Lead Opinion
OPINION OF THE COURT
This case results from the Virgin Islands Police Department's
Peter Anderson, a former police officer in the Virgin Islands Police Department, filed a lawsuit against the Government of the Virgin Islands and its officers on the ground that he suffered employment discrimination. On the day after a local newspaper reported that Anderson was filing a lawsuit against his former employer, the Virgin Islands Police Department commenced an intensive investigation of both Anderson and attorney Rohn. Andersen sought a preliminary injunction from the district court, claiming that such surveillance infringed his First Amendment rights. The district court consolidated the motion for preliminary relief with a trial on the merits and issued a permanent injunction terminating all surveillance of Anderson and Rohn. The injunction further required the Police Department to seek the district court's approval, should the Department wish to renew surveillance of either Anderson or Rohn.
The Government appeals the district court's injunction on several grounds. First, it contends that the district court improperly consolidated Anderson's motion for preliminary relief with a hearing on the merits, thus violating the notice requirements under Rule 65 of the Federal Rules of Civil Procedure. Second, the Government claims that the injunction was improperly granted because Anderson failed to demonstrate either a likelihood that he would prevail on the merits or that the government's surveillance threatened irreparable harm. Finally, the Government contends that the district court's injunction is overbroad and interferes with the police department's legitimate investigative operations.
We shall address each of these arguments in turn.
I. FACTS
Prior to the filing of this lawsuit, Peter Anderson had worked for the Virgin Islands Police Department ("Department") and had
On January 22,1996, while Anderson was still employed by the Police Department, he lodged a complaint with the Equal Employment Opportunity Commission (EEOC) alleging race discrimination by the Virgin Islands Police Department.
On February 22, 1996, a St. Croix newspaper reported that Anderson had lodged a complaint with the EEOC and planned to file suit against the Government of the Virgin Islands for employment discrimination.
Within a few days of the publication of this article, the Police Department commenced an extensive investigation of Anderson and Rohn. This investigation included visual surveillance of Anderson talking to his attorney, as well as photographs of both Anderson's home and Rohn's Jeep. In addition, on February 23, 1996, one day after the publication of the article in the Si. Croix Avis, Robert Soto, the Assistant Director of the National Strike Force ("NSF") of the Virgin Islands ordered a National Crime Information Computer ("NCIC") check of Rohn.
Anderson learned of the Police Department's surveillance operation from an anonymous source who placed Department photographs on the front seat of Anderson's car. The EEOC had issued Anderson a right to sue letter on July 26, 1996. On September 6, Anderson filed suit against the Department, the Government of the Virgin Islands, Ramon Davila and several other officials. After receiving the anonymous evidence of the Police Department's investigation, Anderson amended his complaint to include allegations of unconstitutional and retaliatory surveillance by the Department. In addition, on September 19, Anderson filed a motion for a temporary restraining order and a preliminary injunction.
On October 2 and 3, the district court held an evidentiary hearing on Anderson's motion for preliminary relief. At this hearing, Anderson requested an order enjoining the Department from further surveillance of either him or his attorney and also asked for an order prohibiting the Department from retaliating against officers or agents testifying on his behalf at the hearing.
Throughout the hearing, the Police Department asserted that its investigation was not carried out in response to Anderson's
The Police Department presented little evidence to support its theory. For example, the Department was unable to demonstrate that it had investigated Lee Rohn or her Jeep in the months immediately following the Department's sighting of Curtis Jacobs. Moreover, there was testimony that the NSF's Assistant Director, Robert Soto, was pleased with the Department's surveillance operation and had remarked "this is great" when he learned about the photographs of Anderson and Rohn.
The district court concluded at the end of its hearing that Anderson was entitled to injunctive relief. Not satisfied with the Department's justification for its surveillance, the district court concluded that "the defendants . . . engaged in surveillance of Peter Anderson and Lee Rohn as a direct result of the lawsuit Mr. Anderson filed." Anderson v. Government of the Virgin Islands, No. 1996-118 (D.V.I. Oct. 16, 1996) at 8. The district court further elaborated:
The initial efforts to determine the ownership of the red Jeep and Mr. Jacob's connection to it were properly based upon reasonable suspicion arising from information received in an ongoing criminal investigation of drug activity. By late February 1996, however, what may have started as a proper investigation was converted and perverted into an effort to "dig up dirt" on Rohn and her client in response to the lawsuit. It is simply too large a coincidence that the NCIC check performed on Lee J. Rohn was requested on February 23, 1996, the day after the story*504 about the filing of Anderson's lawsuit against the defendants appeared in the newspaper. It also defies logic that the photos of Peter Anderson's house were taken "by mistake," as the defendants would have us believe.
