Anne Galli v. New Jersey Meadowlands Commission Susan Bass Levin, in Her Official and Individual Capacities

and dismissed part, granted Petition

n part. Appellant GALLI,

Anne COM MEADOWLANDS JERSEY

NEW Levin,

MISSION; Bass Susan capacities. and individual

official 05-4114.

No. Appeals, States

United Circuit.

Third 4, 2006. Dec.

Argued 20, 2007. June Filed:

Opinion Kier- Kiernan, (Argued), Esquire,

Kevin NJ, Montclair, Appel- for Campbell, nan & lant. R. Maderer, Esquire, Sean F.

William Bryan P. Schroe- (Argued), Esquire, Kelly, Saiber, Schlesinger, Satz & der, Esquire, Goldstein, Newark, NJ, Appellee, New elected Democratic Governor James Jersey McGreevey. Meadowlands Commission. Galli degrees holds in biology, environ- Farber, Zulima Attorney V. General of science, mental and ecology, and has Jersey, Daitz, New A. Deputy Michele At- worked as a professor naturalist and General, torney Jane A. Greenfogel, Es- ornithology. She was hired to serve on the quire, (Argued), Office of Attorney General Commission during in 1984 Republican Jersey, Hughes, New Richard J. Justice administration of Governor Thomas Kean. Trenton, Complex, NJ, Appellee, Susan At the time of termination she

Bass Levin. was the Commission’s Director of Environ- Education, mental earning more than AMBRO, Before: RENDELL and $100,000 annually. tenure, her During BAYLSON,* Judges Circuit District Galli claims that she was not registered Judge. with a political party and kept her lack of private. affiliation Galli never THE OPINION OF COURT shared her political views her supervi- with sor and was not asked to participate in any AMBRO, Judge. Circuit partisan political activity. An apolitical government employee charge Commission—-whose in- appeals grant a judgment of summary re cludes protection, environmental economic jecting her claim that was in she fired development, and solid waste manage- violation of her First Amendment ment —is an affiliate of New Jersey because she failed to the adminis Department of Community Affairs and is tration or power. We governed by a seven-member Board. The hold that First Amendment rights to free appoints Board Director, Executive speech dom of protect association gov runs the Commission day-to-day. Follow- ernment employees who lack a ing Governor McGreevey’s election in No- affiliation political patronage discrim vember Levin was appointed as the ination. We therefore vacate District Director of the Department of Community grant Court’s summary judgment and Affairs, and she installed herself as head of application remand for legal stan the Commission soon July thereafter. In dard. 2002, Robert Ceberio was appointed Exec- utive Director of the Commission. Background I. Factual and Procedural The Commission has a detailed manual History outlining its personnel policies. Anne Galli filed a patronage It specifies that three Commission Board claim against discrimination the New Jer- members, who comprise the “Personnel sey (“Commis- Meadowlands Commission Committee,” are charged supervision with sion”) Chair, and its Susan Bass Levin. of personnel respect matters. With to ter- Galli alleges that she was unlawfully termi- minations due “problematic” perform- nated from position her with the ance, Commis- performance written improvement sion she was neither an active plan must conducted, be the termination Democrat a supporter nor of then newly must be in writing, and the terminated * Baylson, Honorable Michael M. United Pennsylvania, States sitting by designation. Judge District for the Eastern District of In Party. or the Democratic ministration opportunity granted employee must replacement, new notes that she Finally, particular, creation hearing. Mercurio, a tax attor- formerly the Board. was reviewed Linda jobs must be background no environmental ney with Director Ce- 2002, Executive In March Galli asserts or education. science Commis- newly appointed met berio strong ties to the Democrat- had Mercurio operations to discuss sioner Levin establishment, having previously Party ic of that a result As changes. personnel the Democratic twice on and ten other run for office 2002 Galli meeting, April Mereu- ticket, explains the Commission—all which Galli believes during Republican hand, hired Galli, been had had on the other hiring. whom rio’s days A few fired. administrations —were feedback negative received never before inform her met with Galli prior, Ceberio and, fact, helped superiors, from her According terminated. would be that she earn Division Education Environmental being was she Galli, stated that Ceberio that was bestowed award of excellence going was the Commission fired because fired. after she shortly however, direction”; he in a “different complaint February Galli filed job per- poor either to no reference made against § both 42 1983 U.S.C. reorgani- a Commission-wide formance or in the United and Levin by the Commission given later zation, reasons the two of Im- the District Court for termination. District Galli’s States for Commission meeting, Galli that her termination following Jersey, alleging mediately New Eleanore Niss- discrimi- patronage telephoned political Commissioner amounted serving as Vice was ley, Republican First Amendment in violation of her nation Ac- the time. Commission of the Chair re- and Levin rights. The Commission acknowledged Galli, Nissley cording to summary filing motions sponded “letting Republi- that the Commission 2005, the District August In judgment. way explanation of stated go,” cans and and dis- motions these granted [obviously] wants Democrat “some that Galli holding that complaint, Galli’s missed play “pay that one has spot” engaged had that she establish could not Galli claims this administration.”1 with activity because constitutionally protected policies personnel that the Commission’s par- any political with unaffiliated she was fol- were not to termination respect politically. active disinclined to ty case. lowed her that Com- addition, held the Court (includ- employees the eleven Although politi- of Galli’s knowledge had no mission Galli) part fired were ing purportedly thereof; thus or lack cal affiliation the Commis- to make “reorganization” not have motivated could considerations cost-effective, it efficient and sion more termination. her year in the employees new eighteen hired us, arguing that appeals Galli con- Galli following these terminations. speech association to freedom of hires were new eighteen tends that pro- Amendment by the First guaranteed Demo- patrons all almost (who lack like tect alleges also administration. She cratic affiliation) dis- patronage unqual- new hires many of these crimination. ad- extensively connected ified and light favor- in the most the evidence we view making this state- Nissley Although denies to Galli. able ment, summary judgment, purpose 270

II. Jurisdiction and Standard of Re- III. Discussion

view A. Political Patronage Discrimination The District jurisdiction Court had 1331, § this case under 28 U.S.C. and we Political patronage a practice is “as old appellate jurisdiction have pursuant to 28 as the Republic.” American Boyle v. § U.S.C. 1291. Pa., County Allegheny 386, 139 F.3d (3d Cir.1998). Our However, review of District grant Court’s the Supreme summary judgment See, plenary. is e.g., use, Court has set limits to its emphasizing Clarion, Slagle County v. 262, that “[t]o the victor belong only those (3d Cir.2006). grant A summary spoils may be constitutionally ob judgment proper when the moving party tained.” v. Republican Rutan Party of has established there is genuine no Ill., 62, 64, U.S. 110 S.Ct. dispute of fact material and that “the mov- (1990). L.Ed.2d 52 ing party is judgment entitled to as a 56(c). matter of law.” Fed.R.Civ.P. A The Court first clarified these con fact is if might material affect the out- stitutional Burns, constraints in Elrod v. come of the suit under governing sub- 427 U.S. 96 S.Ct. 49 L.Ed.2d 547 stantive law. Anderson v. Liberty Lobby, (1976), Finkel, Branti 445 U.S. Inc., 242, 255, 106 S.Ct. (1980), 63 L.Ed.2d 574 (1986). L.Ed.2d 202 A court should view holding that termination employ the facts in light most favorable to the ees because of their political affiliation vio non-moving party and all make reasonable lates the First Amendment unless po party’s inferences favor. Hugh v. at sition issue involves policymaking. See County YMCA, Butler Family 418 F.3d Elrod, 359, 427 373, U.S. at 96 S.Ct. 2673 (3d 265, Cir.2005). 267 (concluding that conditioning public em prevail To aon motion for summary ployment on support for the party judgment, the non-moving party must in power “unquestionably protect inhibits specific show facts such that a reasonable ed association”); belief and Branti, 445 jury could find party’s favor, in that there- 513-17, 100 at U.S. S.Ct. 1287. In general, by establishing a genuine issue of fact for “an employee’s exercise of First Amend 56(e). trial. See Fed.R.Civ.P. “While ment outweighs government’s evidence that the non-moving party pres- interest in maintaining a system of political may ents be either direct or circumstan- patronage.” Stephens v. Kerrigan, 122 tial, and need not be great prepon- as a (3d 171, Cir.1997) F.3d 176 Elrod, (citing derance, the evidence be must more than a 427 372-73, at U.S. 2673, 96 S.Ct. scintilla.” Hugh, 418 at F.3d 267 (citing 445 514-15, 100 1287). atU.S. S.Ct. Branti

Anderson, 251, 2505). 477 U.S. at 106 S.Ct. The exception for jobs “policymaking” ex ists Finally, where the loyalty First is Amend essential to involved, ment is the position we Boyle, “undertake itself. exacting 139 F.3d at 394. Rutan, of review the whole with particu record a Court extended the Elrod- larly close on doctrine, focus facts that are Branti holding determi the First native of a right.” constitutional protects Armour Amendment public employees not v. County Beaver, Pa., 271 F.3d 420 only politically motivated discharge, of (3d Cir.2001) (citing New York but Times Co. also from promotion, transfer, recalls, Sullivan, v. 254, 285, 376 U.S. 84 S.Ct. and other hiring decisions on conditioned (1964)). 11 L.Ed.2d 686 political affiliation, unless government

