Joseph De Ritis v. Thomas McGarrigle , 861 F.3d 444 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 16-1433
_______________
JOSEPH E. DE RITIS
v.
THOMAS J. MCGARRIGLE; MARIO J. CIVERA, JR.;
COLLEEN P. MORRONE; JOHN P. MCBLAIN;
DAVID J. WHITE, INDIVIDUALLY AND AS COUNTY
COUNCIL OF DELAWARE COUNTY;
CHAD F. KENNEY, INDIVIDUALLY AND AS
PRESIDENT OF THE BOARD OF JUDGES OF THE
COURT OF COMMON PLEAS OF DELAWARE
COUNTY; DOUGLAS C. ROGER, JR., INDIVIDUALLY
AND AS EXECUTIVE DIRECTOR OF THE OFFICE OF
THE PUBLIC DEFENDER OF DELAWARE COUNTY;
MICHAEL L. MADDREN, INDIVIDUALLY AND AS
SOLICITOR OF DELAWARE COUNTY;
DELAWARE COUNTY
Douglas C. Roger, Jr.,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civil Action No. 2:13-cv-06212)
Honorable Cynthia M. Rufe, U.S. District Judge
_______________
Argued: January 17, 2017
Before: VANASKIE, KRAUSE, and NYGAARD, Circuit
Judges
(Opinion Filed: June 29, 2017)
Joseph De Ritis, Esq. (Argued)
2029 Rose Lane
Broomall, PA 19008
Plaintiff-Appellee Joseph De Ritis, pro se
Mark A. Raith, Esq. (Argued)
Holsten & Associates
One Olive Street
Media, PA 19063
Attorney for Defendant-Appellant Douglas C. Roger, Jr.
_______________
OPINION OF THE COURT
_______________
2
KRAUSE, Circuit Judge.
To explain a perceived demotion to judges, other
attorneys, and county officials, Appellee, an Assistant Public
Defender, circulated a rumor he had heard and alleged he was
being punished for taking too many cases to trial. After the
Public Defender fired Appellee for those statements, Appellee
filed suit, claiming a violation of his First Amendment rights,
and the District Court denied the Public Defender’s motion
for summary judgment on the basis of qualified immunity.
Because we conclude the First Amendment does not protect
the speech at issue here—statements made while performing
official job responsibilities, speculative comments about the
reason for a perceived demotion, and recklessly false rumors
circulated to government officials—we will reverse and
remand.
I. Background
Appellee Joseph De Ritis became an Assistant Public
Defender for Delaware County in December 2005.
Consistent with the typical progression for attorneys in the
Office of the Public Defender, De Ritis was first assigned to
the Office’s preliminary hearing unit, was elevated to the
juvenile court unit in May 2007, and was ultimately assigned
to a “trial team,” or a group of three attorneys assigned to
handle trials in a particular judge’s courtroom, in November
2007.
But things changed in June 2012, when the Public
Defender, Douglas C. Roger, Jr., informed De Ritis that
staffing changes were necessary in the wake of another
Assistant Public Defender’s motorcycle accident and that
De Ritis would be transferred back to the juvenile court unit.
3
Roger justified the transfer by noting that De Ritis was “an
expert at juvenile law.” App. 128A. Although De Ritis was
not actually interested in juvenile law, he agreed to the
transfer.
De Ritis suspected, however, that Roger had other reasons
for transferring him, so he asked others whether they knew
the true reasons for the transfer. He asserts his inquiries
yielded fruit on two occasions. First, De Ritis contends that,
one or two weeks after his transfer, First Assistant Public
Defender Francis Zarilli told De Ritis that Roger had
transferred him because De Ritis’s clients were not pleading
guilty fast enough, which was contrary to the wishes of
Delaware County’s President Judge, Chad Kenney. Second,
De Ritis asserts that, later that month, Jake Dolan, a former
Assistant Public Defender, gave him the same explanation,
i.e., that Roger removed De Ritis from a trial team because he
was not “moving [his] cases,” App. 129A, 200A, though
De Ritis concedes that his conversation with Dolan occurred
during a “Taco Tuesday” session of after-work “gossip” and
that Dolan professed his account was “fourth-person
hearsay,” App. 129A. De Ritis assumed Zarilli and Dolan’s
information was accurate, however, and he immediately
began sharing it as the reason for his transfer—and continued
to do so over the course of the next eleven months.
De Ritis’s rumors proceeded in three phases. First, in the
wake of his transfer to the preliminary hearing unit, he
informed judges, private attorneys, and his colleagues at the
Office of the Public Defender that he was “being punished”
for “taking too many cases to trial.” App. 134A, 174A.
