Pickering v. Board of Education, 391 U.S. 563 (1968) (government employee speech on matters of “public concern” protected under the First Amendment) (holding applies to all employees who work in the public sector).

Civil Rights Act of 1871, 42 U.S.C. § 1983 (federal civil rights law that permits state and local employees to file Pickering claims in whistleblower retaliation cases).

When seeking damages under § 1983, it is advisable to always name the government employees and managers responsible for the retaliation in the lawsuit, as there are strict limits on the ability to directly sue a state or municipality under that law, see:

• Monell v. New York City, 436 U.S. 658 (1978) (setting forth rule on suing municipalities)
• Will v. Michigan, 491 U.S. 58 (1989) (states and state employees acting in an “official capacity” immune from lawsuits under § 1983)
• Harlow v. Fitzgerald, 457 U.S. 800 (1982) (setting forth standards necessary to sue individual government managers and supervisors in their “personal capacity” under the “qualified immunity” standard)

Legal standards governing Pickering causes of action:

• Mt. Healthy v. Doyle, 429 U.S. 274 (1977) (standard of proof)
• Givhan v. Western Line, 439 U.S. 410 (1979) (complaints raised internally may still be protected, even if no public disclosure)
• Connick v. Myers, 461 U.S. 138 (1983) (First Amendment protections only apply on issues of “public concern,” private workplace grievances not covered under Pickering); Rankin v. McPherson, 483 U.S. 378 (1987) (broad definition of protected activity)
• Bush v. Lucas, 462 U.S. 367 (1983) (when seeking damages, federal employees must exhaust administrative remedies)
• Garcetti v. Ceballos, 547 U.S. 410 (2006) (narrowed definition of protected activity to exclude most internal disclosures made pursuant to “official duties”)
• U.S. v. NTEU, 513 U.S. 454 (1995) and Sanjour v. EPA, 56 F.3d 85 (DC Cir. 1995) (en banc) (injunctive relief available to prevent chilling effect on First Amendment)
• Swartzwelder v. McNeilly, 297 F.3d 228 (3rd. Cir. 2002) (Circuit Judge—now Supreme Court Justice—Samuel Alito upholding preliminary injunction concerning police department rule that limited employee rights to make protected disclosures).

In Borough of Duryea v. Guarnieri, 131 S.Ct. 2488 (2011), the Supreme Court held that petitions to government bodies filed by public employees (including lawsuits filed in court) are protected under the First Amendment if they address matters of “public concern.”

First Amendment (Freedom of Speech)

• Pickering v. Board of Education, 391 U.S. 563 (1968) (First Amendment protected teacher who complained about school budget to newspaper).
• Sanjour v. United States EPA, 56 F.3d 85 (D.C. Cir. 1995) (en banc); Swartzwedler v. McNeill, 297 F. 3d 228 (3rd Cir. 2002) (injunctive relief blocking implementation of anti-whistleblower rules).
• Harlow v. Fitzgerald, 457 U.S. 367 (1982) (immunity defense).
• Bush v. Lucas, 462 U.S. 367 (1983) and Weaver v. USIA, 87 F.3d 1429 (D.C> CIr.) (requirement to use administrative remedies in federal cases).
• Garcetti v. Ceballos, 547 U.S. 410 (2006) (limiting application of First Amendment protections when speech is part of “official duties”)
• Carey v. Piphus, 435 U.S. 247, 253 (1978) (§ 1983 creates tort-like liability).
• Mt Healthy v. Doyle, 429 U.S. 274 (1977) (burden of proof).
• Wil v. Michigan, 491 U.S. 58 (1989) (immunity defenses and requirement to name individual government managers as defendants).
• Heck v. Humphrey, 512 U.S. 477, 483 (1994) (no requirement to exhaust state administrative remedies when filing claim under § 1983)
• Owens v. Okure, 488 U.S. 235 (1989) (because §1983 does not have a statute of limitations, the deadline for filing claims is controlled by the local statute of limitations for personal injury cases).

Civil Rights Act of 1871

§ 1985 (2) – Witness Protection

• Haddle v. Garrison, 525 U.S. 121 (1998) (“at-will” employees fired for obeying a grand jury subpoena stated claim).

§ 1988 (b) and (c)

• Perdue v. Kenny, 130 S. Ct. 1662 (2010) (awarding attorney fees “serves importnat public purpose of making it possible for persons without means to bring suit to vindicate their rights) (permitting enhancement of fee award under “extraordinary circumstances”).
• Hensley v. Eckerhart, 461 U.S. 424 (1983) (fees paid at market rates to ensure the enforcement of federal right)(fees paid even if employee was only partially successful).
• Missouri v. Jenkins, 491 U.S. 274 (1989) (fees paid at current rates to compensate for delay in payment).
• Blanchard v. Bergeron, 489 U.S. 87, 96 (1989) (attorney fees are not limited by contractual fee agreement or controlled by a contingency fee agreement. The for determining the fee is the reasonable market rate for similar services).
• City of Riverside v. Rivera, 477 U.S. 561 (1986) (attorney fee payment may be larger than judgment obtained by client).
• Pennsylvania v. Delaware Valley, 478 U.S. 546 (1986) (“lodestar” method basis for calculating reasonable fee). Blum v. Stenson, 465 U.S> 886 (1984) (attorneys paid at market rates).
• Johnson v. Georgia Highway, 488 F. 2d 714, 717-19 (5th Cir. 1974) (setting forth twelve factors used in setting reasonable attorney fee rate).