Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-30-2007

Price v. Chaffinch
Precedential or Non-Precedential: Precedential

Docket No. 06-4086




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Price v. Chaffinch" (2007). 2007 Decisions. Paper 478.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/478


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL

      THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                    Case No: 06-4086

*SERGEANT CHRISTOPHER D. FORAKER, individually
                     and in his official
  capacity as Superintendent of the Delaware State Police


                             v.

   COLONEL L. AARON CHAFFINCH; LIEUTENANT
                        COLONEL
  THOMAS F. MACLEISH, individually and in his official
     capacity as Deputy Superintendent of the Delaware
State Police; DAVID B. MITCHELL, in his official capacity
                             as
Secretary of the Department of Safety and Homeland Security
 of the State of Delaware; DIVISION OF STATE POLICE
                      DEPARTMENT
 OF SAFETY AND HOMELAND SECURITY STATE OF
                       DELAWARE

                          (D.C. Civil No. 04-cv-01207)

  CORPORAL B. KURT PRICE; CORPORAL WAYNE
                 WARREN
    *SERGEANT CHRISTOPHER D. FORAKER
                             v.

COLONEL L. AARON CHAFFINCH, individually and in his
     official capacity as Superintendent of the Delaware
   State Police; LIEUTENANT COLONEL THOMAS F.
                         MACLEISH,
      individually and in his official capacity as Deputy
  Superintendent of the Delaware State Police; DAVID B.
    MITCHELL, in his official capacity as the Secretary
   of the Department of Safety and Homeland Security of
  the State of Delaware; DIVISION OF STATE POLICE,
                       DEPARTMENT
 OF SAFETY AND HOMELAND SECURITY, STATE OF
                         DELAWARE

                         (D.C. Civil No. 04-cv-00956)

                        B. Kurt Price, Wayne Warren,
                          *Christopher D. Foraker,
                                        Appellants

        *Dismissed Per the Court’s Order of 11/7/06

                _____________________

      On Appeal from the United States District Court
                 for the District of Delaware
       District Court Nos.: 04-cv-1207, 04-cv-0956
      District Judge: The Honorable Gregory M. Sleet
                  _____________________


                            2
                    Argued June 8, 2007

       Before: SMITH and GREENBERG, Circuit Judges,
                 and POLLAK, District Judge *

                  (Filed: August 30, 2007 )

Counsel:
Martin D. Haverly
Thomas S. Neuberger
Stephen J. Neuberger (argued)
The Neuberger Firm
2 East 7th Street, Suite 302
Wilmington, DE 19801
       Counsel for Appellants

Edward T. Ellis (argued)
Carmon M. Harvey
Montgomery, McCracken, Walker & Rhoads
123 South Broad Street
Philadelphia, PA 19109
      Counsel for Appellees

                 _____________________

                OPINION OF THE COURT


   *
    The Honorable Louis H. Pollak, Senior District Judge for
the United States District Court for the Eastern District of
Pennsylvania, sitting by designation.

                                3
                   _____________________

SMITH, Circuit Judge.

        Appellants Corporal B. Kurt Price and Corporal Wayne
Warren, both former Delaware State Troopers and instructors in
the Delaware State Police Firearms Training Unit, appeal from
the District Court’s grant of judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50(b). Price and
Warren present two principal issues for review: (1) whether the
activities they engaged in were protected by the Petition Clause,
and (2) whether their speech is protected after the Supreme
Court’s decision in Garcetti v. Ceballos, --- U.S. ---, 

(2006). We will affirm the judgment of the District Court.

                                I.

        The origins of this case date to September 1998, when the
Delaware State Police (“DSP”) opened an indoor firing range in
Smyrna, Delaware. The range became the locus of operations
for the Firearms Training Unit (“FTU”), the unit to which Price
and Warren were assigned as instructors during the time period
relevant to this case. The range and those who used it
encountered a number of difficulties from the outset, including
problems with the heating, ventilation, and air conditioning
(“HVAC”) system.

       Price and Warren were long-term members of the DSP at


                                4
the time of the events giving rise to this case. Price had been
part of the FTU since 1996 and Warren had been assigned to the
unit in 2001. Sergeant Christopher Foraker was the Section
Chief of the FTU from August 1, 2001 through April 8, 2002, at
which point he was moved to another unit. Foraker sued Colonel
L. Aaron Chaffinch on April 24, 2002 for First Amendment
retaliation, and won a jury verdict in his favor. The parties later
agreed that Foraker would be reinstated to his position with the
FTU and that the monetary judgment against Chaffinch would
be vacated. Foraker returned to the firing range on December 1,
2003.

       Price, Warren, and Foraker considered the range
conditions intolerable, and were specifically concerned with
health and safety issues there. The HVAC system did not work
properly, the bullet trap was malfunctioning, and officers and
students at the range were suffering the physical manifestations
of contamination, including elevated levels of heavy metals in
their blood. Foraker sent a number of e-mails regarding the
deteriorating conditions at the range to his superiors, including
Lieutenant Colonel Thomas F. MacLeish, Captain Greg Warren,
and Lieutenant Ralph Davis. In an e-mail dated December 19,
2003 he explained that, due to a broken drive chain and
damaged sprocket on the conveyor, the dredging system had
been brought to a complete stop. He also outlined concerns
about Price’s and Warren’s elevated blood levels.

       In early December, Price, Warren, and Foraker decided

                                5
to suspend certain bullet trap maintenance because they
considered carrying it out to be unsafe. At trial, Warren
explained that their objective was to limit their exposure to lead
and other unsafe metals. They continued to perform other forms
of range maintenance, including removal of spent casings and
trash. The three men had meetings to discuss the range with
MacLeish, Captain Greg Warren, and the Division of Facilities
Management. In March 2004, the DSP closed the range.

       Following the closing of the range, the State Auditor
reviewed the issues surrounding the closing. Price, Warren, and
Foraker met with the Auditor on May 12, 2004. Their attorney
later read their statements to the Auditor, verbatim, to the
Delaware State News, a local newspaper. As troopers, Price,
Warren, and Foraker were not permitted to speak to the press
without the approval of superior officers. On May 13, 2004, they
were ordered to submit to a hearing examination to determine
whether they were fit for duty. On June 25, 2004, Price and
Warren were placed on light duty. On August 19, 2004, Price,
Warren, and Foraker filed this action.1 Price, Warren, and
Foraker amended their complaint on October 14, 2005 to
include the two counts at issue here. Count One of the amended


    1
     Foraker also filed a separate action on August 30, 2004
under 42 U.S.C. § 1983, which was consolidated with this suit
for discovery purposes only on February 1, 2005. Foraker’s
independent action settled and was dismissed on October 11,
2006.

                                6
complaint alleged a violation of the plaintiffs’ Free Speech
rights, and Count Two alleged Petition Clause violations. Price
and Warren retired from the DSP on April 7, 2006.

       During discovery, Price, Warren, and Foraker sought to
discover e-mail messages stored on Chaffinch’s hard drive.
Chaffinch retired in May 2005. Pursuant to routine DSP
procedure, a technician at the DSP re-imaged the hard drive,
destroying any messages saved there. The plaintiffs requested
default judgment or an adverse inference instruction on the basis
of spoliation of evidence. The District Court denied both
motions.