Although De Ritis did not speak “on the record” about why
he was transferred, he acknowledges he shared the rumor
while he was representing clients in court, “during the usual
4
idle chatter while waiting for court to begin or end.”
App. 175A. Despite circulating the alleged reason for his
transfer widely, De Ritis did not discuss the issue with Roger.
Second, four months later, De Ritis’s statements about his
allegedly excessive trial practice intensified after Roger
granted De Ritis’s voluntary request to be transferred to the
preliminary hearing unit. De Ritis continued sharing the
rumor about being punished with attorneys and judges, even
to the point of telling one judge, Judge Stephanie Klein, that
he had been transferred because he “had refused . . . to obey a
‘policy,’ established by [Roger], that the Public Defenders’
office should try to plead guilty as many criminal defendants
as possible in order to more easily dispose of the cases
assigned to us and pending before the court.” App. 38A.
De Ritis still did not discuss the issue with Roger himself.
Third, a few months later, De Ritis thought things would
change when openings became available on the trial team for
a newly elected judge. They did not. Although De Ritis
asked Roger to assign De Ritis to the trial team, Roger
declined. Unhappy with that result, De Ritis turned his
efforts toward “seek[ing] an audience” with the County
Council. App. 175A.
De Ritis initially pursued that goal by approaching the
County Solicitor, Michael Maddren, and telling him the same
rumor—namely, that Roger had transferred De Ritis off of a
trial team because De Ritis was not “moving” cases and
“wanted to take too many cases to trial,” which was at odds
with President Judge Kenney’s preferences. App. 52A,
136A. De Ritis “suggested that this was violating the rights
of his clients,” particularly in view of “the constitutional
implications of public defenders being demoted because they
5
advise defendants to seek trials.” App. 52A, 176A. Although
Maddren agreed to investigate, Maddren ultimately declined
to pursue the matter further after contacting Roger and
learning that De Ritis “was not performing well” as an
Assistant Public Defender. App. 53A.
De Ritis then met with the chairman of the County
Council, Thomas McGarrigle. De Ritis had “the same
conversation” with McGarrigle that he had had with Maddren
and stated that he would like to address the County Council
about his situation. App. 137A, 176A. As Maddren had
done, McGarrigle agreed to investigate, although it does not
appear he contacted De Ritis again about the matter.
This rumormongering finally came to an end in May
2013, when Roger heard about De Ritis’s allegations by
means of Judge Klein’s comments to another Assistant Public
Defender. Astonished, Roger asked De Ritis whether the
report from Judge Klein was true, and De Ritis admitted that,
after appearing “in . . . court to handle a preliminary hearing,”
App. 38A, he had told Judge Klein that he was being
punished for taking too many cases to trial. What’s more,
De Ritis also told Roger that he had made similar comments
to other attorneys, to other judges, to Maddren, and to
McGarrigle. Because of De Ritis’s statements to all of these
individuals, Roger fired De Ritis.
De Ritis brought suit against Roger soon after, seeking
relief under 42 U.S.C. § 1983 and claiming that Roger’s
decision to fire De Ritis violated De Ritis’s First Amendment
rights.1 After discovery, and in view of his status as a
1
In addition to Roger, De Ritis also named as defendants
Judge Kenney; Maddren; the Delaware County Council and
6
government official, Roger moved for summary judgment on
qualified immunity grounds, but the District Court denied the
motion. See De Ritis v. Roger, 165 F. Supp. 3d 231, 239-46
(E.D. Pa. 2016). This appeal timely followed.
all of its members, including McGarrigle; and Delaware
County itself as defendants. He brought the same First
Amendment claim against those defendants and, in addition,
brought claims against all defendants under the Fifth, Sixth,
and Fourteenth Amendments of the Constitution and 42
U.S.C. § 1983; 42 U.S.C. §§ 1985, 1986, and 1988; the
Pennsylvania common law of civil conspiracy, negligent
infliction of emotional distress, and wrongful discharge; and
the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat.
§§ 1423-1428. Except for De Ritis’s First Amendment and
Pennsylvania Whistleblower Law claims against Roger, the
District Court dismissed or entered judgment in the
defendants’ favor on the other claims. See De Ritis v. Roger,
165 F. Supp. 3d 231, 246-50 (E.D. Pa. 2016); De Ritis v.
McGarrigle, No. 13-6212, 2014 WL 2892419, at *2-9 (E.D.