Anderson, No. 1996-118 at 13 (emphasis provided). Having concluded that the Police Department's surveillance operation was improper and had been initiated in response to Anderson's lawsuit, the District Court ordered the Police Department, "TO CEASE ALL SURVEILLANCE EFFORTS AGAINST PETER ANDERSON AND LEE J. ROHN unless and until they seek and obtain approval from this Court, based upon an appropriate showing that reasonable suspicion or probable cause exists for such investigation." Anderson, No. 1996-118, order at 2. Prior to issuing its order, the court noted that it considered the hearing to be a trial on the merits and that the injunction was therefore permanent.
The present appeal followed. While the appeal was pending, the Government requested a stay of the district court's permanent injunction. On November 27, 1996, the district court denied the Government's request. In doing so, the court opined that a stay pending appeal was unnecessary because its injunction was not appealable. The court further held that its notice regarding the hearing was adequate and that the Government was unlikely to prevail on the merits. See Anderson v. Government of the Virgin Islands,
II. JURISDICTION
Before we reach the merits of the Government's appeal, we must first decide whether we have jurisdiction to review the district court's injunction. The Government contends that we may review the district court's injunction pursuant to 28 U.S.C. § 1292, which provides jurisdiction over appeals from:
(1) Interlocutory orders of the district courts of the United States . . . and the District Court of the Virgin Islands . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions except where a direct review may be had in the Supreme Court. . . .
Anderson brought a motion for preliminary relief under Rule 65(a) of the Federal Rules of Civil Procedure and the District Court expressly ruled on and granted that motion. Ordinarily, our analysis should end here. "When a claimant makes a Fed.R.Civ.P. 65(a) motion for a preliminary injunction, and the court expressly rules on it, there is no difficulty in identifying the order as falling within Section 1292(a)(1). Such explicit orders must fall within the plain language of the section." Cohen v. Board of Trustees of the University of Medicine and Dentistry of New Jersey,
To be appealable under Section 1292, an order need not grant all of the relief requested in a complaint. Rather, an order is treated as "injunctive" within the meaning of Section 1292(a)(1) when it adjudicates even some of the relief sought in the complaint. "If the order grants part of the relief requested by the claimant, the label put on an order by the district court does not prevent the appellate tribunal from treating it as an injunction for purposes of section 1292(a)(1)." Cohen,
After comparing Anderson's First Amended Complaint with the subject matter of the district court's order, we conclude that the district court's injunction is appealable under Section 1292. Paragraphs 19-25 of Anderson's First Amended Complaint explicitly describe the Virgin Islands Police Department's surveillance of Anderson and his attorney. Count VIII and Count XII of the First Amended Complaint incorporate these allegations and demand damages for and injunctive relief from such conduct. Finally, Anderson's own appellate brief states that "the criminal and intentional Constitutional violations committed by these Defendants/Appellants will be presented to the jury in this matter at trial." Anderson Brief, at 25. Thus, we must conclude that the district court's injunction grants at least a portion of the relief requested by Anderson in his Complaint and deals with at least a portion of the merits of the claims contained therein. As a result, it is indeed "injunctive" within the meaning of Section 1292 and we may exercise appellate jurisdiction to review it.
III. THE HEARING
The Government alleges two procedural flaws with the district court's hearing on Anderson's motion for preliminary relief. First, the Government claims that the district court failed to provide adequate notice of the hearing itself. Second, the Government claims that the district court provided inadequate notice of its intention to consolidate the preliminary hearing with a trial on the merits. We address each argument separately.
We begin our discussion with a review of Rule 65(a), which governs the procedure for preliminary injunctions. Federal Rule 65(a)(1) provides that a preliminary injunction may not be issued without proper notice to the adverse party.
For more than a century the central meaning of procedural due process has been clear: "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner."
Fuentes v. Shevin,
Congress has not defined with particularity the amount or formality of notice required under Rule 65. Some courts have grafted Rule 6(d)'s five-day formal notice requirement onto Rule 65(a).
The Government maintains that this Court should follow the Fifth Circuit and graft Rule 6(d)'s five-day formal notice requirement onto Rule 65(a). Since a magistrate judge orally notified the defendants' counsel on September 27, 1996, that the District Court would hear testimony on Anderson's motion on Tuesday, October 2, 1996, the Government would prevail under this standard because the district court failed to provide five business days notice of the preliminary hearing under Rule 6(d).
