Eichenlaub v. Township of Indiana

Case Information

BECKER, Circuit Judges. Appellants

(Filed: September 21, 2004) v.

BLAINE A. LUCAS (Argued) TOWNSHIP OF INDIANA; GERRI L. SPERLING TOWNSHIP OF INDIANA BOARD Springer Bush & Perry P.C.

OF SUPERVISORS; Two Gateway Center, 15th Floor DOROTHY T. CLAUS; GEORGE E. Pittsburgh, PA 15222-1402 DULL, JR.; CHARLES R. FEDEROFF;

JEFFREY D. PECK; DANIEL L. Counsel for Appellants TAYLOR, in their official capacities;

TOWNSHIP OF INDIANA CODE SCOTT G. DUNLOP (Argued) ENFORCEMENT OFFICER, STEPHEN J. POLJAK JEFFREY S. CURTI, in his official Marshall, Dennehey, Warner, Coleman capacity; DAN ANDERSON, in his & Goggin, P.C.

official capacity; MILDRED BROZEK, 2900 U.S. Steel Tower

Administratix of the Estate of 600 Grant Street Kevin Brozek; TOWNSHIP OF Pittsburgh, PA 15219 INDIANA ENGINEER, DANIEL B.

SLAGLE, in his individual and official Counsel for Appellees, except for

capacity Dorothy T. Claus JEFFREY COHEN (Argued) MARK A. ECK Meyer, Darragh, Buckler, Bebeneck &

The District Court granted Eck summary judgment on the substantive due U.S. Steel Tower, Suite 4850 process, equal protection, and First 600 Grant Street Amendment charges but denied the Pittsburgh, PA 15219 Eichenlaubs’ mandamus claim as moot.

We affirm the District Court’s judgment Counsel for Appellee, Dorothy T. Claus with respect to the substantive due process

and free speech and petition claims. However, we will reverse as to the First OPINION OF THE COURT Amendment retaliation, equal protection, and writ of mandamus claims. I.

CHERTOFF, Circuit Judge . David, Daniel, and Barbara

Appellants, members of the Eichenlaub own two parcels of property in Eichenlaub family and their family-owned Indiana Township: seven lots in the business, have been embroiled in a Fairview Gardens Plan and a separate tract contentious zoning d ispute with of land located along Saxonburg Appellees, the Township of Indiana, Boulevard. In the mid-1990s, the Pennsylvania, and several of its officials. Eichenlaubs commenced plans to develop The controversy arises from the their Fairview Gardens property, which Eichenlaubs’ desire to develop certain was part of a twenty-seven lot subdivision pieces of property, and from the of single family residences approved by Township’s insistence that the Allegheny County Planning development comply with a number of Commission and the Board of Supervisors regulations. The disagreement has of the Township in 1940 (the “Plan”). In engendered claims that Township officials April of 1999, the Eichenlaubs submitted violated the Eichenlaubs’ substantive due an application to the Township for process and equal protection rights by approval of a revised Plan related to the denying or delaying authorization to seven lots (the “Revised Plan”). After develop the properties; that officials several rejections and subsequent violated David Eichenlaub’s First revisions, the Township approved the Amendment petition and free speech Eichenlaubs’ amended subdivision plan rights by curtailing his speech during a on June 22, 1999, conditioned upon an public meeting and removing him from execution of a satisfactory developer’s the meeting; that officials retaliated agreement. However, several weeks later, against David Eichenlaub for exercising the Eichenlaubs withdrew their Revised his First Amendment rights; and that Plan, claiming that they had been subject officials are also liable under Pennsylvania to “unnecessary and onerous obligations” state law for damages. by the Township. Appellant Br. 12.

Following the withdrawal of their The Eichenlaubs also sparred with revised plan application, the Eichenlaubs Township officials over the development continued their development efforts for of their Saxonburg Boulevard property. In their Fairview Gardens lots. On August 1998, the Eichenlaubs filed a permit 19, 1999, Daniel and Barbara Eichenlaub application to grade the property to plant executed deeds granting two of the nursery stock for their landscaping Fairview Gardens lots to family members, business. The following year, the David and Carl Eichenlaub. One week Eichenlaubs fulfilled a Township request later, David Eichenlaub submitted a to file a site plan for the project. In June building permit application for a single of 2000, the Board approved the family residence on Lot 7 of the Plan. The Eichenlaubs’ plan. However, the Township rejected that application, as well Township had not executed the as a subsequent application filed on Developer’s Agreement because, as the August 3, 2000, claiming that the family Magistrate Judge found, the Eichenlaubs was trying to develop the seven residential have refused to pay the engineering fees lots in a serial fashion so as to claim for the project. App. A37.

