No. 12-607

In The

Kristina Kiehle,

Petitioner,

v.

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 14902

(607) 733-4635

dthomson@omaralaw.com

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?

ii

TABLE OF CONTENTS

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

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . .1

REASONS FOR DENYING THE WRIT. . . .. . . . . . . . . . . . 5

I. Petitioner’s Claimed Circuit Conflict Is Illusory . . . . . . 6

A. There Is No Conflict With The Precedent

Of The Third Or Seventh Circuits . . . . . . . . . .10

B. The Second And Eleventh Circuits Have

No Relevant Binding Precedent That Is

Inconsistent With The Rule Petitioner

Proposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

II. This Case Presents An Isolated And Unimportant

Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

III. This Case Is A Bad Vehicle To Address Garcetti’s

Application To Various Forms Of Governmental

Employee Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . 17

IV. The Second Circuit Correctly Applied This Court’s

Decision In Garcetti . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. Petitioner Testified Voluntarily As Part Of

Her Job As A DSS Caseworker And Thus

Her Claim Does Not Survive Garcetti’s

Threshold Test . . . . . . . . . . . . . . . . . . . . . . . . . 20

B. Petitioner’s Public Employee Speech Is Not

Rendered That Of A Private Citizen Simply

Because It Involves Sworn Testimony . . . . . . .22

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

iii

TABLE OF AUTHORITIES

CASES

Beckinger v. Township of Elizabeth, 434 F. App’x 164 (3d

Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Borough of Duryea v. Guarnieri, 131 S. Ct. 2488

(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 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. 1636 (2012) . . . .7, 12, 14

Brammer-Hoelter v. Twin Peaks Charter Acad.,

492 F.3d 1192 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . 19

Brown v. Montgomery Cnty., 470 F. App’x 87 (3d Cir.

2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Carr v. City of Camden, Civ. A. No. 09-4717 (NLH)

(KMW), 2012 WL 4051884 (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) . . . . . 7, 12

Connick v. Myers, 461 U.S. 138 (1983) . . . . . . . . . . . . . . . .18

Chrzanowski v. Bianchi, No. 12-c-50020, 2012 WL

2680800 (N.D. Ill. July 6, 2012) . . . . . . . . . . . . . . . . . 16

Dahlia v. Rodriguez, 689 F.3d 1094 (9th Cir. 2012), reh’g

en banc granted, No. 10-55978, 2012 WL 6184028

(9th Cir. Dec. 11, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Dangler v. New York City Off Track Betting Corp.,

193 F.3d 130 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . .19

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

472 U.S. 749 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Evans v. Hous. Auth. of Benicia, No. 2:07-cv-0391

(JAM)(EFB), 2008 WL 4177729 (E.D. Cal. Sept. 8,

2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

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. 3320 (2010) . . . . . . . . . . . . . . . . . . . . . . 12, 13

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

Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410

(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Green v. Barrett, 226 F. App’x 883 (11th Cir.), cert. denied,

128 S. Ct. 439 (2007) . . . . . . . . . . . . . . . . . . 7, 14, 15, 16

Heil v. Santoro, 147 F.3d 103 (2d Cir. 1998) . . . . . . . . . . . 20

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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.

2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 8, 11, 15

Johnson v. LaPeer Cnty., No. 04-74659, 2006 WL

2925292 (E.D. Mich. Oct. 11, 2006) . . . . . . . . . . . . . . 16

Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th Cir.

2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Kirby v. City of Elizabeth City, 388 F.3d 440 (4th Cir.