       Trial began on May 15, 2006. The District Court charged
the jury on May 30, 2006, the same day that the Supreme Court
decided Garcetti v. Ceballos. The next day, the jury returned a
verdict for Price, Warren, and Foraker.

        After the District Court entered judgment on the verdict
for Price, Warren, and Foraker, appellees Chaffinch, MacLeish,
David Mitchell, and the DSP (“DSP defendants”) moved for
judgment as a matter of law under Federal Rule of Civil
Procedure 50(b). On August 14, 2006, the District Court granted
the motion. The Court held that the First Amendment Speech
and Petition Clauses did not protect Price and Warren because
their reports up the DSP chain of command and statements to
the Auditor were part of their official duties as Troopers and
they had been ordered to cooperate. The Court denied the

                               7
motion of Price, Warren, and Foraker to amend the complaint to
conform to the evidence at trial under Rule 15(b). Foraker
settled with the DSP defendants shortly after the filing of this
appeal, and the District Court entered an order of dismissal of
his claims on October 11, 2006.

                                II.

        The District Court had subject matter jurisdiction under
28 U.S.C. § 1331. This Court has jurisdiction pursuant to 28
U.S.C. § 1291. We exercise plenary review over the grant of a
Rule 50(b) motion for judgment as a matter of law. DiBella v.
Borough of Beachwood, 

, 601 (3d Cir. 2005). In
evaluating the grant of judgment as a matter of law, “we must
look at the evidence in the light most favorable to ... the verdict
winner[s], and draw all reasonable inferences in [their] favor.”
Sheridan v. E.I. DuPont de Nemours and Co., 

,
1072 (3d Cir. 1996). In Lightning Lube, Inc. v. Witco Corp., 

(3d Cir. 1993), we explained that “although the court
draws all reasonable and logical inferences in the nonmovant’s
favor, we must affirm an order granting judgment as a matter of
law if, upon review of the record, it is apparent that the verdict
is not supported by legally sufficient evidence.” 

                               III.

      Price and Warren assert that their actions in bringing the
problems at the firing range to the attention of the government

                                8
constitute protected petitioning activity under the First
Amendment. In their amended complaint, they alleged that they
suffered adverse employment action as a result of their petitions
to the government for redress of grievances. The Petition Clause
provides that “Congress shall make no law ... abridging ... the
right of the people peaceably to assemble, and to petition the
government for a redress of grievances.” U.S. C ONST. amend. I,
cl. 6. The first question for our review is whether Price and
Warren’s expressions are petitions within the meaning of the
First Amendment.

        The history of the Petition Clause is instructive. Petitions
were first utilized in America during the colonial era, when
colonists petitioned the colonial assemblies for resolution of
private disputes as well as for legislative action. See Stephen A.
Higginson, Note, A Short History of the Right to Petition
Government for the Redress of Grievances, 96 Y ALE L.J. 142,
144-55 (1986). By the time the Framers penned the First
Amendment and the states ratified the right of people to petition
the government, petitioning was already a firmly
established–and highly valued–right in the common law
tradition, and one that included the right to governmental
consideration of the petition. See 

& n.92 (quoting
the Declaration of Independence: “In every stage of these
Oppressions We have Petitioned for Redress in the most humble
terms: Our repeated Petitions have been answered only by
repeated injury.”); see also James E. Pfander, Sovereign
Immunity and the Right to Petition: Toward a First Amendment

                                 9
Right to Pursue Judicial Claims Against the Government, 91
N W. U. L. R EV. 899, 909 & n.36 (1997) (“Early practice on the
‘petition of right,’ which came to be seen as an important
element of the common law, included a variety of features that
would later characterize prerogative practice.”); Julie M.
Spanbauer, The First Amendment Right to Petition Government
for a Redress of Grievances: Cut From a Different Cloth, 21
H ASTINGS C ONST. L.Q. 15, 22-34 (1993).

       James Madison included the right to assemble and to
“apply[] to the Legislature by petitions” in his draft amendments
of June 8, 1789, and separated these rights from the freedoms of
religion, speech, and the press. See 1 Annals of Cong. 451
(Joseph Gales, ed. 1789); Spanbauer, supra at 39-40. In his
endorsement of the amendments before the House, he called
upon the representatives to “expressly declare the great rights of
mankind secured under this constitution.” 1 Annals of Cong. 449
(Joseph Gales, ed. 1789). The House of Representatives
combined these rights into a single amendment in their
modifications, and substituted the word “government” for
“legislature.” Spanbauer, supra at 39-40; 1 U.S. House Journal
85 (Aug. 21, 1789). The Senate changed the right of
“application” to protect the right to “petition.” Spanbauer, supra
at 42; 1 U.S. Senate Journal 70-71 (Sept. 4, 1789).
Acknowledging these historical roots, the Supreme Court stated:

       We have recognized this right to petition as one of
       “the most precious of the liberties safeguarded by

                               10
       the Bill of Rights,” and have explained that the
       right is implied by “[t]he very idea of a
       government, republican in form.”

BE & K Const. Co. v. N.L.R.B., 

, 524-25 (2002)
(internal citations omitted); see also Adderley v. Florida, 

, 49 n.2 (1966) (Douglas, J., dissenting) (recounting a
brief history of the right to petition in both Britain and
America). However, the right to petition has undergone a
significant transformation since its inclusion in the Bill of
Rights. See Higginson, supra at 165 (“Despite the clear colonial
practice that linked petitioning to a corollary duty of legislative
response, the Southern ‘gag’ proponents [of states’ rights with
respect to slavery] successfully challenged this link and
subsumed the right [to petition] within free expression.”);
McDonald v. Smith, 

, 482 (1985) (“The right to
petition is cut from the same cloth as the other guarantees of that
Amendment, and is an assurance of a particular freedom of
expression.”); 

(ignoring the varied histories of the
right to petition and the freedoms of speech, religion, and the
press, and stating that “[t]he Petition Clause ... was inspired by
the same ideals of liberty and democracy that gave us the
freedoms to speak, publish, and assemble.”); WMX Techs., Inc.
v. Miller, 

, 372 (9th Cir. 1999) (en banc) (“The
protections afforded by the Petition Clause have been limited by
the Supreme Court to situations where an individual’s
associational or speech interests are also implicated.”).



                                11
       In San Filippo v. Bongiovanni, 

(3d Cir.
1994), we concluded that a public employee who has petitioned
the government through a formal mechanism such as the filing
of a lawsuit or grievance is protected under the Petition Clause
from retaliation for that activity, even if the petition concerns a
matter of solely private concern. In discussing the distinct origin
of the Petition Clause, we distinguished the rule laid out in
Connick v. Myers, 

, 154 (1983) with respect to
speech 2 , and explained that “when one files a ‘petition’ one is
not appealing over government’s head to the general citizenry:
when one files a ‘petition’ one is addressing government and
asking government to fix what, allegedly, government has
broken or has failed in its duty to repair.” 

Moreover,
we noted that the argument that

          the scope of the petition right depends upon the


   2
       In San Filippo, we wrote that

          As applied to communications that are not
          petitions, the Connick rule means that a public
          employee who goes public–e.g., by writing to The
          New York Times–with an employment dispute that
          is not of “public concern” runs the risk of being
          disciplined by her public employer for
          undertaking to draw public attention to a private
          dispute.