colorable e x e m p tion from th e In September of 1999, requirements of the Township Subdivision Eichenlaubs filed two separate civil and Land Development Ordinance. actions in federal court. In the first case,

The Eichenlaubs maintained that docket 99-cv-01607, the Township, the they were not required to obtain the Township Board of Supervisors, the Township’s approval of their subdivision Township Board Code Enforcement plans under the then-current land Officer, the Township Manager, and the development regulations. They claimed Townsh ip Engineer were named that because the Fairview Gardens defendants. David Eichenlaub alleged that subdivision development was part of the the Township violated his First twenty-seven lot plan approved in 1940, Amendment rights to petition government subsequent revisions to the development for redress of grievances when he was codes did not apply to them. The limited in his right to speak at a public Township argued otherwise and meeting on September 14, 1999, and was maintained that the Eichenlaubs were removed from the same meeting ^[2] (Count I) obliged to comply with development

regulations enacted following the original

and was subject to various alleged development applications in the time and retaliatory actions taken by the Defendants manner required under the Pennsylvania (Count II). David Eichenlaub and his Municipalities Planning Code (“MPC”) business, Ike Construction, also asserted entitled them to a writ of mandamus defamation claims regarding Defendants’ compelling approval of those projects involvement in a newspaper article (Count IV).

recounting that David Eichenlaub had The two complaints were violated an Indiana Township Ordinance consolidated at 99-cv-01667. The (Count II). Defendants moved for summary judgment

In the second case, docket 99-cv- on all counts, and the Eichenlaubs moved 01667, David, Daniel, and Barbara for partial summary judgment on the Eichenlaub raised conspiracy claims under counts initially listed in 99-cv-01667. 42 U.S.C. § 1983 asserting: (1) violation On August 27, 2002, the Magistrate of their Fourteenth Amendment rights to J u d g e issued his Report and substantive due process (Count I) arising Reco m m en d a t i o n . The report out of delays and disputes in securing recommended that the District Court: (1) authorization to develop the Fairview Grant summary judgment for Defendants Gardens and Saxonburg Boulevard on David Eichenlaub’s First Amendment properties; and (2) denial of equal free speech and petition claim as well his protection under the Fourteenth state defamation claim; the Eichenlaubs’ Amendment by being denied equal protection, conspiracy, and official opportunity to proceed with their projects capacity claims alleged against the (Count II); and (3) arbitrary action, individual Defendants; (2) deny selective enforcement and retaliation Defendants’ motions for summary regarding both the Fairview Gardens and judgment on the David Eichenlaub’s First Saxonburg Boulevard properties (Count Amendment retaliation claims; (3) deny III). The Eichenlaubs also alleged that the motions by the Eichenlaubs and Defendants’ failure to act on their Defendants for summary judgment on the Eichenlaubs’ substantive due process claim; and (4) grant the Eichenlaubs’ interrupted him and did not let him finish request for a writ of mandamus based on his comments.” Appellant Br. 22. He also (a) Defendants’ failure to notify the claims that Peck had called him earlier on Eichenlaubs of its April 1999 decision to August 25, 1999, and suggested that he deny approval of the subdivision plan for “not come back and speak at the Fairview Gardens and (b) Defendant’s Township meetings, at the citizens failure to act on the Eichenlaubs’ grading forum.” Id. Finally, David Eichenlaub’s permit and site plan applications for the complaint, 99-1607, asserts without any Saxonburg Boulevard property. specificity that the Township hindered him from speaking at meetings.

While the case was pending in issues. He complains that the Township District Court, the parties entered into two restricted his ability to speak at various partial settlement agreements, dated Township Board of Supervisors Meetings February 12, 2003, and February 24, 2003, and that he was removed from one such under which the Township agreed to grant meeting on September 14, 1999. In effect, building permits at Fairview Gardens and David Eichenlaub alleges a direct restraint approve the subdivision plan and grading on speech in a particular public forum, as permits for the Saxonburg property. well as a restraint on his ability to petition under the Petition Clause of the First On May 29, 2003, the District Amendment. Second, David Eichenlaub Court entered an order granting urges that Township officials took adverse Defendants’ motion for summary action against his family in retaliation for judgment on all counts. The Court also his statements. We examine each claim in dismissed the Eichenlaubs’ mandamus turn. requests as moot in light of the partial settlement agreements. A.