Pa. June 25, 2014). In this interlocutory qualified immunity
appeal, Roger does not challenge the District Court’s denial
of summary judgment on the Pennsylvania Whistleblower
Law claim, thus the First Amendment claim against Roger is
the only claim before us.
7
II. Jurisdiction2 and Standard of Review
Where, as here, a district court has denied summary
judgment and trial is still to come, we typically lack appellate
jurisdiction under 28 U.S.C. § 1291, which allows us to
review only “final” district court decisions. See Johnson v.
Jones, 515 U.S. 304, 309 (1995). But “collateral orders,” or
orders that “finally determine claims of right separable from,
and collateral to, rights asserted in the action, too important to
be denied review and too independent of the cause itself to
require that appellate consideration be deferred,” equate to
“final” decisions and qualify for immediate appeal. Id. at
310-11. Such is the order before us today.
“When the defense of qualified immunity is raised and
denied, a defendant is generally entitled to an immediate
appeal under the collateral order doctrine so long as the denial
turns on an issue of law.” Oliver v. Roquet, No. 14-4824,
2017 WL 2260961, at *3 (3d Cir. May 24, 2017). We thus
have jurisdiction to review “whether the set of facts identified
by the district court is sufficient to establish a violation of a
clearly established constitutional right” and therefore to
ground a denial of qualified immunity, Dougherty v. Sch.
Dist. of Phila., 772 F.3d 979, 986 (3d Cir. 2014), and we
decide this legal issue “with reference only to undisputed
facts and in isolation from the remaining issues of the case,”
Johnson, 515 U.S. at 313. That is, we “take, as given, the
facts that the district court assumed when it denied summary
judgment,” Johnson, 515 U.S. at 319, and we view them in
The District Court had jurisdiction over De Ritis’s First
2
Amendment claim against Roger pursuant to 28 U.S.C.
§ 1331.
8
the light most favorable to De Ritis, the non-movant here,
Dougherty, 772 F.3d at 986.
Within these parameters, our review is plenary, and we
will overturn the District Court’s denial of summary
judgment “only when the record ‘shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Id. (quoting Fed. R.
Civ. P. 56(a)).
III. Discussion
In reviewing a district court’s denial of qualified
immunity, we must reverse if the defending government
official did not violate a statutory or constitutional right or,
even if he did, if that right was not “clearly established” at the
time of the challenged conduct. Lane v. Franks, 134 S. Ct.
2369, 2381 (2014). Here, addressing both prongs of qualified
immunity, the District Court concluded that Roger had
violated De Ritis’s right to free speech and that the right, as
defined by the District Court, was clearly established. See
De Ritis, 165 F. Supp. 3d at 239-46. Although the District
Court wrote a thoughtful and detailed opinion that wrestled
with our case law and with the sensitive issues presented by
this case, we ultimately disagree with its conclusion and hold
that Roger did not violate De Ritis’s First Amendment rights
and that Roger therefore was entitled to qualified immunity.3
3
While we have discretion to address the two prongs of
qualified immunity in either order, we resolve this case at the
first prong, both to “promote[] the development of
constitutional precedent” and for efficiency’s sake, as “a
discussion of why the relevant facts do not violate clearly
9
The First Amendment of the Constitution broadly protects
citizens’ rights to “freedom of speech,” U.S. Const. amend. I,
and the law has long held that “citizens do not surrender their
First Amendment rights by accepting public employment,”
Lane, 134 S. Ct. at 2374. However, unlike members of the
general public who may be liable for defamation when they
make statements with “actual malice,” N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 279-80 (1964), public employees’
First Amendment rights are limited by the Government’s
countervailing interest in efficient provision of public
services, see Lane, 134 S. Ct. at 2377, so in this context the
First Amendment inquiry obliges us to apply a different test.
Because De Ritis was a public employee, De Ritis’s speech is
protected by the First Amendment only (1) if he spoke “as a
citizen (and not as an employee),” (2) if his speech involved
“a matter of public concern,” and (3) if his employer lacked
an “adequate justification” for treating him differently from
the general public, based on a balancing of his and his
employer’s interests under Pickering v. Board of Education,
391 U.S. 563 (1968). See Munroe v. Central Bucks Sch.
Dist., 805 F.3d 454, 466 (3d Cir. 2015).
After careful consideration, and in view of our plenary
review of this question of law,4 Gorum v. Sessoms, 561 F.3d
established law” would in this case “make it apparent that in
fact the relevant facts do not make out a constitutional
violation at all.” Pearson v. Callahan, 555 U.S. 223, 236
(2009).
