Supreme Court hears arguments on retaliation protection, attorney’s fees

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in Borough of Duryea v. Guarnieri [oral argument transcript; JURIST report] on whether state and local government employees may sue their employers for retaliation under the Petition Clause [FAC backgrounder] of the First Amendment when they petition the government on matters of private concern. The US Court of Appeals for the Third Circuit ruled [opinion, PDF] that government employees can sue their employers for retaliation under the First Amendment. The ruling contradicted decisions by all 10 other federal circuits and four state supreme courts. Counsel for the respondent Guarnieri said that the Petition Clause does not distinguish between a petition based on public concern and a personal “grievance.” Counsel for the petitioner Borough of Duryea argued that disregarding the First Amendment’s public concern requirement [FAC backgrounder] “would constitutionalize, under the Petition Clause, large parts of the law of public employee discipline, and thereby grant to public employees a broad constitutional employment right that private employees do not enjoy.”

In Fox v. Vice [oral arguments transcript, PDF; JURIST report], the court heard arguments [day call, PDF; merit briefs] on whether federal statute 42 USC § 1988 [text] permits the court to award defendants attorney’s fees based on an action dismissing a claim when the plaintiff also asserts non-frivolous claims. The court will also consider if it is improper to award defendants the full amount of attorney’s fees incurred while defending non-frivolous claims along with a frivolous claim. The US Court of Appeals for the Fifth Circuit affirmed [opinion, PDF] the granting of attorney’s fees. Counsel for the petitioner Fox argued that the lower court decision violates Congress’ intention “to protect defendants from the lying or the vexatious plaintiff who shouldn’t be in court at all.” Counsel for the respondent Vice argued that the federal statute rightly allows for defendants to receive attorney’s fees from plaintiffs, even if the plaintiff wins the case, if the plaintiff filed any frivolous claims.

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