The Eichenlaubs appeal from that The government’s power to prevent order as it relates to the § 1983 claims for or limit speech on public property is substantive due process, equal protection, carefully circumscribed by the First free speech, and retaliation as well as the Amendment. Not all public property is denials of mandamus. This Court has open to unfettered public speech, for the jurisdiction pursuant to 28 U.S.C. § 1291. “First Amendment does not guarantee Our review over a District Court’s grant of access to property simply because it is summary judgment is plenary. See Fed. owned or controlled by the government.” Home Loan Mortgage Corp. v. Scottsdale United States Postal Serv. v. Council of Ins. Co., 316 F.3d 431, 443 (3d Cir. Greenburgh Civic Ass’ns, 453 U.S. 114, 2003). We assess the record using the 129 (1981). Government facilities that are same summary judgment standard that not committed to public communicative guides district courts. See Farrell v. activity may regulate speech by the Planters Lifesavers Co., 206 F.3d 271, 278 general public so long as that regulation is (3d Cir. 2000). To prevail on a motion for reasonable and not based on opposition to summary judgment, the moving party must a particular viewpoint. Id. at 131 n.7. demonstrate “that there is no genuine issue That is because the government “may as to any material fact and that the moving legally preserve the property under its party is entitled to a judgment as a matter control for the use to which it is of law.” Fed. R. Civ. P. 56(c). dedicated.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S.