First, Rule 6(d) itself allows a district court to shorten the notice period when circumstances warrant an expedited hearing. See Levine v. Torvik,
Second, numerous courts have held that Rule 6(d)'s formal notice may be set aside when the adverse party has sufficient actual notice of an impending hearing. See Parker,
Because the Government had ample actual notice of the district court's hearing (at least as regards preliminary relief), we will not invalidate the district court's injunction on the ground that the Government lacked sufficient notice of the preliminary hearing.
B. Notice of Consolidation
Although we hold that the Government had adequate notice of the motion for a preliminary injunction, we do not agree that the Government was given sufficient notice of' the district court's intention to treat that motion as a trial on the merits.
Federal Rule 65(a)(2) provides in pertinent part:
Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application .... This subdivision (a)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
The District Court did not inform the Government that it would be issuing a permanent injunction until the end of the second (and final) day of its hearing. This is error. Although the announcement of consolidation after the commencement of a hearing is "not per se improper," the district court nevertheless must allow the parties sufficient notice "to enable them to present all their evidence." Fenstermacher v. Philadelphia Nat'l Bank,
In essence, although we may not have talked about it, it's really a permanent injunction if granted because there won't be any further need for any testimony.
Hearing Transcript, (October 3, 1996) at 216. The Government contends that the district court's "notice" of consolidation was insufficient under Camenisch. We agree.
Although a district court's consolidation under Rule 65(a)(2) requires proper notice, we ordinarily do not vacate a permanent injunction if the party appealing the judgment is unable to show prejudice. See H & W Industries, Inc. v. Formosa Plastics Corp.,
Anderson argues that even if the district court failed to provide adequate notice under Rule 65(a)(2), the Government waived this argument by failing to object at the hearing. Again, we disagree. The district court did not state its intention to treat the hearing as a trial on the merits until after all testimony had been taken and all evidence had been submitted. No objection by the Government at such a late stage in the proceedings could have cured the court's failure to provide notice. This case is therefore distinguishable from instances in which a defendant has rejected a court's invitation to conduct a second hearing or where the defendant has neglected to raise the issue at all on appeal. See Channel Home Centers, Div. of Grace Retail Corp. v. Grossman, 795 E2d 291, 298 (3d Cir. 1986) (defendant waived argument when district court, on reconsideration, granted opportunity for second hearing at which defendant could present additional evidence); DeLeon v. Susquehanna Community School Dist., 747 F.2d 149, 152 n.6 (3d Cir. 1984) (waiver of argument against consolidation by party who failed to raise issue before either district or appellate court). Although we agree that ordinarily, a litigant should object to a district court's consolidation immediately, see K-Mart Corp. v. Oriental Plaza, Inc.,
The district court prejudiced the Government by failing to give "clear and unambiguous" notice of its intention to consolidate Anderson's motion for a preliminary injunction with a trial on the merits. We therefore hold that to the extent injunctive relief may be appropriate in this case, it is to be construed only as a preliminary and not as a permanent injunction.
IV. THE INJUNCTION
We now turn to the merits of Anderson's motion for preliminary relief. The Government contends that the district court erred in granting Anderson's motion for preliminary relief because Anderson could not demonstrate irreparable harm or a likelihood
Our review of the legal issues underlying Anderson's motion is plenary. We review the district court's factual findings for clear error and its fashioning of a remedy according to an abuse of discretion standard. See Northeast Women's Ctr., Inc. v. McMonagle,
We will address Anderson's likelihood of prevailing on the merits of his claim first, because it poses the most difficult issue in this case.
A. Likely to Prevail at Trial
Anderson sued the Government under 42 U.S.C. § 1983.
Count VIII of Anderson's First Amended Complaint states that the Government engaged in "illegal surveillance" of Anderson. In his Motion for a Temporary Restraining Order and Preliminary
The gravamen of Anderson's complaint is the following: the Virgin Islands Police Department commenced an extensive and substantial surveillance operation of him and his attorney solely in response to his filing of an employment discrimination complaint. According to Anderson, the Police Department's retaliatory surveillance is actionable under Section 1983. We agree.
