No IN THE SUPREME COURT OF THE UNITED STATES. October Term, 2016

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES October Term, 2016 ELIZABETH WARNER, IN HER OFFICIAL CAPACITY AS GOVERNOR OF BERNMONT, KENDRA GLASSERMAN- FULTZ, IN HER OFFICIAL CAPACITY AS CHIEF OF STAFF TO THE GOVERNOR OF BERNMONT, AND THE STATE OF BERNMONT, v. Petitioners, TRAVIS GREENE, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES BRIEF FOR THE RESPONDENT Attorneys for Respondent Team A 1

2 QUESTIONS PRESENTED 1. Whether, as a matter of law, the Elrod/Branti policymaker exception extends to a situation where a policymaking employee publicly expressed political views not relating to the employee s official duties, but were adverse to the political views of the current administration, and if so, whether it justifies patronage termination. 2. Whether the State of Bernmont waived sovereign immunity for a state law claim for which it retained sovereign immunity in its own courts, when it voluntarily invoked federal jurisdiction by removing the claim to federal court. i

3 TABLE OF CONTENTS QUESTION PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv OPINIONS BELOW... vi STATEMENT OF JURISDICTION... vi STATEMENT OF THE CASE...1 Background...1 Procedural History...3 SUMMARY OF THE ARGUMENT...5 ARGUMENT...6 I. MR. GREENE S POSTS ARE PROTECTED BY THE FIRST AMENDMENT AND THEREFORE FALL OUTSIDE OF THE ELROD/BRANTI POLICYMAKER EXCEPTION...6 A. Mr. Greene s fundamental First Amendment right is paramount to the Governor s interest and therefore should be protected... 8 B. Mr. Greene s speech requires First Amendment Protection because he was speaking as a private citizen...13 C. Mr. Greene s termination based on speech is unconstitutional...14 II. THE COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT CORRECTLY HELD THAT THE STATE OF BERNMONT WAIVED ANY SOVERIGN IMMUNITY IT POSSESSED WHEN IT VOLUNTARILY INVOKED FEDEAL JURISDICTION THROUGH THE ACT OF REMOVAL...15 A. The history of the Eleventh Amendment s jurisprudence supports the Thirteenth Circuit s holding that voluntary invocation of federal court jurisdiction waives sovereign immunity, regardless of any immunity retained in state court...19 B. A general waiver-by-removal rule encourages a consistent application and eliminates the possibility of unfair tactical advantages...23 ii

4 C. The theory of states possessing dual forms of sovereign immunity improperly complicates the simple test articulated in Lapides and increases the likelihood of states gaining tactical advantages...25 CONCLUSION...28 iii

5 TABLE OF AUTHORITES UNITED STATES SUPREME COURT CASES Alden v. Maine, 527 U.S. 706 (1999) Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) , 25 Branti v. Finkel, 445 U.S. 507 (1980)... 3, 8 Carey v. Brown, 447 U.S. 455 (1980) Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) Clark v. Barnard, 108 U.S. 436 (1883)... 15, 16 Cleveland Bd. of Educ. V. Loudermill, 470 U.S. 532 (1985) College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999).... 5, 15, 16 Connick v. Myers, 461 U.S. 138 (1983)... 6, 8 Edelman v. Jordan, 415 U.S. 651 (1974) , 16 Elrod v. Burns, 427 U.S. 347 (1976)... 3, 6, 7 Ford Motor Co. v. Dep't of Treasury of State of Indiana, 323 U.S. 459 (1945) Gardner v. New Jersey, 329 U.S. 565 (1947) Gunter v. Atlantic Coast Line Railroad Company, 200 U.S. 273 (1906) Lapides v. Bd. of Regents of the Univ. System of Georgia, 535 U.S. 613 (2002)... 5, 17, 20, 22 Matthews v. Eldridge, 424 U.S. 319 (1976) Murray v. Wilson Distilling Co., 213 U.S. 151 (1909) NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)... 6 New York Times v. Sullivan, 376 U.S. 254 (1964)... 6 O Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) Pickering v. Bd. of Educ., 391 U.S. 563 (1968)... 8 Roth v. United States, 354 U.S. 476 (1957)... 6 Rutan v. Republian Party of Ill., 497 U.S. 62 (1990)... 6 Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381 (1998)...21, 22 UNITED STATES CIRCUIT COURTS OF APPEALS CASES American Mini Theatres, Inc. v. Gribbs, 518 F.2d 1014 (6th Cir. 1975) Bd. Of Regents of Univ. Of Wisconsin Sys. v. Phoenix Int'l Software, Inc., 653 F.3d 448 (7th Cir. 2011) Bergemann v. Rhode Island Dep't of Envtl. Mgmt., 665 F.3d 336 (1st Cir. 2011) Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013)... 7 Curinga v. City of Clairton, 357 F.3d 305 (3d Cir. 2004)... 8 Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995)... 8 Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004)... 20, 24 Estes v. Wyoming Dep't of Transp., 302 F.3d 1200 (10th Cir. 2002)... 20, 24 Flynn v. City of Boston, 140 F.3d 42 (1st Cir. 1996)... 9 Graber v. Clarke, 763 F.3d 888 (7th Cir. 2014)... 9 Gustafson v. Jones, 290 F.3d 895 (7th Cir. 2002)... 9, 10, 12, 13 Hinshaw v. Smith, 436 F.3d 997 (8th Cir. 2006)... 7, 8 In re Regents of Univ. of California, 964 F.2d 1128 (Fed. Cir. 1992) iv