                                 12
       context in which the right is exercised is
       particularly persuasive because the scope of the
       free speech right–a right that, like the petition
       right, is stated in unqualified terms in the first
       amendment–depends on the context in which that
       right is exercised.

       Formal petitions are defined by their invocation of a
formal mechanism of redress. Thus, “[l]awsuits, grievances,
[and] workers compensation claims” are all examples of formal
petitions. 

n.18. Contrary to the requirements for
speech protection discussed below, when a formal petition is
made, the employee need not show that the subject matter of the
petition involved a matter of public concern. 

This
distinction is legitimate because the Petition Clause is not
merely duplicative of the Free Speech Clause. 

(“[W]e believe that there is an independent reason–a reason of
constitutional dimension–to protect an employee lawsuit or
grievance if it is of the sort that constitutes a ‘petition’ within
the meaning of the first amendment.”); see also Brennan v.
Norton, 

, 417 (3d Cir. 2003) (contrasting the
requirements for proof of retaliation for free expression with
those for petitioning activity and noting that “a plaintiff need
only show that his/her lawsuit was not frivolous in order to
make out a prima facie claim for retaliation under the Petition
Clause”).

                                13
       The Supreme Court has explained that “the values in the
right of petition as an important aspect of self-government are
beyond question.” 

. Although the
Free Speech Clause also serves the interests of democracy, it
does so in a unique manner. See, e.g., Buckley v. Valeo, 

, 93 n.127 (1976) (“[T]he central purpose of the Speech and
Press Clauses was to assure a society in which ‘uninhibited,
robust, and wide-open’ public debate concerning matters of
public interest would thrive, for only in such a society can a
healthy representative democracy flourish.” (quoting New York
Times Co. v. Sullivan, 

, 270 (1964))). Whereas the
Free Speech Clause protects the right to “wide-open” debate, the
Petition Clause encompasses only activity directed to a
government audience. This distinction correlates to the separate
analysis for each clause. Accordingly, the argument of the DSP
defendants that because Garcetti v. Ceballos, --- U.S. ---, 126 S.
Ct. 1951 (2006) bars plaintiffs’ claims as speech, it also bars
them as petitions is inaccurate–petitions are not synonymous
with speech for purposes of constitutional analysis.

      There are less formal mechanisms by which a petition
may be made. San 

. Informal petitions
may include letters such as those at issue in McDonald and
Schalk v. Gallemore, 

(10th Cir. 1990) (per
curiam). Petitions made through informal channels may
occasion a lesser degree of constitutional protection than their
formal counterparts. See, e.g., San 

(paraphrasing the Tenth Circuit’s holding in Schalk that when

                               14
“the ‘petition’ at issue [is] simply a letter imposing on the
government no obligation to respond, it [is] properly analyzable
under the conventional Connick rubric applicable to speech”);

see also Minn. State Bd. for Cmty. Colls. v. Knight,

, 285 (1984) (“Nothing in the First Amendment or
in this Court’s case law interpreting it suggests that the rights to
speak, associate, and petition require government policymakers
to listen or respond to individuals’ communications on public
issues.”).

        In Hill v. Borough of Kutztown, 

(3d Cir.
2006), we addressed the First Amendment claim of a former
borough manager who made reports to the Borough Council that
led to retaliation from the mayor, which eventually culminated
in Hill’s resignation. 

We explained in a footnote
that, although “[w]e have never held ... that a report of a
superior’s misconduct to a legislative body when the legislative
body is also the reporter’s employer constitutes ‘petitioning
activity,’” the complaints Hill made to the Pennsylvania Human
Relations Commission and the EEOC “might well qualify as
‘petitioning.’” 

n.24. However, we declined to make
this determination because Hill had not alleged retaliation based
on his complaints to the PHRC or EEOC.

        The distinction drawn in Hill between Hill’s report to his
employer and his complaints to the administrative bodies
illustrates why the plaintiffs’ complaints up the chain of
command did not constitute petitioning activity. Price and

                                15
Warren complained internally; they did not petition a state
agency qua agency. They appealed to their employer, which also
happened to be a state agency, through informal channels. See
generally Herr v. Pequea Twp., 

, 115 (3d Cir.
2001) (questioned on other grounds by Mariana v. Fisher, 

, 199 (3d Cir. 2003); United Artists Theatre Circuit,
Inc. v. Twp. of Warrington, 

, 400 (3d Cir.2003));
see also Hilton v. City of Wheeling, 

, 1007 (7th
Cir. 2000) (“[T]he right to petition for redress of grievances
[does not] imply a duty of the government to make every
government employee [or entity] a petition receiver.”). Thus,
they cannot seek solace in the Petition Clause.

        Price and Warren further assert that their speech to the
State Auditor qualifies for protection under the Petition Clause.
However, as the District Court found, although their statements
to the State Auditor may be characterized as invoking a formal
mechanism, “they were ordered to cooperate.” Statements made
under compulsion do not comport with the basic principle of
freedom underlying the Petition Clause. Therefore, these
statements do not fall within the constitutional protections for
petitions to the government.

                              IV.

       Price and Warren allege that they were retaliated against
for their speech about hazardous conditions at the FTU and
governmental corruption, misconduct, and mismanagement. In

                               16
particular, Price and Warren assert that their speech up the chain
of command and to the State Auditor was protected by the First
Amendment because it exposed serious health and safety
concerns and exposed government incompetence and
wrongdoing. They assert that the holding of Garcetti v.
Ceballos, --- U.S. ---, 

(2006) does not affect
their claims because their job duty as expert firearms instructors
was to teach students how to fire weapons, and speaking out
about health and safety problems at the firing range was not part
of their job function. They maintain that the District Court’s
grant of judgment as a matter of law was in error.3 The DSP
defendants claim that the speech in question is not protected
because Price’s and Warren’s complaints up the chain of
command fell within the scope of their duties as troopers in the
FTU, and were thus foreclosed by Garcetti. The DSP defendants
assert that Price and Warren’s speech to the State Auditor was
also within the scope of their job duties.

      As noted above, the Supreme Court issued its opinion in
Garcetti on May 30, 2006, the same day that the jury was
charged in this case. After hearing argument on the DSP
defendants’ motion for judgment as a matter of law under
Federal Rule of Civil Procedure 50(b), the District Court



   3
     Price and Warren also raise an argument as to spoliation of
evidence. We have considered this argument, and conclude that
it is without merit and compels no separate discussion.

                               17
correctly held that Garcetti must be applied in this case.4

        In Garcetti, the Supreme Court addressed the question of
“whether the First Amendment protects a government employee
from discipline based on speech made pursuant to the
employee’s official duties.” 

Ceballos was a deputy
district attorney in Los Angeles. While performing that role, a
defense attorney approached him about inaccuracies in an
affidavit that had been used to obtain a critical search warrant.
Ceballos investigated and determined that there were
inaccuracies that were still unresolved after consultation with
the affiant. He informed his supervisors, composed a memo
which recommended dismissal of the case, and met with his
supervisors and the affiant to discuss the case. The prosecution
proceeded, and Ceballos was called as a witness for the defense.
Following the trial, Ceballos was reassigned, transferred to
another courthouse, and denied a promotion. He filed an
unsuccessful employment grievance, and then filed an action in
federal court under 42 U.S.C. § 1983, alleging retaliation in
violation of the First and Fourteenth Amendments.

