McClintock v. Eichelberger
169 F.3d 812
3rd Cir.
1999
Check Treatment

*1 reasons, Potential Conflict of Interest all judgments B. For these of the respect District Court with to both Mnrelli claims Roizman also that his con and Roizman will be affirmed. potential viction should be reversed under a reject theory. this claim as well. conflict We aware, is

When a district court or should be

aware,- potential of a conflict of interest on part attorney, defendant’s inquire as whether defen must McCLINTOCK; Jon dant aware of and waives conflict. See Inc., Appellants, Assoc. States, v. Wheat United (1988); Wood L.Ed.2d v. v. 272, 101 Georgia, EICHELBERGER; Cober; John Brad (1981); Pungi States United v. Fultz; Will; Alexa Robert John Eber tore, Cir.1990). F.2d sole; Alleghenies Planning argues reversal required Roizman Development Commission. only when the trial court is such aware of No. 98-3443. conflict fails to act but also when the prosecutor attorney and defense are aware of United Appeals, States Court of Although one. Roizman cites several eases Thud Circuit. within the courts Second Circuit Argued Feb. 1999. see, claim, e.g., of this United States Decided March Rahman, (S.D.N.Y. F.Supp.

v. 1994), appeals court of that circuit has only prosecutors exhorted most to advise

the trial courts when are aware of con Stantini,

flicts, United see States 85 F.3d (2d Cir.1996).

9,13 Cerro v. United (7th Cir.1989) (“We

States F.2d disagree propriety

do not such circumstances, like

recommendation under

but we is not a conclude it constitutional case,

requirement. present prose duty

cutor was under no constitutional potential

advise the trial court of a conflict him.”).

based the information available to held,

They hold, have not and we do not

a prosecutor’s attorney’s a defense —or —fail respect grounds ure in this for reversal.

Since Roizman makes no claim that the Dis

trict was or have should been aware of conflict, potential

Silverman’s he is not enti grounds.17

tled to a reversal these Porotsky impeach Porotsky. dence from evidentiary hearing Ac- failed conduct an on his cordingly, we conclude that no conflict actual claims. Because we conclude that District Porotsky with Silverman’s duties affected his rejecting Court did not. err in Roizman's claims representation of Roizman. it, documentary on the based before evidence no see need for the court to have conducted Finally, argues Roizman that we re- should evidentiary proceedings. further verse District Court’s decision because

under the Fourteenth Amendment. Git York, 652, 666, v. New low (1925). 625, 629, addition, 69 L.Ed. 1138 appellants supplemental' have set forth claim. are state-law We concerned here impact Amendment’s on the award ing aof contract. In view of procedural posture accept case we appellants’ allegations factual as true and light view them most favorable appellants. Collegiate See Smith v. National Ass’n, Athletic 139 F.3d Cir. — U.S.-, 1998), grounds, rev’d other 924, 142 (1999). Appellants, Jon McClintock and Associates, Inc., brought this action Jr., appellees Eichelberger, John Brad Co- Fultz, Will, Ebersole, ber, Alexa John Robert Alleghenies Planning De- and Southern and Appellants velopment assert Commission. times that McClintock at all relevant to engaged was in the mar- action business of keting advertising through Cherryhill, a and Pennsylvania corporation, in he is the principal appel- shareholder. individual Somerset, Blair, are lees commissioners Counties, Huntington Pennsylvania, and and (ar- Berger, Lagnese A. Daniel M. Paul as such are members of Executive Board Firm, PA, gued), Berger Pittsburgh, Law Alleghenies appellee, Plan- of the Southern Appellants. which, ning Development and Commission (argued), Ar- L. Tucker Robert McTiernan according appellants, corporation to the “is a P.C., PA, ensberg, Pittsburgh, Appellees. entity existing of the other the laws Pennsylvania.” Commonwealth of Notwith- GREENBERG, ROTH, Before: characterization, standing imprecise it is LOURIE,* Judges Circuit undisputed Alleghenies that Southern entity. Appellants that South- THE COURT OPINION OF Alleghenies ern times relevant “was all GREENBERG, Judge. Circuit in- engaged developing the business and Bedford, Blair, of the dustries Counties I. INTRODUCTION Cambria, Somerset, Huntingdon Ful- an This matter before this court on ton.” appeal from an entered the district order complaint alleges beginning in July appel- granting court on appellants and Southern pursuant lees’ motion to Fed.R.Civ.P.