6 Jingles v. Pierce, 825 F.2d 1127 (7th Cir. 1987) Kokkinis v. Ivkovich, 185 F.3d 840 (7th Cir. 1999)... 9 Kristofek v. Vill. of Orland Hills, --- F.3d. ---, 2016 WL (7th Cir. Aug. 11, 2016). 8, 10, 12 Lewis v. Cowen, 165 F.3d 154 (2d Cir. 1999)... 9 Lombardo v. Pennsylvania, Dep't of Pub. Welfare, 540 F.3d 190 (3d Cir. 2008)... 20, 25, 26 McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997) McPherson v. Rankin, 786 F.2d 1233 (5th Cir. 1986)... 10, 12 Meyers ex rel. Benzing v. Texas, 410 F.3d 236 (5th Cir. 2005) , 24, 25, 26 Rose v. Stephens, 291 F.3d 917 (6th Cir. 2002)... 8 Sowards v. Loudon Cty., Tenn., 203 F.3d 426 (6th Cir. 2000)... 6, 7 Stewart v. N. Carolina, 393 F.3d 484 (4th Cir. 2005) Stroud v. McIntosh, 722 F.3d 1294 (11th Cir. 2013) , 26 Terrell v. University of Texas System Police, 792 F.2d 1360 (5th Cir. 1986) Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000) Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964 (7th Cir. 2001)... 9 Warzon v. Drew, 60 F.3d 1234 (7th Cir. 1995) CONSTITUTIONAL PROVISIONS U.S. CONST. amend. I... 6 U.S. CONST. amend. XI STATUTORY PROVISIONS 24 Bernmont Code U.S.C vi 28 U.S.C v, 3 42 U.S.C v, 3, U.S.C SECONDARY SOURCES 1 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 235 (1769) Peter R. Dubrowski, Lapides v. Board of Regents of the University of Georgia, State Sovereign Immunity, and the Proper Scope of Waiver-by-Removal, 17 N.Y.U. J. LEGIS. & PUB. POL'Y 763, 786 (2014) v

7 OPINIONS BELOW The Memorandum Opinion and Order of the United States District Court for the Western District of Bernmont (15-cv-554) is located on pages 2 13 of the record. The opinion of The United States Court of Appeals for the Thirteenth Circuit (15-cv-5708) is located on pages of the record. STATEMENT OF JURISDICTION A notice of removal to the District Court was filed pursuant to 28 U.S.C R. at 6. The District Court has jurisdiction under on 28 U.S.C This is a civil action arising under 42 U.S.C alleging a violation of Mr. Greene s First Amendment Rights under the Constitution of the United States and supplemental state claims. The Court of Appeals also has jurisdiction under 28 U.S.C The District Court entered final judgment on June 4, R. at 13. Mr. Greene filed a timely notice of appeal on June 4, R. at 14. The Supreme Court granted certiorari on June 30, R. at 25. vi

8 STATEMENT OF THE CASE Background Travis Greene ( Respondent ) filed an action against Elizabeth Warner, Governor of Bernmont, Kendra Glasserman-Fultz, Chief of Staff to the Governor of Bernmont, and the State of Bernmont (collectively Petitioners ) after Petitioners fired Mr. Greene for his speech and political views that were unrelated to his position as Director of Commission. R. at 2. Mr. Greene, a thirty-six-year-old African-American, grew up in South Maine, where the Republican Party has predominately controlled the political system for the past thirty years. R. at 2-3. Mr. Greene, a Democratic Socialist and a lifelong member of the Democratic Party, left South Maine and moved to Bernmont, a state where the political atmosphere is more in line with his personal beliefs. R. at 3. While living in Bernmont, Mr. Greene attended Bernmont State University and received degrees in Public Administration and Critical Race Studies. Id. After college, Mr. Greene accepted a position with the Bernmont Human Rights Commission ( Commission ). Id. The Commission enforces Bernmont s anti-discrimination laws, adjudicating discrimination claims involving government agencies and investigating and prosecuting claims against private businesses. Id. Upon discovering the Commission s objectives, he was enthusiastic to begin this position and excited that his political views aligned with his colleagues. Id. Mr. Greene received positive performance reviews that reflected his knowledge and work ethic. Id. As a result, the Commission repeatedly promoted Mr. Greene. Id. In 2012, former Republican Bernmont Governor, Timothy Paine, appointed Mr. Greene to an atwill position as the Director of Commission for a six-year term. Id. In his role as Director, Mr. Greene facilitated agency rulemaking, goal setting, and worked to protect Bernmont citizens from discrimination. Id. 1