        Focusing on the distinction between employee-speech


    4
      In Garcetti, the Court applied the rule it enunciated to
Ceballos’ claims. Thus, the rule announced was not purely
prospective, and the District Court properly applied it in this
case, which was pending at the time of the Garcetti decision.
See, e.g., Linkletter v. Walker, 

, 622 (1965).

                               18
and citizen-speech, the Court held 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 Court emphasized the
importance of allowing government employers “sufficient
discretion to manage their operations.” Id.; see also Waters v.
Churchill, 

, 671-72 (1994) (plurality opinion) (“We
have never explicitly answered this question, though we have
always assumed that its premise is correct–that the government
as employer indeed has far broader powers than does the
government as sovereign.”).5 The Court relied on the undisputed
fact that Ceballos wrote his memo pursuant to his job
responsibilities in explaining that “[w]e ... have no occasion to
articulate a comprehensive framework for defining the scope of
an employee’s duties in cases where there is room for serious
debate. ... The proper inquiry is a practical one.” 

   5
     In rejecting “the notion that the First Amendment shields
from discipline the expressions employees make pursuant to
their professional duties,” the majority opinion noted that the
“powerful network of legislative enactments–such as whistle-
blower protection laws and labor codes–available to those who
seek to expose wrongdoing,” protects employees. 

The Court embraced the notion that–at least in the context of
statements made by “a public employee ... in the course of doing
his or her job”–protection from retaliation and protection under
the First Amendment are mutually exclusive considerations.

                               19
Accordingly, Price and Warren argue that they were not
functioning within the scope of their employment duties either
when they made their statements to the State Auditor or
complained up the chain of command.

       We briefly addressed the impact of Garcetti in Hill v.
Borough of Kutztown, 

(3d Cir. 2006). Hill, a
Borough Manager, allegedly suffered retaliation following his
reports of misconduct by the mayor to the Borough Council. He
admitted to issuing this report “pursuant to his official duties”
to protect Borough employees. 

. Accordingly, we
concluded that “he was not speaking ‘as a citizen’ when he
made these reports, and thus, as a matter of law, the reports are
not protected speech [under Garcetti].” 

reversed the dismissal of Hill’s First
Amendment retaliation claim to the extent that it concerned
Hill’s advocacy of ideas, principles and projects disfavored by
the mayor on the grounds that “we cannot determine in this
procedural posture whether the speech involved a matter of
public concern.” 

that “[t]hat determination
must be made after an examination of ‘the content, form, and
context of [the] statement, as revealed by the whole record.’” 

(quoting Rankin v. McPherson, 

(1987)).
Thus, the Hill opinion followed the Garcetti approach by
remanding to the District Court for an inquiry into whether the
employee spoke as a citizen and, if so, “whether the [mayor] had
an adequate justification for treating the employee differently

                               20
from any other member of the general public.” Garcetti, 126 S.
Ct. at 1958. In contrast to Hill, Price and Warren’s claims were
presented in detail at a jury trial, giving both the District Court
and this Court comprehensive information from which to answer
the question of whether Price and Warren spoke pursuant to
their official duties.

        Precedent in the Fifth and Ninth Circuit Courts of
Appeals also points to the conclusion we reach here. In Williams
v. Dallas Independent School District, 

(5th Cir.
2007) (per curiam), the Fifth Circuit applied Garcetti to
foreclose the retaliation claim of a high school athletic director
who was discharged after writing a memo to his principal
concerning the handling of school athletic funds. Noting
Garcetti’s injunction that First Amendment protection “does not
invest [employees] with a right to perform their jobs however
they see fit,” the Court held that it was within Williams’ “daily
operations” to manage the athletic department, and because he
needed information on the athletic accounts in order to be able
to do that, his memorandum to his superior concerning accounts
was necessary for him to complete his job. 

The Court
noted that this outcome was dictated by the fact that “Williams
had special knowledge that $200 was raised at a basketball
tournament,” and that he was “experienced with standard
operating procedures for athletic departments.” 

Applying the Fifth Circuit’s understanding, Price and
Warren were acting within their job duties when they expressed
their concerns up the chain of command because they needed to

                                21
have a functioning bullet trap to conduct their educational
programs and it was their special knowledge and experience
with the bullet trap 6 that demonstrated their responsibility for
ensuring its functionality by reporting problems to their
superiors.

        Our result is also consistent with Freitag v. Ayers, 

(9th Cir. 2006), cert. denied, 

(Apr. 2,
2007). In Freitag, a female corrections officer was terminated
after filing reports documenting sexual harassment by prisoners
and inaction on the part of her superiors. Applying Garcetti to
her First Amendment claims, the Ninth Circuit explained that
the reports she submitted were pursuant to her official duties. 

However, the Court declined to hold that a letter she
wrote to the Director of the California Department of
Corrections and Rehabilitation explaining the hostile work
environment she had encountered was within her job duties, and
remanded that issue to the District Court. 

the
minor factual distinctions between a prison guard’s duty to write
internal reports about prisoner misconduct and her supervisors’
dilatory response and Price and Warren’s responsibility to report


  6
   We recognize that Price and Warren did not have the sort of
specialized knowledge required to perform certain hazardous
maintenance work on the bullet trap. The special knowledge and
experience referenced here is their daily interaction with the
equipment, which put them in the position to know when
problems arose.

                                22
required bullet trap maintenance, Freitag helps to illustrate the
connection between Price and Warren’s speech and their job
duties.

        The Ninth Circuit’s remand of the question whether
Freitag’s letter of complaint to the Director was within her job
duties illustrates the fact-intensive nature of this inquiry. Unlike
the question of whether speech is protected by the First
Amendment, the question of whether a particular incident of
speech is made within a particular plaintiff’s job duties is a
mixed question of fact and law. Thus, as the Ninth Circuit held,
the proper resolution of challenges to the designation of such
speech is to defer to the district court, because “having presided
over this and related litigation for several years, [it] may be in a
better position to make the relevant factual determinations....”

. Accordingly, Price and Warren’s
claims of retaliation based on the First Amendment are
foreclosed because, as the District Court found, reporting
problems at the FTU was within their official job duties.7


   7
    The Sixth Circuit did not believe that the Garcetti inquiry
required district court involvement. In Haynes v. City of
Circleville, 

(6th Cir. 2007), the Court rejected a K-
9 unit police officer’s contention that his complaints regarding
cuts to the K-9 program were protected following Garcetti.
Characterizing the memo Haynes wrote to the Police Chief as
“reflect[ing] nothing more than ‘the quintessential employee
beef’: management has acted incompetently,” the Court

                                23
       As the Court explained in Garcetti, the facts that

explained that “[i]n lodging his protests to Chief Gray against
the training cutbacks, Haynes was acting as a public employee
carrying out his professional responsibilities.” 