II. 384, 390 (1993). David Eichenlaub’s Fir st On the other hand, public areas that Amendment claims present two distinct are open to general “assembly and debate” U.S. 819, 829 (1995); Lamb’s Chapel, 508 as a matter of tradition or by specific U.S. at 392-93. An example of this kind government designation are characterized of limited public forum is a university as a public forum, within which speech facility open for meetings of student can be limited only narrowly. Ark. Educ. groups, but not for the general public. Television Comm’n v. Forbes, 523 U.S. See, e.g., Widmar v. Vincent, 454 U.S. 666, 677 (1998), quoting Perry Educ. 263, 268 (1981). The Supreme Court has Ass’n v. Perry Local Educators’ Ass’n, not precisely instructed where the limited 460 U.S. 37, 45 (1983)); see also public forum is located on the First Whiteland Woods, L.P. v. Township of Amendment spectrum between the strict West Whiteland, 193 F.3d 177, 182 n.2 test for public forum regulation and the (3d Cir. 1999). Streets and parks are more relaxed test for nonpublic regulation. examples of traditional public forums. See Whiteland Woods, 193 F.3d at 182 See, e.g., Hague v. CIO, 307 U.S. 496, n.2. Earlier decisions, such as Widmar 515 (1939). Public forums are also itself, 454 U.S. at 269-70, and Perry Educ. established when the government opens Ass’n, 460 U.S. at 45-46 & n.7, suggest property for general “expressive activity,” that content-based restraints on limited Perry Educ. Ass’n, 460 U.S. at 45, as in public forums must be subject to strict the case of theaters, Southeastern scrutiny, and can survive only if they are Promotions, Ltd. v. Conrad, 420 U.S. 546, supported by a compelling interest. 555 (1975). Absent a compelling interest, Recently, however, the Court has speech in a public forum may not be apparently moved to the position that regulated based upon content. regulation of a limited forum may survive Furthermore, in a public forum any under a test that is less strict than that restrictions as to time, place, and manner applied in the case of a general open of speech (1) must be unrelated to content; forum. Good News Club v. Milford Cent. (2) must be “‘narrowly tailored to serve a Sch., 533 U.S. 98, 106 (2001). Under this significant governmental interest’”; and refined test for reviewing limited forum (3) must allow alternative ways of restrictions, content-based restraints are communicating the same information. permitted, so long as they are designed to Whiteland Woods, 193 F.3d at 182 n.2 confine the “forum to the limited and (quoting Ward v. Rock Against Racism, legitimate purposes for which it was 491 U.S. 781, 791 (1989)). created.” Rosenberger, 515 U.S. at 829; see also Brody v. Spang, 957 F.2d 1108, There is a third type of public 1118 (3d Cir. 1992). Two limitations setting that the courts have recognized—a remain. Any restrictions on speech must forum created by the government that is be viewpoint neutral and must be limited to certain groups or to discussion “‘reasonable in light of the purpose served of certain topics. See Rosenberger v. by the forum.’” Good News Club, 533 Rector & Visitors of the Univ. of Va., 515 U.S. at 106-07 (quoting Cornelius v. NAACP Legal Def. & Ed. Fund, Inc., 473 include such expressive activities as U.S. 788, 806 (1985)). performance art, lectures on medieval history, or arguments about private Put another way, we may say that disputes involving town citizens. “Plainly, under contemporary public forum public bodies may confine their meetings jurisprudence, a designated (as opposed to to specified subject matter . . . .” City of traditional) forum is reviewed under a Madison Joint Sch. Dist. v. Wis. sliding standard that allows for content- Employment Relations Comm’n, 429 U.S. related regulation so long as the content is 167, 175 n.8 (1976); see White v. City of tied to the limitations that frame the scope Norwalk, 900 F.2d 1421, 1425 (9th Cir. of the designation, and so long as the 1990). Thus, matters presented at a regulation is neutral as to viewpoint within citizen’s forum may be limited to issues the subject matter of that content. germane to town government. In this case, the primary restrictions With this framework, we agree with placed on David Eichenlaub’s speech the District Court that summary judgment occurred during his appearance at the against David Eichenlaub on his restraint citizen’s forum portion of the Township of speech and petition claims was Board of Supervisors meeting on appropriate. The record of the September September 14, 1999, during which he was 14, 1999 meeting discloses that he was eventually removed. Whether the citizen’s repetitive and truculent, and that he forum was a general public forum or a repeatedly interrupted the chairman of the limited public forum is a close question. meeting. Restricting such behavior is the Certainly, the citizen’s forum is not sort of time, place, and manner regulation limited to a particular class of speakers, as that passes muster under the most stringent was the case in Cornelius (charities), scrutiny for a public forum. Indeed, for Rosenberger (student groups), or Forbes the presiding officer of a public meeting to (political candidates). Indeed, the record allow a speaker to try to hijack the discloses that the citizen’s forum—as its proceedings, or to filibuster them, would name suggests—is open to all citizens impinge on the First Amendment rights of who wish to address the Township other would-be participants. We have no government. At the same time, a review difficulty sustaining the decision to of the transcript of the forum confirms that remove David Eichenlaub on that basis. even the public discussion session of the Township meeting was designed to be To be sure, the chairman of the limited to matters pertaining to town meeting sought to restrict the discussion to government. The meeting was not the topics of public interest and requested that equivalent of a municipal theater, as in David Eichenlaub not discuss matters of Southeastern Promotions, or a public park private concern. To the extent those or street. One would certainly not expect restrictions were not strictly content- the forum of a Township meeting to neutral, the chairman’s actions served the function of confining the discussion to the by the First Amendment. ^[4] purpose of the meeting. As we have observed, speech at a citizen’s forum may the purpose of the meeting. be limited according to its germaneness to ^[3] At any rate, speech under the First Amendment. misconceives the scope of protection for The District Court’s opinion the overwhelming, and wholly sufficient, The issue of government retaliation motive to eject David Eichenlaub from the for unwelcome communication arises in meeting was the perfectly sustainable and various contexts. Sometimes, public content-neutral desire to prevent his employees claim adverse employment badgering, constant interruptions, and action resulted because of their speech. disregard for the rules of decorum. Prisoners not infrequently allege that punishment was spurred by their We will affirm summary judgment complaints. And, as is the case here, for the defendants on this claim. citizens may charge that the government B. hurt them in retaliation for some criticism against the authorities. See Bd. of County The Eichenlaubs’ retaliation claims Comm’rs v. Umbehr, 518 U.S. 668, 671- stand on different footing, however. The 72 (1996). Magistrate Judge determined that there were material issues of fact as to whether In general, constitutional retaliation the defendants took steps to retaliate claims are analyzed under a three-part test. against the Eichenlaubs for David Plaintiff must prove (1) that he engaged in Eichenlaub’s various statements and constitutionally-protected activity; (2) that complaints, including his speech at the the government responded with September 14, 1999 meeting. The District retaliation; and (3) that the protected Court entered summary judgment against activity caused the retaliation. Anderson the Eichenlaubs, however, on the ground v. Davila, 125 F.3d 148, 161 (3d Cir. that, even if there was retaliation, the 1997) (public employee retaliation); speech in question related to private Rauser v. Horn, 241 F.3d 330, 333 (3d matters, rather than matters of public Cir. 2001). The threshold requirement is concern, and, therefore, was unprotected that the plaintiff identify the protected