271 however, issue; clear “[n]o are a positions affiliation demonstrate can policymaking between drawn can 497 line be position. for the requirement proper positions.” nonpolicymaking 2729. 75, 110 S.Ct. U.S. In Brown S.Ct. U.S. at 96 427 principles, general From these this line Trench, clarified our Court v. to estab three-part test a have derived we should factors that several setting out based discrimination a lish claim po- determining whether when considered First of the in violation patronage precondi- appropriate is an affiliation litical prima a out To make Amendment. facie F.2d position. government tion for a (1) was she show case, must Galli Cir.1986). in- (3d factors These position in a agency aat employed has duties employee clude whether affiliation, require does or non-techni- non-discretionary that are constitutionally (2) engaged was she or other cal, in discussions participates (3) was conduct conduct, and this protected budgets, possesses meetings, prepares motivating factor a substantial employees, fire other hire and authority to See, decision. employment government’s over oth- power salary, retains high a has she 176. Once F.3d at Stephens, e.g., policy- in the name ers, speak and can demonstration, the Commis makes seems to be “key The factor makers. Id. liability by finding of may “avoid sion a supervi- was not whether evi preponderance proving responsibility^] great deal sor or had action the same dence that input meaningful has [she] but whether in the absence even taken been would have concerning nature decisionmaking into Id.; also activity.” see Arm- program.” major [ ] of a scope Edue. Bd. Dist. Healthy City Sch. Mt. (citations and quota- our, at 429 568, 50 U.S. Doyle, 429 omitted). tions (1977). discuss each We L.Ed.2d course, disagree as parties, separately. matters these the Commis- position Galli’s whether alleges She policymaking. sion Analysis B. factors be- Brown job was not Re- as a Job 1. Political Affiliation (1) enjoy decisionmak- not did cause: she quirement personnel respect authority with ing show noted, must Galli first just As (for responsible though she was decisions not a does position works that she for performance evaluations issuing for This burden political affiliation. require supervi- her direct three claims if it government to the proof shifts fire, hire, or power sion, no retained she employee discharged properly to have was (2) staff); budget her role discipline is central affiliation political because no drone, preparing a low-level Armour, See, 271 F.3d e.g., job itself. that were forms informational more than by the Commission’s subject to review ap- ultimate and to Officer Financial Chief patronage political permitted While (3) Board; could she by its proval area, are allowed employers gray lies a or services goods into contracts on enter based decisions to make prior approval to obtain required and was “policymaking” affiliation when Commission, de- as both against the claim analysis, we consid- purposes of our 2. For dis- that was case prima Levin, pend official in both her against facie the claim er Court. by the District missed together with capacities, personal and from the Executive and Director 2. Constitutionally Protected Conduct implementing any policies Board before The second hurdle for a prima (4) plans; implementa- execution and political patronage discrimination facie tion policy decisions rested with the claim is for Galli to show that she “en Board, allowing only with her role gaged in constitutionally protected con offer of superiors. information to her See, duct.” e.g., Stephens, 122 F.3d at 176. The Commission maintains that Galli’s Our Court sometimes has described this as responsibilities included: supervising and requirement “the maintain staff; managing thirteen-person develop- [] affiliation with a party.” ing, sponsoring, presenting resolutions See, e.g., Goodman v. Pa. Turnpike to the adopted Commission to be policy; Comm’n, (3d 663-64 Cir. developing implementing environmen- 2002). However, the constitutionally pro tal programs education for school groups tected activity here is broader than the act and the general public; preparing a bud- joining party. Indeed, “[t]he get; recommending hiring, promoting, threat of dismissal for failure to provide [ ] and terminating of employees (along with support party [to the in power] unques preparing the evaluations accompany tionably inhibits belief and asso tasks); these managing the construction of ciation, and dismissal for provide failure to museum; an environmental and communi- support only penalizes its exercise.” El cating officials, with government as well as rod, 427 U.S. at 96 S.Ct. 2673. private organizations, regarding words, other right not to have alle programs. Commission and its Given giance to the official in power responsibilities, these al- Commission itself is protected under the First Amend leges that significant Galli had authority in ment, irrespective of whether an employee managing the Environmental Education actively affiliated with an opposing can Division and contributed to policy develop- party. Branti, didate or See 445 U.S. at ment; therefore, job a policymak- 519, 100 S.Ct. (holding that continued ing position for which a affiliation public employment “cannot properly be requirement was appropriate. conditioned upon ... allegiance to po

In deciding whether Galli established a control”). litical party in prima case at the summary judg- facie stage,

ment the District Court must draw Accordingly, we have held that a all factual See, inferences in favor of her. plaintiff can meet the prong second of a e.g., Hugh, 418 F.3d at 267. With respect prim a political discrimination claim facie to the central issue under namely, if she suffers active Brown— whether Galli had input meaningful into a losing candidate within the politi same decisionmaking-the scope her See, actual in- party. cal e.g., Fiore, Robertson v. fluence authority in this 596, (3d Cir.1995). area is in 62 F.3d 600-01 In ad such, dispute. As dition, District Court was we have ruled that the First correct in that, concluding regard with to Amendment protects also prong first political her discrimina- from discrimination for failure support to claim, tion Galli sustained her burden of the winning candidate. See Bennis v. Ga putting ble, forward political evidence that 723, (3d Cir.1987) af- (stat 731 filiation was not a requirement for ing her that “a right citizen’s not to support a position sufficient to defeat summary judg- every candidate is bit as as his ment on this element. right one,” support to and quoting Roberts

273 discrimi- political to 609, could amount porters” 468 U.S. Jaycees, States v. United (1984), F.Supp. Id.; 850 Conjour, see also 462 nation. L.Ed.2d 82 104 S.Ct. Therefore, contrary of as- to the conclu- “[flreedom that at 317. proposition for Court, a free- failure to presupposes Galli’s plainly ... District sion sociation associate”). most Finally, and McGreevey campaign or the not to support dom that here, suggested we have if because of Party relevant Democratic —even employee’s protects Amendment for, First toward, poli- or disdain apathy general activity any political engage to in failure constitutionally protected tics—is n. 4 Bennis, at 727 F.2d 823 whatsoever. Amendment. the First that (“[W]e suggestion [ reject ] [the] [ ] ... neces- alleged associations plaintiffs’ pressured or was not That Galli to be in order had to be sarily McGreevey adminis support forced to [Ajmendment protec- to [F]irst entitled Party, or even Democratic to tration or the original)).3 (emphasis tion.” beliefs, strip her not true does silence her interest vested constitutionally protected for constitution- protection Despite that dis requirement is no activity, here. “[T]here Amendment First ally protected they, or oth prove that employees missed concluded nonetheless District Court at coerced into interest have been employees, constitutional er had no Galli that ostensibly, actually not affiliate with either changing, because she did stake held apolitical. allegiance.” It and was their Branti a form of ex- not In this con silence was 1287. Galli’s U.S. of inter- a lack im “simply improperly it was text, as pression, the District Court by the unprotected is politics, requirement which est” a coercion Galli posed on also found The Court Amendment. First a consti she to find that established order neither com- was that Galli it persuasive tutionally protected interest. in the Democratic participate

pelled to colleague true keep dissenting her beliefs faults nor forced Party Our rely prong analysis to herself. on the second our ” Supreme of the in decisions ing on “dicta interpretation our misreads This regard With our Court. Court and right A citizen’s doctrine. Elrod-Branti however, colleague our Elrod and Branti just rele- as a candidate support the breadth with quarrel appears purposes as Amendment for First vant its own stated Supreme Court which the Bennis, F.2d at right one. holdings. See public employees applies to This pre question (stating that S.Ct. Indeed, employment actions adverse well. employees “whether public sented merely “to public against taken discharged or they allege sup- who available positions make Bennis, propo for the (citing 823 F.2d at similarly have Circuit courts our 3. District politically associ right “the not to protects sition that Amendment that the concluded First Conjour v. Whitehall protected”); ate is [] discriminatory employment action against (E.D.Pa. F.Supp. Township, 850 politically are targeting public employees Antun, 1994) [a (stating "the fact apolitical. See Raniero neutral ... is not politically active employee] was not 413, (D.N.J.1996) (holding F.Supp. 422 943 claim” First Amendment dispositive [his] with involved to become “disinclination interpreted the Elrod-Branti Bennis by because First activity] protected [protected or against “demotions ter Rutan, protect to Amendment,” doctrine citing 497 at U.S. and politi room out to make 2729); carried 67, Turnpike minations Christy Pa. v. S.Ct. 110 427, (E.D.Pa.1995) supporters”). cal Comm’n, F.Supp. 430 discharge solely with Supreme threatened Court is to place rulings, our partisan of their political affiliation or no- analysis and the underlays them, state a for deprivation claim of peril. naffiliation rights,” constitutional and holding that the Likewise, while we are not bound plaintiff public employees could not be dis- by, dicta, our prior Court’s give we such charged “solely they for the reason that respect statements consistent with their were not sponsored by with or affiliated value, persuasive see McLeod v. Hartford Party”) (emphasis added); the Democratic Co., and Accident 618, Ins. 372 F.3d Life Branti, 519, 445 U.S. at 100 S.Ct. 1287 (3d Cir.2004), “can, course, ac (reaffirming plurality Elrod’s holding and cord dicta as weight much as we deem holding that “the continued appropriate,” New Castle County v. Na public assistant prop- defender cannot tional Union Fire Ins. Co. Pittsburgh, erly be upon allegiance conditioned his to 338, (3d Cir.1999). 174 F.3d 345 n. 7 We county in control of the acknowledge that our Court in Bennis added).4 government”) (emphasis Even if issues, reached including the nonaffiliation what we read holdings as the of Elrod and issue, that unnecessary to its conclu