2004), cert. denied, 126 S. Ct. 2350 (2006) . . . . . . . . . . 7

Knight v. Drye, 375 F. App’x 280 (3d Cir.), cert. denied, 131

S. Ct. 463 (2010) . . . . . . . . . . . . . . . . . . . . . . . . .7, 11, 12

Matrisciano v. Randle, 569 F.3d 723 (7th Cir. 2009) . . . . . .12

Matthews v. Lynch, No. 3:07-cv-739 (WWE), 2011 WL

1363783 (D. Conn. Apr. 11, 2011) . . . . . . . . . . . . . . . .15

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) . . . . . . . . . . . . . . . . . .7, 12

Moore v. Money, No. 2:11-cv-122, 2011 WL 5966957

(S.D. Ohio Nov. 29, 2011) . . . . . . . . . . . . . . . . . . . . . . 16

v

Morris v. Phila. Hous. Auth., No. 11-3334,

2012 WL 2626991 (3d Cir. July 6, 2012) . . . . . . . . . . .11

Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle,

429 U.S. 274 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 20, 22

Perry v. Sindermann, 408 U.S. 593 (1972) . . . . . . . . . . . . 22

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 3608678 (N.D. Fla. Aug. 12, 2011) . . 16

Ramirez v. Cnty. of Marin, No. C 10-02889(WHA),

2011 WL 5080145 (N.D. Cal. Oct. 25, 2011) . . . . . . .16

Rankin v. McPherson, 483 U.S. 378 (1987) . . . . . . 22

Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008),

cert. denied, 129 S. Ct. 1316 (2009) . . . . . . . 7, 8, 10, 15

San Diego v. Roe, 543 U.S. 77 (2004) (per curiam) . . . . . . . .9

Serianni v. City of Venice, No. 8:10-cv-2249-T-33TBM,

2011 WL 2533692 (M.D. Fla. Jun. 27, 2011) . . . . . . . 16

Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008) . . . .12

United States v. Nat’l Treas. Employees Union, 513 U.S.

454 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Waters v. Churchill, 511 U.S. 661 (1994) . . . . . . . . . . . . . . 22

Whitfield v. Chartiers Valley Sch. Dist., 707 F. Supp. 2d

561 (W.D. Pa. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . .16

STATUTES

New York Family Court Act, Article 10 . . . . . . . . . . . . 14, 24

RULES

2d Cir. Local R.32.1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

11th Cir. R.36-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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.

2143 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

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, 2008. C.A.

J.A. 9. During the probationary period, DSS was evaluating

whether to hire her as a permanent caseworker. Id. 181-83.

DSS caseworkers investigate and assist troubled

families. C.A. J.A. 365-66. A caseworker’s official

responsibilities include that he or she regularly “[p]etitions,

testifies, and reports to Family Court.” Id. 366.

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. 169. 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

2

training document covering subpoenas with a star, writing

“talk to supervisor” in the margin. Id. 354.

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. 71-73. She twice failed to arrange transportation

for her clients to and from mental health appointments. Id.

362. 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. 334-35.

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. 207-08, 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. 91-93. 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. 323. The mother then filed a

3

motion in Family Court for the return of her son, id. 91-93,

which DSS opposed, id. 189.

Petitioner returned from training on Friday, August 15,

2008. 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. 91-

93, 422-23. 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. 420-21. She did not know how

often the son’s behavioral problems had been documented.

Id. 422-23. 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. 97-98, 421-22. 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.

419. She opined that the mother was not neglectful and

recommended to the court that the child be returned home.

Id. 422. The court rejected her conclusions and ordered that

the child remain in foster care. Id. 459.

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.

200. 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. 480.

2. Petitioner sued respondents in federal district court

under 42 U.S.C. §§ 1983 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. 20-22.

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.

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 non-

precedential, 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

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

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. 1636

(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. 1316 (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. 2350 (2006)

(police officer’s testimony at an administrative hearing investigating

fellow officer).

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. 10-55978,

2012 WL 6184028 (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

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”).

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. 1316 (2009). The plaintiff

police officer in Reilly testified at a former colleague’s

corruption trial under subpoena, then was disciplined in

retaliation. Id. at 219-20. 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, 168-69 (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

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. 11-3334, 2012 WL

2626991, 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

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. 3320 (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

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

524-25 (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

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. 1636 (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. 32.1.1. 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

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 fact-

pattern. 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 4177729

(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 1363783 (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

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. 09–4717 (NLH)(KMW), 2012 WL 4051884

(D.N.J. Sept. 13, 2012); Chrzanowski v. Bianchi, No. 12 C 50020, 2012

WL 2680800 (N.D. Ill. July 6, 2012); Proper v. Sch. Bd. Of Calhoun

Cnty., No. 5:10–cv–287–RS–EMT, 2011 WL 3608678 (N.D. Fla. Aug.