9 In 2014, a week prior to the primary election, Mr. Greene publically endorsed Democratic candidate for Governor, Elizabeth Warner. R. at 4, n.1. Warner ultimately defeated Governor Paine in the general election with a campaign centered around gun control. R. at 3-4. After taking office, Governor Warner made multiple personnel changes to ensure her staff aligned with her political views. R. at 4. Governor Warner also hired Kendra Glasserman-Fultz as her Chief of Staff. Id. In this role, Glasserman-Fultz managed the selection and retention of the State s department heads. Id. Although Glasserman-Fultz replaced other department heads, she re-appointed Mr. Greene as head of the Commission. Id. In 2015, a white police officer shot and killed an unarmed African-American woman in Port Worth, North Texas. Id. In the aftermath of the event, Port Worth held a Black Lives Matter March. Id. Mr. Greene s twin brother, Trevor, attended the event in protest of the killing. Id. Trevor wore military garb and was legally equipped with a rifle under North Texas open carry law. Id. At the event, a lone gunman began firing and killed five police officers. Id. To prevent additional fatalities, Trevor immediately assisted those under siege and ultimately shot and killed the gunman. Id. In the immediate aftermath of the shootings, national media made Trevor a prime interviewee. R. at 4-5. The National Rifle Association ( NRA ) also featured Trevor in advertisements to support armed citizens abilities to minimize violence. R. at 5. Mr. Greene, also an NRA member, praised his brother s actions on his personal social media accounts. 1 Id. Multiple Commission employees who have law enforcement family members also expressed appreciation to Mr. Greene for his brother s heroic action and Mr. Greene s social media praise. Id. Based on the Port Worth killings, Governor Warner readdressed the issue of gun control 1 Mr. Greene s posts included the following statements: Way to go Good guys with guns make a difference! ; Black, Progressive, and a card-carrying member of the NRA, in that 2

10 and pressured the legislature to pass regulations strengthening Bernmont s gun laws. Id. A local reporter subsequently contacted Governor Warner for her comments regarding Travis s statements. Id. Based on this inquiry, Governor Warner learned of Mr. Greene s NRA membership. Id. Shorty thereafter, Glasserman-Fultz terminated Mr. Greene s employment stating that even though his job had nothing to do with gun control, the Governor could not have a senior member of the administration publically opposing gun control measures. R. at 5-6. Procedural History After his termination, Mr. Greene filed suit in Sandersburg Superior Court alleging Petitioners violated his First Amendment rights under the United States Constitution as well as his rights under the Free Speech and Association Provisions of the Bernmont Constitution. R. at 6. Mr. Greene sought an injunction for reinstatement and attorney s fees against Governor Warner and Glasserman-Fultz pursuant to 42 U.S.C and 1988, as well as an injunction, an award of back pay, and attorney s fees under 24 Bernmont Code 3891 against all Petitioners. Id. Following the complaint, Petitioners filed a notice of removal to United States District Court pursuant to 28 U.S.C Id. Petitioners then moved for summary judgment alleging that Mr. Greene s dismissal was constitutional because the policymaker exception for patronage firings in Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion) and Branti v. Finkel, 445 U.S. 507 (1980) should sanction terminations based on public speech inconsistent with the agenda of the governing administration. Id. Additionally, Petitioners claimed that even if the exception did not permit the termination of Mr. Greene, sovereign immunity barred the possible recovery for back pay. R. at 6-7. In response, Mr. Greene argued the State waived its sovereign immunity 3

11 from damages actions by removing the case to federal court, and that the Elrod/Branti exception does not apply. R. at 7. After completion of discovery regarding Mr. Greene s role as a policymaker, Petitioners renewed their motion for summary judgment. Id. Mr. Greene also moved for summary judgment, claiming that sovereign immunity did not preclude damages and that he was entitled to judgment on his retaliation claim because the Elrod/Branti policymaking exception did not justify his termination. Id. On June 4, 2015, the district court granted Petitioner s motion for summary judgment and concluded that the Elrod/Branti exception applies to Mr. Greene s speech and therefore recovery is barred. R. at 7, 13. Based on this finding, the court did not find the need to address the second issue of sovereign immunity. 2 Id. On June 11, 2015, Mr. Greene filed an appeal to the United States Court of Appeals for the Thirteenth Circuit. R. at 14. The Court of Appeals held that the Mr. Greene s speech does not apply to the policymaker exception under Elrod/Branti, and therefore should not be extended to justify his termination. R. at 22. Further, the court found that [b]ecause his state claims substantively mirror his federal claim, and the State waived immunity for those claims, Greene is also entitled to back pay. Id. The Court of Appeals consequently reversed the district court and remanded judgment for Mr. Greene. Id. On June 30, 2016, the Supreme Court of the United States granted certiorari. R. at The State of Bernmont has not consented to suits against the state for claims under 24 Bernmont Code 3891, thus retaining sovereign immunity. However, the exact extent of this immunity remains unclear. The Bernmont State Courts of Appeal are split as to whether Bernmont recognizes sovereign immunity in a single jurisdictional form or a dual form including both immunity from suit and immunity from liability. R. at 7. 4

12 SUMMARY OF THE ARGUMENT This Court should affirm the ruling of the United States Court of Appeals for the Thirteenth Circuit because Mr. Greene was improperly terminated based on his First Amendment expression and that termination did not fall within the Elrod/Branti policymaker exception. When Mr. Greene obtained employment with the government, he did not relinquish all of his First Amendment rights. In applying the two-part test to determine whether Mr. Greene s termination was a violation of his First Amendment rights, this Court should find that Mr. Greene s speech was a matter of public concern. Therefore, this Court should apply the Pickering balancing test given the combination of speech and political affiliation in this case. Mr. Greene s position as a policymaker, although a factor, does not preclude analysis under Pickering. Under this test, this Court should find that Mr. Greene s First Amendment right outweighs the government s interest. Under Pickering, the Petitioner will ultimately fail as Mr. Greene s speech was not disruptive and was not related to the responsibilities of his position in the Commission, which were to promote anti-discrimination laws. Rather, it was solely expressed outside of his employment and only involved personal matters. Furthermore, this Court should find that Mr. Greene was not only denied First Amendment rights but also his due process rights because he was not given proper notice, explanation, and opportunity upon termination. The Court of Appeals for the Thirteenth Circuit should additionally be affirmed because the state of Bernmont waived any sovereign immunity it possessed when it voluntarily invoked federal court jurisdiction through the act of removal. States may waive their sovereign immunity expressly through statute, or impliedly through its conduct. Accordingly, the United States Supreme Court has created a waiver doctrine where a state may waive its Eleventh Amendment 5