12(b)(6) “developed to dismiss the first amended com- contractors,” meaning plaint in this case failure to a claim state have been con- may granted. case which relief engaged by Alleghenies to principally Amend- tractors arises Constitution, ap- perform particular, com- ment services. United States plicable through plaint alleges Alleghe- incorporation that in 1985 Southern states * Lourie, Circuit, silting by Judge designation. Alan Circuit Honorable D. Appeals States Federal United Court of for the presented retained McClintoek coordinate the contract

nies was the Southern Alle- Safety promotion ghenies of its “Seatbelt Demonstra- approval. Executive Board for final Project” Alleghe- 1992 Southern Appellants allege appellee “Eichelber- Cherryhill “to pro- nies retained coordinate ger opposition stated his awarding advertising viding promotional materials and *3 Cherryhill contract ... [appel- to because Cycle States Olympic for the 1992 United supported performed lants] had and services by” coordinated Trials which was Southern public political officials and candidates Appellants allege they Alleghenies. that [Eichelberger] opposed.” who in- The other to performed services the satisfaction their appellees agreed dividual Eichelberger. with Southern As a result of vote of the five individual allegation particularized The final consti- appellees “constituting majority Ex- “ongoing tuting relationship” ecutive Board” defeated a motion to award years that 1996 and “[i]n Cherryhill. the contract to The Executive Alleghenies purchased ... Southern various by Board the same vote then awarded promotional from ... Cherryhill materials contract to concern. another While the com- magnets, vinyl bags such banner and as and plaint point, is unclear on this we infer that specially imprinted ap- ‘Slinkies.’” It thus the Executive Board must than have more pears “ongoing that business relation- five members that some and of the members ship” appellants between and Southern Alle- awarding Cherryhill. favored the contract to ghenies consisted of one contract in 1985 Appellants performed by alleged as that independent appellees McClintoek did contractor, in performed one contract Cherryhill award the ap- contract to because contractor, by Cherryhill as an pellants: and a vendor-vendee between rights of their exercise Cherryhill Alleghenies and Southern from Amendments, First and Fourteenth had involving through pro- sale of supported performed and vari- services for motional materials. public political ous officials and candidates alleged appellants next because of by opposed who were Defendant Eichel- relationship” “ongoing Southern Alle- berger and or all of some the other individ- Cherryhill ghenies requested “to submit a Defendants, or, alternative, ual in the De- proposal perform marketing ... services Eichelberger opposed fendant public said TEAM PA [its] connection with Initiative. political officials and candidates and the marketing proposed campaign by ... other supported individual Defendants De- Cherryhill designed to companies was make Eichelberger fendant in denying mar- county in the six aware of survey area keting Cherryhill, contract to Plaintiff with process being conducted interview- said knowing other individual Defendants contacting ers up businesses set interview Eichélberger’s Defendant oppositions course, appellants allege dates.” Of upon was based Plaintiffs’ of said Cherryhill’s proposal provided for Southern public political officials and candidates. Alleghenies pay Cherryhill “for the ser- Appellants by alleged that reason of their performed marketing vices to be under the “long, ongoing satisfactory and business rela- contract.” tionship” Alleghenies and allege Appellants TEAM PA Ini- approval proposal by of their the Industrial tiative was a “coordinated effort” between Development Corporations “acting as the Southern and certain otherwise Advisory TEAM PA Committee” as as well Development unidentified Corpo- “Industrial Alleghenies’ Finance Commit- Development rations.” The Industrial Cor- tee, expectation “had the that the mar- porations Cherryhill’s proposal reviewed as keting ... contract would awarded to well as from other firms and those “unani- Cherryhill.” Thus, they alleged ap- mously agreed marketing to award the con- pellees acting under color of state law Cherryhill.” Appellants tract to ... § violation penalized of 42 May 21,1997, that on them the Finance U.S.C. Committee Alleghenies approved exercising rights of Southern speech “their of free awarding Cherryhill following guaranteed contract to assembly, which the and the First by sup- political allegiance ... and Amendments Fourteenth noted, working officials and porting and association. The district court how- Appel- of their choice.” candidates ever, that Umbehr O’Hare involved sit- they alleged that the facts lants asserted uations had been there the statelaw tort of interference constituted relationships between the advantageous relationship between “the entity and the contractor. Alleghe- and ... Southern fact, in- respectively and O’Hare sought compensatory and Appellants nies.” hauling volved trash motor vehicle tow- damages. had punitive The district court municipal ongoing char- ing, services of an jurisdiction appellant’s complaint over acter. 