We begin by conceding that the Government's surveillance of individuals in public places does not, by itself, implicate the Constitution. The Government, however, takes this argument one step further by arguing that the Virgin Island Police Department's retaliatory motive in setting up this surveillance operation is irrelevant. According to the Government, this contention is supported by the Supreme Court's decision upholding an Army surveillance operation in Laird v. Tatum. See Laird v. Tatum,
In Laird, the Court considered the justiciability of a class action suit for injunctive and declaratory relief from the Army's domestic surveillance system, which included the observation of public civilian activity. The plaintiffs' case in Laird was based on the vague fear that the Army might improperly use the information contained in its surveillance reports sometime in the future in an improper fashion. See Laird,
This Circuit followed Laird several years later, when we held that police surveillance of public meetings, by itself, was "legally unobjectionable." Philadelphia Yearly Meeting of Religious Society of Friends v. Tate,
The Government would have us believe that this case falls within the Laird and Philadelphia Yearly line of cases. It does not. Unlike Laird and Philadelphia Yearly, this case involves a preexisting complaint, lodged with the EEOC, that was reported to be the precursor to an employment discrimination lawsuit that was potentially embarrassing to the defendants. In addition, this case also involves a finding by the district court, unchallenged on appeal, that the Government's surveillance operation was targeted at two individuals, Anderson and his attorney Ms. Rohn, and was initiated solely in response to Anderson's lawsuit. Thus, this case differs greatly from Laird and Philadelphia Yearly because the harm alleged is more specific and less speculative than the "chilling effect" alleged in those cases. Unlike the plaintiffs in Laird and Philadelphia Yearly, Anderson has articulated a "specific present harm," which is the Government's retaliation in response to his exercise of protected activity under the First Amendment.
The Supreme Court has explicitly held that an individual has a viable claim against the government when he is able to prove that the government took action against him in retaliation for his exercise of First Amendment rights. See Mt. Healthy City School District Board of Education v. Doyle,
Even though [the teacher] could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him. . . he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms.
Mt. Healthy,
Under Mt. Healthy and its progeny, an otherwise legitimate and constitutional government act can become unconstitutional when an individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment speech.
To prevail on his retaliation claim, Anderson would have to prove three things: first, that he engaged in protected activity;
First, Anderson's filing of his EEOC complaint and his employment discrimination suit against the Virgin Islands Police Department constituted protected activity under the First Amendment. The Supreme Court hás consistently held that an individual's constitutional right of access to court is protected by the First Amendment's clause granting the right to petition the government for grievances. "The right of access to the courts is indeed but one aspect of the right of petition." California Motor Transport Co. v. Trucking Unlimited,
Numerous claims brought under Mt. Healthy — both in this Circuit and in others — have involved fact patterns in which the government took retaliatory action in response to an individual's filing of a lawsuit. In Millhouse v. Carlson, a prisoner brought suit against employees of the United States Bureau of Prisons, claiming that they had disciplined him for initiating a civil rights suit. See Millhouse v. Carlson,
We read appellant's complaint as alleging that he was subjected to a conspiratorially planned series of disciplinary actions as retaliation for initiating a civil rights suit against prison officials. Such allegations, if proven at trial, would establish an infringement of Millhouse's first amendment right of access to the courts.
Millhouse,
More generally, under the doctrine of unconstitutional conditions,
This case is somewhat different from San Filippo because Peter Anderson had not yet filed his lawsuit when the Police Department commenced surveillance of him and his attorney. Nevertheless, the right of access to court doctrine still applies. First, Anderson had already lodged a formal complaint with the EEOC
In justifying our holding in San Filippo, we explained the fundamental importance of the right to petition as a check against the government's abuse of power:
When government — federal or state — formally adopts a mechanism for redress of those grievances for which government is allegedly accountable, it would seem to undermine the Constitution's vital purposes to hold that one who in good faith files an arguably meritorious "petition" invoking that mechanism may be disciplined for such invocation by the very government that in compliance with the petition clause has given the particular mechanism its constitutional imprimatur. . . . When one files a "petition" one is not appealing over government's head to the general citizenry; when one files a "petition" one is addressing government and asking government to fix, what allegedly, government has broken or has failed in its duty to repair.