4
Granted, whether speech is protected turns on a “mixed
question of fact and law” when a dispute exists over
“[w]hether a particular incident of speech is made within a
particular plaintiff’s job duties.” Flora v. Cty. of Luzerne,
10
179, 184 (3d Cir. 2009); see De Ritis, 165 F. Supp. 3d at 244,
we conclude that none of the statements for which De Ritis
was fired qualifies as protected speech.5 We divide those
statements into three categories for purposes of analysis—
(1) statements to judges and attorneys while in court,
(2) statements to attorneys outside of the courthouse, and
(3) statements to County Solicitor Maddren and County
Council Chairman McGarrigle6—and consider the criteria for
protected speech as applied to each category below.
776 F.3d 169, 175 (3d Cir. 2015). But the scope and content
of De Ritis’s job responsibilities is undisputed here, so
whether De Ritis’s statements qualify as protected speech is a
purely legal question.
5
Even if we held that De Ritis’s speech was protected,
De Ritis could ultimately prevail on his claim of First
Amendment retaliation only if the District Court also held
that his speech was “a substantial or motivating factor” in the
decision to fire him and that, in the absence of that speech,
Roger would not have fired him. Munroe, 805 F.3d at 466.
Because the undisputed facts show De Ritis cannot establish
protected speech, we need not reach these latter two elements
of a First Amendment retaliation claim.
6
We address De Ritis’s statements to each of three
categories of recipients because, even though the District
Court’s First Amendment analysis addressed only De Ritis’s
“statements to . . . Maddren and . . . McGarrigle,” De Ritis,
165 F. Supp. 3d at 240, the District Court’s order denied
Roger qualified immunity with respect to all of De Ritis’s
statements, and an appeal is taken with respect to “the
definitive order or judgment which follows the opinion,” not
11
1. Citizen Speech
“[W]hen public employees make statements pursuant to
their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer
discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
However, the line between citizen speech and employee
speech varies with each case’s circumstances, for we may not
draw the line using such simple tests as whether the employee
spoke “within the office,” id. at 420-21, whether his
statements were made pursuant to duties described in his
“[f]ormal job description[],” id. at 424-25, or whether “speech
concerns information related to or learned through public
employment,” Lane, 134 S. Ct. at 2377. We instead make a
“practical” inquiry, Garcetti, 547 U.S. at 424, and assess
“whether the speech at issue is itself ordinarily within the
scope of an employee’s duties,” Lane, 134 S. Ct. at 2379. If
so, then it is employee speech and receives no First
Amendment protection.
Such is the case for De Ritis’s in-court statements to
attorneys and judges. It is undisputed that De Ritis’s ordinary
job duties included in-court obligations “to build rapport with
the Court” and other attorneys. App. 46A. And for good
reason, because attorneys, both private and public, are
“officers of the Court,” Model Rules of Prof’l Conduct r. 3.3
cmt. [2] (Am. Bar Ass’n 2015), and their statements in court,
even if “idle chatter” and not “on the record,” App. 175A, are
then “[o]fficial communications” with “official
the opinion itself, In re Chelsea Hotel Corp., 241 F.2d 846,
848 (3d Cir. 1957); see Fed. R. App. P. 4.
12
consequences” that create “a need for substantive consistency
and clarity,” Garcetti, 547 U.S. at 422. After all, even
offhand in-court statements, particularly for government
attorneys but also for private counsel, may affect the judicial
process, see Model Rules of Prof’l Conduct r. 3.5; cf. Cox v.
Louisiana, 379 U.S. 559, 565 (1965), and often the attorney’s
statements are a proxy for the positions of both his clients and
his employer, see Model Rules of Prof’l Conduct rr. 1.2, 5.1,
5.2(b) & cmt. [2].7 Accordingly, a supervising attorney like
Roger “need[s] a significant degree of control” over his
subordinate attorneys’ in-court statements in order to prevent
subordinates from “express[ing] views that contravene
governmental policies or impair the proper performance of
governmental functions.” Garcetti, 547 U.S. at 418-19.
Here, De Ritis’s in-court statements to attorneys and judges
were all made while waiting for a proceeding “on the record”
to begin or end, App. 175A, and thus were part and parcel of
his ordinary job duties—not citizen speech, see Garcetti, 547
U.S. at 422-24.
Our conclusion regarding De Ritis’s in-court statements
finds support in our case law on citizen speech. Our cases
consistently hold that, though speech may be protected even
if it “concerns information related to or learned through
public employment,” Lane, 134 S. Ct. at 2377; see, e.g.,
Flora v. Cty. of Luzerne, 776 F.3d 169, 172-80 (3d Cir.