1331,1343(a), § § U.S.C. The district court indicated indicated, appellees moved As we have *4 position plaintiffs were not in the same as the 12(b)(6). The to dismiss under Fed.R.Civ.P. Cherryhill in and OH are as “was granted the motion in its mem district court applicant than a bidder for a new no more or 28, July In of orandum and order .its Moreover, government contract.”' the dis- forth the the district court set memorandum court, declining trict find a sufficient indicated background of the case and then allegation of a First violation in Amendment Burns, 347, v. 427 96 S.Ct. in Elrod complaint, made to the the reference Su- 2673, (1976), Supreme 547 49 L.Ed.2d “the preme caveat Court’s at the end of Umbehr: public recognized employee that a who Court alleges discharged was or threatened that he Finally, emphasize the limited nature of we solely discharge partisan with because of today. our decision Because Umbehr’s political or states a affiliation nonaffiliation pre- of a suit concerns termination § 1983that his [42 U.S.C.] viable claim existing relationship with have been violated.” government, pos- we need not address court then district indicated suits, sibility applicants of bidders or for Finkel, 507, v. 445 Branti rely new contracts who cannot (1980), Supreme 574 63 L.Ed.2d relationship. such a on pa holding Court confirmed Elrod Umbehr, un tronage dismissals are unconstitutional at 2352. 518 U.S. appropriate less affiliation is an re court that while the The district indicated quirement performance of Elrod, for the effective might Supreme extend the Court involved. court office The district Branti, “jurisprudence and Rutan to the Party v. Republican next that in Rutan said appli- disappointed of bidders and claims Illinois, 2729, 111 cants,” of it would not do so. (1990), Supreme ex L.Ed.2d 52 Court opinion district court its ended by holding that tended Elrod and Branti dismissing appellants’ claims. state law transfer, promotion, applied “to those cases Pennsylva- regard pointed that in out recall, party hiring decisions based cannot be a interference nia there tortious support.”. affiliation and are in- parties contract unless three with a at 2739. tortfeaser, volved, plaintiff and a third The district court then addressed contracting. plaintiff party whom the one, Supreme which, cases like this Maretti, Pa.Super. See Maier v. employees, not involved but (1995). Thus, appellees A.2d contractors, County Board Comm’rs of germane contract not be liable as the could Furthermore, was with them. the result was (1996), Truck and O’Hare by reason the fact that the affected of not Northlake, Serv., City Inc. v. agents appellees or were officers individual (1996). 2353, 135 L.Ed.2d 874 Alleghenies. Daniel Adams of Southern See pointed out that in Um- district Inc., Assocs., Publ’g, Inc. v. Rimbach behr that a and O’Hare Court held (1987). 997, 1000-02 Pa.Super. 519 A.2d government may indepen- not terminate an court then entered the order The district dent to -retaliate contractor’s 28,1998. July the contractor for the exercise July appeal from Appellants the order of tracts with Southern for discrete jurisdiction services, 1998. We have project the 1985 seatbelt and the § plenary exercise U.S.C. review on project coordinating provision Thus, appeal. only we can affirm if we promotional advertising materials for the prove are certain that the cannot cycle Olympic addition, trials. any set of under the first facts amended supplied promotional as a vendor materials complaint which would be the basis for relief. Alleghenies. to Southern Smith, 139 F.3d Appellants do not that the contract marketing services connection with the II. DISCUSSION PA TEAM Initiative involved here related precise Initially identify issue any way to their contracts with indicated, this court. As we have before Thus, their status dif- carefully Supreme in Umbehr limited plaintiffs fers that of in Umbehr and holding that was a opinion its there providing who were O’Hare services protection pre-existing com when the entities terminated their re- relationships reserving while mercial decision lationship in retaliation for their ac- protection on whether there similar We tivities. therefore conclude that with bidders respect Initiative, PA TEAM this ac- rely who contracts cannot such relation *5 [ ] does “concern the termination of a Appellants pleaded ship. their case within the pre-existing relationship commercial Umbehr and thus the framework district Umbehr, government.” adjudicated principally court case on that Rather, S.Ct. at 2352. this case a involves Accordingly, gravamen of basis. the dis by[a] applicant “suit[] bidder[] for ] [a] opinion is case is trict court’s that this distin rely contract[ ] who cannot guishable from Umbehr and O’Hare because relationship.” such a Id. appellants being claim cannot the “status” “preexisting a relationship commercial analysis Our leads us to affirm the order of Alleghenies.” with Southern district court for each surely in reasons, The district court was correct procedural substantive, one and one reaching this the mu- conclusion. O’Hare requires either alone our result. nicipality operators had a list of truck tow procedural pled is that appellants reason many which had plaintiff included this relying case the district court on their years. political campaign During he a de- ongoing relationship Alleghe- with Southern clined to make a contribution incum- viability nies and thus