13 immunity by either voluntarily invoking federal court jurisdiction or by making a clear declaration of its intent to subject itself to federal jurisdiction. In Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002), this Court confirmed this test and held that a state s voluntary removal of a case to federal court is sufficient to waive its Eleventh Amendment immunity with respect to a state law claim. Given the history and goals behind the rule announced in Lapides, this Court should extend its reasoning to include the instant case where the state has retained sovereign immunity in state court. This simple, objective rule eliminates the possibility for states to take advantage of federal court jurisdiction in order to secure litigation advantages. Furthermore, this Court should not recognize state immunity as being comprised of immunity from suit and immunity from liability, as that recognition will only encourage the litigation maneuvers that the rule in Lapides was created to eliminate. ARGUMENT I. MR. GREENE S POSTS ARE PROTECTED BY THE FIRST AMENDMENT AND THEREFORE FALL OUTSIDE OF THE ELROD/BRANTI POLICYMAKER EXCEPTION. First Amendment rights are recognized among the most fundamental rights possessed by free people. American Mini Theatres, Inc. v. Gribbs, 518 F.2d 1014, 1019 (6th Cir. 1975). The First Amendment, in pertinent part, provides that Congress shall make no law... abridging the freedom of speech. U.S. CONST. amend. I. This Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by people. Connick v. Myers, 461 U.S. 138, 144 (1983) (citing Roth v. United States, 354 U.S. 476, 484 (1957); New York Times v. Sullivan, 376 U.S. 254, 269 (1964)). At the core of the First Amendment lies the need to protect political beliefs and associations. Sowards v. Loudon Cty., Tenn., 203 F.3d 426, 432 (6th Cir. 2000) (citing Rutan v. Republian Party of Ill., 497 U.S. 62, 69 6

14 (1990) (quoting Elrod, 427 U.S. 347, 356 (1976))). Accordingly, this Court has frequently reaffirmed that speech on public issues occupies the highest rung of [the] hierarchy of First Amendment values and is entitled to special protection. Connick, 461 U.S. at 144 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980). It is unconstitutional for a government s conduct to infringe upon a First Amendment right, unless it can overcome the highest level of scrutiny. Elrod, 427 U.S. at 362. The government bears the burden to show that the interest it seeks to advance is paramount [and] one of vital importance. Id. (emphasis added). The government cannot satisfy this burden by merely showing a legitimate state interest or by showing that its interest is only rationally related to its means. Id. Instead, the strict scrutiny burden mandates the government to prove both that its interest outweighs the incurred loss of the [First Amendment] protected rights and that it utilized means closely drawn to avoid unnecessary abridgment. Id. at (emphasis added). These means must be construed with narrow precision as they infringe on a person s most precious freedoms. Id. at 363. The highest constitutional burden of strict scrutiny also extends to government employees. See Bland v. Roberts, 730 F.3d 368, 373 (4th Cir. 2013) (stating the First Amendment generally protects against the firing of government employees based on political affiliation). This Court, however, created a narrow exception that allows for patronage dismissals of employees occupying policymaking positions. 3 Elrod, 427 U.S. at 564. Yet, this Court also acknowledges patronage dismissals severely restrict political belief and association. Id. at 565. Thus, the ultimate inquiry should not be whether the label policymaker... fits a 3 Policymaker employee is one who, for example, acts as an advisor or formulates and implements broad office goals. Elrod, 427 U.S. at

15 particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation [or political allegiance] is an appropriate requirement for the effective performance of the public office involved. Bland v. Roberts, 730 F.3d 368, 375 (4th Cir. 2013) (quoting Branti 445 U.S. at 518); see also Hinshaw v. Smith, 436 F.3d 997, 1005 (8th Cir. 2006) (stating that the government must demonstrate that party affiliation is a reasonable requirement for the public position). Accordingly, when presented with this question, this Court should evaluate whether political affiliation is an appropriate requisite for a government position as a matter of law. Sowards, 203 F.3d at 435. A. Mr. Greene s fundamental First Amendment right is paramount to the Governor s interest and therefore should be protected. The United States Court of Appeals for the Thirteenth Circuit appropriately found that Petitioner s dismissal of Mr. Greene was improper because Mr. Greene s First Amendment expression did not fall within the Elrod/Branti policymaker exception. Although this Court has yet to address whether, or how, the Elrod/Branti policymaker exception should be applied when a policymaker asserts a First Amendment claim based on speech rather than political affiliation, it is well settled that a government employee does not relinquish all of his or her First Amendment rights when accepting government employment. Hinshaw, 436 F.3d at As a result, courts are to employ a two-part test when analyzing whether a public employee s termination violates his or her First Amendment right. Rose v. Stephens, 291 F.3d 917, 920 (6th Cir. 2002) (citing Connick, 461 U.S. at ). The threshold question is whether the employee s speech may be fairly characterized as constituting speech on a matter of public concern. 4 Id. (quoting Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1186 (6th Cir. 4 Speech deals with public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is the subject of legitimate news 8