(citation omitted). However, the Sixth Circuit also said that
“[t]he fact that Haynes communicated solely to his superior also
indicates that he was speaking ‘in [his] capacity as a public
employee....’” 

(quoting Mills v. City of Evansville,
Ind., 

, 646 (7th Cir. 2006)). As Garcetti explained,
the inquiry is nuanced: the fact that an employee speaks
privately is not conclusive as to whether the speech is within the
scope of his or her job duties.
        In Mills, the Seventh Circuit made a similar 

. The Court explained that:
        Mills was on duty, in uniform, and engaged in
        discussion with her superiors, all of whom had
        just emerged from Chief Gulledge’s briefing [on
        personnel changes]. She spoke in her capacity as
        a public employee contributing to the formation
        and execution of official policy. Under Garcetti
        her employer could draw inferences from her
        statements about whether she would zealously
        implement the Chief’s plans or try to undermine
        them; when the department drew the latter
        inference it was free to act accordingly.

further held that “[p]ublic employers must be able
to change assignments in response to events (including
statements) that reveal whether employees will be faithful agents
of the decisions made by the politically accountable managers.”

expressed his views inside his office, rather than
publicly,” and that his memo concerned the subject matter of his
employment, were 

. Thus, the
controlling fact in the case at bar is that Price and Warren were
expected, pursuant to their job duties, to report problems
concerning the operations at the range up the chain of command.
Price and Warren spoke internally with respect to the health
conditions at their workplace. They were required to speak up
the chain of command and were prevented from speaking to the
press without prior approval. Price and Warren were likewise
expected to report truthfully to the State Auditor upon being
ordered to do so.

        The result required by Garcetti illustrates how that
opinion narrowed the Court’s jurisprudence in the area of
employee speech. Although under Garcetti an employee’s right
to protest matters of public concern is not automatically
forfeited by his or her choice of a workplace forum, that right is
limited. Compare Connick v. Myers, 

, 148 n.8
(1983), with 

(identifying the
“controlling factor” in removing speech from the First
Amendment as being that the expressions were made pursuant
to employment duties); Givhan v. Western Line Consol. Sch.
Dist., 

, 413 (1979).

       Reporting problems at the firing range was among the
tasks that Price and Warren were paid to perform. Their
positions in the DSP required them to report up the chain of

                               25
command, and their positions as instructors who regularly used
and performed light maintenance on the equipment at the range
on a daily basis put any environmental concerns there within the
scope of their routine operations. As the District Court noted,
their annual performance reviews suggest that Price and Warren
were involved in workplace safety issues–Price’s report explains
that he “aided his supervisors in identifying safety issues at the
facility,” and “reached out to experts in the field of ventilation
[and] firing range design along with heavy metal exposure and
contamination [experts] and established a rapport with these
professionals to search out the root cause and contributing
factors surrounding the dangers we face in exposure to heavy
metal contamination.” There is some suggestion in the record
that Price’s search for external assistance may have been
motivated by personal concerns, but the fact that Price may have
exceeded the expectations of his formal job description as a
firearms instructor does not mean that they were not within the
scope of his duties. 

(“Formal job
descriptions often bear little resemblance to the duties an
employee actually is expected to perform....”). Warren admitted
at trial that he regularly dealt with the water in the bullet trap,
unclogged the pumps, and replaced the filters.

       Although voluntary efforts to engage in public discourse
do not automatically remove internal workplace speech from
constitutional protection, Price and Warren were required by the
terms of their employment to maintain a safe learning
environment at the FTU. See 

                                26
(“Refusing to recognize First Amendment claims based on
government employees’ work product does not prevent them
from participating in public debate. The employees retain the
prospect of constitutional protection for their contributions to
the civic discourse. This prospect of protection, however, does
not invest them with a right to perform their jobs however they
see fit.”). In his evaluation, Price was “tasked” with “the safe
execution of the Academy Patrol Procedures Program” and the
creation of “a new and more applicable set of Firing Range
Safety Rules.” Similarly, one of Warren’s “objectives” for the
next evaluation period was “conduct[ing] a safe Firearms
Training Program” for which the plan of action was identified
to include “[e]nsur[ing] all students and instructors practice
approved safety procedures.” Warren’s performance appraisal
justification noted that one of the “accomplishments of the
Firearms Training Unit” during the period from October 1, 2002
through September 30, 2003 was that the unit “[c]ompleted the
alterations and modifications to the Bullet Recovery system.”
With respect to work habits, Price and Warren were both given
high marks for their care of the equipment related to firearms
training.8 Notably, the plaintiffs did not identify anyone else


   8
     In support of their contention that such reporting was not
within the scope of their employment, Price and Warren direct
us to the Eighth Circuit’s holding in Lindsey v. City of Orrick,
--- F.3d ---, 

(8th Cir. June 26, 2007). Lindsey
was the public works director for the City. In that role he
maintained the City’s parks, water systems, streets, and sewers

                              27
whose job might have included the sort of maintenance they
performed, or who might have had responsibility to ensure the
safety of the range.

       We recognize that giving statements to the State Auditor
was not part of their everyday duties and that Garcetti leaves
open the possibility that speech within the workplace relating to
non-job issues is protected. However, Price explained that he
spoke to the auditors because “[i]t was my duty to speak to the
auditors. The order came down from the executive office of the
State of Delaware, meaning the Governor’s office. I am bound
by that order.” Although this speech was compelled by their
employer, this fact alone does not locate the speech within the
realm of Price and Warren’s job duties. Rather, what is


and reported about public works at City Council meetings. After
attending a training session that included information on state
sunshine law compliance, Lindsey questioned the Council’s
compliance with the open meetings requirement at a number of
public meetings. He was later fired. The Court differentiated
Garcetti, and held that Lindsey’s speech was made “both as a
citizen and on a matter of public concern.” 

The opinion
in Lindsey, however, does not suggest that Price and Warren’s
speech should be protected by the First Amendment as the Court
explained that “there is no evidence Lindsey’s job duties even
arguably included sunshine law compliance.” 

As
demonstrated above, there is sufficient evidence that Price and
Warren’s jobs included reporting health and safety problems at
the firing range.

                               28
dispositive is that the prior statements of Price and Warren
within the chain of command prompted the order to speak with
the State Auditor. Because the speech that motivated the order
was within their job duties, the responsibility to respond to the
subsequent order was also within the scope of their duties.

        Because we agree with the District Court that Price and
Warren were acting pursuant to their job duties when they made
their complaints up the chain of command and gave their reports
to the State Auditor, we need not examine whether their speech
passes the remainder of the test established by Pickering and its
progeny. See Pickering v. Bd. of Educ., 

(1968);

; 

; see also
Curinga v. City of Clairton, 

, 310 (3d Cir. 2004).
As the Seventh Circuit explained, “Garcetti requires that before
analyzing whether an employee’s speech is of public concern, a
court must determine whether the employee was speaking ‘as a
citizen’ or, by contrast, pursuant to his duties as a public
employee.” Sigsworth v. City of Aurora, 

, 509-10
(7th Cir. 2007); see also Brammer-Hoelter v. Twin Peaks
Charter Academy, --- F.3d ---, 

, at *5 (10th
Cir. 2007). In making their voices heard up the chain of
command and reporting to the State Auditor under order, Price
and Warren spoke pursuant to their duties as government
employees at the FTU.