activity that allegedly spurred retaliation. In this case, David Eichenlaub protection includes private expression not argues that his exercise of his freedom of related to matters of public concern. See speech and ability to petition Capitol Square Review & Advisory Bd. v. government under the First Amendment Pinette, 515 U.S. 753, 760 (1995); are the protected activities in question. Connick v. Myers, 461 U.S. 138, 147 (1983); United Mine Workers of Am. The District Court relied in part on Dist. 12 v. Ill. State Bar Ass'n, 389 U.S. our opinion in Anderson to hold that 217, 223 (1967). “plaintiff must show that speech is a matter of public concern in order to The “public concern” test was receive First Amendment protection.” formulated by the Supreme Court in App. A17 (quoting Anderson, 125 F.3d at addressing speech restrictions placed by 162). This reading of our case law, governmental entities on their own public however, is overbroad. Our decision in employees. Regulation of public Anderson—and all the other decisions employee speech presented two features relied upon in the District Court or by the not present in other forms of speech parties—provide only that a “public control. First, acting as an employer, the concern” requirement applies when a government has some authority to impose claim of First Amendment retaliation is conditions upon those who seek jobs, brought by a public employee against his including conditions that limit the exercise or her government employer. Anderson, of otherwise available constitutional 125 F.3d at 162. The speech on public rights. See, e.g., Broadrick v. Oklahoma, concerns requirement embodied in these 413 U.S. 601 (1973). Second, “[w]hen decisions has not been applied, however, someone who is paid a salary so that she when non-employees complain that will contribute to an agency’s effective government has retaliated against them as operation begins to do or say things that citizens for their speech. To expand this detract from the agency’s effective public concern limitation into the broader operation, the government employer must context of all citizen speech would wrench have some power to restrain her.” Waters it from its original rationale and curtail a v. Churchill, 511 U.S. 661, 675 (1994) significant body of free expression that (plurality opinion).

has traditionally been fully protected The Supreme Court approached under the First Amendment. public employee speech, therefore, as a

We begin with the proposition that, balance between the rights those except for certain narrow categories employees enjoy as citizens and the deemed unworthy of full First Amendment obligations they bear as loyal employees. protection—such as obscenity, “fighting In Connick v. Myers, 461 U.S. 138 words” and libel—all speech is protected (1983), the Court held that while by the First Amendment. R.A.V. v. St. government employers, like their private Paul, 505 U.S. 377, 382-90 (1992). That counterparts, have authority to manage their workers—including the authority to to avoid any implication that speech on restrict various kinds of expression—the private matters is not entitled to First Amendment imposes limits on that constitutional protection: authority when speaking about matters of public concern. To strike the balance, the Court carved out speech on matters of public concern as a protected even for government employees. The Court reasoned that speech on public species of expression that would remain issues “occupies the ‘highest rung of the 145 (quoting Carey v. Brown, 447 U.S. is entitled to special protection.” Id. at ^[5] 455, 467 (1980)). hierarchy of First Amendment values,’ and the employees are only to the extent it can be protect speech and assembly the protection of the First concern, is totally beyond however, We do not speech, even if not touching upon a matter of public characterized as political . . . . Amendment. “[The] First Amendment does not that Myers’ suggest, Nothing about the reasoning of Id. at 147 (quoting United Mine Workers Connick suggests that this public/private of Am. Dist. 12, 389 U.S. at 223). Thus, concern distinction has any role to play the Court distinguished between types of regarding speech outside the public speech only in order to accommodate the employment setting. strong countervailing need for

To the contrary. In singling out governments to discipline their own speech on matters of public concern for personnel.

