Eichenlaub v. Township of Indiana

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-21-2004
Eichenlaub v. Twp of Indiana
Precedential or Non-Precedential: Precedential
Docket No. 03-2707
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PRECEDENTIAL
UNITED STATES On Appeal from the
COURT OF APPEALS United States District Court
FOR THE THIRD CIRCUIT for the Western District of Pennsylvania
(Dist. Ct. Nos. 99-cv-01607 and
99-cv-01667)
No. 03-2707 District Judge:
Honorable Arthur J. Schwab
DAVID EICHENLAUB;
IKE CONSTRUCTION; Argued March 26, 2004
DANIEL EICHENLAUB;
BARBARA EICHENLAUB, Before: AMBRO, CHERTOFF, and
BECKER, Circuit Judges.
Appellants
(Filed: September 21, 2004)
v.
BLAINE A. LUCAS (Argued)
TOWNSHIP OF INDIANA; GERRI L. SPERLING
TOWNSHIP OF INDIANA BOARD Springer Bush & Perry P.C.
OF SUPERVISORS; Two Gateway Center, 15th Floor
DOROTHY T. CLAUS; GEORGE E. Pittsburgh, PA 15222-1402
DULL, JR.; CHARLES R. FEDEROFF;
JEFFREY D. PECK; DANIEL L. Counsel for Appellants
TAYLOR, in their official capacities;
TOWNSHIP OF INDIANA CODE SCOTT G. DUNLOP (Argued)
ENFORCEMENT OFFICER, STEPHEN J. POLJAK
JEFFREY S. CURTI, in his official Marshall, Dennehey, Warner, Coleman
capacity; DAN ANDERSON, in his & Goggin, P.C.
official capacity; MILDRED BROZEK, 2900 U.S. Steel Tower
Administratix of the Estate of 600 Grant Street
Kevin Brozek; TOWNSHIP OF Pittsburgh, PA 15219
INDIANA ENGINEER, DANIEL B.
SLAGLE, in his individual and official Counsel for Appellees, except for
capacity Dorothy T. Claus
JEFFREY COHEN (Argued)
MARK A. ECK
1
Meyer, Darragh, Buckler, Bebeneck & The District Court granted
Eck summary judgment on the substantive due
U.S. Steel Tower, Suite 4850 process, equal protection, and First
600 Grant Street Amendment charges but denied the
Pittsburgh, PA 15219 Eichenlaubs’ mandamus claim as moot.
We affirm the District Court’s judgment
Counsel for Appellee, Dorothy T. Claus with respect to the substantive due process
and free speech and petition claims.
However, we will reverse as to the First
OPINION OF THE COURT Amendment retaliation, equal protection,
and writ of mandamus claims.
I.
CHERTOFF, Circuit Judge.
David, Daniel, and Barbara
Appellants, members of the Eichenlaub own two parcels of property in
Eichenlaub family and their family-owned Indiana Township: seven lots in the
business, have been embroiled in a Fairview Gardens Plan and a separate tract
contentious zoning d ispute with of land located along Saxonburg
Appellees, the Township of Indiana, Boulevard. In the mid-1990s, the
Pennsylvania, and several of its officials. Eichenlaubs commenced plans to develop
The controversy arises from the their Fairview Gardens property, which
Eichenlaubs’ desire to develop certain was part of a twenty-seven lot subdivision
pieces of property, and from the of single family residences approved by
Township’s insistence that the the Allegheny County Planning
development comply with a number of Commission and the Board of Supervisors
regulations. The disagreement has of the Township in 1940 (the “Plan”). In
engendered claims that Township officials April of 1999, the Eichenlaubs submitted
violated the Eichenlaubs’ substantive due an application to the Township for
process and equal protection rights by approval of a revised Plan related to the
denying or delaying authorization to seven lots (the “Revised Plan”). After
develop the properties; that officials several rejections and subsequent
violated David Eichenlaub’s First revisions, the Township approved the
Amendment petition and free speech Eichenlaubs’ amended subdivision plan
rights by curtailing his speech during a on June 22, 1999, conditioned upon an
public meeting and removing him from execution of a satisfactory developer’s
the meeting; that officials retaliated agreement. However, several weeks later,
against David Eichenlaub for exercising the Eichenlaubs withdrew their Revised
his First Amendment rights; and that Plan, claiming that they had been subject
officials are also liable under Pennsylvania to “unnecessary and onerous obligations”
state law for damages. by the Township. Appellant Br. 12.
2
Following the withdrawal of their The Eichenlaubs also sparred with
revised plan application, the Eichenlaubs Township officials over the development
continued their development efforts for of their Saxonburg Boulevard property. In
their Fairview Gardens lots. On August 1998, the Eichenlaubs filed a permit
19, 1999, Daniel and Barbara Eichenlaub application to grade the property to plant
executed deeds granting two of the nursery stock for their landscaping
Fairview Gardens lots to family members, business. The following year, the
David and Carl Eichenlaub. One week Eichenlaubs fulfilled a Township request
later, David Eichenlaub submitted a to file a site plan for the project. In June
building permit application for a single of 2000, the Board approved the
family residence on Lot 7 of the Plan. The Eichenlaubs’ plan. However, the
Township rejected that application, as well Township had not executed the
as a subsequent application filed on Developer’s Agreement because, as the
August 3, 2000, claiming that the family Magistrate Judge found, the Eichenlaubs
was trying to develop the seven residential have refused to pay the engineering fees
lots in a serial fashion so as to claim for the project. App. A37.