      Price and Warren also assert that the release of their
statements to the Auditor by their attorney was speech that was

                               29
not pursuant to their job duties, and therefore not foreclosed as
a basis for recovery by Garcetti. As Garcetti explained,
“[e]mployees who make public statements outside the course of
performing their official duties retain some possibility of First
Amendment protection because that is the kind of activity
engaged in by citizens who do not work for the government.” 

(citing writing a letter to a local newspaper or discussing
politics with a co-worker as examples of speech that falls
“outside the scope of official duties”). They raised this argument
before the District Court in regard to their motion to amend the
complaint to conform to the evidence presented at trial. See F ED.
R. C IV. P. 15(b). Although the release of their statements may
have been outside the scope of their duties, and perhaps even in
contravention of those duties, we need not reach this question
because the District Court did not abuse its discretion in denying
the motion to amend. See Douglas v. Owens, 

,
1235 (3d Cir. 1995) (“We review for abuse of discretion the
district court’s granting of leave to amend the complaint.”).
Moreover, the media speech theory was not presented to the
District Court as a defense to the motion for judgment as a
matter of law, but only in conjunction with their Rule 15(b)
motion. See, e.g., Newark Morning Ledger Co. v. United States,

, 932 (3d Cir. 1976) (“We generally refuse to
consider issues that are raised for the first time on appeal.”).

       In their brief to the District Court challenging the motion
for judgment, Price and Warren argued that their speech was
internal, but still protected after Garcetti because it was not

                                30
pursuant to their job duties. They also argued that they had not
received notice of any defense that their speech to the Auditor
was not within their job duties because, if they had, they would
have shown that “it was their attorneys, who also spoke out to
the press on their behalf after the first Auditor meeting, who
arranged the actual meeting with the Auditor on their clients’
behalf so their clients could blow the whistle on DSP
wrongdoing.” Their brief to the District Court also alleged that
their “speech to the Auditor was the means of responding to
[the] gag order; responding to the defamatory attack on
plaintiffs; and of informing the public of governmental
mismanagement and corruption through the Auditor and the
media.” (emphasis added). They concluded that “plaintiffs
engaged in protected speech when they raised their health and
safety concerns to the State Auditor.” (emphasis added).

       We recognize that the parties did not have the benefit of
the Garcetti opinion at the time of trial. See North River Ins. Co.
v. CIGNA Reinsurance Co., 

, 1218 n.39 (3d Cir.
1995) (“[W]here a previously ignored legal theory takes on new
importance due to an intervening development in the law, it is
appropriate to exercise discretion to allow a party to revive that
theory.” (internal citations omitted)). However, Price and
Warren did not ask the District Court for a partial new trial on
the ground that Garcetti had changed the legal landscape,
pursuant to Rule 59(a). See F ED. R C IV. P. 59(a) (“A new trial
may be granted to all or any of the parties and on all or part of
the issues ... for any of the reasons for which new trials have

                                31
heretofore been granted in actions at law in the courts of the
United States....”); Pryer v. C.O. 3 Slavic, 

, 454 (3d
Cir. 2001). Instead, they requested an amendment to conform
the complaint to the evidence. The District Court correctly
denied that request.

       Price and Warren did not meet the requirements for an
amendment pursuant to Rule 15(b), which allows amendment of
pleadings if the claim was tried by the express or implied
consent of the parties. The record makes clear that the DSP
defendants did not give their express consent. In order to
ascertain whether they gave implied consent, we look to
“whether the parties recognized that the unpleaded issue entered
the case at trial, whether the evidence that supports the
unpleaded issue was introduced at trial without objection, and
whether a finding of trial by consent prejudiced the opposing
party’s opportunity to respond.” 

(quoting Portis v. First Nat’l Bank, 

, 332 (5th
Cir.1994)); see also Evans Prods. Co. v. West Am. Ins. Co., 

, 924 (3d Cir. 1984) (“The primary consideration in
determining whether leave to amend under Fed.R.Civ.P. 15(b)
should be granted is prejudice to the opposing party. The
principal test for prejudice in such situations is whether the
opposing party was denied a fair opportunity to defend and to
offer additional evidence on that different theory.” (citation
omitted)).

       Price and Warren identify a May 14, 2004 newspaper

                               32
article that indicates that their counsel read their statements
verbatim to the Delaware State News, and point to trial
testimony regarding the article as support for the unpleaded
issue. Admitted without objection, the newspaper article was
relevant to and admitted for the purpose of proving Price and
Warren’s theory of retaliation and their defamation claim. Their
attorney explained in a proffer to the District Court “why I am
offering this,” i.e., that the article “goes to the motive of the
defendants to retaliate.” He did not argue the possibility that the
article might show that Price and Warren used their attorney to
take their otherwise internal speech public. Indeed, in response
to concerns raised by opposing counsel, he disclaimed altogether
any connection his clients had with the article.9


   9
       The following sidebar colloquy is illustrative:
         The Court:           What are you offering?
         Mr. S. Neuberger: The fact that the FTU, that the
                              conditions at the FTU were all over
                              the media in the beginning of
                              2004.... I am not offering, for
                              example, Captain [Greg] Warren’s
                              quote that the FTU was, quote, the
                              absolute epitome of a project from
                              hell since its very inception, end
                              quote – Captain Warren can testify
                              about that in a couple of days when
                              he is in here....
         Mr. Ellis:           If that is the case, it is really
                              misleading, because the evidence

                                33
                  would make it seem like these three
                  people were responsible for what’s
                  in the paper. That is really
                  misleading because it’s not the
                  case.
The Court:        That is a concern, the concern
                  outlined by Mr. Ellis.
Mr. T. Neuberger: I will be happy to have Corporal
                  [Wayne] Warren testify that there is
                  overlap in the subject matter, but it
                  wasn’t him speaking to the media
                  and giving them this information.
                  [emphasis added]
                 * * *
Mr. T. Neuberger: I think we are missing something
                  that we are saying on motivation. ...
                  This is a backdrop of pressure and
                  concern about the range, which,
                  even if that pressure is not talking
                  about our clients, it is talking about
                  the fact that the state has a broken-
                  down facility. And we are saying
                  that the motive to retaliate is
                  because all this is going public. So
                  any news story of any nature about
                  the range contributes ... to a motive
                  to retaliate. It doesn’t have to be
                  about our guys. ... Simply the [fact
                  that the] range is now being

                       34
       The sole occasion on which it is even arguable that Price


                              covered again [by the news media
                              shows the defendants’ displeasure
                              about the publicity].
                             * * *
        The Court:            Albeit these particular plaintiffs
                              were not the source --
        Mr. T. Neuberger: No.
In direct examination of Warren, the plaintiffs introduced the
news article in the following manner:
        Q.     What were you concerned about?
        A.     Being blamed for the downfall of the operation [at
               the FTU].
        Q.     Do you recall seeing any news media coverage
               discussing your meetings with the auditors?
        A.     Yes.
        Q.     Do you recall what newspapers that coverage was
               in?
        A.     I believe it was in both the News Journal and the
               State News.
Following this exchange, Warren identified the headline of the
article in which their lawyer’s reading of their statements was
reported. Warren did not refer to the article again in his
testimony. Several other references were made to the article
during the plaintiffs’ case, all in the context of showing the
animosity of the defendants toward Price and Warren.