the of their claim mayor which, following allegedly bent in re- depends ability on their to demonstrate that refusal, taliation for municipality they relationship. such a had we While rec- list, thereby removed him from terminat- ognize the appellants in their district ing long relationship. term In Umbehr the in opposition appellees’ brief to motion plaintiff frequently was a trash hauler who if dismiss stated court found that county government criticized the which en- they did not have the same status as the gaged brought him. suit charging Umbehr plaintiffs O’Hare, they Umbehr and never- county terminated his contract in theless were entitled to First Amendment speech. retaliation for his as in protection retaliation, argument from O’Hare, the an retaliation terminated active beyond pleadings. went ongoing independent relationship contractor appeal appellants continue to focus .On for the supplying of services. previous relationship on their with Southern case, however, very This different from Thus, Alleghenies. they summarize Notwithstanding Umbehr and O’Hare. argument as follows: appellants’ pleading they have had “an Cherryhill regular and McClintock were relationship” providers of Alleghe- services to Southern since the facts which existing nies and had.an commercial rela- pled have make it clear that the distinguishable tionship from in Umbehr Southern As those appellants O’Hare. Here had two con- such and McClintock were enti- practices for exer- into such traditional as contract from retaliation protection tied executive, political expression. right government’s of their awards cise Thus, Alleghenies’ failure to federal, Thus, state or local level.” Cherryhill solely be- a contract award expansion suggested that if in the area is to had Cherryhill and McClintock cause Supreme come the source should be the po- supported and worked worked holding in Id. the substantive Court. While Eichelberger states a opponents of litical Supreme Horn does not survive the later granted. can be Ac- for which relief cited, Court cases we have still Horn’s ad- grant- erred in cordingly, the district court Certainly it diffi- monition remains true. Alleghenies’ Motion to Dis- ing Southern predict cult for a court to what the conse- of the First Amended the First Count miss political activity if quences would be on Complaint. protections are extended Br. beyond the and O’Hare boundaries. Umbehr appellants In their brief in this court Perhaps discourage even the extension would assuming again “[e]ven contend that once activity. [they] not have finds that do that this Court hand, in a On the other retaliation situa- plaintiffs in Umbehr status as the the same obviously involving ongoing contracts O’Hare, [they] entitled are nonetheless presents dynamics. Protection clear set government retaliation protection, from pre- contractor with a of their First Amendment for exercise existing relationship with the We, however, will not rights.” Br. at 15. public entity retaliation reason of his argument did entertain this activity protects plainly his First in their com plead it as the basis for relief rights. Accordingly, there is a American plaint. Krouse v. Sterilizer Cir.1997). Co., to limit principled F.3d 499 n. reason which, Accordingly, we will affirm the order unlike the one O’Hare to situations *6 for, already have indicat as we here, district retaliatory act is the termination of the ed, ongoing appellants do not have an the relationship. commercial enti appel- The final before us involves issue protection under tled to First supplemental law claim. We see lants’ state Umbehr O’Hare. on the merits to discuss this claim no reason event, any ap- if even we entertained agree with the district court’s dismissal as we regard for pellants’ argument that without analysis. nothing its of it and have to add to and O’Hare their status however, We, appellants do point out that the relief, would affirm. are entitled to we court abused its not contend that the district un- reaching we understand that this result jurisdiction exercising over this discretion applicants Rutan certain em- der 1367(c). § claim. See 28 U.S.C. First Amendment ployment are entitled to indicated that protection and that Umbehr III. CONCLUSION “[independent government contractors are govern- respects to similar in relevant most reasons, foregoing we will affirm For the 684, 116 employees.” ment 518 U.S. S.Ct. 28,1998. July the order of Nevertheless, the in Umbehr at 2352. nature of de- “emphasi2ie[d] [its] the limited ROTH, Dissenting: Judge, Circuit possi- the cision” and thus did “not address dis- majority’s to affirm the The decision by applicants for bility of suits bidders statutory claim appellants’ rely missal of government contracts who cannot 685, of which relationship.” assumptions, Id. at 116 two both on such a turns on carefully Cherryhill’s at 2352. The Court therefore S.Ct. status relate to McClintoek’s decision. cabined its first as- as contractors. sumption the outcome reached critical to Kean, 668, F.2d In Horn v. 796 678 majority is its factual determination (in Cir.1986) banc), we cautioned ex- Cherryhill did not have a they McClintock tending holdings if relationship” with judiciary “pre-existing commercial to “intrude itself would cause 818 Alleghenies. Majority Op. at not 815- contractors to be terminated for exercis majority’s ing is the rights.”