Id., at 442. Our argument in San Filippo is particularly applicable to the facts of this case. By lodging a complaint with the EEOC, itself a precursor to his employment discrimination suit, Anderson was petitioning the government to "fix" a problem within the Virgin Islands Police Department. Instead of engaging in such repair, the Government compounded Anderson's grievances by initiating its surveillance operation. Were we to ignore the Government's retaliation, we would render Mr. Anderson's First Amendment petition right effectively useless. Officials could simply engage in harassment any time an individual filed, or announced his intention to file, a lawsuit against them. This result is hardly consistent with the fundamental principles of orderly protest, which our
In addition to demonstrating that he was engaging in protected activity, Anderson must also show that the Police Department's surveillance of him and his attorney constituted retaliation for his exercise of First Amendment rights. Although Mt. Healthy is most often applied in employee dismissal cases, many courts have expanded Mt. Healthy's doctrine to different types of official retaliation. See, e.g., Nestor Colon Medina & Sucesores, Inc. v. Custodio,
Finally, Anderson must also show that the Government's conduct was motivated by his attempts to commence litigation against the Government and the Department. Based on the district court's factual findings, Anderson should have no problem meeting this prong. The district court found that "the defendants had engaged in surveillance of Peter Anderson and Lee Rohn as a direct result of the lawsuit Mr. Anderson filed." Anderson, No. 1996-118, at 8. The Government has not challenged this finding on appeal. Consequently, we must further conclude that Anderson would prevail on the third prong of Mt. Healthy, since the Government has effectively abandoned its attempt to come up with a credible reason for investigating or following Mr. Anderson.
In sum, the record demonstrates the likelihood that Anderson would prevail on the merits of a First Amendment retaliation claim
B. Irreparable Harm
Although the record below demonstrates that Anderson has a viable claim under Mt. Healthy, it does not support the district court's injunction. This is so because the district court failed to set forth findings regarding the Government's intention to continue its surveillance in the future. This was error. An injunction is appropriate only where there exists a threat of irreparable harm such that legal remedies are rendered inadequate. See Beacon Theatres v. Westover,
The Government contends that it has terminated its surveillance of Anderson and Lee Rohn. If this is true, an injunction is unnecessary and unsupportable. Our conclusion is not altered by the Supreme Court's statement that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably
In the opinion below, the district court did not address the following questions: (1) whether the government's surveillance is ongoing, and (2) whether there is a credible threat that it will recur in the future. Accordingly, we will remand this case to the district court so that it can make findings, either from the current record or an expanded one, as to whether the Government's surveillance is ongoing and whether there exists a "real or immediate" threat of its reappearance in the near future. If the Anderson is unable to introduce evidence supporting these findings, injunctive relief is inappropriate.
C. Balance of Hardships
Because we find the district court has failed to set forth findings supporting a conclusion that Anderson has suffered or is likely to suffer irreparable harm, we need not rule on the scope of the district court's injunctive order. Nevertheless, we do take this opportunity to express our concern that the court's order unduly interferes with the prerogatives of the Virgin Islands Police Department. No doubt, the court may properly enjoin the wrongful surveillance of Peter Anderson and his attorney, assuming Anderson is able to prove the prerequisites for relief. We are less confident, however, about the propriety of an order that forces the Department to seek preclearance any time it wishes to initiate a new investigation of either Ms. Rohn or Mr. Anderson. This preclearance rule interferes with the daily affairs of the Department and provides Rohn and Anderson with a type of immunity to which no other individual is entitled. The past behavior of the
V. CONCLUSION
The right to petition the government for grievances is a fundamental component of a just and orderly society. The Police Department of the Virgin Islands severely threatened that right when it erected a substantial surveillance operation in response to reports that Peter Anderson planned to file a employment discrimination suit against the Government and its officers. Although injunctive relief may have been unwarranted in this case, we cannot overemphasize our concern with officials who exercise their power at the expense of private individuals' rights.
Because the district court failed to grant the Government appropriate notice of its intention to consolidate Anderson's hearing with a trial on the merits, we VACATE the district court's permanent injunction. We REMAND this case to the district court to allow it to make findings as to whether the Government's surveillance operation is still ongoing or likely to recur in the future and to render appropriate relief in conjunction with those findings.
Notes
The Government of the Virgin Islands operates and controls the Virgin Islands Police Department.
The EEOC complaint states:
"Police Commissioner Ramon Davila has entered into a pattern and practice of racial discrimination against me which has included public ridicule, defamation, slander, discrimination injob assignments, promotions, and pay and discriminatory disciplinary actions. This is also motivated by the fact that I am not a native born Virgin Islander." Supplemental Appendix, at 1.
The newspaper article was entitled, "Retired Police Captain Suing Govt Over Discrimination."
Anderson sought relief under the First and Fourteenth Amendments of the United States Constitution, which are applicable to the Virgin Islands bv wav of the Revised Organic Act of 1954. See 48 U.S.C. § 1561 (1995).
