Anthony Pipito v. Lower Bucks County Joint ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2939
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ANTHONY J. PIPITO,
Appellant
v.
LOWER BUCKS COUNTY JOINT MUNICIPAL AUTHORITY;
VIJAY RAJPUT, IN HIS INDIVIDUAL CAPACITY ONLY
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-18-cv-04885)
District Court Judge: Honorable Mark A. Kearney
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 26, 2020
Before: JORDAN, RESTREPO and FUENTES, Circuit Judges.
(Filed: August 13, 2020)
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OPINION*
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RESTREPO, Circuit Judge.
Anthony J. Pipito, a wastewater operator at the Lower Bucks County Joint
Municipal Authority, brought this First Amendment action under 42 U.S.C. § 1983against the Authority and its managing director, Dr. Vijay Rajput. He claims that
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
provisions of a disciplinary memorandum issued by Rajput infringe on his right to
engage in protected speech outside of the workplace. The District Court granted
summary judgment in the Defendants’ favor, while also concluding that Pipito lacked
constitutional standing. For the reasons that follow, we conclude that the District
Court should not have reached the merits of the case, and we agree with the District
Court that Pipito failed to demonstrate injury in fact to establish standing.
Accordingly, we will vacate the District Court’s grant of summary judgment and
remand the case for dismissal based on lack of standing.
I
Pipito is a certified wastewater operator at the Authority, which operates a
wastewater treatment plant and a water filtration plant in Bucks County, Pennsylvania.
This case centers on a disciplinary memorandum (the Memorandum) that Rajput, the
Authority’s managing director, issued to Pipito on July 26, 2018.
The Memorandum, with “Harassment” as its subject line, explains that its
“purpose . . . is to document the complaints brought against [Pipito] from [other
employees of the Authority] Walter Appleton . . . and Leonard Rodak . . . includ[ing]
but . . . not limited to, creating a hostile work environment, harassment, intimidation,
making disparaging/derogatory remarks, mocking and breach of the Civility Policy
using foul language.” App. 72. The Memorandum goes on to explain that “[i]t is the
responsibility of the Authority to provide a safe, harassment free and non-hostile work
environment to all its employees at all the times within the Authority’s premises.”
App. 72.
The Memorandum requires that Pipito adhere to the following rules:
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1. No contact whatsoever with Leonard Rodak except reporting problems
pertaining to the plant operation.
2. No contact whatsoever with Walter Appleton except in an emergency
situation and/or as specified in the [Wastewater Treatment Plant Standard
Operating Procedures].
3. Refrain from making any gesture/mocking/disparaging or derogatory
remarks/rumors to or about Walter Appleton, Leonard Rodak or any other
employee.
4. You are not to engage in any discussions regarding Leonard Rodak and
Walter Appleton with other employees.
5. Compliance with the Authority’s Civility Policy.
6. Present any WWTP/Personnel/Human Resource concerns directly to
Michael Andrews, P.E., WWTP Manager.
App. 72 (noting that failure to comply may result in “disciplinary action . . . up to and
including termination of employment with Authority”).
On November 13, 2018, Pipito filed a civil rights action under 42 U.S.C. §
1983 against the Authority and Rajput alleging that the Memorandum unlawfully
restricts his First Amendment right to engage in protected speech outside of the
workplace. The Authority and Rajput moved to dismiss his Complaint. On February
21, 2019, the District Court denied their motion.
The parties subsequently filed cross-motions for summary judgment. On July
24, 2019, the District Court granted summary judgment in favor of the Authority and
Rajput. Pipito timely appealed.