2015), an employee does not speak as a citizen if the mode
and manner of his speech were possible only as an ordinary
corollary to his position as a government employee, see Lane,
7
Indeed, the Pennsylvania Rules of Professional Conduct,
which apply to De Ritis, say as much. See Pa. R. Prof’l
Conduct rr. 1.2, 3.3 cmt. [2], 3.5, 5.1, 5.2(b) & cmt. [2].
13
134 S. Ct. at 2379; Gorum, 561 F.3d at 186. As we discussed
in Fraternal Order of Police, Lodge 1 v. City of Camden, for
example, police officers do not speak as citizens when they
object to police department policies by means of “police
department counseling forms,” for “[c]itizens do not complete
internal police counseling forms.” 842 F.3d 231, 243-44 (3d
Cir. 2016). Here, similarly, because De Ritis had the
opportunity to speak in court to attorneys and judges only as
an ordinary corollary to his position as an Assistant Public
Defender, see App. 174A-75A, his speech in that role was not
citizen speech.
To be sure, citizens may offer truthful in-court testimony
as witnesses, see Reilly v. City of Atl. City, 532 F.3d 216, 231
(3d Cir. 2008), may bring class action lawsuits based on
information learned through their jobs, see Flora, 776 F.3d at
176-80, and may even report alleged workplace misconduct
to government officials, as De Ritis did in his meetings with
Maddren and McGarrigle. Yet, just as citizens do not
“complete internal police counseling forms,” which are
reserved for police officers, Fraternal Order of Police, 842
F.3d at 244, they also do not make “idle chatter [with
attorneys and judges] while waiting for court to begin or end”
as a public defender representing a client may do, App. 175A.
Such chatter is not citizen speech and is not protected by the
First Amendment.8
8
Our discussion of citizen speech applies equally to
De Ritis’s communications with his clients as an Assistant
Public Defender and to the application for a writ of habeas
corpus that he filed on behalf of a client. Although De Ritis
contends that these communications are protected by the First
Amendment, they are clearly instances in which De Ritis
14
De Ritis did, of course, discuss the rumor about his
transfers with attorneys while not in court and with Maddren
and McGarrigle. And those statements are arguably citizen
speech because they were not “part of the work [De Ritis]
was paid to perform on an ordinary basis.” Flora, 776 F.3d at
180. With those statements in mind, we turn to the second
required attribute of protected speech: the requirement that
the speech “involve a matter of public concern.” Munroe,
805 F.3d at 466.
2. Speech on a Matter of Public Concern
To involve a matter of public concern, speech must relate
to “a subject of general interest and of value and concern to
the public,” whether it is a “matter of political, social or other
concern to the community” or “a subject of legitimate news
interest.” Lane, 134 S. Ct. at 2380. By contrast, speech does
not involve a matter of public concern when it relates solely
to “mundane employment grievances.” Munroe, 805 F.3d at
467.
We determine the public or nonpublic nature of an
employee’s speech by reference to the speech’s “content,
form, and context,” Lane, 134 S. Ct. at 2380, which
encompasses “the employee’s motivation as well as whether
spoke in his capacity as an Assistant Public Defender and not
in his capacity as a citizen, as it is undisputed that “talk[ing]
to the client to . . . get . . . [his or her] input into working out
the case” and “get[ting] done what was needed to favorably
resolve the client’s case[],” App. 45A, were activities
“ordinarily within the scope of [De Ritis’s] duties,” Lane, 134
S. Ct. at 2379.
15
it is important to our system of self-government that the
expression take place,” Munroe, 805 F.3d at 467. But we do
not consider whether a statement is “inappropriate” or
“controversial,” because “humor, satire, and even ‘personal
invective’” can make a point about a matter of public
concern. Id. at 470. The “tone of the communications” is
irrelevant. Johnson v. Lincoln Univ. of Commonwealth Sys.
of Higher Educ., 776 F.2d 443, 451-52 (3d Cir. 1985).