16 1995)). If speech is appropriately characterized as public concern, then the court must apply the Pickering test. Id. In Pickering, this Court outlined a specific set of criteria to seek a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Connick, 461 U.S. at 142 (quoting Pickering, 391 U.S. at 568). Although some Circuit Courts have tried to create a bright-line rule barring the Pickering test from being applied to policymakers with adverse party affiliations, this Court has indicated that when speech is intermixed with the affiliation, Pickering should apply. Hinshaw, 436 F.3d at 1006 (citing O Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, (1996). Other Circuit Courts have responded to this Court s indication by incorporating the Pickering test in a similar fashion. See Hinshaw, 436 F.3d at 1006 (stating the Eighth Circuit hesitates to apply the Elrod/Branti policymaker exception to cases where speech is the concern as opposed to party affiliation); Curinga v. City of Clairton, 357 F.3d 305, 314 (3d Cir. 2004) (describing how the Pickering balancing test is a better analysis when the termination involves an employee s speech); Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir. 1999) (stating that Pickering must be applied when speech is the justification for termination); Flynn v. City of Boston, 140 F.3d 42, (1st Cir. 1996) (finding that a court may apply Pickering to analyze the employee s substantive views). The policymaker s position is not a dispositive factor that must be included in this balancing test. Furthermore, the Second Circuit found that even when a policymaker exception exists, this Court has never stated that a policymaker s position would automatically tilt the interest; that is, a subject of general interest and of value and concern to the pubic. Kristofek v. Vill. of Orland Hills, --- F.3d. ---, 2016 WL (7th Cir. Aug. 11, 2016). 9

17 Pickering balance in the employer s favor therefore rejecting the policymaker bright-line rule. McEvoy v. Spencer, 124 F.3d 92, 101 (2d Cir. 1997). Although the position may be a factor, it is not to be conclusive. Id. Instead, when analyzing speech through the Pickering lens, the court must weigh the following seven factors: (1) whether the statement would create problems in maintaining discipline by immediate supervisors or harmony among co-workers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee s ability to perform his daily responsibilities; (4) the time, place, and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decision making; (7) whether the speaker should be regarded as a member of the general public. Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, n.2 (7th Cir. 2001) (quoting Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir. 1999)); see also Graber v. Clarke, 763 F.3d 888, 896 (7th Cir. 2014) (noting that not all of the seven factors need to be addressed in a Pickering analysis)). When applying these factors, the Seventh Circuit emphasized the importance of the context of the employee s speech, as well as whether the speech caused disruptions within the government. See Gustafson v. Jones, 290 F.3d 895, 911 (7th Cir. 2002). For example, the court found that an employer did not meet its burden under the Pickering test when police officers spoke out against their superior, but there was no evidence of disruption, and the police officers voiced their concerns in an appropriate fashion. Gustafson, 290 F.3d at 911 (holding that after a letter was sent to the press and elected officials without disruption to the police department, the government did not meet its burden under Pickering). The Seventh Circuit reaffirmed this holding in 2016 finding that when an officer accused his police chief of being a criminal who was going to be indicted, the government could not show its interest justified termination because the manner upon which the officer made this allegations did not disrupt the department. 10

18 Kristofek v. Vill. of Orland Hills, --- F.3d ---, 2016 WL , at *2 (7th Cir. Aug ). Additionally, the Fifth Circuit held that when applying Pickering, courts must rely on the proposition that the first amendment jurisprudence will best be secured in the long haul if the government tolerates as much diversity as possible. McPherson v. Rankin, 786 F.2d 1233, 1239 (5th Cir. 1986). The Fifth Circuit addressed a situation where a clerical worker in the Houston constable s office made reference to a co-worker about how she hoped assassins would succeed in killing President Reagan. Id. at When the Constable heard this statement, he terminated the employee. Id. The Fifth Circuit, however, found that even though the government has an interest in employing individuals with interests that are fundamentally in line with its mission, the employee could not be fired for her political opinion. Id. at While the court acknowledged that if the employee would have had more power within the office, their evaluation may have been different, the fundamental principle remains: [a]bsent evidence that a government employee's views are inconsistent with the mission of the employing agency and with the employee's role in that agency, tolerance is required. Id. (emphasis in original). Petitioners in this case have failed to overcome their burden to show that the government s interest outweighs Mr. Greene s First Amendment right. Given the parallel party affiliation of Mr. Greene and Petitioners, Mr. Greene s claim should be analyzed through the lens of protecting First Amendment speech, as opposed to his position as a policymaker. For Mr. Greene did not forfeit all of his First Amendment rights simply by becoming a government employee. See Warzon v. Drew, 60 F.3d 1234, 1238 (7th Cir. 1995). Furthermore, although Mr. Greene s speech addressed a public concern, his speech must be evaluated under Pickering to ensure that his interests are not stifled by a blanketed government attempt to invoke the Elrod/Branti policymaker exception. 11