Branti could be characterized as dicta and sion in provide order to guidance to the us, therefore not binding on such dicta are District Court on remand. 823 F.2d at highly Indeed, persuasive. regard to Nonetheless, 730. we deem its analysis by statements made Supreme persuasive adopt path it suggests. dicta, “we do not view lightly.” [them] Comm, Unsecured Creditors aside, Elrod, Dicta holding versus Official Cybergenics Corp. v. Chinery, 330 F.3d Branti and Bennis all stand propo for the 548, (3d Cir.2003). Because the “Su- sition that a employee, not in a preme Court uses dicta to help control and policymaking position, may not be fired for many influence the issues cannot failing decide support political party docket,” because of its limited failing to power. candidate in presented Galli has follow those statements could “frustrate some evidence that she did politically the evenhanded justice administration of support the Party Democratic or Governor by giving litigants outcome other than McGreevey. Whether her failure to sup the one Supreme Court would be likely port is evidenced by a decision to to reach were the case heard there.” Id. a competing party, candidate or by McDonald, (quoting In re decision apolitical to be and support no (3d Cir.2000)). 612-613 To ignore what party, candidate or it is constitutionally perceive we persuasive statements protected.5 Interestingly, colleague our Wooley turns to state- Maynard, ments in Justice (1977): Stewart's dissent in Branti 51 L.Ed.2d 752 (rather majority’s opinion) than the in an at- right thought [T]he freedom of tempt to scope define the of the Court's hold- by the First against Amendment state action ing. Op. Dis. at 282. right speak includes both the freely right speaking to refrain from at all.... colleague's 5. Our suggestions that a “failure system A which right prosely- secures the support” must be “close to a refusal” to religious, political, tize ideological support, Op. Dis. deciding and that guarantee causes must also the concomitant apolitical to be really Galli was not "exercis- right to decline concepts. such foster ing” rights, Op. Dis. are inconsis- added). Id. at (emphasis S.Ct. 1428 tent with well-settled First Amendment under- To read the First Amendment in the current standings. Supreme As the Court stated in only context as protecting party affiliation or testimony deposition example, Galli’s unaffiliation, “failure For or Because termination, that, following her power, in indicates party or official support” the to Nissley allegedly stated inter- Commissioner constitutionally protected creates “letting Republi- Amendment, was the Dis- the Commission that First est [obviously] Democrat go,” cans that “some Galli did finding that Court erred trict “pay one has to and that spot,” prima wants of her prong this not establish facie App. at administration.” play with to this case. permit These statements Pa-431-33. Motivating Factor or 3. Substantial per- did not that the Commission inference of McGree- supporter to ceive Galli that must establish Finally, Galli with the or affiliated vey’s administration was conduct constitutionally protected her Party. Democratic in the motivating factor” or a “substantial action. adverse Commission’s her support for provided also has Galli 176. See, “[im 122 F.3d at Stephens, e.g., ter- politically motivated claim that other that requirement is a prong plicit th[is] her own. alongside occurred minations to evidence sufficient produce plaintiff ac- Indeed, Director Ceberio Executive of [the] defendant knew [that] the show Galli, as knew he that knowledged that re which persuasion,” plaintiffs political discharged other ten members as the well and causa knowledge both proof of quires Commission, appointed all were from the Thus, Goodman, F.3d tion. Republican administra- during hired or tending to evidence produce must Galli that tions, allegation her supports which was knew she that Commission show unconnect- politically who were employees of the admin supporter a Democrat not were McGreevey administration to the ed Ste a result. fired her as istration addition, that Galli submits forced out. at 177. phens, F.3d Republi- unaffiliated or the other she and dis- who were can-appointed Knowledge a. eighteen em- replaced charged Court concluded The District affiliated who were ployees enough of Galli’s know not did Commission Party Democratic campaign or McGreevey liability incur political affiliation the conten- supports way. This in some proclivities her did not make she failure of Galli’s knowledge tion that colleagues supervisors known her a substan- the administration support polit- her inquiries about any make did not (and the in her motivating factor tial or not de- does inquiry But ical views. termination. employees’) other her made Galli on whether pend fa- light most in the Commission; rather, Viewing facts views known Galli, the sum- must at as we vorable was aware the Commission is whether con- jury could stage, a judgment mary for its show failed to Galli believed Commission clude power. political party and the officials McGreevey supportive not to she was evidence Here, ample offered Galli has all This satisfies administration. did that the Commission her claim bolster make for Galli to required knowledge supporter to be consider her case. power. administration current view, rowly. is, read activity in our active nar- issue too protection at