II
A
This Court has appellate jurisdiction over this case pursuant to 28 U.S.C. §
1291.1 We exercise plenary review over a District Court’s standing determination.
1
Notwithstanding our statutory jurisdiction over this action, our conclusion
that Pipito has not established constitutional standing “means that we do not have
subject matter jurisdiction to reach the merits of [his] claims.” Finkelman v. Nat’l
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AT&T Commc’ns of N.J., Inc. v. Verizon N.J., Inc., 270 F.3d 162, 168 (3d Cir. 2001)
(citing Gen. Instrument Corp. of Del. v. Nu–Tek Elecs. & Mfg., Inc., 197 F.3d 83, 86
(3d Cir. 1999)). In reviewing a decision regarding standing, “each element . . . must be
supported in the same way as any other matter on which the plaintiff bears the burden
of proof, i.e., with the manner and degree of evidence required at the successive stages
of litigation.” Finkelman, 810 F.3d at 194 (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992)). Here, the District Court ruled that Pipito lacked standing at the
summary judgment stage. Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” S.E.C. v. Hughes Capital
Corp., 124 F.3d 449, 452 (3d Cir. 1997) (quoting Fed. R. Civ. P. 56(c)). This Court
“must view all evidence in favor of the non-moving party.” Id.B
Constitutional standing, under Article III, § 2, requires three elements: “injury
in fact,” “a causal connection between the injury and the conduct complained of,” and
a likelihood that a favorable decision will redress the plaintiff’s injury. Lujan, 504
U.S. at 560–61. To establish injury in fact, the element at issue here, a plaintiff must
demonstrate an invasion of a legally protected interest that is (1) “concrete and
particularized” and (2) “actual or imminent, not conjectural or hypothetical.” Id. at
Football League, 810 F.3d 187, 192 n.31 (3d Cir. 2016) (citing Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 101–02 (1998) (“For a court to pronounce upon the
meaning or the constitutionality of a state or federal law when it has no jurisdiction to
do so is, by very definition, for a court to act ultra vires.”)).
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560 (internal quotation marks omitted). “The party invoking federal jurisdiction bears
the burden of establishing standing.” Susan B. Anthony List v. Driehaus, 573 U.S.
149, 158 (2014) (internal quotation marks omitted).
If the plaintiff intends to demonstrate “imminent” injury in a pre-enforcement
action, he or she must demonstrate “a realistic danger of sustaining a direct injury” if
the challenged rule is enforced. Babbitt v. United Farm Workers Nat’l Union, 442
U.S. 289, 298 (1979); see also N.J. Physicians, Inc. v. President of U.S., 653 F.3d
234, 238 (3d Cir. 2011) (requiring “a realistic chance—or a genuine probability—that
a future injury will occur”); Pa. Family Inst., Inc. v. Black, 489 F.3d 156, 169 (3d Cir.
2007) (concluding that a party’s claim of chilled speech was “too speculative” to
establish standing). “Specifically, we have held that a plaintiff satisfies the injury-in-
fact requirement where he alleges ‘an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution thereunder.’” Susan B. Anthony List, 573 U.S. at
159 (quoting Babbit, 442 U.S. at 298).
An allegation of injury caused by chilled speech must claim a “specific present
objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13–14
(1972) (stating that “[a]llegations of a subjective ‘chill’ are not . . . adequate”); see
also Black, 489 F.3d at 166 n.10; Const. Party of Pa. v. Aichele, 757 F.3d 347, 364
(3d Cir. 2014) (noting that “a speculative series of conditions” would be insufficient to
establish injury in fact).
Courts have found standing in pre-enforcement First Amendment actions when
plaintiffs have demonstrated a realistic potential for engagement in protected speech
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that the challenged rule prohibits. See, e.g., Aichele, 757 F.3d at 364. In Aichele, this
Court found a First Amendment challenge to portions of Pennsylvania’s election code
justiciable because the appellants supported their claim with “sworn and uncontested
declarations that their plans for seeking public office [were] directly impeded by the
relevant provisions of the election code.” Id.