19 Here, when applying Pickering s factors, Petitioners claim fails on multiple accounts. First, Petitioners cannot show that Mr. Greene s posts created disharmony among the Commission s employees. In fact, the record points to the contrary indicating that Mr. Greene s colleague showed appreciation to Mr. Greene for expressing his views about gun rights. R. at 5. Second, while the Governor may claim that termination was appropriate because Mr. Greene s position is one that requires loyalty, this too is a failed argument because Mr. Greene s not only politically aligns with the Governor, but also publically supported the Governor in her campaign, thus demonstrating his allegiance. R. at 4, n.1. Third, Mr. Greene s speech did not impact his ability to perform his daily responsibilities. Mr. Greene works for the Commission to protect against discrimination in Bernmont. R. at 3. While these posts do not directly relate to Mr. Greene s responsibilities, the posts do reference the importance of minority rights, thus upholding his duties to limit anti-discrimination. R. at 5. Next, Mr. Greene s posts were written outside of his employment on his own time. R. at 19. Mr. Greene was supporting his brother who had recently taken the initiative to save innocent people from a rogue gunman. R. at 4. Lastly, Petitioners concede that Mr. Greene s speech caused absolutely no disruption within the Commission, thus tipping the Pickering test in Mr. Greene s favor. R. at 19. Moreover, when applying the rationale from the Fifth, Seventh, and Thirteenth Circuits, this Court should also find in favor of Mr. Greene because not only did his speech fail to create any disruptions within the Commission, but his speech also was not inconsistent with his role of promoting anti-discrimination. See Gustafson, 290 F.3d at 911 (finding that without a disruption the government cannot meet its burden); Kristofek, 2016 WL , at *2 (same); McPherson, 786 F.2d at 1239 (stating that unless an employee s role is inconsistent with the speech, the speech must be tolerated). Moreover, because Petitioners admitted that Mr. Greene s 12

20 professional duties had nothing to do with gun control, they cannot prove how their interest, which must satisfy strict scrutiny, would be paramount to that of Mr. Greene s fundamental speech rights. Under this high burden, Mr. Greene s First Amendment rights must be upheld, and therefore, this Court should affirm the Thirteenth Circuit s holding finding that Mr. Greene s termination based on his speech was unconstitutional. B. Mr. Greene s speech requires First Amendment protection because he was speaking as a private citizen. This Court has emphasized the clear need to maintain the same speech rights for government employees as enjoyed by their privately employed counterparts. Urofsky v. Gilmore, 216 F.3d 401, 407 (4th Cir. 2000). The Fourth Circuit has further stated that a critical element in determining whether the employee s speech is protected is whether the speech is made primarily in the [employee s] role as a citizen or primarily in his role as an employee. Id. (citing Terrell v. University of Texas System Police, 792 F.2d 1360, 1362 (5th Cir. 1986)). The speech at issue here is undoubtedly communicated as a private citizen and therefore mandates First Amendment protection. Mr. Greene utilized his own social media accounts to praise his brother and express his own personal views on gun control. R. at 5. Mr. Greene spoke about these views solely on his own time, and never let it impact his professional duties. Id. Petitioners did not even become aware of Mr. Greene s gun control opinions until a reporter contacted the Governor, demonstrating how Mr. Greene was able to compartmentalize his personal views from his professional responsibilities. R. at 5-6. Mr. Greene also never referenced his professional position within the post, clearly indicating his intent to keep his personal views separate from that of the Commission s. Therefore, based on this Court s requirement that private citizens be given the same First Amendment protections as their government counterparts, this Court should affirm the Thirteenth Circuits opinion upholding Mr. Greene s 13

21 First Amendment rights. C. Mr. Greene s termination based on speech is unconstitutional. Even if this Court found Mr. Greene s speech fell within the policymaker exception, termination is not appropriate. First Amendment rights cannot be trampled on hypothetical concerns.... Gustafson, 290 F.3d at 911. The Seventh Circuit has held that an employer needs to prove with a substantial showing that the employee s speech is disruptive before a termination may be appropriate. Jingles v. Pierce, 825 F.2d 1127, 1132 (7th Cir. 1987). Moreover, due process requires that government employees have the opportunity to be heard in a meaningful time and manner regarding their employment because of their property interest in continued employment. Matthews v. Eldridge, 424 U.S. 319, 333 (1976). Specifically, this Court requires that government employers provide (1) oral or written notice of the charges; (2) an explanation of the employer's evidence; and (3) an opportunity for the employee to tell his side of the story. Cleveland Bd. of Educ. V. Loudermill, 470 U.S. 532, 546 (1985). Petitioners failed to show actual disruption and ignored this Court s requirements in Loudermill, thus violating Mr. Green s rights. As previously mentioned, Mr. Greene s speech caused no disruption at the Commission. Furthermore, Mr. Greene was not afforded a meaningful opportunity to address his employment before Glasserman-Fultz terminated his employment. Instead, Glasserman-Fultz simply stated that even though his employment had nothing to do with the topic of his speech, Petitioners did not support his association with the NRA, and consequently fired Mr. Greene. R. at 6. The record does not indicate that Mr. Greene was given proper notice, Petitioners conceded their basis for firing him had nothing to do with his actual professional responsibilities, and Mr. Greene was not given the opportunity to respond. Id. Therefore, Mr. Greene s termination based on his speech violated both this Court s First 14