                              35
and Warren introduced unchallenged evidence of their media
speech theory was during the direct examination of Major David
Baylor, which came after the plaintiffs’ explanation that the
article was evidence of motivation for retaliation. Plaintiffs’
counsel asked Baylor if it was correct “that both Lieutenant
Colonel MacLeish and Colonel Chaffinch became angry about
the newspaper reporting on statements my office had made on
behalf of my clients?” Baylor responded that “[t]here was a level
of frustration, yes.” The subsequent line of inquiry focused on
the frustration of MacLeish and Chaffinch about the news
stories and their angry feelings toward Price and Warren. This
single question is insufficient to satisfy the requirements of Rule
15(b). See, e.g., Farfaras v. Citizens Bank and Trust of Chicago,

, 568 (7th Cir. 2006) (holding that the plaintiff’s
admission on cross-examination in an employment
discrimination case that she did not go to work right away was
“not sufficient to demonstrate that the defense had raised the
issue of failure to mitigate”).

        As we explained in Douglas, “an issue has not been tried
by implied consent if evidence relevant to the new claim is also
relevant to the claim originally pled, because the defendant does
not have any notice that the implied claim was being 

. Having disclaimed any attempt to introduce the
article for the purpose of showing that they were responsible for
the statements or the release to the press, Price and Warren
cannot now assert that they entered the unpleaded issue of media
speech into the trial.

                                36
        Nor did the defendants implicitly agree to the inclusion
of the unpleaded issue in their testimony. Chaffinch testified that
“I was not upset that your clients were talking to the auditors
because, like I said, we were going to comply with the Auditor’s
Office in any way they needed to complete their investigation.
I was not upset that they were talking to the auditors, no. I was
upset that it was bringing a negative light to the Division of
State Police in the media.” Although Price and Warren now
point to Chaffinch’s testimony as evidence that the DSP
defendants impliedly agreed that the issue of speech to the
media was being tried, Chaffinch did not testify as to how the
statements got into the media. Both he and MacLeish expressed
their dismay at the negative coverage that the situation at the
FTU had received, but neither stated that they were upset with
Price and Warren for going to the media via their attorney and
circumventing the universal DSP order prohibiting officers from
talking to the media without approval.

       The fact that there was no objection to the hearsay
contained in the article further indicates that the defendants
understood the introduction of the article and testimony
regarding it to relate only to the adverse action prong of Price
and Warren’s retaliation claim. The DSP defendants did not
implicitly consent to the trial of a claim that Price and Warren
engaged in protected speech to the media. Accordingly, their




                                37
motion under Rule 15(b) fails on the merits.10



    10
        We note that, although Price and Warren’s Rule 15(b)
motion fails, they may have had a valid claim under Rule 59(a)
or Rule 60(b)(6) on the basis of the changed legal landscape
after Garcetti. See, e.g., Stanton by Brooks v. Astra Pharma.
Prods., Inc., 

, 557, 576 (3d Cir. 1983) (confirming
that a change in the law is an appropriate basis for a partial re-
trial); F ED. R. C IV. P. 60(b)(6) (“On motion and upon such terms
as are just, the court may relieve a party or a party’s legal
representative from a final judgment, order, or proceeding for ...
any other reason justifying relief from the operation of the
judgment.”); but see Agostini v. Felton, 

, 239
(1997) (“Intervening developments in the law by themselves
rarely constitute the extraordinary circumstances required for
relief under Rule 60(b)(6)....”). However, Price and Warren did
not seek a partial re-trial on the issue of media speech or relief
from the judgment under Rule 60(b)(6). They sought only
reinstatement of the verdict or default judgment as relief.
         Although we are mindful that Rule 54(c) requires that
“every final judgment shall grant the relief to which the party in
whose favor it is rendered is entitled, even if the party has not
demanded such relief in the party’s pleadings,” we note that the
rule “addresses and cures a limited formal problem. It is not
designed to allow plaintiffs to recover for claims they never
alleged.” USX Corp. v. Barnhart, 

, 165 (3d Cir.
2004). Thus, we are unable to assist Price and Warren in
salvaging their potentially meritorious, but unpleaded and
untried, claims.

                               38
                               V.

       Price and Warren’s Petition Clause claim does not
withstand scrutiny. Their complaints within the chain of
command were not directed to the DSP as a governmental
agency, but rather were directed to the DSP as their employer.
Such complaints are not petitioning activity entitled to
protection under the First Amendment.

       The holding in Garcetti controls our analysis of the First
Amendment speech claims. Under the rule established in
Garcetti, Price and Warren spoke out about the maintenance of
the bullet trap “pursuant to their official duties.” First
Amendment protection extends to government employees
speaking as citizens, but it does not extend to workers who
speak in the course of fulfilling their employment
responsibilities. Price and Warren were speaking pursuant to
their employment duties when they made their concerns known
through the chain of command and when they spoke with the
State Auditor. Accordingly, their First Amendment claims are
foreclosed.

       The District Court did not abuse its discretion in denying
Price and Warren’s motion under Rule 15(b).

       We will affirm the judgment of the District Court.




                               39
GREENBERG, Circuit Judge, concurring.




        Though I agree with the result the majority reaches on Price’s
and Warren’s petition claim, I write separately to note my hesitation
in finding that their e-mail complaints up the chain of command (as
distinguished from their communications to the State Auditor), did
not constitute petitioning activity. Rather, I would assume, arguendo,
that the e-mails were petitioning activity, but conclude that the
Supreme Court’s opinion in Garcetti v. Ceballos, 

,
1960 (2006), barred their petitioning claim given that they sent their
complaints up the chain of command “pursuant to their official
duties.” See majority opinion at 25.

        The majority finds that because Price’s and Warren’s
“complaints within the chain of command were not directed to the
DSP as a governmental agency, but rather were directed to the DSP
as their employer,” Price and Warren cannot seek solace now in the
Petition Clause. Majority opinion at 39; see also 

(noting
Price and Warren “appealed to their employer, which also happened
to be a state agency, through informal channels”). In San Filippo v.
Bongiovanni, 

, 449 (3d Cir. 1994), we held “that a public
employee is protected under the Petition Clause against retaliation for
having filed a petition . . . addressing a matter of purely private
concern.”11 We explained that the reason for our conclusion was


   11
      We quote this language characterizing the majority opinion in
San Filippo from Judge Becker’s concurring and dissenting opinion
in that case.

                                 40
“[t]he first amendment’s petition clause imposes on the United States
an obligation to have at least some channel open for those who seek
redress for perceived grievances. Through its incorporation of the
first amendment, the fourteenth amendment’s guarantee of ‘liberty’
imposes the same obligation on the states.” 