Here, Pipito argues that the Memorandum unlawfully restricts his protected
speech outside the workplace because it “does not circumscribe its restrictions to the
Authority’s premises or while [he] is working.” Appellant Br. 11. Interpreting the
Memorandum as applying outside the workplace, Pipito argues that it would:
 “prohibit [him] from speaking with Rodak at church on matters of religion,”
 prohibit him from talking to Appleton “at a township meeting on matters of
zoning policy,”
 prevent him “from reporting environmental violations committed by Rodak to
the state Department of Environmental Protection,”
 prevent him “from filing a complaint with the U.S. Equal Employment
Opportunity Commission [EEOC] against the Authority for racial
discrimination in hiring,”
 “bar [him] from disclosing” corruption or wrongdoing at the Authority,
 dissuade him from attending “a protest in Doylestown (the county seat)” out of
concern that he would come in contact with Rodak,
 make him “reluctant to go to a public meeting of the Authority’s board for fear
of encountering Rodak and running afoul of the memorandum,”
 cause him to fear being fired for knocking on Rodak’s door if he were to run
for public office and “pitch for his candidacy” door-to-door, and
 make him fear losing his job if he were to “file a complaint with the
Pennsylvania State Ethics Commission regarding Rajput’s compliance with the
Commonwealth’s conflict of interest proscriptions.”
Appellant’s Br. 11, 23–24.
The Authority asserts both that the Memorandum’s directives are limited to the
workplace and that Pipito’s “professed concerns” about chilled protected speech are
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“merely speculative scenarios.”2 Appellees’ Br. 39. In line with the Authority’s
arguments, the District Court found that Pipito lacked standing. App. 34 (“At best, we
have Mr. Pipito’s belief if he wanted to speak on matters of public concern, he would
suffer discipline at work. There is nothing in the record to support this contention.”).
We agree. We must note, however, that the District Court erred by addressing the
merits of Pipito’s First Amendment claim despite finding a lack of standing. Standing
is a “fundamental jurisdictional question;” therefore, “challenges to standing must be
addressed before reaching the merits.” AT&T Commc’ns of N.J., Inc., 270 F.3d at 168
(citing Steel Co., 523 U.S. at 102); see also Finkelman, 810 F.3d at 193 (“A federal
court’s obligation to assure itself that it has subject matter jurisdiction over a claim is
antecedent to its power to reach the merits of that claim.”).
We agree with the District Court that the record fails to support Pipito’s
premise—that the Memorandum applies outside the workplace. The Memorandum’s
opening paragraph plainly states that its purpose is to document workplace harassment
complaints against Pipito, and it specifies that “[i]t is the responsibility of the
Authority to provide a safe, harassment free and non-hostile work environment to all
its employees at all the times within the Authority’s premises.” App. 72 (emphasis
added). By any reasonable reading of the Memorandum’s plain language (and absent
any evidence to refute that reading), it is constrained to the workplace. This eliminates
any “credible threat of prosecution” for protected speech that takes place outside of
2
Pipito conceded that if the Memorandum applied only to his speech at work,
he would not have a viable claim. He does not challenge the Memorandum’s
application to his on-the-job speech.
7
the workplace. Susan B. Anthony List, 573 U.S. at 159 (quoting Babbit, 442 U.S. at
298). Pipito has not demonstrated any reason to believe that the Authority would
punish him for his protected speech outside of the workplace notwithstanding the
Memorandum’s clear language.
Separately, none of Pipito’s asserted chilling effects graduate from a
“subjective ‘chill’” to a “specific present objective harm or a threat of specific future
harm.” Laird, 408 U.S. at 13–14. Prior to the Memorandum, Pipito had never run for
public office, had never participated in a protest, had never had discussions with Mr.
Rodak or Mr. Appleton at the Authority’s board meetings, had never attempted to
contact or contacted the district attorney’s office regarding the Authority or its
employees, had never made a public complaint about Rodak’s, Rajput’s, or the
Authority’s conduct or practices that he finds concerning, and had never reported
discrimination to the EEOC. Further, there is no indication that Pipito previously
engaged in any other purportedly chilled speech that would indicate a future
probability of him doing so—and no indication that any of his hypothetical chilled
speech examples amount to more than a “speculative series of conditions.” Aichele,
757 F.3d at 364. His hypotheticals simply fail to establish “a realistic danger of
sustaining a direct injury.” Babbitt, 442 U.S. at 298.
Given the above analysis, Pipito has failed to establish injury in fact.
Accordingly, we will vacate the District Court’s grant of summary judgment and
remand the case for dismissal based on lack of standing.
8