22 Amendment mandate as well as the due process requirements of Loudermill and its progeny. As a result, this Court should affirm the Thirteen Circuit s holding and reinstate Mr. Greene s employment. II. THE COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT CORRECTLY HELD THAT THE STATE OF BERNMONT WAIVED ANY SOVEREIGN IMMUNITY IT POSSESSED WHEN IT VOLUNTARILY INVOKED FEDERAL COURT JURISDICTION THROUGH THE ACT OF REMOVAL. Eleventh Amendment immunity and state sovereign immunity are related, but separate doctrines. [T]he sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Alden v. Maine, 527 U.S. 706, 713 (1999). Although distinct doctrines, both derive from the axiom that no suit or action can be brought against the King, even civil matters, because no court can have jurisdiction over him... [f]or all jurisdiction implies superiority of power. 1 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 235 (1769). [A]s the Constitution s structure, and its history, and the authoritative interpretations by this Court make clear, the States immunity from suit is a fundamental aspect of the sovereignty which the State enjoyed before the ratification of the Constitution, and which they retain today. Alden, 527 U.S. at 713. The Eleventh Amendment of the Constitution provides, [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. CONST. amend. XI. This amendment was passed by Congress to overrule the Supreme Court s decision in Chisholm v. Georgia, where the Court held that sovereign immunity did not protect Georgia in a suit brought by a South Carolina resident. 2 U.S. (2 Dall.) 419 (1793) (opinion of Wilson, J.), superseded by constitutional amendment, U.S. CONST. amend. XI. While the Amendment by its terms does not bar suits against a state by its 15

23 own citizens, this Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as citizens of another state. Edelman v. Jordan, 415 U.S. 651, (1974). State sovereign immunity, either from suit in its own courts or in federal courts, is not absolute. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999) (citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)). Second, a State may waive its sovereign immunity by consenting to suit. Id. (citing Clark v. Barnard, 108 U.S. 436 (1883)). The state may waive its sovereign immunity either expressly through statute or impliedly though its conduct. Even under express waiver, this Court still critically analyzes the statute to determine whether the expression reaches a waiver of Eleventh Amendment immunity. Although a State's general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). Waiver must be unequivocal and specifically applicable to federal-court jurisdiction. Id. In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated by such overwhelming implications from the text as (will) leave no room for any other construction. Edelman, 415 U.S. at 673 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)). If not expressly waived by statute, this Court must look at the voluntary conduct of the parties to determine if the state actions rise to the level of waiver. This Court has long recognized that a State s sovereign immunity is a personal privilege which it may waive at pleasure. Coll. Sav. Bank, 527 U.S. at 675 (1999) (quoting 16

24 Clark, 108 U.S. at 447). However, the decision to waive immunity must be voluntary on the part of the sovereign. A state may waive immunity either by voluntarily invoking federal jurisdiction or by making a clear declaration of its intent to subject itself to federal jurisdiction. Id. at (internal quotation marks and citations omitted). This voluntary invocation or clear declaration standard was developed, in part, by this Court in three cases where the state s actions amounted to a waiver of its sovereign immunity. Over a century prior to College Savings Bank, in Clark v. Barnard, the State of Rhode Island voluntarily appeared in federal court as an intervenor to an action for money it was owed on a construction bond. 108 U.S. 436, 447 (1883). This Court held that Rhode Island s voluntary appearance constituted a waiver of its sovereign immunity. Id. [T]he State of Rhode Island appeared in the cause and presented and prosecuted a claim to the fund in controversy, and thereby made itself a party to the litigation to the full extent requited for its complete determination. Id. at 448. Building upon this notion in Gunter v. Atlantic Coast Line Railroad Company, this Court held that by voluntarily participating in a tax case in federal court, South Carolina waived its right to claim Eleventh Amendment immunity. 200 U.S. 273, 285 (1906). This Court, noting the state s freedom to waive the privilege of immunity, held that where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment. Id. at 284 (emphasis added) (citing Clark, 108 U.S. at 447). The last of the three cases to establish the waiver rule, Gardner v. New Jersey, arose in the bankruptcy context where the state of New Jersey voluntarily filed in federal court to resolve a dispute. 329 U.S. 565 (1947). When the State becomes the actor and files a claim against the 17

25 fund, it waives any immunity which it otherwise might have had respecting the adjudication of the claim. Id. at 574. The collective decisions by this Court in Clark, Gunter, and Gardner stand for the proposition that the voluntary act of invoking federal court jurisdiction waives any sovereign immunity claim the state may have had in state courts, and the state cannot reclaim that immunity once in federal court. Given the developments in Eleventh Amendment immunity and the inclusive forms of conduct that can equate waiver, the precise contours of the waiver doctrine articulated in College Savings Bank were largely left open. In 2002, this Court handed down the seminal decision of Lapides v. Board of Regents of the University System of Georgia, which clarified the rule. 535 U.S. 613 (2002). In Lapides, a professor of the Georgia State University system sued the University Board of Regents and individual board members in Georgia state court, alleging violations of both Georgia tort law and 42 U.S.C Id. at 616. By statute, the State had explicitly waived sovereign immunity for the state-law claims in state court. Id. All defendants agreed to remove the case to federal court and sought dismissal based upon their Eleventh Amendment immunity from suit in federal court. Id. Upon review from this Court, the federal claim was dismissed as invalid, leaving only the state law claim. Id. This Court unanimously held that by removing the action, Georgia voluntarily invoked federal court jurisdiction and thereby had waived its Eleventh Amendment immunity with respect to the state law claim. Id. at 620. This holding clarified the test for waiver by creating a broad rule. The rule carefully adheres to both the history of the waiver doctrine, vis-à-vi the voluntary invocation standard articulated in College Savings Bank, and creates a consistent, objective rule that eliminates any potential for unfair results while furthering the fundamental principles of sovereign immunity. Respondent urges this Court to extend its reasoning in Lapides 18

