African Trade & Information Center, Inc., Mohamoud D. Ahmed, and Alan W. Gates, Plaintiffs-appellees, v. James F. Abromaitis, Defendant-appellant, 294 F.3d 355 (2d Cir. 2002)

The Honorable John Gleeson of the United States District Court for the Eastern District of New York, sitting by designation

Public Act 97-135 added the following provision to Conn. Gen.Stat. § 32-501:

(b) The commissioner [of the DECD] may give priority in [international trade] programs to promoting and assisting Connecticut businesses with regard to trade with African countries with whom the United States has diplomatic relations....

The record reveals two related but nevertheless different versions of why Abromaitis retaliated against plaintiffs. The complaint alleges retaliation for the criticism of Abromaitis and his staff after he took office See Compl., ¶ 13-14. Plaintiffs' Local Rule 9(C) (2) statement contends that Abromaitis "retaliate [d] against them for their role in persuading the Connecticut General Assembly to adopt the legislation." On appeal, plaintiffs' contention is consistent with the complaint. See Brief for Appellees at 19 (retaliation triggered by plaintiffs' "protected criticism of [Abromaitis's] allegedly half-hearted implementation of the state legislatures African Trade Initiative"). Since both versions allege retaliation against plaintiffs for engaging in speech on matters of public concern, the difference between them is not relevant to our decision.

The extent of the employees' protection is determined by balancing their free speech interests against the government's interests as employer See Pickering v. Board of Ed., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).

We are aware of Justice Scalia's assertion that Umbehr's suggestion that a First Amendment line might be drawn between contractors with ongoing government relationships and contractors without them is " [n]ot likely; in fact, not even believable." Board of County Com'rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 116 S. Ct. 2361, 2373, 135 L. Ed. 2d 843 (1996) (Scalia, J. dissenting). However, "Cassandra-like predictions in dissent are not a sure guide to the breadth of the majority's ruling," United States v. Travers, 514 F.2d 1171, 1174 (2d Cir. 1974) (Friendly, J.).

In Umbehr, the Supreme Court noted that it generally looks to its First Amendment cases involving government employees for guidance in First Amendment cases involving independent contractors. Id. at 674, 116 S. Ct. 2342.