the constitutional formance, claiming b. Causation that she never received negative superiors, feedback from her even Because the District Court found termination; indeed, the time of that the Commission did not know of Gal above, mentioned the Environmental Edu- McGreevey lack for the support li’s cation Division’swork under Galli’sleader- administration, the Court did not consider ship garnered an award of excellence that the causation element of the prima fade was, ironically, shortly bestowed after she us, argues test. Before the Commission Finally, was fired. Galli submits that the that the cause for Galli’s termination was supposed reorganization of the Commis- poor performance, her po not her lack of sion, allegedly promote undertaken to eco- singles litical affiliation. It out Galli’s os efficiency, nomic only curiously was not mishandling tensible of a new museum undocumented, but also undermined its project, which it alleges over-budget, decision to hire employees even more delayed, ultimately removed from Gal (eleven) (eighteen) than it fired in the addition, scope authority. li’s In name of streamlining. Commission that a submits Commission- reorganization, wide initiated to increase again, viewing Once facts organization’s efficiency and economic light Galli, most favorable to it would health, triggered the terminations premature grant the Commission politically Galli claims were motivated. summary judgment on the causation issue. causation, To Because Galli’s argues demonstrate Galli evidence contradicts the successor, allegation her Commission’s replacing per those her work colleagues, subpar, terminated formance was unqualified and because she of fers Democrats who were evidence from which a ju active in the reasonable McGreevey ror campaign or the could conclude that her lack Democratic Party. specifically highlights She affiliation was a substantial Mercu- factor in her termination, qualifications rio’s lack of alleged Galli has position enough held, proceed noting and, with her formerly theory Galli Mercurio causation therefore, attorney was a tax background with no has established prong the third (cid:127) prima environmental of her issues. What Mercurio claim.6 did facie do, however, was run on the Democratic IV. Conclusion twice, ticket urging party, widely expected races that she was to lose. We hold that Amendment the First addition, In points Galli out the odd timing protects politically neutral apolitical of her discharge and hiring, government Mercurio’s pa- alleging that Mercurio was offered tronage addition, Galli’s discrimination. we job before the latter was even informed of conclude that put Galli forward sufficient her termination. disputes Galli also evidence to create an issue of material Commission’s allegations poor work per- fact regarding whether the Commission perplexed by 6. We colleague's are sugges- ployee our simply replaced to show that she was tion that our discourages decision somehow affiliation; party someone with a to make political participation. posits He that an indi- case, prima employee present must facie may join vidual political party decide not to evidence that her failure to government may officials be reluc- power or candidate in was a “substantial or person replace tant to hire that apoliti- motivating factor” in the adverse litigation. cal fear Such fear decision. Galli has sustained that initial bur- and reluctance would be unfounded. It is not den in this case. enough non-policymaking for a apolitical em- from adverse em- protection and stitutional unaffiliation her knew of decisions. course, ployment We, of it. of her because fired Galli as to whether prediction no make follow, I first will pages In the claim, we are sat- but in her will succeed holdings of specific that the demonstrate prima a presented that she has isfied and our precedents, Supreme fa- the Court’s result, the Dis- vacate a we area, As case. do cie in this opinions precedential own summary judgment of grant by the ma- trict Court’s reached require the result not Commission, as to Commis- as well grant the the District Court’s jority, and that to case for Levin, remand judgment and was correct summary sioner of controlling law. facts and proceedings. undisputed further exten- majority’s that the I will then show pose many difficul- law will sion of current dissenting. BAYLSON, Judge, District trying judges district litigants and ties to majori- from the dissent respectfully I rule, not and that this new apply to grant of would affirm and opinion ty’s policy grounds. wise on Defendants, be- to summary judgment analy- of this that the result recognize I Supreme of the decisions controlling cause necessarily unfair to the appear sis will Court, do of this Court, decisions prior However, the result discharged employee. ma- by the reached the result compel not majority, essentially which by reached case is in this The decision jority. any job to protection lifetime promises of constitu- scope of extension unwise employee is able who apolitical state pro- judicially created tionally-based but employ- jury that an adverse a persuade adverse motivated politically tection politics— was a result ment decision decisions, em- state to which employment sounds, and that standard vague however are entitled. ployees courts puts vague it is a standard — of delv- unenviable, position improper, not have that Galli undisputed did It is activity and be- Amendment into First ing affiliation, kept her any political party conduct liefs, such and whether beliefs, any, to Under if herself. action. employment motive for was the protec- facts, grant Galli same these legislature Congress or state Although action against adverse tion power, we clearly give courts that could granted politi- have decisions prior give it to ourselves. not judges should ignores the employees, public cally active of the constitutional nature fundamental Not Re- Majority’s Result Is I. The holdings Under right being protected. quired Precedent Court, a and this Court Supreme Supreme Decisions Court A. his or who exercises public a bal- first may not be outlined punished Supreme The beliefs however, Amendment relies majority, weighing First ancing The test doing so. against Indeed, employees in this area government exclusively rights on dictum. employer enshrouding a as an interest law, a cloud the State’s of the like Education, 391 U.S. the actu- disguised Pickering v. Board has dictum skyscraper, (1968). 20 L.Ed.2d precedents. case holdings al interest, citizen’s was the importance to remain Of chooses public employee free- in the silent, has, interest just an abstract apolitical, non-political, freedom of rather the speak, but dom definition, not “exercised” open public engage in public con- same claim the therefore cannot subjects public mind, concern bal- debate on With this the Court charac- against government’s Pickering’s interest in terized as a anced criticism difference provision pub- opinion public money efficient on how the effective and should be Moreover, spent public on the school. lic services. Id. 88 S.Ct. 1731. In Id. published since the letter was Pickering, school teacher in Illi- after bond issue had been writing approved, Pickering after nois was dismissed letter airing opinion his prevented could not have superinten- critical the school board and the acquiring using School Board from handling dent for the of a bond issue and the funds as saw fit. Id. of financial subsequent allocation resources sports programs, academic and between After reviewing per- the case from the sued, a violation alleging of civil spective of the School Board’s interests as 566, rights. Recog- Id. at 88 S.Ct. 1731. employer finding little to the —and nizing impracticality constructing the position' Board’s Court moved to the —the standard, general the Court nevertheless other side of the scale: the constitutional “general along indicated the lines which an and democratic at limiting values stake in analysis controlling of the interests should Here, speech. the Court focused on the 569, run.” Id. at 88 S.Ct. 1731. public value the allowing derives from open debate. itWhen comes to the admin- impact The Court first looked to what schools, public istration of open “free and Pickering’s may letter have had on the debate is vital to decision-making informed running of the efficient schools. Two im- 571-572, the electorate.” at Id. portant weighed against factors the school Moreover, are, S.Ct. 1731. “Teachers as a First, point. board on this to the extent class, the community members of a most the truthful letter contained on statements likely to have informed opin- and definite concern, public matters of it criticized the ions as to how funds opera- allotted to the superintendent, School Board and the peo- tions of the schools spent.” should be Id. ple Pickering regular with whom had no 572, Thus, 88 S.Ct. 1731. it is the such, direct As communication. there was interest of the speech free no workplace discipline threat to or harmo- determines the balance in Pickering the ny resulting Thus, from his criticism. test. (“Accordingly, Id. it is essential that the statements were critical in tone could speak [teachers] able to out freely on justify Pickering’s not termination. Id. at questions such without retaliatory fear of 570, Second, S.Ct. as to the false dismissal.”) letter, statements in the the Court noted apathy the with which the public greeted The first Supreme specifical Court case 570-571, it. Reject- Id. at 88 S.Ct. 1731. ly addressing allegedly politically motivat ing the School Board’s claim that the false ed Burns, dismissals is Elrod v. se,7 statements were harmful per the (1976). 96 S.Ct. 49 L.Ed.2d 547 expressly distinguished Court between The district court had granted a motion to “the Board members’ own interests with dismiss complaint 12(b)(6), under Rule that of the schools.” Id. at 88 S.Ct. so the factual setting was confined to the disagreed 7. Just Pickering 570-571, as with analogy to the law of libel. Id. at that the normal defamation standard should reasoning S.Ct. 1731. While the for this is him, apply only holding only expressed him liable for Pickering’s in the discussion of false, statements which he knew to be or the argument, defamation apply it seems to falsity situations; recklessly disregarded of which he namely, competing both inter- , Pickering, 391 U.S. at public employee ests govern- as citizen and Court also did not credit the School employer Board’s ment as must be balanced. explicitly relying not Pickering, although complaint. of the allegations well-pleaded import point, con- that decision complaint in the alleged facts County, and association lies on belief the Cook restrictions within cerned Office, of the functioning claimed free the fact that “[t]he Illinois Sheriffs had been suffers.” Republicans process also all electoral they were discharge, (“Patronage thus or threatened 96 S.Ct. 2673 discharged, U.S. Sheriff incoming elected favor process electoral tips Democrat, ac- and in County was a practice’s Cook where party, incumbent practice, when long-standing cordance with the size of relative to scope is substantial politi- of a different Sheriff process the elected electorate, impact on the all the em- predecessor, his party cal than Thus, the reason significant.”). can be same ployees public employees’ safeguarding discharged. the Sheriff from and derive free association speech to the commitment national profound “our for the cited Elrod is often Although public on issues that debate principle dis- patronage proposition uninhibited, robust and wide- should be unconstitutional missals are 357, (quoting Amendments, 96 S.Ct. 2673 Id. open.” Fourteenth First and Sullivan, 376 U.S. plural- The N.Y. Times Co. v. more limited. holding is actual (1964)). question L.Ed.2d 686 notes that first ity opinion8 was as follows: be decided at this looked plurality’s opinion The question whether presents the This case it finding patronage, practice they allege employees and an governance unnecessary to efficient with dis- or threatened discharged were values: affront to democratic partisan their solely charge because dismissals se- summary, patronage “In state or nonaffiliation affiliation associ- political belief and verely restrict of constitutional deprivation a claim for need for vital Though ation. there Four- First and by the rights secured effectiveness, efficiency and government Amendments. teenth fully can be satisfied ... interest [t]hat However, can it 349, 96 S.Ct. 2678. Id. at poli- dismissals patronage by limiting dictum, immediately seen that fundamen- positions_More cymaking “nonaffiliation,” into crept has reference however, pa- any contribution tally, it is clear opinion, plurality democratic to the tronage dismissals plaintiffs the facts all from their to override not suffice does process they Republicans, were alleged that First on the encroachment severe affiliation.9 admittedly had thus freedoms.” Amendment analysis by his begins Brennan Justice 372-373, Id. at S.Ct. limitations “the constitutional identifying recall However, important it is governmental challenged aby implicated only represented above statement in that the S.Ct. 2673. As Id. at practice.” employ- Republicans, were all respondents, was authored opinion Elrod plurality 8. The himself, Office. Brennan, County Sheriff's of the Cook by ees Justice behalf and, They non-civil-service White. Justices Marshall statute, therefore, any ordi- not covered opinion these facts: plurality recited 9. The nance, protecting regulation them of Cook Sheriff In December discharge. arbitrary replaced Republican, County, a S.Ct. 2673. time, At a Democrat. Richard into, a three-judge plurality. views of judicial Jus- limits of the exercise defining Stewart; joined by Blackmun, tice Justice scope of the constitutional right being judgment concurred in the in a five-sen- protected. exception carved out for opinion, tence as follows: policymaking provides officials the balanc- ing-test join I Although plurality’s Clearly formulation the rule. cannot wide-ranging opinion, weighing governmental I can some and do con- interests and cur in judgment. allowing patronage-based its This case hiring does not and firing require policymaking us to consider the broad con- employees against patronage system, personal tours of the so-called constitutional interests of those with all and permutations. employees, stated, its variations plurality justi- “The particular, require does not force, us to fication is not without but is never- consider the validity constitutional of a inadequate theless patronage validate system that the hiring confines of some wholesale. Limiting patronage dismissals governmental employees to those of a to policymaking positions is sufficient to particular political party, I governmental would achieve this Nonpoli- end. intimate no whatever views on that cymaking usually individuals only have question. The single ques- substantive responsibility limited and are therefore not tion involved this case is whether a in a position to goals thwart the in- nonpolicymaking, gov- party.” nonconfidential Id.11 ernment employee can be discharged or Next, Finkel, in Branti v. U.S. discharge threatened with upon the sole 100 S.Ct. (1980), 63 L.Ed.2d 574 a ground of his beliefs. I agree majority of the Court revisited and relied plurality he Perry that cannot. on both the plurality and concurring opin- Sindermann, 593, 597-598, 408 U.S. ions in Elrod. Plaintiffs were two assis- (1972). 92 S.Ct. 33 L.Ed.2d 570 tant brought defenders who an ac- Elrod, 374-375, 427 U.S. at 96 S.Ct. 2673 tion under the civil alleging laws (Stewart, J., concurring).10 they that were about to be discharged Elrod’s, statement, plurality broad “we solely they because Republicans. were hold, therefore, that practice patron- The district court entered a temporary age dismissal is unconstitutional under the restraining order preserve the status Amendment,” First and Fourteenth is not quo, and then took evidence and made the holding majority of a of the Court. findings fact, detailed following which it any event, the discussion shows that the permanently enjoined the Public Defender plurality was on focusing individuals whose of Rockland County, New York from ter- political views were well known had and/or minating or attempting to terminate the engaged in political activity. plaintiffs’ employment upon the sole recognized