Because we are not to “make a superficial characterization
of the speech or activity taken as a whole,” we conduct “a
particularized examination of each activity for which the
protection of the First Amendment is claimed” to determine
whether it involves a matter of public concern, id. at 451; see,
e.g., Connick v. Myers, 461 U.S. 138, 147-48 (1983);
Munroe, 805 F.3d at 469-70; Johnson, 776 F.2d at 450-54,
while taking care not to “‘cherry pick’ something that may
impact the public while ignoring [its] manner and context,”
Munroe, 805 F.3d at 467. That is to say, we will hold that a
discrete unit of speech addresses a matter of public concern if
it discusses “fundamental problems” reaching beyond the
employee’s “day-to-day minutiae,” Watters v. City of Phila.,
55 F.3d 886, 894 (3d Cir. 1995), such as a concern that all
assistant district attorneys in an office are required to work on
political campaigns, see Connick, 461 U.S. at 148-49, a
concern about academic integrity in today’s youth generally,
see Munroe, 805 F.3d at 469-70, or a concern about academic
standards applicable to a university as a whole, see Johnson,
776 F.2d at 451-54. But if a discrete unit of speech addresses
only the employee’s own problems, and even if those
problems “brush . . . against a matter of public concern” by
virtue of that employee’s public employment, then that
16
speech is merely a “personal grievance.” Miller v. Clinton
Cty., 544 F.3d 542, 551 (3d Cir. 2008).9
Applying these principles here, we hold that De Ritis’s
out-of-court statements to other attorneys did not involve a
matter of public concern, while his statements to Maddren
and McGarrigle did. The undisputed evidence in the record
establishes that De Ritis’s out-of-court statements to other
attorneys addressed only De Ritis’s own employment
situation: “I’m being punished.” “Apparently, I’m taking too
many cases to trial.” “Judge Kenney thinks I’m telling too
many defendants they can have trials.” App. 134A, 174A-
175A (emphases added). In these statements, De Ritis never
discussed any “fundamental problems” reaching beyond his
own “day-to-day minutiae,” Watters, 55 F.3d at 894, such as,
for example, his later contention that his clients’ rights were
being violated. De Ritis’s out-of-court statements to
attorneys, thus, at most “brush[ed] . . . against” matters of
public concern, Miller, 544 F.3d at 551, and they do not merit
First Amendment protection.
De Ritis’s conversations with Maddren and with
McGarrigle are a different matter. In both of those
discussions, De Ritis went further and expressed concern for
9
De Ritis asks us to overrule Miller on the ground that it
is at odds with New York Times Co. v. Sullivan, 376 U.S. 254
(1964). We decline to do so, as New York Times did not arise
in the public employment context, where “the First
Amendment allows a public employer to regulate its
employees’ speech in ways it could never regulate the general
public’s.” Swineford v. Snyder Cty., 15 F.3d 1258, 1270 (3d
Cir. 1994).
17
individuals other than himself: he suggested that the reason he
believed he was transferred, i.e., his penchant for taking too
many cases to trial, violated “the rights of his clients” to the
point of having “constitutional implications.” App. 52A,
176A. That is, he did not confine his complaints to his own
employment situation, cf. Miller, 544 F.3d at 550-51, but
instead spoke about a “matter of political, social or other
concern to the community” in discussing the rights of
criminal defendants generally, Lane, 134 S. Ct. at 2380, and
in seeking a “public mien” for his complaints, Swineford v.
Snyder Cty., 15 F.3d 1258, 1272 (3d Cir. 1994).
At the same time, we recognize that, because “six months
or eight months” elapsed before De Ritis attempted to
investigate the truth of the rumor he was spreading,
App. 131A, and because no evidence in the record other than
De Ritis’s own testimony supports the rumor’s truth,
De Ritis’s statements to Maddren and to McGarrigle were
“recklessly . . . false,” Swineford, 15 F.3d at 1272.10 But that
fact means merely that his interest, “as a citizen, in
commenting upon matters of public concern” receives less
weight when balanced against the employer’s interest “in
promoting the efficiency of the public services it performs
10
We disagree with the District Court’s statement that
“there is no evidence that [De Ritis’s] speech was knowingly
or recklessly false,” De Ritis, 165 F. Supp. 3d at 242, a legal
conclusion over which our review remains plenary, see
Dougherty, 772 F.3d at 986. We hold, as a matter of law, that
a person’s speech is recklessly false when he disseminates
“gossip” in the form of “fourth-person hearsay” and chooses
to do so for “six months or eight months” without
investigating its truth. App. 129A, 131A.
18
through its employees” at the third step of the protected
speech analysis, Munroe, 805 F.3d at 466; see, e.g.,
Swineford, 15 F.3d at 1274; it does not mean that his
statements to Maddren and to McGarrigle are per se
unprotected, for matters of public concern may “overlap”
with matters that do not receive First Amendment protection,
such as “personal grievances,” see Fraternal Order of Police,
842 F.3d at 243. We thus go on to consider whether
De Ritis’s statements to Maddren and to McGarrigle
nonetheless lack protection because they gave Roger adequate
justification to treat De Ritis differently from a member of the
general public.