Thus:

       [W]hen government–federal or state–formally adopts
       a mechanism for redress of those grievances for which
       government is allegedly accountable, it would seem to
       undermine the Constitution’s vital purposes to hold
       that one who in good faith files an arguably
       meritorious ‘petition’ invoking that mechanism may
       be disciplined for such invocation by the very
       government that in compliance with the petition
       clause has given the particular mechanism its
       constitutional imprimatur.

distinguished retaliation claims based on speech,
which are subject to the rule announced by the Supreme Court in
Connick v. Myers, 

, 146, 

, 1690 (1983),12
as follows: “[W]hen one files a ‘petition’ one is not appealing over
government’s head to the general citizenry: when one files a ‘petition’
one is addressing government and asking government to fix what,
allegedly, government has broken or has failed in its duty to repair.”


  12
    In Connick, the Supreme Court held that a government employee
who goes public with an employment dispute that is not a “matter of
public concern” does not have first amendment immunity against
subsequent employer discipline. 

, 103 S. Ct.
at 1690.

                                 41
San 

.

         Notwithstanding the above, both San Filippo and the majority
concede that there also exist “less formal mechanisms by which a
petition may be made,” although they “may occasion a lesser degree
of constitutional protection than their formal counterparts.” Majority
opinion at 14; see also McDonald v. Smith, 

, 480, 

, 2788 (1985) (recognizing letters sent to President of
United States by defendant charged with defaming plaintiff as
petitions). The majority concludes, however, that because Price and
Warren, in their capacity as public employees, “appealed to their
employer, which also happened to be a state agency,” their e-mails
cannot constitute petitioning activity. Majority opinion typescript at
16. I find the result reached somewhat troubling. Specifically, given
our broad characterization of a public employee’s right to petition in
San Filippo, it is unclear to me why Price’s and Warren’s complaints
would constitute petitioning activity if they had contacted “a state
agency qua agency,” 

the same agency as their
employer. Indeed, if in both cases plaintiffs are asking government
to fix what it “has broken or has failed in its duty to repair” through
means the government has deemed acceptable,13 San 

, why should the activity be stripped of its constitutional
protection in one instance but not the other?14


    13
    This discussion assumes that e-mail was the typical means by
which their employer expected Price and Warren – as well as other
DSP employees – to communicate their concerns to it.
   14
    Notably, although we observed in Hill v. Borough of Kutztown,

, 242 n.24 (3d Cir. 2006), that “[w]e have never held .

                                 42
          We can avoid the need to resolve the difficult question of
whether a public employee ever can “petition” the government when
the government is also the public employee’s employer by looking,
instead, to the Supreme Court’s opinion in Garcetti v. Ceballos.15 In
Garcetti, the Supreme Court held that when public employees speak
“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 

. While the Supreme Court did not address the question of
whether the rule it announced in Garcetti applies to First Amendment
retaliation claims based on a public employee’s petitioning activities,
as distinguished from his speech, there is good reason to believe that
it does.

       To be sure, “[t]he petition clause of the first amendment was
not intended to be a dead letter–or a graceful but redundant
appendage of the clauses guaranteeing freedom of speech and press.”
San 

. Rather, the right to petition “is an
assurance of a particular freedom of expression,” 

, 105 S. Ct. at 2789, and “has a pedigree independent
of–and substantially more ancient-than the freedoms of speech and


. . a report of a superior’s misconduct to a legislative body when the
legislative body is also the reporter’s employer constitutes
‘petitioning activity,’” so far as I am aware we similarly never have
held to the contrary.
    15
     Obviously, a public employee can petition his governmental
employer regarding a matter completely unrelated to his employment
and be in the position of any other petitioner for constitutional
purposes. But that situation is not present here.

                                 43
press.” San 

. Nonetheless, “[t]he right to
petition is cut from the same cloth as the other guarantees of that
Amendment.” 

, 105 S. Ct. at 2789. To
this end, the Supreme Court has plainly recognized that:

        The Petition Clause . . . was inspired by the same
        ideals of liberty and democracy that gave us the
        freedoms to speak, publish, and assemble. . . . These
        First Amendment rights are inseparable . . . and there
        is no sound basis for granting greater constitutional
        protection to statements made in a petition . . . than
        other First Amendment expressions.

105 S. Ct. at 2791 (internal citations omitted); see also San

(Becker, J., concurring and dissenting) (noting
“even if all petitions now constitute speech (given the broad
interpretation the Supreme Court has given to speech), I do not see
why it matters that the guarantees overlap”). Given the above, it
certainly would be plausible for us to believe that, if presented with
the question, the Court is likely to find that when public employees
petition the government pursuant to their official duties, the
Constitution does not insulate such petitions from employer
discipline. See 

; see also D’Angelo v.
School Bd. of Polk County, Fla., No. 06-13582, F.3d , 

, at *7 (11th Cir. Aug. 1, 2007) (noting that, after Garcetti,
the court must ask “whether the public employee made his petition
both on a matter of public concern and as a citizen” and “[i]f the
petition fails this threshold question, it is not protected under the First
Amendment”).



                                   44
         Assuming, arguendo, that Price and Warren’s complaints up
the chain of command did constitute petitioning activity, because I
believe that Garcetti applies to their claim, I similarly would uphold
the district court’s order granting judgment against them as a matter
of law for this reason. For the reasons the majority thoughtfully sets
forth, it seems plain that Price and Warren acted “pursuant to their
official duties,” 

, in voicing their
complaints up the chain of command. Accordingly, their complaints
cannot be the basis underlying a First Amendment claim against
defendants.




                                 45
POLLAK, District Judge, concurring:

       I join the opinion and judgment of the court.

        The opinion explains with precision that the free speech
aspect (as distinct from the Petition Clause aspect) of this case
dealing with the rights of public employees is squarely governed
by the Supreme Court’s recent decision in Garcetti v. Ceballos,
--- U.S. ---- , 

(2006): “The result required by
Garcetti illustrates how that opinion narrowed the Court’s
jurisprudence in the area of employee speech. Although under
Garcetti an employee’s right to protest matters of public concern
is not automatically forfeited by his choice of a workplace
forum, that right is limited.” As the court further observes,
under Garcetti, “the ‘controlling factor’ in removing speech
from the First Amendment [is] that the expressions were made
pursuant to employment duties.” In the case at bar, it is not
surprising that reports made by Corporal B. Kurt Price and
Corporal Wayne Warren within the chain of command of the
Delaware State Police were regarded as “made pursuant to
employment duties.” Less clear is that the statements Price and
Warren made to the State Auditor—statements ordered to be
made to a high state official beyond the chain of state police
command—were part of their employment duties. As the court
notes, “giving statements to the State Auditor was not part of
[appellants’] everyday duties.” But, given the statements Price
and Warren had made to their senior officers, it was not clear
error for the District Court to find that the directive to Price and

                                46
Warren to aid the State Auditor’s inquiry broadened the scope
of their employment duties. See Gustafson v. Jones, 

, 906 (7th Cir. 2002).

        It may be expected that Garcetti will, to some extent,
inhibit federal judicial micromanaging of public employment
practices. It also may be expected that Garcetti will, to some
extent, inhibit dissemination of information of arguable public
interest about the operations of government agencies. How the
balance will be struck may be expected to depend, to some
extent, on the nuanced judgments of public employees and their
superiors, and also of courts, on the scope of a public
employee’s employment duties. Compare 

–62, with 

(Stevens, J., dissenting), and 

1968 (Souter, J., dissenting).




                               47