Elrod that there must be a grounds of their political beliefs. The dis- distinction for policymaking employees, trict court made a specific finding that one which exception points itself out necessary plaintiff had been regarded Republi- as a Perry 10. government holds may that state position whether her policymaking was deny a benefit a person on a However, basis question not. that would not be infringes which constitutionally-protected reached granting if the district court's of sum- interest. mary judgment proper grounds on the was plaintiff, apolitical, that as was not entitled to agree I with the District Court and the protection governing law. majority presented that had Plaintiff sufficient require evidence to a trial on issue of Branti, at 100 S.Ct. 1287 445 U.S. change of a formal can, notwithstanding Elrod, 427 U.S. at (quoting plaintiffs that and found registration, 2673). solely termination selected “had been and thus Republicans they were the broad nature of the above Although necessary Democratic encompass not have might

did seem to statement 510, 100 S.Ct. Galli, See state such as sponsors.” unaffiliated Finkel v. F.Supp. the facts of (citing must remembered be Branti (S.D.N.Y.1978)). 1284, 1293 facts of as well as in the Branti plaintiffs registration of found: court had In Branti the district case, known, it is well whereas attempted for the grounds “The sole political regis- no undisputed that Galli has were the facts plaintiffs removal tration, any political expressed has not differed from beliefs plaintiffs’ political vote, views, although registered to she majority ruling Democratic those any belonging herself as align did not and that the County Legislature in the political party. majority had determined Democratic in Branti discloses The evidence appoint- Defender Public that Assistant appointed, Public Defender was when the bas- made on ments notices instituting termination began he es.” office, in his for six the nine assistants (cited at 445 U.S. at 1293 F.Supp. and, as the plaintiffs, two including the 1287). 510, 100 S.Ct. stated, exception, possible “With one to be appointed nine who were to be Branti also justice majority The six all and were were all Democrats retained Sindermann, well as Perry v. relied on legislatures or by Democratic selected two different Pickering, and noted the chairman a basis town Democratic majority constituted which opinions Democratic by the had determined been analyzed in Elrod. The Court the Court 509-510, 100 S.Ct. 445 caucus.” U.S. the Public Defender of the contentions that the The record also showed holding of limit the attempted to which Republicans. were plaintiffs two Elrod, Elrod, consider- held that but Justice Brennan of both the dark ing opinions bright against the moon Like a Stewart, distinctly “the First Amend- in and Branti are and Justice sky, Elrod public case, the dismissal of a where Galli’s prohibits present the ment contrast to private po- his unknown. solely completely because of employee affiliation is political not 517- case does present U.S. at in the litical beliefs.” The record Branti in to those closely The stat- similar any Court then facts 100 S.Ct. 1287. contain only shows Branti. The record Elrod or ed: in originally hired she was that when that sum, requirement no there is was con- that time government the they, or prove employees dismissed 14; Pa. (App. Republicans. trolled into been coerced employees, have other 127.) about Galli’s is no evidence There actually ostensibly, changing, either beliefs. political own in prevail To political allegiance. them Pickering balancing sufficient, Maintaining the action, it was type in Branti found that unless test, the holds, prove respondents to as Elrod over- can demonstrate government the “solely for the they discharged were so, rely cannot doing riding interest not with they affiliated reason as “the sole private beliefs person’s Party.” on by the Democratic sponsored depriving public basis for him of continued Supreme The last Court’s trilogy, Illinois, Republican Party Id. at Rutan v. employment.” S.Ct. 1287. U.S. However, L.Ed.2d 52 as Justice Stewart noted his (1990), extended the rule of Elrod and dissent, majority Branti charac- while the Branti to other decisions dealing private terized the case as with considerations, political based on such as beliefs, public defenders were transfer, promotion, hiring recall and deci- public of their affiliation dismissed because involving sions public employees. low-level *, party. with the Id. at 522 n. Republican opinion by Brennan, The Justice in the J., (Stewart, dissenting). 100 S.Ct. 1287 first paragraph, specifically notes that Thus, specific leading facts of the two may these factors not “constitutionally cases, Elrod and patronage Bran- based affiliation and support.” ti, state which known Rutan, 497 U.S. at 110 S.Ct. 2729. political affiliations were ousted from their holding There is no in the Rutan decision positions upon the election of a new admin- would which cover a state istration, language belie the broad used Galli, such as had no affilia- Stevens, respective- Justices Brennan and speak tion and did not any way or act in ly. political matters. Furthermore, inas examination majority language admits that the other important holding, Branti’s in Elrod and Branti is broader than neces- policymaker exception, refinement sary outcomes, for the based on the facts patronage dismissal in- reveals cases However, of those cases. majority protecting speech volve and fails to address the indisputable point that association for the public, benefit cases, the facts of those as well as the facts merely primacy to assert the of First giving rise to subsequent Third Circuit rights. Amendment Branti redefined the precedent, reflect active opposi- policymaking stating, distinction “the ulti- tion on part of the adversely affected inquiry mate is not whether the ‘poli- label employees, or at least some kind of affir- cymaker,’ particular or ‘confidential’ fits a mative choice not to polit- affiliate with the rather, position; question Thus, is whether ical in power. faction majority hiring authority asserts the language can demonstrate that broad in Elrod and Branti party constitutes the essential appropriate require- holdings affiliation is of cases, those without performance acknowledging ment for the effective that such broad Branti, cannot emanate from public the office involved.” 445 U.S. particular facts in either 518, case. at 100 Applying S.Ct. 1287. this stan- dard, although a public imple- defender Elrod, The majority’s treatment of for policies, ments since those policies “relate example, emphasizes “public employ- to the needs of individual clients and not to ees could not be discharged ‘solely for the any interests,” partisan political gov- the that they reason were not affiliated ” ernmental interest of the per- effective sponsored by the Democratic Party.’ formance of the job defender’s Maj. Elrod, Op. at 274 (quoting 427 U.S. at weighs against 520-521, patronage. Id. at 350, 96 S.Ct. 2673 (emphasis added in Ma- 100 S.Ct. 1287. As in the fact that jority Opinion)). by Not mentioned the patronage employee’s rights threatens the majority, explained however, nor away, is to speech free and association serves as the fact that the plaintiffs Elrod were reg- the reason for invoking Pickering the Republicans, test. istered required and were by

283 close in- Elrod and Branti. A tation of sponsorship the to earn employer their however, it Wooley, shows that their keep spection Party member a Democratic illuminate current helpful no more 351, 2673. is 96 S.Ct. Id. at jobs. Although than Elrod or Branti. issue the Su ignores also majority The after argued only four months Wooley was did not in Elrod Branti Court preme decided, opinion and the issued Elrod was employees’ have to discuss decision, months of the Elrod within ten they were and affiliation activity Wooley. mentioned in Elrod is not once Supreme dispute; therefore not Wooley reveal the case facts of The job, and the type on focused Court patronage. to do with nothing has by govern taken actions brought an action Wooley appellees Rutan). (as in For employer ment challenge district court in federal employer in Bran- stance, the government requirement Hampshire’s state of New does party affiliation argued that ti never carry the plates license that all automobile association, but speech not constitute also mak- Free or Die” while motto “Live joba re affiliation as rather any fig- to obscure ing it a misdemeanor what it run not afoul quirement would including the plate, on the ures or letters coerc against to be Elrod’s ban considered 707, 1428. at 97 state motto. Id. S.Ct. Branti, See affiliation. ing particular a Jehovah’s Wit- Appellee Maynard was 512, 100 at S.Ct. 1287. 445 U.S. objected to the content of ness Supreme majority its use defends reli- motto on both Hampshire state New However, for thing it is one dicta. Court at grounds. Id. gious dicta to to use own Court its Supreme beliefs, May- to these 1428. S.Ct. Pursuant subsequent rationale its explain the as it the motto and his wife covered nard thing for decisions, it is another but plates. Id. on license appeared their Supreme take appeals court of 707-08, Accordingly, the 1428. 97 S.Ct. precedents it to extend the dicta and use ques- “faced with Court was Supreme and of this Supreme Court both the may of whether the State constitution- tion Indeed, appellate the reason Circuit. participate an individual ally require pre- Court dicta Supreme courts follow mes- ideological of an the dissemination their own.” off on cisely to “strike so not private proper- his sage displaying (3d McDonald, 205 F.3d In re that it the purpose manner and for ty in a Bloom, Cir.2000) (quoting United States Id. public.” read be observed and Cir.1998)). (7th Apply- case, with facts to this ing prior dicta addressed, would has Supreme Court Virginia heavily on West Wooley relies further, goal. frustrate, than rather Barnette, Educ. v. Bd. of Comm, Credi- Unsecured See (1943), its L.Ed. 1628 Official S.Ct. Chinery, 330 Corp. v. Cybergenics tors refuse to right the about conclusion Cir.2003) (3d the (noting F.3d Barnette, affirmed the Court In speak. McDonald, stat- admonition In but in re Virginia enjoining West the district court’s “[nevertheless, are satisfied we ing, requiring students enforcing a law the not the situation at bar is the case as to flag recite the salute and teachers to anticipated.”) dictum [Supreme] Court’s Witnesses, saluting claimed Jehovah’s by an act forbidden May- flag the constituted Wooley v. relies on majority protected form of silence faith. The 51 their nard, pas- rather than purposeful Barnette is interpre- by (1977), justify its L.Ed.2d 752 facts, Wooley’s sive. as well as own its ble’s accepted, recommendations were Barnette, reliance on illustrates how factu- demotions, of the nine recommended ally present prece- distinct the case is from six were carried out. Id. Bennis and by majority. dent the relied on MacLean were among those demoted.