the highest protection in the government This Court has also observed, albeit workplace, the Supreme Court took pains in dictum, that “[s]peech unrelated to a

matter of public concern is not, like obscenity, entirely outside the protection ^[5] That special status for speech of the First Amendment. While the about matters of public interest drew government as employer may discharge a support from other lines of First public employee for such speech, the Amendment case law that gives government as sovereign may not sanction extraordinary protection to even the same individual when she engages in defamatory speech and invasions of such speech as a citizen, outside the privacy when they concern public figures employment context.” Azzaro v. County or matters of public interest. See Dun & of Allegheny, 110 F.3d 968, 976 n.3 (3d Bradstreet v. Greenmoss Builders, 472 Cir. 1997). U.S. 749, 758-59 (1985); New York To be sure, numerous cases, Times v. Sullivan, 376 U.S. 254, 279-80 including those cited by the District Court (1984); Time, Inc. v. Hill, 385 U.S. 374, and by the parties, have reiterated the 387-88 (1967). public/private matters distinction in the mistreatment. We do not, however, context of retaliation claims brought by impose a “public concern” threshold. public employees. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1997); Anderson, 125 F.3d at 160-61 (3d of Bridgeview, 183 F.3d 840 (7th Cir. 1999); Russolini v. Salisbury Township, Cir. 1997); Kokkinis v. Ivkovich and Vill. 2d 334 (S.D.N.Y. 1998). What is pivotal, though, is that these cases do not involve retaliation by government bodies against Alvarez v. City of New York, 31 F. Supp. 126 F. Supp. 2d. 821 (E.D. Pa. 1999); government (and who, incidentally, cannot citizens who are not employed by the ^[6] Indeed, many other cases point to the context the First Amendment forbids retaliation for speech even about private against a guard caused retaliation. matters. For example, we have held that allegations that a prisoner’s complaint First Amendment claims may be based on be viewed as having limited their speech as a condition of voluntary employment). principle that outside the employment public/private concern distinction that U.S. at 674. of government employment decisions concern threshold to the protection of fashion one now. “[C]onstitutional review ladder. See Capitol Square Review, 515 U.S. at 760. The rationale for a applies to public employees simply does not apply still protected on the First Amendment rung” on the ladder of the First obscene or fighting words or the like) is public concern may stand on the “highest Amendment, private speech (unless citizen private speech. We decline to employment context. By the same token, our court have not established a public the decisions of the Supreme Court and of review of speech restraints imposed by the government as sovereign.” Waters, 511 must rest on different principles that In short, while speech on topics of to citizens outside Mitchell v. Horn, 318 F.3d 523 (3d Cir. Accordingly, David Eichenlaub’s 2003). Realistically, these kinds of speech, even if concerned with private complaints are often highly particularized grievances, is entitled to First Amendment objections to alleged individual ^[7] protection.

Because the District Court did not kinds of gross misconduct that have consider the Magistrate’s Report that shocked the judicial conscience. In found material issues of fact with regard to Conroe Creosoting Co. v. Montgomery the other elements of the retaliation claim, County, 249 F.3d 337 (5th Cir. 2001), the we will vacate the judgment on the First Court of Appeals determined that whether Amendment retaliation claim and remand a plaintiff’s substantive due process had for further proceedings. been violated by local officials was a triable allegation. But that was not a

III. zoning dispute. Rather, plaintiffs charged A. that the officials fraudulently converted a tax levy for a $75,000 deficiency into an The District Court properly held, unauthorized seizure and forced sale and and the Eichenlaubs do not dispute, that destruction of an $800,000 ongoing whether a zoning official’s actions or business. The principal defendant inactions violate due process is determined conceded that the sale was unauthorized. by utilizing a “shocks the conscience” test. The facts carried a whiff of self-dealing, United Artists Theatre Circuit, Inc. v. since the principal defendant’s friends Township of Warrington, 316 F.3d 392, were alleged to have been engaged to 399 (3d Cir. 2003). That test, of course, is perform auction services. In effect, the not precise, see County of Sacramento v. court found that the facts asserted Lewis, 523 U.S. 833, 847 (1998), and it amounted to a claim of an unconstitutional also “varies depending on the factual “taking” without just compensation, in context,” United Artists, 316 F.3d at 400. violation of the Fifth Amendment, or an What is clear is that this test is designed to improper seizure, in violation of the avoid converting federal courts into super Fourth Amendment. Id. at 340 n. 9. zoning tribunals. What “shocks the conscience” is “‘only the most egregious Associates in Obstetrics & official conduct.’” Id. (quoting Lewis, 523 Gynecology v. Upper Merion Township, U.S. at 846). 270 F. Supp. 2d 633 (E.D.Pa. 2003), is also a case that implicates more than just Cases cited by the Eichenlaubs in disagreement about conventional zoning support of their argument illustrate the or planning rules. In Obstetrics, the