26 to include cases in which a state has retained sovereign immunity for state law claims in its own courts, thus affirming the Thirteenth Circuit Court of Appeal s decision. A. The history of Eleventh Amendment jurisprudence supports the Thirteenth Circuit s holding that voluntary invocation of federal court jurisdiction waives sovereign immunity, regardless of any immunity retained in state court. Some Circuit Courts have attempted to limit Lapides. Particularly, when a case presents only a state law claim for which the state has consented to suit in state court. See Lapides, 535 U.S. at However, given the broad language and overarching fundamental principles of sovereign immunity, the Lapides holding should be liberally construed. Consistent with the Thirteenth Circuit in the instant case, other Circuit Courts have held there is no reason to limit Lapides to cases where the state has retained sovereign immunity in its individual state courts. Particularly, the Fifth Circuit Court of Appeals concluded: [W]e believe that Lapides's interpretation of the voluntary invocation principle, as including the waiver-by-removal rule, applies generally to any private suit which a state removes to federal court. There is no evident basis in law or judicial administration for severely limiting those general principles... to a small sub-set of federal cases including only state-law claims in respect to which a state has waived immunity therefrom in state court. Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 242 (5th Cir. 2005). See also Bd. Of Regents of Univ. Of Wisconsin Sys. v. Phoenix Int'l Software, Inc., 653 F.3d 448, 461 (7th Cir. 2011) (agreeing and joining the majority of our other sister circuits in reading Lapides to state a more general rule ). The Fifth Circuit, in support of its position, noted in formulating its rationale, [this] Court did not restrict itself to facts, rules, or reasons peculiar to the Lapides case. Meyers, 410 F.3d 236 at 244. The Fifth Circuit additionally notes the general applicability of the voluntary invocation principle and the waiver-by-removal rule is demonstrated by their history. Id. During the long history of the voluntary invocation principle prior to Lapides, the Supreme Court gave no 19

27 indication that the principle applied only to state-law claims or that it mattered whether the state had waived its immunity from suit in its own courts. Id. at 246. The foundational cases to the waiver doctrine seem to focus more on the acts of the state, rather than any immunity that it retained in its own state courts. This Court, in developing the waiver doctrine, continually reaffirmed the voluntary invocation principle but did not analyze whether the state had waived immunity as to the claim in state court. Id. Other Circuit Courts have also examined the broad rule in Lapides and expanded it to include both state and federal claims. See Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004), as amended (May 17, 2004) (holding the rule in Lapides applies to federal claims as well as to state law claims ); Meyers, 410 F.3d at 242 (same). Other Circuits have addressed cases where the state removes a valid federal law claim to federal court, a fact specifically not addressed in Lapides. 535 U.S. at 617. See Estes v. Wyoming Dep't of Transp., 302 F.3d 1200, 1204 (10th Cir. 2002) (holding the act of removing federal law claims waives a State s sovereign immunity in federal court); Lombardo v. Pennsylvania, Dep't of Pub. Welfare, 540 F.3d 190, 198 (3d Cir. 2008) ( We hold that the Commonwealth's removal of federal-law claims to federal court effected a waiver of immunity from suit in federal court. ). This growing trend among the Circuit Courts to treat Lapides broadly is due, in large part, to this Court s adherence to the historical development of the waiver doctrine. In Lapides, Justice Breyer begins the opinion by carefully examining the historical underpinnings of the waiver doctrine by tracking the principle emanating from Clark, Gunter, and Gardner: a State s voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity. Lapides, 535 U.S. at In an effort to respect the context in which Clark, Gunter and Gardner arose, this Court noted the factual distinction amongst those 20

28 cases involved a state voluntarily injecting itself into the case, whereas Lapides involved a state as an involuntary defendant in the original state-court proceedings. Id. at 620. However, this distinction did not prove critical to this Court s analysis. Id. However, the State then voluntarily agreed to remove the case to federal court. Id. According to a unanimous Court, this conduct voluntarily invoked the federal court s jurisdiction and the general legal principle requiring waiver ought to apply. Id. Not only does this act satisfy the voluntary invocation requirement of College Savings Bank, but it also satisfies the clear indication prong. Justice Breyer, in his opinion for this Court, holds [t]he relevant clarity here must focus on the litigation act the State takes that creates the waiver. And that act removal is clear. Id. Before the seminal holding of Lapides, Justice Kennedy foreshadowed how the Court should simplify the waiver doctrine in his concurring opinion in Wisconsin Department of Corrections v. Schacht. 524 U.S. 381 (1998) (Kennedy, J., concurring). It would seem simple enough to rule that once a State consents to removal, it may not turn around and say the Eleventh Amendment bars the jurisdiction of the federal court. Consent to removal, it can be argued, is a waiver of the Eleventh Amendment immunity. Id. at 393. The voluntary conduct for Justice Kennedy was the pivotal factor in his analysis, mirroring this Court s analysis in Lapides. Since a State... is under no compulsion to appear in federal court[,]... any appearance the State makes in federal court may well be regarded as voluntary in the same manner as the appearances which gave rise to the waivers in in Clark and Gardner. Id. at Not only did Justice Kennedy call for a simplification of the rule in line with this Court s waiver jurisprudence, he also noted the inconsistency created by this Court s decision in Ford Motor Co. v. Department of Treasury of State of Indiana. Id. at (citing 323 U.S. 459 (1945) overruled by Lapides, 535 U.S. 613 (2002)). 21