Id. B. Third Circuit Decisions six-day trial, After the district court Bennis Gable jury instructed the plaintiffs the had Judge the case on which most the Ambro burden establish that activity their relies, Gable, directly Bennis v. entitled to First protec- Amendment (3d Cir.1987), plaintiffs the tion. had suc- Id. at 727. The district court also cessfully challenged their jury demotion on the the instructed that the court had con- police by Allentown force a civil rights suit cluded that the engaged activities in court, filed in plaintiffs federal district claiming they protected were by the First in demoted either retaliation for sup- as a Amendment matter of law. Id. mayor’s porting political opponent, On appeal, challenged, defendants inter in order to make room for the Mayor’s alia, the district telling jury court’s “as supporters. Plaintiffs Bennis and Mac- a matter of law that plaintiffs Bennis Lean City were hired of Allentown and engaged MacLean in first police as officers during in 1974 admin- amendment activity” they opposed when Daddona, Mayor istration of a Democrat. in Daddona both the 1977 and 1981 cam- Id. at 725. claimed to MacLean have paigns, arguing that “the nature of the mayor known the police, and his chief of plaintiffs’ alleged private conversations Gable. Bennis family claimed his had associations, if any, were controverted neighbors been early supporters of questions of fact.” Id. Plaintiffs respond- Mayor plaintiffs Both sup- Daddona. ed that defendants had not properly raised ported Republican candidate mayor for at trial so preserve issue as to it for in a successful bid to unseat Daddona appeal. Id. This Court held “the defen- 1977. Id. objection dants’ was sufficient to put the

In 1979 Bennis was selected of a out court district on notice that the nature of pool of fifteen promotion applicants to plaintiffs’ activity, any, if was a disputed one of two detective-sergeant fact,” positions issue of id. (emphasis in original), available; then promoted MacLean was court district had telling erred in to detective-sergeant in 1981 jury after assist- plaintiffs engaged had in protect- ing the detective bureau in a homicide in- ed activity First Amendment as a matter vestigation. Id. Also law, Daddona and remanded new trial. Id. obtained the Democratic nomination for at 725. Because the conflicting testimony the mayoralty, and was reelected as to the nature of plaintiffs’ speech or general November election. Id. The represented conduct fact, an issue of plaintiffs supported claimed to have Dad- opinion stated, court’s “[ojnly after the opposition dona’s primary both the jury had determined the nature and sub- general elections. Id. After the election plaintiffs’ stance of the alleged activity Gable returned chief of police, and at could the court decide protect- its status as the direction of prepared Daddona he ed or unprotected.” Id. 729. After a recommendations for changes in po- Bennis, reading careful only its holding department lice including demotions and is that the district had “impermissi- court reassignments. at Id. 726. of bly Most Ga- trespassed upon jury’s the fact-finding part, In relevant employees. apolitical for plaintiffs that concluding .by function the footnote states: First Amend- prohibited in had engaged sugges reject the defendants’ also activity. [W]e Id. at 725.12 ment alleged associations plaintiffs’ tions that of the narrowness recognizing Despite plaintiffs the political not were it, decision court’s the before the issue Democrat, and a fellow opposing were id. at 730 See issues. on other opines associations plaintiffs’ that the necessar that the district our conclusion (“Although in order to be to be ily had in its in- error reversible court committed protection. to first amendment entitled makes activity protected on struction “right protects the The first amendment many the of for us to reach unnecessary a pursuit in to others associate defendants, some of by the raised issues economic, social, variety political, wide on to recur certain are almost these issues cultural educational, and religious, court.”). the district remand in Jay v. United States ends.” Roberts 3244], cess, Of at S.Ct. 622[104 in the decision admits majority that for course, only right the to associate no- issues, including the Bennis “reached in case. is at issue this political purposes unnecessary issue, naffiliation Bennis, The sentence F.2d at n. 4. provide guid- in order to for its conclusion above, Bennis, quoted in and footnote court on remand.” district to the ance plaintiffs in the context were made Nonetheless, majori- the at 274. Maj. Op. partisan po- alleged their own specifically support for its as relies on Bennis ty their activity was the reason for litical Bennis discusses this case. decision in Indeed, ex- Bennis court demotion. could have demoted defendants whether to associate “only right noted pressly positions make simply to plaintiffs issue,” not is political purposes for supporters, rather available speech or nonpolitical issue of larger active plaintiffs’ for the than as retribution Thus, statement and foot- association. Considering a demo- opposition. note, of the Bennis facts the context in “a reflecting a reason for such tion protections be- expand not do holdings, 731, the id. at court support,” to failure or actual association yond speech actual a stated, support not to right citizen’s “A purposes. as his every is bit as candidate dic- event, such discussions are any Roberts (citing Id. one.” right to tum. 609, 104 Jaycees, 468 U.S. States v. United judge said (1984)).13 everything It L.Ed.2d 462

S.Ct. judgment constitutes giving when quote, and relies on this Judge Ambro this status place, In the first Bennis, precedent. concept expand to footnote pronouncements for his is reserved protection include support” of “failure points several other continues with 13. Bennis protection against holds 12. Bennis limited, any, if relevance are of which established politically motivated dismissals subject particular present case on extends to demo- Pickering, Branti appropriate- are the These tions, Id. memorandum. Bennis. at issue as were plain- charge that cases, the district court's ness the constitutional those “As we read politics was a 'substan- prove tiffs had of the sanc- is not in harshness violation demotion, their motivating factor' any tial imposition of applied, but in the tion quali- were entitled defendants permis- whether exercise disciplinary action for the availability punitive immunity, fied (thus Ru- anticipating speech.” Id. sible free damages. ). tan 286 The second ...

the law.... is Court identified “intrinsic and reason instrumen that, among propositions of law tal constitutionally features of him, by only enunciated those which he association,” concluding that the protec appears necessary to consider for his tions afforded freedom of association to form part decision are said would differ nature and degree, depend ratio decidendi and thus to amount to ing on whether freedom of “intimate asso more than an obiter dictum. ciation” “expressive association” was Warren, 258, United States v. 338 F.3d 266 implicated. 618, Id. at 104 S.Ct. 3244. (3d Cir.2003).14 n. 5 Finding Jaycees to be an “expressive Roberts, Although Bennis cites Roberts association,” the Court held Minnesota’s imply does not hold or that silence ais interest in eliminating discrimination out First right protecting Amendment state weighed Jaycees’ interest in its free employees from termination. That case dom not to associate with women. Id. at challenge by involved a the United States 623, 104 S.Ct. 3244. The language broad Jaycees against application of a Minne- in Roberts declaring, of “[f]reedom associa barring sota law discrimination on the ba- tion plainly presupposes therefore a free places sis of sex in of public accommoda- associate,” id., dom not to does not refer to Roberts, 612, tion. See 468 U.S. at 104 join freedom individual has not to (“This S.Ct. 3244 requires case us to ad- group, but rather the freedom a group has dress a conflict between a States’s efforts deny membership to an individual or gender-based eliminate discrimination class of individuals.15 The case has against noth its citizens and the constitutional ing to freedom of do with protecting apolitical association asserted silent or mem- private bers of a organization.”). The state employees.16 1105, clearly (3d 14.The adopted Cir.1996); Third Circuit has Bradley 1110 v. Pitts- binding rule that dicta are Educ., not 1064, courts. "As burgh (3d Bd. 913 F.2d 1071 Supreme Court noted in the course of its Cir.1990)). ancillary jurisdiction discussion of in Kokko America, nen v. Guardian Ins. Co. ‘[i]t Life fact, the distinction drawn in Roberts cases, holdings is to the of ... rather than between the intrinsic and instrumental fea- ’’ dicta, their that we must attend.’ IFC Inter- point tures of association echoes the made in consult, Partners, LLC, Safeguard AG v. Intern. Branti about denying the rationale behind 298, (3d Cir.2006) 438 F.3d (quoting 311 Kok protection patronage poli- dismissals to konen, 375, 379, 114 S.Ct. 128 Indeed, cymaking employees. to the extent 391, (1994)); Fisher, L.Ed.2d Mariana v. 338 that Roberts is relevant to the instant case (3d Cir.2003) ("It F.3d 201 is also well all, it Supreme is because the Court has deter- subsequent panel established that a is not mined that the expressive freedom of associa- bound opinion"); dictum in an earlier Bur- tion which Galli infringed asserts has been is stein v. Ret. Employees Account Plan For subject greater restriction than if she were Found., Allegheny Health Educ. and Research infringement to assert of an intimate associa- (3d Cir.2003) ("[T]he 334 F.3d 365 language tion. ... on which the district court relied consti- dictum, tutes and therefore does not bind Supreme 16. The Court has relied on us.”); Roberts Fonseca, Virgin Gov’t Islands v. 274 appropriate for the apply (3d govern- test to Cir.2001) (discussion F.3d 760 part ment dicta, interference in membership holding of asso- precedential); and not ciations which American are either "intimate” Civil Liberties or "ex- Jersey Union New Schundler, pressive”. Dale, Boy ex rel. Lander v. Scouts America v. F.3d n. (3d Cir.1999) ("[W]e U.S. repeatedly have held 147 L.Ed.2d 554 (2000) binding.”) that dicta (citing (citing are not proposition McGurl v. Roberts for the Trucking Employees, (3d “Iglovernment 124 F.3d actions unconstitutionally Cir.1997); Bennett, United States v. right burden that may [of association] take

