14a. Just as in Garcetti, DSS, like [a] private employer[], need[s] a significant degree of control over [its] employees words and actions. 547 U.S. at 418. Petitioner s testimony was an [o]fficial communication with official consequences, creating a need for substantive consistency and clarity. Id. at 422; see Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2496 (2011) ( The government... has a significant interest in disciplining public employees who abuse the judicial process. ). Petitioner s testimony was as much a part of her job responsibilities as was Ceballos s preparation of legal documents in Garcetti and therefore receives no greater First Amendment protection. In addition, petitioner s testimony has no private citizen analogue. See Garcetti, 547 U.S. at 424. As the district court recognized, private citizens cannot testify as representatives of the government generally, or specifically with respect to the private matter of a family s inner workings. Likewise, public employees speaking on behalf of their employers do not transform into private citizens the moment they step into courthouses. This is particularly true here, where petitioner volunteered her testimony as an agent of DSS, an agency that regularly speaks before the Family Court. Pet. App. 2a-3a. Even assuming that in narrow circumstances a public employee s sworn testimony could be said to fall outside her official duties and thus qualify as citizen speech, this is not such a case. There is no comparison between these facts and Pickering v. Board of Education of Township High School Dist. 205, 391 U.S. 563 (1968), which held that a schoolteacher s letter to the editor criticizing the Board of

29 22 Education was citizen speech, as the teacher made public statements that did not impede[] the teacher s proper performance of his daily duties in the classroom, call into question his fitness to perform his duties, or interfere[] with the regular operation of the schools generally. Id. at & n.5. 6 B. Petitioner s Public Employee Speech Is Not Rendered That Of A Private Citizen Simply Because It Involves Sworn Testimony. For First Amendment purposes, sworn testimony is not categorically different from other written and spoken aspects of a public employee s job. This Court in Garcetti stated that the respondent-employee in that case a district attorney did not act as a citizen when he went about 6 See United States v. Nat l Treas. Employees Union, 513 U.S. 454, 465 (1995) (in holding unconstitutional the prohibition of government employees from receiving honoraria, this Court stated that the employees seek compensation for their expressive activities in their capacity as citizens and the speeches lack relevance to their employment ); Perry v. Sindermann, 408 U.S. 593, 598 (1972) (finding college professor who publicly criticized Board of Regents, including in testimony before legislative committees, may be constitutionally protected ); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284 (1977) (school teacher entitled to Pickering balancing when teacher informed radio station about substance of memorandum circulated by principal); Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, (1979) (Pickering balancing applies to school teacher who complained to principal about policies teacher considered racially discriminatory); Rankin v. McPherson, 483 U.S. 378, (1987) (clerk in constable s office speaking as citizen on matter of public concern when she told colleague, after President Reagan was shot, that she hoped any subsequent attempt on his life would be successful); Waters v. Churchill, 511 U.S. 661, , 682 (1994) (finding that nurse spoke as citizen when she made statements to colleague critical of hospital, but remanding case for reapplication of Pickering balancing).

30 23 conducting his daily professional activities, [which included]... preparing filings to be introduced into court. 547 U.S. at 422. Here too, petitioner s testimony was equally a part of her job responsibilities. To be sure, Garcetti did not completely foreclose the possibility of recognizing an exception to its clear and simple standard. But the Court identified only a single type of employee speech academic scholarship or teaching that might be subject to more searching First Amendment scrutiny, recognizing the additional constitutional interests implicated by such speech. 547 U.S. at 425. In academic expression, public employees have an expressive interest in contributing to public discourse, and the public has a parallel First Amendment interest in hearing that speech. No such independent interests attach to testimony by a public employee on behalf of the government about the inner workings of a single family. Petitioner s proposed rule giving public employees the First Amendment right to decide to testify on behalf of their employers whenever they please would be a direct attack on Garcetti, allowing employees to perform their jobs however they see fit. Garcetti, 547 U.S. at 422. Likewise, petitioner s rule would lead to permanent judicial intervention in the conduct of governmental operations, which this Court found inconsistent with sound principles of federalism and the separation of powers. Garcetti, 547 U.S. at 423. Requiring courts to act as arbiters of agency policymaking 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. Guarnieri, 131 S. Ct. at Petitioner s unwieldy rule would not only affect DSS; it would require a radical change in the operations of thousands of local agencies across the country, which operate with the understanding that they may choose who presents their official position.