                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 08-1344
                                     ___________

Heritage Constructors, Inc.,         *
                                     *
             Appellant,              *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Western District of Arkansas.
City of Greenwood, Arkansas; Garry   *
Campbell; Rod Powell; David Purifoy; *
Wayne Lowe; Daniel McDaniel;         *
Jerry Carter; Paul Rush,             *
                                     *
             Appellees.              *
                                ___________

                               Submitted: September 26, 2008
                                  Filed: November 3, 2008
                                   ___________

Before MURPHY, BOWMAN and BENTON, Circuit Judges.
                         ___________


BENTON, Circuit Judge.

      Heritage Constructors, Inc., sued the city (and officials) of Greenwood,
Arkansas, for retaliation under the First and Fourteenth Amendments pursuant to 42
U.S.C. § 1983. Heritage alleged the city denied it a contract in 2005, because it
exercised the right to petition by initiating arbitration on an earlier contract with the
city. The district court1 granted summary judgment to the city. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.

                                           I.

      In 1999 and 2000, Heritage built a wastewater treatment plant for the city. In
2001, Heritage invoked arbitration (the alleged First Amendment petitioning activity),
seeking over $33,000 for a change in specifications. The city responded that Heritage
did not follow the contractual provisions for the change. Heritage lost the arbitration
proceeding.

       In 2005, the city solicited bids to expand a water plant. Heritage was the lowest
bidder. Based on the recommendation of an engineering firm, the city awarded the
contract to the second lowest bidder. See Ark. Code Ann. § 22-9-203(j) (cities shall
hire an independent professional to review contracts for water treatment systems). At
the request of Heritage, the city attorney explained that it was not the lowest
“responsible” bidder due to past adverse experience involving defective performance
and extended litigation. See Ark. Code Ann. § 22-9-203(j)(6) (contract shall be
awarded to the responsible bidder whose proposal is “most advantageous” to the city);
§ 22-9-203(d) (contract shall be awarded to the “lowest responsible bidder” if city’s
best interests are served thereby).

       Heritage alleges it was not awarded the contract in retaliation for the earlier
arbitration, in violation of the First and Fourteenth Amendments. Heritage repeatedly
states that the arbitration was not a matter of public concern.




      1
        The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.


                                          -2-
      The district court analyzed

      •      the “public concern” test of Connick v. Meyers, 461 U.S. 138, 147
             (1983) (“when a public employee speaks not as a citizen upon
             matters of public concern, but instead as an employee upon
             matters only of personal interest, absent the most unusual
             circumstances, a federal court is not the appropriate forum in
             which to review the wisdom of a personnel decision taken by a
             public agency allegedly in reaction to the employee's behavior”).
      •      the “balancing” inquiry of Pickering v. Board of Education of
             Township High School 205, 391 U.S. 563, 568, 573 (1968) (the
             governmental entity can demonstrate that its legitimate interests
             as an employer outweigh the employee’s free speech interests);
             and,
      •      the “same decision” defense of Mt. Healthy City School District
             Board of Education v. Doyle, 429 U.S. 274, 287 (1977) (the
             governmental entity has a defense if it would have made the same
             decision regardless of the protected conduct).


The district court found that the arbitration was a private financial interest of Heritage
and not a matter of public concern. Reasoning that a matter of public concern is
required to establish a petitioning claim for First Amendment retaliation, the court
granted the city summary judgment without applying the other doctrines.


       The grant of summary judgment is reviewed de novo. Johnson v. Ready Mixed
Concrete Co., 424 F.3d 806, 810 (8th Cir. 2005). Summary judgment is appropriate
if there is no genuine issue of material fact, and the movant is entitled to judgment as
a matter of law. Id.


                                           -3-
                                          II.


      The Supreme Court has extended to government contractors the retaliation
cause of action it had previously recognized for government employees. See Bd. of
County Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996). The Umbehr opinion
discusses only independent contractors whose contracts have been terminated. Id. at
671, 685. It specifically does not address “bidders or applicants for new government
contracts who cannot rely on such a [pre-existing commercial] relationship [with the
government].” Id. at 685. The companion opinion applies the Umbehr rule to “a
regular provider of services.” O’Hare Truck Serv. Inc., v. City of Northlake, 518
U.S. 712, 715 (1996).