16. The second conclusion their First Amendment Id. at that, 685, pre-existing 2342; such a without 116 S.Ct. see O’Hare Truck 723-26, relationship, Northlake, cannot City assert Serv. v. 518 U.S. at of § 1983 based U.S.C. on the S.Ct. appellees’ grant them failure to con- Moreover, majority’s emphasis on this allegedly partisan Majori- tract reasons. language many obscures the relevance of the ty Op. at 815-16. For reasons set forth cases in Court has considered the below, Supreme I find that the Court’s First rights government of em jurisprudence does not ployees. E.g. Rutan Republican Party v. of the kind of status-based limitation on individ- Illinois, 62, 2729, 497 U.S. 110 S.Ct. expression uals’ of and associ- (1990); Finkel, L.Ed.2d 52 Branti v. majority’s ation that decision endorses.1 507, U.S. 63 L.Ed.2d 574 Therefore, respectfully I dissent from the (1980); Healthy City Mount School District majority’s decision to affirm District Doyle, Bd. v. S.Ct. of Educ. appellants’ § Court’s dismissal 1983 568, (1977); Burns, 50 L.Ed.2d 471 Elrod v. claim. 427 U.S. L.Ed.2d 547 understanding majority’s the consti (1976); Sindermann, Perry v. 408 U.S. significance appellants’ tutional status (1972); 33 L.Ed.2d 570 Picker primarily rests contractors ing of Educ., v. Board language County from Board Comm’rs 1731, (1968); Keyishian 20 L.Ed.2d 811 v. Regents, Board (1996). understanding This (1967). cases, 17 L.Ed.2d 629 In these appear arises from sentences the Court clear made that the “unconstitutional penultimate paragraph opinion. conditions” doctrine extends to “Finally Supreme empha Court writes: employees. Perry, 408 U.S. at 597 today. size the limited nature decision of our (“[The government] may deny a benefit Because Umbehr’s suit concerns termi person to a on a infringes basis that pre-existing nation of a commercial relation constitutionally protected especial interests — ship government, we need not ad ly Rutan, speech.”); his ... freedom of possibility dress the of suits bidders or 72-75, (holding 110 S.Ct. 2729 for new contracts who transfers, hiring, promotions, and recalls of rely relationship.” cannot on such a *7 public employees low-level partisan on based 685, majority 116 S.Ct. 2342. this The reads affiliation or association violate the First language categorically restricting claims Amendment); Branti, 518, 445 at 100 contractors, by independent who that (holding S.Ct. 1287 defender partisanship improperly influenced the discharge could not assistants because of contract, awarding of a to those inde political their violating affiliation without pendent contractors who can a demonstrate Amendment); Elrod, 351, 427 U.S. at government relationship (holding 96 S.Ct. 2673 discharge sheriffs alleged unconstitutional incident. of non-civil service office staff because of majority’s language reliance affiliation violated the First Amendment). regarding “preexisting only exception relation- to this ship” misplaced. language This is dictum. rule is when affiliation is a reason importantly, majority’s More emphasis ably appropriate requirement job for the upon it proposition question. e.g. Pickering, diminishes the central for See 391 U.S. at namely, 568-74, which Umbehr stands: the Court’s (establishing 88 S.Ct. 1731 fact-sensi “recognition] right independent deferentially [of] the tive and balancing administered that, and, majority therefore, regular providers also concludes before the of services Court, appellants solely District relied on the protection, entitled to Elrod and Branti I con- theory on-going had issue, above, fairly clude that the as I set it out however, Because, before this Court. District Court found that were not similarities,” the government’s inter- “Because of these