3. Justification for Treating De Ritis Differently
from the Public
At the third step of the protected speech analysis, we
inquire into whether Roger had “adequate justification” for
treating De Ritis “differently than the general public based on
[his] needs as an employer under the Pickering balancing
test.” Munroe, 805 F.3d at 466. Specifically, we balance
De Ritis’s interests, “as a citizen, in commenting upon
matters of public concern” with “the interest of the State, as
an employer, in promoting the efficiency of the public
services it performs through its employees.” Id. (citing
Pickering, 391 U.S. at 568). If the Government’s interest is
“significantly greater” than De Ritis’s interest in contributing
to public debate, then De Ritis’s speech is not protected.
Pickering, 391 U.S. at 573.
First, we consider De Ritis’s “interest in engaging in [his]
speech,” Miller, 544 F.3d at 548, and “the interest[] of . . . the
public in the speech at issue,” Dougherty, 772 F.3d at 991.
Because “a stronger showing of government interests may be
19
necessary if the employee’s speech more substantially
involves matters of public concern,” Lane, 134 S. Ct. at 2381
(brackets omitted), the magnitude of this interest rests on the
extent to which De Ritis’s speech addressed an issue of public
concern, see Miller, 544 F.3d at 549-50. Although “the
public has a significant interest in encouraging legitimate
whistleblowing so that it may receive and evaluate
information concerning the alleged abuses of public
officials,” Dougherty, 772 F.3d at 991 (brackets and ellipsis
omitted), it has little interest in speech that “brush[es] ever so
gently against a matter of public concern” but nonetheless
remains “focused upon [the employee’s] private grievances as
an employee,” Miller, 544 F.3d at 550-51.
De Ritis’s speech here is more a private grievance than an
instance of legitimate whistleblowing, and thus we accord
De Ritis’s side of the scale lesser weight. Even as De Ritis
urged Maddren and McGarrigle to investigate alleged
misconduct he viewed to “violat[e] the rights of his clients,”
De Ritis remained focused on how his perceived demotion
“was hurting his career” and how he wanted Maddren and
McGarrigle “to intervene in the administration of the Public
Defender’s Office on his behalf.”
App. 52A-53A. Notably, De Ritis did not seek intervention
to protect the rights of the Public Defender Office’s clients
generally; he sought intervention only with respect to his own
employment situation.
More importantly, De Ritis’s “continued failure to verify
and substantiate” his allegations points up his “self-interest.”
Swineford, 15 F.3d at 1274. Although De Ritis was not
necessarily required to discuss his complaints with his
supervisor, Roger, see Czurlanis v. Albanese, 721 F.2d 98,
105 (1983), he waited “six months or eight months” before
20
approaching Maddren and McGarrigle about his concerns,
App. 131A, and he could have taken that step much sooner.
By his own admission, he did not do so because he “thought it
was going to work itself out”—in other words, because he
thought that, if his “punishment” ended and he was returned
to a trial team, there would be no need to broach the topic
with Maddren or with McGarrigle. App. 131A, 133A.
De Ritis’s “prolonged failure to authenticate [his]
allegations . . . approaches reckless indifference to their
veracity,” Swineford, 15 F.3d at 1274, which we would hold
against De Ritis even if his allegations were true, for “[t]he
issue is not falsity vel non but whether [the] statements . . .
were knowingly and recklessly made,” Springer v. Henry,
435 F.3d 268, 278 (3d Cir. 2006). In sum, De Ritis’s
statements to Maddren and to McGarrigle showed “self-
interest, not public spirit.” Swineford, 15 F.3d at 1274.
Second, on the other side of the scale, we consider
Roger’s “countervailing interests, including [his] prerogative
of removing employees whose conduct impairs performance,”
as well as “concerns for the morale of the workplace,
harmonious relationships among co-workers, and the regular
operation of the enterprise.” Miller, 544 F.3d at 548. Those
countervailing interests are substantial here. De Ritis’s
statements, which accused Roger of managing the Office in a
way that would appease a judge at the expense of clients’
rights, “impugned the integrity of his superiors” and
colleagues in a weighty manner. Watters v. City of Phila., 55
F.3d 886, 898 (3d Cir. 1995) (brackets and internal quotation
marks omitted). As Roger aptly put it, De Ritis “cut[] to the
core of [their] integrity as public defenders and fundamentally
threaten[ed] the idea that [they] are committed to zealously
defending the people [they] represent.” App. 39A.