Anderson also contends that the District Court's order is unappealable because the Government has failed to demonstrate serious or irreparable harm originating from the order. The "serious or irreparable harm" standard, however, applies only when the order in question fails to meet the traditional requirements of Section 1292 (i.e., it fails to grant at least some of the relief requested by the complaint). See e.g. Carson v. American Brands, Inc.,
Rule 65(a)(1) states, "No preliminary injunction shall be issued without notice to the adverse party."
Rule 6(d) states, in pertinent part:
A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.
Weekend days do not count for purposes of formal notice under Rile 6(d). See Fed.R.Civ.R 6(a).
Vie further stated in Fenstermacher that, "Although we do not find reversible error in [the district court's consolidation], it would be advisable in the future for district courts, when contemplating consolidation of the trial of the action on the merits with the hearing of an application for a preliminary injunction, promptly to notify counsel and request affirmative, on the record, response, especially where jury trial rights may be involved."
Our advice to the district courts still stands. To protect the parties' constitutional rights and prevent needless litigation over notice issues, district courts should provide clear and unambiguous notice of their intention to consolidate proceedings under Rlle 65(a) and should solicit on the record responses from both parties' counsel regarding the propriety of such consolidation.
When we say "prevail on the merits," we refer to Anderson's surveillance claim and not his employment discrimination claim.
Section 1983 provides in pertinent part:
"Every person who, under color of any statute, ordinance, regulation, custom, or usagej of any State or Territory . . . , subjects, or causes to be subjected anv citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ."
42 U.S.C. § 1983.
Mt. Healthy falls within a larger category of Supreme Court cases known as the "unconstitutional conditions" doctrine, whereby "government 'may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech' even if he has no entitlement to that benefit." Board of County Commissioners v. Umbehr,
At oral argument and throughout its briefs, the Government argued that its officers' motives were irrelevant under the doctrine of qualified immunity. We think the Government misstates this doctrine. First, because Anderson seeks only injunctive relief at this stage, the doctrine is inapplicable. Second, an official's motive is not irrelevant when it forms an essential element of the underlying tort for which he is being sued. See Grant v. City of Pittsburgh,
See note 12, supra.
Anderson's retaliation claim is not to be confused with the separate cause of action that would exist were he to demonstrate that the Government's surveillance interfered with or threatened his ability to proceed with the present lawsuit. See Howland v. Kilquist,
Since Anderson has not indicated how the Government's surveillance hindered his efforts to bring this lawsuit, we will not consider whether or not his speech has been sufficiently "chilled" to merit relief under this separate theory of recovery. In any event, Anderson need not demonstrate such chilling effect to prevail on his retaliation claim under Mt. Healthy and its progeny. See Cate v. Oldham,
Concurrence Opinion
concurring and dissenting
I join in Parts II, III, IVB, and IVC of the majority opinion and the judgment of the court. I write separately because I disagree with the court's conclusion that Anderson has established a likelihood of success on the merits of his claim that the defendants retaliated against him for filing an employment discrimination lawsuit against them, in violation of his First Amendment right to petition.
I believe that this case is controlled by Laird v. Tatum,
The court concludes that Anderson's case differs from those presented by Laird and Philadelphia Yearly because the government's surveillance operation against him and his attorney Lee Rohn was initiated in retaliation for his exercise of protected activity under the First Amendment. In so doing, the Court conflates the government's conduct with the nature of the harm to Anderson. More specifically, the opinion assumes that, because the defendants' surveillance activities were directly targeted at Anderson and Rohn in retaliation for the filing of a lawsuit, Anderson has alleged harm that is more specific than the harm to the plaintiffs in Laird and Philadelphia Yearly. I disagree.
Like the plaintiffs in Laird and Philadelphia Yearly, the basis of Anderson's retaliation claim is that the police engaged in surveillance of him in public places. That this surveillance was carried out for unlawful purposes does not change the nature of the harm to Anderson. And as I understand Anderson's case, he claims only that his exercise of his First Amendment right of petition has been chilled. That is not enough to establish a justiciable case.
The retaliation cases cited by the majority support my conclusion. In none of those cases was the harm to the plaintiffs merely speculative; rather, in each case, the government's act of retaliation caused the plaintiffs distinct and specific harm. For example, in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274,
Perhaps on remand, Anderson can establish that he has suffered some specific harm from the surveillance. There was some evidence at the preliminary injunction hearing of the fear engendered in members of Anderson's family by the surveillance (though no finding on the issue). Evidence (and a finding) along these lines may be sufficient. But on the present record, I see no basis for a preliminary injunction barring the government's surveillance activities against Anderson and Rohn.