determining if test sufficiently compelling government employee prece to overcome are looked to the ests rights). Umbehr, public employees’ guidance,” “for at dents “appl[ied] ... S.Ct. state, reasonably or cases None of these government existing employ framework for imply, ability of should be taken independent ees Id. at cases contractors.” bring suit independent contractors to 677, 116 S.Ct. 2342. employers of their for violation rights categorically dis To the extent that salient differences be employees. government that of tinct from tween these of workers exist in indi classes Rather, precedent logically to the leads cases, vidual the Umbehr Court found “no contractors, independent like conclusion proper application reason to believe that employees, may not be disfa government Pickering balancing test cannot accom employment in the vored state actors modate” them. S.Ct. process grounds that offend the First result, rejected brightline As a the Court understood under the Amendment. As best rights distinguishing rule law, independent con present state of the employees contractors and because “whether enjoy essentially right to the same tractors government provid state law labels service government employees of the who sue as do employment er’s contract as a contract of employment denied claim to have been very “at best a a contract services” is O’Hare, partisan reasons. Established poor proxy for the at stake.” Um interests 723-26, 2353, and at Um 518 U.S. behr, 2342; at see 518 U.S. S.Ct. behr, 674-76, 116 518 U.S. at S.Ct. O'Hare, at 518 U.S. may not be rule contractors (“We why can see no reason constitu discharged by government employers for ex turn on the distinc tional here should Rights ercising their First independent contractors and cases, [between directly line of cited evolved from the is, main, employees], in the a creature supra, in which the Court considered torts.”). agency em of the common law of Umbehr, at ployees. e.g. 518 U.S. 674- ... can Because “such formal distinctions (discussing government 116 S.Ct. 2342 manipulated largely govern at will of the O’Hare, 718-21, cases); at employee 518 U.S. ment,” rejected the Court the idea of deter (same). mining constitutional claims on the basis of Umbehr, them. ex O'Hare and Umbehr States, (citing Logue v. United extending rule plained that it was estab 521, 532, employee 37 L.Ed.2d 121 in the cases to lished (1973)). contractors, involving independent contractors be “Independent actions as well as of “constitutional cause found no difference protest public employees, are entitled to magnitude” categories between these then- wrongful government interference with workers. See 518 U.S. at association,” speech rights of the O'Hare (quoting Turley, 414 S.Ct. 2342 Lefkowitz Court stated. *8 70, 83, U.S. 94 S.Ct. 38 L.Ed.2d Thus, contrary reasoning of the O’Hare, (1973)); at S.Ct. majority it reaches in this and the result (same). purpose For the of determin case, the view expressly the Court has stated ing if the First Amendment restricts the independent should be treat that contractors governments freedom of to terminate their government employees as ed the same contractors, relationships independent with analysis. purposes gov the Court found the similarities between Consequently, it is true that while employees government ernment contrac explicitly the nature Court has not addressed “obvious”; moreover, it tors found right to sue on contractors’ in the event “threat of loss” the same to each grounds are when grounds retaliation on that contracts, applicants for new considered expression. right violate their to free Um having pre-existing than behr, 2342; rather 518 U.S. at accord O'Hare, 721-23, infer- relationships government, at S.Ct.