287 one,” (quoting id. at 176 right support Kerrigan v. Stephens 2. 731), of Ste- Bennis, at the facts F.2d 823 171 122 F.3d Kerrigan, v. Stephens op- police that the officers show phens summary- Cir.1997) of (reversing grant (3d winning candidate.17 the posed of question finds the court where judgment defendants as to whether fact material Tpk. Pa. Comm’n v. 3. Goodman officers’ police plaintiff of knew on recent Third Circuit case The most knowledge such affiliations, and whether Comm’n, Tpk. v. Pa. topic is Goodman this in the motivating factor awas substantial Cir.2002). (3d politi- In this 293 F.3d 655 court district the discharge), officers’ case, jury a upheld the court patronage cal whether it as before question framed the well as plaintiff, the as of verdict favor im- its officers and City of Allentown defendants’ court’s of the district denial police promotions denied permissibly of law a matter judgment for as motions failed to opposed “openly officers who a trial. Id. 677-678. and for new of the eventual candidacy support” it first summarized what Third Circuit Howev- at 172. Id. of Allentown. mayor of “trilogy” Supreme termed Court’s grant of court’s er, the district reversing cases, Branti political patronage re- Third Circuit summary judgment, Rutan, three- recounting the and before indicating record evidence lied on court by the district upon prong test relied or the candidate for one support active action: in the instant out, pointed the court other. As (1) works for a employee that the case, evidence there is In this re- that does not position a agency in of the members of affiliations (2) affiliation, a quire more constituted Department Police maintained affiliation rumor; and the heated workplace than (3) that the em- political party, the endorse- over debate contentious was a sub- affiliation ployee’s political clear Mayor drew Heydt ment of factor in the ad- motivating stantial or supported those lines between decision. verse did not. those who Heydt and Goodman, (quoting Rob- at 663 F.3d 293 Thus, notwithstanding Id. at Cir.1995)). (3d Fiore, 596 62 F.3d v. ertson Bennis dictum in of the repetition court’s examines decision The Goodman not to right “a citizen’s certain admissibility of evidence. length his as as every bit candidate Cir.2000) dis (3d (summarizing the Roberts forms, into a is intrusion many one of which expressive as accept forcing intimate tinction between group’s affairs internal desire.”); sociations, former describing protection Board it does not a member Rotary Club Rotary liberty protec v. personal Int’l Directors Duarte, a fundamental 95 S.Ct. 107 indispensable means as an of the latter tion (1987) (relying on Roberts 474 liberties); L.Ed.2d personal Salvation preserving other right to Rotary deny International’s rule to Affairs, 183 of Comty. 919 F.2d Army Dep’t v. clubs). This Court from local exclude women Dellarciprete, Cir.1990) (same); (3d v. Rode similarly. Forum Roberts has understood Cir.1988) (3d (finding relation F.2d 1195 Rights v. Rums Institutional Academic and brother-in-law plaintiff ship between J.) Cir.2004) (3d (Ambro, feld, F.3d 219 intimate association represent does right of an balance (employing Roberts to requiring protection). particular bar individuals association expressive part the association’s classes as Stephens legal standard articulated 17. The interest compelling state agenda against below. is discussed Phi Frater right); Pi Lambda infringe Pittsburgh, F.3d nity, v. Univ. Inc. However, legal the ultimate issue before claim. prior Goodman relies on a decision Circuit, plaintiff Fiore, the court was whether had Robertson 599, at adequately proved his case at for this quotes the third formulation and is, directly from prong of the test. That the Robertson. Although issues were the majority proven opinion, had cites in its whether Goodman defendants Goodman see 272, Maj. Op. at affiliation, majority, the knowledge had of his rather than using the Goodman and formulation knowledge whether such was the rea- test, quotes a significantly instead denying promotion. son for him a differ- See id. ent, broader, and formulation from at 670-75. There was no Ste- dispute, howev- phens v. Kerrigan. er, that was a registered, Goodman active Democrat, family engaged whose was in a Specifically, element, the second al- political rivalry Republican with a State though quoted in Goodman requiring as Senator, opposed Republican candi- plaintiff the to show “that employee the 661, generally. dates See id. 672. The maintained an affiliation with the plaintiffs party relied on court affiliation party” is characterized in Stephens as the supporting sufficiency plaintiffs the plaintiff only must show engaged “she was in challenging intent an employ- adverse in constitutionally protected conduct.” See ment action as the result of improper polit- Stephens, 176, 122 F.3d at quoted patronage. ical majority’s opinion. the Maj. atOp. 272. majority The could not and does not criti- discussion, The above necessarily de- cize the District quoting Court for the tailed, should precedent demonstrate that elements of the claim as stated in Good- require does not the result reached man, but majority mysteriously avoids majority.18 Thus, treating question using the standard, Goodman even though presented impression, as one of first do Goodman is this prece- court’s most recent applicable legal principles require af- holding dential topic. on this firmance? The Stephens reference to “constitution-

II. The Correctly District Court Fol- ally protected conduct” also cites Robert- Controlling lowed Precedent son, but language this will not be found in The District Court relied on this Cir- Robertson. Research Stephens shows in- i.e., Goodman, precedent, cuit’s 293 F.3d troduced phrase the broad “constitutional- 663, above-quoted ly standard of protected conduct” as the second prong necessary the elements to make out this without any precedential support.19 majority 18. correctly association, does cite a number speech Rode is not a opinions district court within this Circuit political patronage plaintiff’s case at all. The which have concluded speech free alleged claim stemmed from retal- any political who are not party affiliated with police department iation which em- enjoy protection against discriminatory em- ployed during statements she made ployment Maj. Op. actions. See at 273 n. 3. journalist, interview with a and the associa- However, rely all of these cases on the dictum question tion in plaintiff’s was with the broth- Branti Bennis for this result. Rode, and/or er-in-law. See 845 F.2d at 1199. sense, only Rode’s real relevance cites, Stephens Robertson, in addition issue of patronage is that it also 1195, (3d Dellarciprete, employs Healthy Rode City 1200 Mt. Sch. Dist. Bd. of Cir.1988), Thornburgh, Laskaris v. Ed. v. Doyle, 733 97 S.Ct. 50 (3d Cir.1984), denied, (1977), standard, F.2d cert. L.Ed.2d 471 requiring that U.S. 105 S.Ct. protected L.Ed.2d 196 question play conduct in a sub- (1984). Although involving First Amendment motivating stantial govern- or factor in the to the official allegiance lack of pro- Nonetheless, opinion majority itself is power in Ste- as stated the standard ceeds Amendment, wheth- irrespective of applied, to be which First as the standard phens doctrine, I which actively but affiliated with leap in is er an gigantic ais any prece- party. See without opposing have demonstrated candidate That lan- whatsoever. Branti, dential 445 U.S. at con- (“constitutionally protected guage public employ- that continued (holding duct”) Stephens to the necessary properly “cannot conditioned ment determined that case holding, because political party allegiance ... upon dis- intra-party in an involved plaintiff, the control”). in the protection to the was entitled pute, 272-73. Maj. Op. at rule, he was himself because Elrod/Brcmti this last only proposition citation for The El- affiliated, just as Messrs. politically Branti, sup- which cannot a quote the is Rutan, as all as well rod, Branti in case cases, majority’s conclusion this port were the in own our plaintiffs other above, facts of Thus, because, language as shown affiliated. politically po- support to was sufficient Branti concerned Robertson Stephens majority opinion without Stephens, The holding litically in affiliated. of the specific words changing that this court’s opinion asserting continues of the claim. element Bennis second in Robertson and opinions prior as proposition with this are in accord its justify to attempts majority The —but shows, in the facts the above discussion in the standard the broader adoption of em- politically involve affiliated those eases following language: court which the language and the ployees, has described sometimes Our Court clearly dictum. cites is employee “the that requirement as a a political an affiliation ][ maintain majority had ad- that if the It clear is See, v. Pa. Turn- e.g. Goodman party.” as of the claim requisites hered to the (3d Comm’n, 663-64 293 F.3d pike Goodman, which relied was described Cir.2002). constitutionally However, the court, would the result by the district than activity here is broader affirmance. In- party. joining the act applica- reviewed The District fail- deed, dismissal threat of “[t]he re- most principles Circuit ble Third the party [to provide support [ ] ure to sec- in Goodman. cently established pro- inhibits unquestionably in power] requirement is Goodman prong ond association, dis- tected belief affilia- maintained “that the only support provide for failure missal See id. at party.” tion with 427 U.S. its exercise.” penalizes Elrod any of the dictum words, citing Without In other 359, 96 S.Ct. 2673. Demo- knowledge plaintiffs were [that employment ac- impose the ment's choice Diehl, who the fact Rode, predicate, aas crats] 845 F.2d at See question. tion in Laskaris, cannot replaced Republican, was a Healthy, (citing Mt. Laskaris, support Laskaris's an inference 471). itself a directed 50 L.Ed.2d In motivated.”) Las- politically discharge was upheld the defendants verdict con- rule and the Elrod-Branti karis extends had failed plaintiffs determined the court less are not amendment "[flirst cludes could lead any evidence which to adduce 'sole' political affiliation any if violated had the defendants jury conclude only factor but ‘substantial’ reason plaintiffs’ affilia- knowledge of the (“Without at 265. Id. Laskaris, decision.” at 265 tions. Bennis, doctrine,” correctly by, above, District Court as noted citing dictum prong, noted to the second there “as is no in respectfully Bennis. I suggest the ex- plaintiff evidence in the record that main- tended discussion above shows is the any tained political par- an affiliation with majority which prece- has misread the ty.” The District Court then reviewed a dents. sup- number citations from the record I also believe that the majority has im- conclusion, porting this and concluded “it properly characterized the facts in its is clear from these statements that plain- statement at page Majority 273 of the satisfy tiff fails prong the second “Therefore, Opinion, contrary to the con- is, standard —that plaintiff emphatically Court, clusion of the District Galli’sfailure did not maintain a political affiliation.” the McGreevey campaign or the (App.Pa.6-7.) Democratic if because of a —even footnotes, the District Court noted general apathy toward, for, poli- disdain plaintiff had argu- vacillated between constitutionally tics—is protected under ing that politically she was disinclined and added). the First Amendment.” (emphasis affiliation, that she had no political and say To that the facts show that “Galli’s although may there be conceptual differ- failure to support” McGreevey or the two, ences between they did not affect Democrats is misleading. The word “fail- the District Court’s opinion. The District negative ure” has a connotation and evokes Judge also cited support cases to the well decision, a refusal, conscious close to a to proposition known that “historically, the become involved in taking the side of one First Amendment has protect been used to party or one candidate versus par- another political speech, although also protecting ty or candidate. The District fully Court silence,” concluding, and this instance “[i]n recognized that Galli had a constitutional plaintiffs silence is not a form expres- right not to become politics, involved in sion, protected otherwise; or it is simply a but never used the words sup- “failure to complete lack of interest in a topic. aAs port” majority. as does the