District Court denied a motion to dismiss a claim that municipal defendants denied regard to the “public concern” test. In substantive due process when they view of our disposition, we need not selectively closed plaintiff’s medical address whether the Petition Clause office for the purpose of blocking the creates broader rights than the Free provision of abortion services. Because Speech Clause in the non-employee the municipal action there implicated context. See id. at 449 (Becker, J., abortion rights, the District Court’s dissenting). analysis of the “shocks the conscience” requirements to their property that were standard proceeded largely under those not applied to other parcels; that they judicial decisions that address protection pursued unannounced and unnecessary of abortion services under the Fourteenth inspection and enforcement actions; that Amendment. That analysis is inapplicable they delayed certain permits and to a zoning controversy that does not approvals; that they improperly increased involve allegations of hostility to tax assessments; and that they maligned constitutionally-protected activity on the and muzzled the Eichenlaubs. With the premises. ^[8] exception of the previously discussed First Court found, the misconduct alleged here does not rise sufficiently above that at issue in a normal zoning dispute to pass the “shocks Basically, the Eichenlaubs assert that zoning officials applied subdivision By way of contrast, as the District the conscience ^[9] test.” Amendment retaliation claims, these disagreement that is frequent in planning disputes. As counsel for appellants acknowledged during argument, there is no allegation of corruption or self-dealing complaints are examples of the kind of here. The local officials are not accused of seeking to hamper development in 205 (2d Cir. 1988), which involved Brady v. Town of Colchester, 863 F.2d by the Eichenlaubs are just inapposite. allegations that defendants were making Two other decisions relied upon ^[8] virtual “taking” as in Conroe. And as we against an ethnic group. There is no project site, or because of some bias constitutionally protected activity at the have previously observed, order to interfere with otherwise [E]very appeal by a zoning decisions to harm members of an disappointed developer opposing political party, was decided from an adverse ruling of before Lewis and under a different legal the local planning board standard than the “shocks the conscience” involves some claim of test. Rubinovitz v. Rogato, 60 F.3d 906 abuse of legal authority, but (1st Cir. 1995), is an equal protection case, “it is not enough simply to not a substantive due process case.

give these state law claims ^[9] The Magistrate Judge initially constitutional labels such as analyzed the substantive due process claim ‘due process’ or ‘equal under the “improper motive” test of Bello protection’ in order to raise v. Walker, 840 F.2d 1124 (3d Cir.), cert. a substantia l federal denied, 488 U.S. 851 (1988), 488 U.S. question under section 868 (1988). The District Court had the 1983.” benefit of our intervening decision in United Artists, 316 F.3d at 402 (quoting United Artists, which made clear that Creative Env’ts, Inc. v. Estabrook, 680 “shocks the conscience” applies. F.2d 822, 833 (1st Cir. 1982)). as a device to dilute the stringent requirements needed to show a substantive The District Court applied the due process violation. It may be very correct legal standard and did not abuse its unlikely that a claim that fails the discretion in dismissing the substantive substantive due process test will survive due process claim. under an equal protection approach. B. Nevertheless, the District Court simply did not address the equal protection claim at In the District Court, all. Bearing in mind that we have Eichenlaubs also raised an equal remanded the retaliation claims for further protection challenge to what they claimed consideration by the District Court, we was selective or unequal enforcement of will remand this somewhat overlapping local development rules. Indeed, they claim as well so that the District Court argue here that other property owners have may consider whether it is appropriate for not been held to the same rigorous summary judgment. procedures that they claim were applied to the Eichenlaubs’ parcels. They do not, IV.

however, assert that any differences in Finally, the Eichenlaubs appeal the treatment stem from racial or other District Court’s decision to dismiss their invidious forms of discrimination, or from request for a writ of mandamus to obtain a an effort to burden fundamental rights “deemed approval” of their proposed (again, except for their First Amendment subdivision and development plans. In his rights, which we treat above). Report and Recommendation of August

The Supreme Court has held that a 27, 2002, Magistrate Judge Caiazza “‘class of one’” can attack intentionally recommended that the Eichenlaubs’ different treatment if it is “‘irrational and request for a writ of mandamus be granted w h o lly arbitrary.’” Village of with respect to (1) the failure to inform the Willowbrook v. Olech, 528 U.S. 562, 564, Eichenlaubs in writing of the Town 565 (2000) (internal citations omitted) (per Board’s April 1999 vote denying the curiam). The Magistrate Judge briefly revised Fairview Gardens subdivision plan addressed this issue in denying the motion and (2) the Township’s failure to timely for summary judgment on this claim, but review the Eichenlaubs’ Saxonburg the District Court reversed and granted Boulevard grading permit and site plan summary judgment without discussion. applications.