ence to be drawn from Umbehr and O’Hare concerns that animated the rules in Elrod holdings these Branti, is clear. Given and the rea- regarding terminations, were soning employed the Court in reaching present respect hiring with in Rutan un- them, logical it that all is conclude inde- logic by dermines the majority. embraced pendent fall within contractors the standard (“Under 110 S.Ct. 2729 our sus- Umbehr, O’Hare, in set forth in and in the precedent, conditioning hiring tained deci- employee government opposite cases. The sions on plain- belief and association inference, precedent that this should be un- ly condition, an constitutes unconstitutional derstood to bar suits contractors who are government unless the has vital interest in contracts, logical. is not so.”). doing propriety of the inference I sug Ultimately, may it indepen be difficult for Rutan, gest inescapable light in dent contractors like McClintock and Cher- 66-68, U.S. at in case ryhill prove violated hiring, which the Court considered whether during the transfers, promotions, and recalls based on employment process. This is so because a government employees’ political affiliation or public employee who makes such a impermissible could be considered bears the burden of demonstrating that the infringements on their First Amendment alleged motivating violation awas factor in rights. question The Court this answered in his failure to attain a contract. See Mount affirmative, 74-77, id. at S.Ct. Healthy, 283-87, 429 U.S. at 97 S.Ct. 568. thereby extending the rule in established This burden appear would more Branti, difficult to at discharge Elrod, in where a contractor has not relating 427 U.S. at cases on-going had an politically govern motivated terminations. so ment, doing, rejected argument applying for a contract. This transfers, hiring, promotions, is, however, and recalls matter one to be resolved were “different kind” from the termi trial point gov courts. The here nations involved Elrod and Branti be ernment per is not entitled se to a denial of cause, reiterated, the law is clear that liability simply because an con employment entitlement to is immaterial to a tractor, claim, who makes such a bidding government employee’s First Amendment on a new contract. See 518 U.S. at Rutan, 71-72, claim. at 678, 116 S.Ct. 2342. (“For quarter-century, at least a though has made clear that even person ‘right’ govern has no to a valuable

mental though govern benefit and even may deny

ment any him the benefit for num reasons,

ber of upon there are some reasons may rely. may not It deny a benefit ... on a basis in fringes interest freedom of Christy BRZONKALA, Plaintiff- speech.”) (citing 596-98, Perry, 408 Appellant, 2694). way, reject the Court argument ed the alleged that an impermissi ble infringement employee’s upon VIRGINIA POLYTECHNIC INSTITUTE right must occur the form of UNIVERSITY; AND STATE Antonio J. equivalent “substantial of dismissal.” Id. Morrison; Crawford, James Landale De- “[Tjhere depriva 110 S.Ct. 2729. are *9 fendants-Appellees, tions less harsh than dismissal that neverthe press less employees state conform their beliefs to some state-se Brown; (em orthodoxy,” Landsidle,

lected Cornell D. found. E. Id. William phasis added). my capacity judgment, Comptroller the fact expressly Commonwealth, held that the same Defendants.