result, this court would have found it diffi- cult to plaintiffs understand how silence The District Court equation made no and lack of politics interest in could be right Galli’s to remain silent with a lack of political construed as speech requires proof that she failed to McGree- protection of the First Amendment.” vey. The District only Court was noting 2,3.) (App.Pa.6-8, n. plaintiffs complete lack of interest in itself, politics, by demonstrated that she The District Judge correctly noted, also did not meet one of the elements of the corroborating research, my own “this court claim as established in Goodman. has been any unable to locate case that provides protection for a plaintiff who sim- Majority’s III. The Decision Is an Un-

ply lacks an interest in politics.” (App. wise Extension of Current Pa.8.) Law Despite the District thoroughly Court’s Existing precedents correctly focus on accurate record, characterization of the public employees who have been demon- and its reliance on the requisites strably estab- voluntarily and politically affiliated lishing a claim of this nature recently as or policy active. The Supreme which the Goodman, in restated majority con- Court adopted, decisions only focuses cludes that the District Court employees’ “misreads on the expression of their First interpretation our of the Elrod-Branti Amendment right that protect- courts have rights a viola- beliefs as civil political of her so, the interest also ed, but rightly and tion, result for the reaching same and allowing public public losing things fear of who eschews all employee without politics public participate any employee, no such “exercise.” a state and has made jobs. political, When their citizen, register not to chooses other public em- holding may motivate This and party, of a a member vote as jobs, their want to hold ployees, who any identify herself with not to chooses or involve- any affiliation to avoid politi- keeps her organization, whatsoever, thus, key emasculating ment herself, Galli, also is as she views to cal origins of the Picker- behind the purpose can force her no one rights her within rule, i.e., encourage protect ing stretch, However, it is to do otherwise.20 by public em- political speech debate fiction, is to maintain that Galli if not a quest equality its seek ployees. English, In plain “exercising” rights. her majority equates employees, all public rights. declining to exercise she public active politically privileges be denied cannot She public employ- apolitical with the However, un- refusal. citizenship for this super- to be Although may appear ee. rationale, her silence majority’s der the really ficially ignores appropriate, activity and equated been has concerns which led policy fundamental start litigation will thus the dominoes first down this Supreme path new in favor class falling job pro- majority has elevated place. The have no political employee plaintiffs right, process tection a civil but affiliation, but who activity, expression if more equal, an not at least pushed has permanent presumably will be entitled to in public the interest right, civil important, job they prove if can their job protection in be involved having public else with political to given was someone background. the politics, into support. or affiliation under- people reality many The of First Amendment an Such extension help it will activity political take made should, my opinion, be protection job as a employment get public them The by judges. than rather by Congress i.e., activity, politi- political their result of Branti, Rutan holdings actual of impact of The downstream patronage. cal employment adverse forbid and Goodman to lessen holding may be majority’s of of the exercise consequences because activity. political by the First Amendment legislate not hesitated Congress has “exer- Giving the word employee. public on the that restrictions decided where it its in the First Amendment cise” as used It has fire wise. to hire and right see, through can meaning, surely one plain employment impacting enacted laws the difference be- prism, a constitutional in a vari- private, relationship, public public employee’s characterizing tween arising contexts.21 Cases ety of her exercise job because of loss of her 1964, seq. § et As 42 U.S.C. Act of 2000e appropriately cited 20. The District Court Barnette, silence, enforcing VII Title Supreme 319 stated in right citation to with Green, 1178, 624, 411 Douglas Corp. 87 L.Ed. 1628. 63 S.Ct. U.S. in McDonnell L.Ed.2d 668 S.Ct. 36 U.S. 1993, 42 Act of Family and Leave Medical makes (1973), language Title VII "The Dis- seq.) Americans with § 2601 U.S.C. et equal- Congress to assure purpose plain § et 42 U.S.C. Act of abilities and to elimi- opportunities ity Act, 1947, Labor-Management Relations seq.; and de- discriminatory practices nate those Rights seq.) VII of the Civil § et Title Why these laws consume a considerable share judge-made should a rule prevent, (and daily litigation pain diet in district expense) courts. considerable of de- fending civil apolitical public employee’s protec- rights litigation, incoming If an administration job replacing existing tion from termination is wise and in employee who interest, voluntarily had decided Congress should make call, register political party, with a not this Court.

someone who politically registered? inviting The court is litigation over the Majority’s IV. Decision Will Cre- motives of an incoming, existing, gov- Among ate Much Confusion Liti- ernmental administration in replacing cur- gants Judges and District apolitical rent employees with those who Robertson, In the court noted that the have been exercising their First Amend- proof burden of discrimination ment right politically engage affiliate or requires cases a burden-shifting process activity. The evidence and the similar to that in other employment cases. charge jury to the require par- would If demonstrates the three jury ties and the inquire into the motive elements as stated Robertson and Good- of the decision-maker and whether the em- man, employer may avoid a finding of ployment decision was made because of liability by demonstrating by a preponder- political considerations. The seeming sim- ance of the evidence that it would have plicity of inquiry this kind of is deceptive. made the same decision even in the ab- It is difficult enough juries judges sence of protected affiliation. Mt. adjudicate discover and motive in the Healthy, 50 context age gender discrimination, L.Ed.2d 471. forbidden, which Congress has but when legal upon test touches the exercise litigated cases filed and under the cherished, non-exercise of and/or existing doctrine of the Supreme Court held, privately beliefs, sometimes court, and this plaintiffs prove have had to which are rights, majori- constitutional some kind of political affiliation or activity, ty inviting very is a intrusive examination that, and as a result they of suffered an personal into public matters. If a employ- adverse decision. In most ee publicly has and openly expressed him- states, in order to in primary vote a elec- politically, self then there is no intrusion. tion, person register must political with a party. If this voter is in interested future The majority opinion leaves undecided public employment, the mere fact that the how judges district court should interpret registered voter with the political same “constitutionally protected conduct” in the party as the incoming may administration factual public situation of a employee who mean that a lawsuit jury may trial political be has no affiliation or interest what- necessary to if determine the administra- soever. Two conflicting constitutional tion’s decision to hire registered First, voter are at play. public replace an existing, apolitical employee, employee’s protected right to remain si- violated the latter’s rights. Second, constitutional lent. other citizens have the right Indeed, may very effect well be to to have engage affiliations and in discourage political activity. political conduct. post-trial Will review of vices racially which have nority fostered stratified citizens.”

job disadvantage environments to the of mi- questions point and the above out the diffi- sufficiency of the evidence a verdict for culty defining parameters. of those One of the quantity to assess require this court principal purposes protecting behind activity by replace- quality public employees employ- from adverse party regis- employees? simple Will ment political patronage ment actions based on activity be any political tration without government is to balance the interests of a verdict that an em- enough provision in the effective and efficient solely because decision was made ployment in public public pub- services interest litiga- affiliation? The shoals employees participating freely open lic in navi- may never be more difficult to tion debates about issues of concern. may emerge courts from gate, and protections of these to one extension promote a rational test to thicket with in engage politics any who chose not to impor- and valid exercise of socially useful way required by precedent is neither nor i.e., right rights, tant constitutional underlying justification warranted politics. engage patronage. for restrictions on extending Branti and Rutan By reasons, foregoing respectfully For the I completely who are job protection to those dissent. inactive, majority totally politically un- protection previously awards that public employees. This

protected class principle, fair in but because

may sound from the judges

we are removed world politics, we need to exercise restraint TREATMENT NEW DIRECTIONS impact which will making decisions SERVICES, on its own behalf and on free flow of discourse. Doe; patients; Angel behalf of its Rutan, The dissent of Justice Scalia Joe; Loe; Coe; Joseph Dan Louis Rehnquist speaking also for Chief Justice Voe, Poe; their Carlos Peter own Kennedy, and part and Justice Jus- class, Ap- behalf and on behalf of the O’Connor, majori- tice did not constitute pellants However, ty his Supreme Court. conclusion, that if Elrod and Branti were READING; Vaughn Spencer, CITY OF facts, they correctly decided on their President, City in his official Council facts, beyond their should not be extended Members; City capacity, and Council “actual dis- which he characterized as George Kerns; Angel Figueroa; Mi- affil- charge for their Sterner; Schorn; chael D. Dennis Rutan, iation,” 497 U.S. at Reed; Jeffrey Waltman; Casey Donna far adhered to has so been Ganster, and offi- In their individual properly The Supreme Court. focus is capacities. cial employ- the current political activity the vehicle to No. 05-4353. ee. This case should be such clarify the unfortunate dicta cases Appeals, States Court of United Bennis, expand them. Stephens Third Circuit. Argued: Dec. V. Conclusion 15, 2007. Filed: June into majority has steered this court territory by expansion new current unaffiliated, protect politically

law to

Case Details

Case Name: Anne Galli v. New Jersey Meadowlands Commission Susan Bass Levin, in Her Official and Individual Capacities

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 20, 2007

Citation: 490 F.3d 265

Docket Number: 05-4114

Court Abbreviation: 3rd Cir.