12, 2011); Serianni v. City of Venice, No. 8:10–cv–2249–T–33TBM, 2011

WL 2533692 (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 5966957 (S.D. Ohio Nov.

29, 2011). 5 See Ramirez v. Cnty. of Marin, No. C 10–02889 WHA, 2011 WL

5080145 (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. 04-74659, 2006 WL 2925292 (E.D. Mich. Oct. 11, 2006) (police

officer discharged for unsubstantiated and inaccurate testimony regarding

isolated case).

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;

18

J.A. 199-200, 354, 363, 419-22. 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, 761-62 (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

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, 2491-92 (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

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, 286-7 (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. 362. 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.

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 424-

25; see J.A. 366. 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

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 572-73

& 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, 414-15 (1979)

(Pickering balancing applies to school teacher who complained to

principal about policies teacher considered racially discriminatory);

Rankin v. McPherson, 483 U.S. 378, 384-87 (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, 668-78, 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).

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 policy-

making “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 2496. 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.

24

It would be inadministrable to carve out special rules for

each of the near-infinite number of types of public employee

speech. Cf. Guarnieri, 131 S. Ct. at 2497-98. A rule that

allows DSS to punish employee misconduct with respect to

employees’ other duties, but not for in-court behavior, would

needlessly “compound[] the costs of compliance with the

Constitution” by permitting public employees to circumvent

unquestionably important employer oversight by running into

court. Id. at 2498. Likewise, it makes little sense for the

Court to step into each hint of a circuit conflict over every

fact-intensive dispute about the scope of an employee’s job

description. Cf. Garcetti, 547 U.S. at 418 (though, “[t]o be

sure, conducting [such] inquiries sometimes has proved

difficult,” that is “the necessary product of the enormous

variety of fact situations in which critical statements by . . .

public employees may be thought by their superiors . . . to

furnish grounds for dismissal”; the “Court’s overarching

objectives . . . are [nevertheless] evident”) (internal quotation

marks and citation omitted; third alteration in original).

In fact, Garcetti’s rationale has particular force with

respect to sworn testimony like that at issue in this case.

Public employees, especially those asked to speak on behalf

of the government, “occupy trusted positions in society” and,

“[w]hen they speak out, . . . can express views that

contravene governmental policies or impair the proper

performance of governmental functions.” Garcetti, 547 U.S.

at 419. Here, petitioner’s rash decision to testify without an

adequate understanding of the facts directly impeded DSS’s

function of protecting its constituent children, brought within

its reach pursuant to Article 10 of the Family Court Act.

Governmental accountability, and oversight, is preferable to

judicial intervention in a case like this, where the question is

expertise in matters of family and social life, not

governmental misconduct.

25

DSS’s discretion in deciding who will represent the

agency’s views in court affirmatively benefits the Family

Court by presenting it with a consistent, thoughtful, and well-

reasoned perspective. This Court would do the Family Court,

as well as the judicial process more generally, a disservice by

encouraging and protecting government employees’ ill-

conceived and unauthorized decisions to testify on behalf of

their public employers. Moreover, this Court has noted that

situations in which the integrity of the judicial process is

actually implicated can be dealt with by whistleblower and

other laws. Petitioner’s reliance on Justice Souter’s Garcetti

dissent – doubting the efficacy of whistleblower laws and

other protections for legitimate employee complaints – flies

in the face of this Court’s consideration (and rejection) of

such arguments in Garcetti itself. Garcetti, 547 U.S. at 425-

26.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

February 13, 2013 Respectfully submitted,

Donald S. Thomson

(Counsel of Record)

Davidson & O’Mara, P.C.

243 Lake Street

Elmira, NY 14902

(607) 733-4635

dthomson@omaralaw.com