The “irrational and wholly However, the District Court arbitrary” standard is doubtless difficult determined that the Eichenlaubs’ request for a plaintiff to meet in a zoning dispute, for “deemed approval” of the Fairview id. at 565-66 (Breyer, J., concurring), and Gardens and Saxonburg property plans we do not view an equal protection claim was moot because the parties had executed two partial settlement agreements on claim for monetary relief. We remand this February 12, 2003, and February 24, 2003. issue to the District Court for a The Eichenlaubs allege here that this determination whether summary judgment decision was improper because the partial is appropriate on the claim for damages settlement agreements left open the issue incidental to mandamus.

of payment of damages. The District We will affirm the District Court’s Court never addressed whether damages order granting summary judgment to the were appropriate. Township of Indiana on the Eichenlaubs’

Mandamus will issue to compel a substantive due process and David government agency’s performance of a Eichenlaub’s free speech and petition ministerial act when the plaintiff has a claim. With regard to David Eichenlaub’s clear legal right to the remedy, the First Amendment retaliation claim and the defendant has a duty, and there is no other Eichenlaubs’ equal protection claim, we equitable or appropriate remedy. Malone will vacate the District Court’s judgment v. W. Marlborough Township Bd. of and remand for further proceedings. We Supervisors, 570 A.2d 147, 148-49 (Pa. will also remand the District Court’s order C o m mw . C t . 1 9 9 0 ) . U n d er denying the Eichenlaubs’ application for a Commonwealth law, as the Township writ of mandamus for consideration of itself noted, “[d]amages recoverable in damages incurred, if any.

mandamus are those incidental to the

specific relief being sought.” Stoner v.

Township of Lower Merion, 587 A.2d

879, 885 (Pa. Commw. Ct. 1991). “[A]ny

damages available to the land owners as a

result of the township’s wrongful

withholding of approval must be confined

to those incidental to the specific relief

available in mandamus.” Id.

On appeal, we cannot determine

whether summary judgment for damages

incidental to mandamus was appropriate.

Neither the Magistrate Court nor the

District Court discussed the issue of

damages sustained by the Eichenlaubs

with respect to the delay in receiving the

permits. In addition, neither

Eichenlaubs nor the Township has pointed

to evidence in the record on which this

Court could rely to sustain or reject a subdivision approval granted in 1940.

Notes

[1] 1980), the Township Grading Ordinance (enacted in 1987), and the Stormwater Management Ordinance (enacted in 1988).

[1] The Township’s position has been that the Eichenlaubs were required to

[2] David Eichenlaub contends that at comply with the requirements of the the September 14, 1999 meeting, board current Subdivision Ordinance (enacted in chairman Peck also “repeatedly

[3] Of course, viewpoint-based

[4] Appellants challenge the District regulation is not proper. We do not read Court’s determination that David the record of the proceedings to indicate Eichenlaub’s speech was not about matters that the presiding officer attempted to of public concern. Since we determine muzzle David Eichenlaub because he that the public concern test is not disagreed with Eichenlaub’s viewpoint. applicable, we need not address this App. A1225-35. challenge.

[6] The District Court did rely upon

[7] The District Court opinion also Grimm v. Borough of Norristown, 226 overlooked the fact that the Eichenlaubs F.Supp. 2d 606, 636 n.19 (E.D.Pa. 2002), raised claims of retaliation for the exercise in which another District Court translated of rights under the Petition Clause of the the public concern requirement from the First Amendment. We held in San Filippo public employee setting to the zoning v. Bongiovanni, 30 F.3d 424 (1994), that setting. That opinion is, of course, not under the Petition Clause, the filing of a binding on us, and for the reasons stated “non-sham” petition was protected activity here, we disagree. in the public employee context—without

Case Details

Case Name: Eichenlaub v. Township of Indiana

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 21, 2004

Citation: 385 F.3d 274

Docket Number: 03-2707

Court Abbreviation: 3rd Cir.