       The threshold issue is whether Heritage had either a pre-existing commercial
relationship with the city, or was a regular provider of services to it. Heritage had a
previous commercial relationship with the city, and was a provider of services to it in
the earlier contract – unlike the bidder in Oscar Renda Contracting, Inc. v. City of
Lubbock, 463 F.3d 378, 385-86 (5th Cir. 2006). Heritage’s previous relationship
with the city ended four years before the rejected bid – like the bidder in McClintock
v. Eichelberger, 169 F.3d 812, 816-17 (3d Cir. 1999), but unlike the bidder in
Mangieri v. DCH Healthcare Auth., 304 F.3d 1072, 1076 (11th Cir. 2002). Most
importantly, the city allegedly retaliated because of Heritage’s petitioning about the
previous contract – a distinction from Oscar Renda, McClintock, and Mangieri. Thus,
the other circuit precedent is unhelpful.


      The O’Hare case itself is instructive. The Supreme Court characterized the
action against the contractor as being “removed from an official list of contractors
authorized to perform public services.” See O’Hare, 518 U.S. at 714. Here, in view
of Arkansas law favoring the lowest responsible bidder, the city’s rejection of



                                         -4-
Heritage’s lowest bid based on a prior relationship had the same effect: removing
Heritage from the official list of contractors authorized to provide construction
services. On these facts, Heritage cannot be distinguished from the service provider
in O’Hare.


       To demonstrate a First Amendment violation, Heritage must show that it was
not awarded the 2005 contract in retaliation for petitioning on a matter of public
concern. See Umbehr, 518 U. S. at 675, citing Connick, 461 U.S. at 146. Heritage
objects that because it invokes the right to petition, not free speech, it does not have
to show that its arbitration was a matter of public concern. Heritage relies on Gable
v. Lewis, 201 F.3d 769, 771-72 (6th Cir. 2000), where the operator of a towing
company filed a complaint with a state agency alleging sexual discrimination in
allocating tows. Her name was then removed from the towing list. The Sixth Circuit
did not require her to meet the “public concern” test because her case was based on
the right to petition, not free speech. The Sixth Circuit emphasized the Supreme
Court’s holding that business and economic interests are protected by the petition
clause. See Gable, 201 F.3d at 771-72, discussing California Motor Transp. Co. v.
Trucking Unlimited, 404 U.S. 508, 510-11 (1972).


         In this circuit, a public employee’s right-to-petition claim must involve a
matter of public concern, just as a freedom-of-speech claim must. See Hoffman v.
Mayor, Councilmen & Citizens of Liberty, 905 F.2d 229, 233-34 (8th Cir. 1990);
Gunter v. Morrison, 497 F.3d 868, 872 (8th Cir. 2007). Most of the other circuits
also disagree with the Sixth Circuit. See Cobb v. Pozzi, 363 F.3d 89, 105-06 (2d Cir.
2003) (citing seven circuits). But see San Filippo v. Bongiovanni, 30 F.3d 424, 440-
43 (3d Cir. 1994). The California Motor Transport case does not address government
retaliation, and moreover, holds that the right to petition does not give petitioners
immunity for all types of petitioning. California Motor Transp. Co., 404 U.S. at 513-
14.



                                          -5-
      Because almost all the cases applying the “public concern” test are free speech
claims of public employees, Heritage asserts that the test does not apply to petitioning
claims by public contractors. The Umbehr and O’Hare cases hold to the contrary, that
the same framework and analysis apply to government contractors as to government
employees. Umbehr, 518 U.S. at 677, 684-85; O’Hare, 518 U.S. at 714-15, 722-23,
726.


       Heritage insists that this circuit did not require the public concern test in several
prisoner petition cases,2 or in Harrison v. Springdale Water & Sewer Comm’n, 780
F.2d 1422 (8th Cir. 1986), which involved government retaliation for petitioning (a
state court suit) about private business interests that were not indicated to be a matter
of public concern. The prisoner cases and Harrison are inapposite, as the
governments were not acting in those cases as employers or contractors. See Int’l
Ass’n of Firefighters, Local No. 3808 v. Kansas City, 220 F.3d 969, 973 (8th Cir.
2000) (distinguishing, in First Amendment matters, government’s role as
employer/contractor from government’s role as a sovereign).


                                            III.


      Because Heritage does not allege that its arbitration was a matter of public
concern, the district court properly granted summary judgment to the city. The
judgment is affirmed.
                         ______________________________




       2
       Heritage cites Madewell v. Roberts, 909 F.2d 1203 (8th Cir. 1990); Sprouse
v. Babcock, 870 F.2d 450 (8th Cir. 1989); Flittie v. Solem, 827 F.2d 276 (8th Cir.
1987); Sanders v. St. Louis County, 724 F.2d 665 (8th Cir. 1983).


                                            -6-