21
What’s more, in a small office of twenty-seven public
defenders, such statements “would seriously undermine the
effectiveness of the working relationship” between De Ritis
and Roger, Watters, 55 F.3d at 897 (quoting Pickering, 391
U.S. at 570 n.3), the Public Defender whose positions he
represents before the courts and the public, see 16 Pa. Cons.
Stat. § 9960.5(a) (stating that “assistant public defenders”
enable the public defender “to carry out the duties of his
office”). Although not an “alter ego” of the public defender,
Sprague v. Fitzpatrick, 546 F.2d 560, 565 (3d Cir. 1976), an
assistant public defender is appointed or hired as a
representative of the public defender, see, e.g., 18 U.S.C.
§ 3006A(g)(2)(A); 16 Pa. Cons. Stat. § 9960.5(a), just as an
assistant United States attorney represents the United States
Attorney under whom she serves. These “close working
relationships for which personal loyalty and confidence are
necessary,” Dougherty, 772 F.3d at 991, are distinct from
those inherent in, for example, administrative roles or even a
position as an associate at a law firm, where job descriptions
and titles do not rest on the idea that the employee necessarily
represents the positions of his supervisor, cf. id. at 982-84,
992. Here, therefore, “the potential disruptiveness” of
De Ritis’s speech was considerable. Watters, 55 F.3d at
896.11
11
Although De Ritis asserts that Roger provided no
evidence of disruption, Roger had no need to do so, for it is
clear here “that disruption [was] likely to occur because of
[De Ritis’s] speech,” Munroe, 805 F.3d at 472, and the
Pickering balancing test asks us to focus our disruptiveness
analysis on whether the government employee’s speech was
22
Under the Pickering balancing test, De Ritis’s interest in
disseminating “fourth-person hearsay,” gleaned from
after-work “gossip,” App. 129A, pales in comparison to the
“potential disrupt[ion]” it could have caused to the Public
Defender’s Office, Watters, 55 F.3d at 896. Whatever First
Amendment value De Ritis’s statements had, those statements
gave Roger adequate justification to treat him differently
from a member of the public. For that reason, we conclude at
this third stage of the analysis that De Ritis’s speech was not
protected, putting a hard stop to his First Amendment claim
against Roger and entitling Roger to qualified immunity for
his decision to fire De Ritis.12 On remand, therefore,
“likely to be disruptive,” Watters, 55 F.3d at 896 (emphasis
added).
12
As we conclude that there was no constitutional right
violated by Roger under then-existing case law, a fortiori,
such right was not “‘clearly established’ at the time of the
challenged conduct,” Lane, 134 S. Ct. at 2381, and thus
Roger was entitled to qualified immunity on that independent
ground. The District Judge here diligently identified the
relevant case law and properly recognized as a general matter
that a public employee has a clearly established right to
“alleg[e] misconduct or wrongdoing by public officials.”
De Ritis, 165 F. Supp. 3d at 245; see, e.g., Dougherty, 772
F.3d at 982-84, 987-94; Czurlanis, 721 F.2d at 100-07. That
description of the right, however, is so general as to
encompass not only cases where speech alleging misconduct
or wrongdoing is protected, see, e.g., Dougherty, 772 F.3d at
982-84, 987-94, but also those where it is not, see, e.g.,
Swineford, 15 F.3d at 1262-64, 1269-74. Under our case law,
the “clearly established” inquiry requires reference not to
23
judgment should be entered in Roger’s favor on this claim.
See Lane, 134 S. Ct. at 2381.
IV. Conclusion
For the foregoing reasons, we will reverse the District
Court’s denial of qualified immunity and remand for
proceedings consistent with this opinion.13
such “broad general proposition[s],” but to precedent that is
“factually similar to the plaintiff’s allegations,” based on “the
specific context of the case.” Mammaro v. N.J. Div. of Child
Prot. & Permanency, 814 F.3d 164, 169 (3d. Cir. 2016).
13
Our disposition reaches only the First Amendment
claim against Roger, as the pending Pennsylvania
Whistleblower Act claim is not before us on appeal. See
supra note 1. On remand, the District Court should
“consider . . . the values of judicial economy, convenience,
fairness, and comity in order to decide whether to exercise
jurisdiction over . . . [that] pendent state-law claim[]” or to
dismiss that claim without prejudice. Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 & n.7 (1988); see 28 U.S.C.
§ 1367(c)(3); see, e.g., Kach v. Hose, 589 F.3d 626, 650 (3d
Cir. 2009); Growth Horizons, Inc. v. Del. Cty., Pa., 983 F.2d
1277, 1284-85 (3d Cir. 1993).
24