Marianne Sawicki v. Richard A. Wilson, et al.

The Civil Rights Act provides a cause of action for violations of Constitutional rights. Courts have devised rules to weigh a plaintiff’s rights against those of defendants in cases where retaliation for protected speech takes the form of speech itself, also protected. The Fourth Circuit’s rule is widely adopted: [W]here a public official’s alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow, such speech does not adversely affect a citizen’s First Amendment rights, even if defamatory. Suarez Corp. Indus. v. McGraw, 202 F.3d 676 (4th Cir. 2000) (emphasis added). That formulation has led to divergent applications among the Circuits. There is a need to correct the balance by resolving the first of the three questions presented here:

1. Does the First Amendment shield a government official who knowingly makes false statements to initiate and then take part in adverse administrative action against a citizen in retaliation for protected petitioning activity?

2. May an appellate court summarily affirm the dismissal of all counts brought under Section 1983, where substantial issues remain unresolved as to counts that the decision below did not address?

3. May an appellate court award fees and costs under Rule 38 without a finding that the appeal was frivolous?