colorable e x e m p tion from th e
In September of 1999, the
requirements of the Township Subdivision
Eichenlaubs filed two separate civil
and Land Development Ordinance.
actions in federal court. In the first case,
The Eichenlaubs maintained that docket 99-cv-01607, the Township, the
they were not required to obtain the Township Board of Supervisors, the
Township’s approval of their subdivision Township Board Code Enforcement
plans under the then-current land Officer, the Township Manager, and the
development regulations. They claimed Townsh ip Engineer were named
that because the Fairview Gardens defendants. David Eichenlaub alleged that
subdivision development was part of the the Township violated his First
twenty-seven lot plan approved in 1940, Amendment rights to petition government
subsequent revisions to the development for redress of grievances when he was
codes did not apply to them. The limited in his right to speak at a public
Township argued otherwise and meeting on September 14, 1999, and was
maintained that the Eichenlaubs were removed from the same meeting2 (Count I)
obliged to comply with development
regulations enacted following the original
subdivision approval granted in 1940.1 1980), the Township Grading Ordinance
(enacted in 1987), and the Stormwater
Management Ordinance (enacted in 1988).
1
The Township’s position has been
2
that the Eichenlaubs were required to David Eichenlaub contends that at
comply with the requirements of the the September 14, 1999 meeting, board
current Subdivision Ordinance (enacted in chairman Peck also “repeatedly
3
and was subject to various alleged development applications in the time and
retaliatory actions taken by the Defendants manner required under the Pennsylvania
(Count II). David Eichenlaub and his Municipalities Planning Code (“MPC”)
business, Ike Construction, also asserted entitled them to a writ of mandamus
defamation claims regarding Defendants’ compelling approval of those projects
involvement in a newspaper article (Count IV).
recounting that David Eichenlaub had
The two complaints were
violated an Indiana Township Ordinance
consolidated at 99-cv-01667. The
(Count II).
Defendants moved for summary judgment
In the second case, docket 99-cv- on all counts, and the Eichenlaubs moved
01667, David, Daniel, and Barbara for partial summary judgment on the
Eichenlaub raised conspiracy claims under counts initially listed in 99-cv-01667.
42 U.S.C. § 1983 asserting: (1) violation
On August 27, 2002, the Magistrate
of their Fourteenth Amendment rights to
J u d g e issued his Report and
substantive due process (Count I) arising
Reco m m en d a t i o n . The report
out of delays and disputes in securing
recommended that the District Court: (1)
authorization to develop the Fairview
Grant summary judgment for Defendants
Gardens and Saxonburg Boulevard
on David Eichenlaub’s First Amendment
properties; and (2) denial of equal
free speech and petition claim as well his
protection under the Fourteenth
state defamation claim; the Eichenlaubs’
Amendment by being denied the
equal protection, conspiracy, and official
opportunity to proceed with their projects
capacity claims alleged against the
(Count II); and (3) arbitrary action,
individual Defendants; (2) deny
selective enforcement and retaliation
Defendants’ motions for summary
regarding both the Fairview Gardens and
judgment on the David Eichenlaub’s First
Saxonburg Boulevard properties (Count
Amendment retaliation claims; (3) deny
III). The Eichenlaubs also alleged that the
motions by the Eichenlaubs and
Defendants’ failure to act on their
Defendants for summary judgment on the
Eichenlaubs’ substantive due process
interrupted him and did not let him finish claim; and (4) grant the Eichenlaubs’
his comments.” Appellant Br. 22. He also request for a writ of mandamus based on
claims that Peck had called him earlier on (a) Defendants’ failure to notify the
August 25, 1999, and suggested that he Eichenlaubs of its April 1999 decision to
“not come back and speak at the deny approval of the subdivision plan for
Township meetings, at the citizens Fairview Gardens and (b) Defendant’s
forum.” Id. Finally, David Eichenlaub’s failure to act on the Eichenlaubs’ grading
complaint, 99-1607, asserts without any permit and site plan applications for the
specificity that the Township hindered him Saxonburg Boulevard property.
from speaking at meetings.
4
While the case was pending in issues. He complains that the Township
District Court, the parties entered into two restricted his ability to speak at various
partial settlement agreements, dated Township Board of Supervisors Meetings
February 12, 2003, and February 24, 2003, and that he was removed from one such
under which the Township agreed to grant meeting on September 14, 1999. In effect,
building permits at Fairview Gardens and David Eichenlaub alleges a direct restraint
approve the subdivision plan and grading on speech in a particular public forum, as
permits for the Saxonburg property. well as a restraint on his ability to petition
under the Petition Clause of the First
On May 29, 2003, the District
Amendment. Second, David Eichenlaub
Court entered an order granting
urges that Township officials took adverse
Defendants’ motion for summary
action against his family in retaliation for
judgment on all counts. The Court also
his statements. We examine each claim in
dismissed the Eichenlaubs’ mandamus
turn.
requests as moot in light of the partial
settlement agreements. A.
The Eichenlaubs appeal from that The government’s power to prevent
order as it relates to the § 1983 claims for or limit speech on public property is
substantive due process, equal protection, carefully circumscribed by the First
free speech, and retaliation as well as the Amendment. Not all public property is
denials of mandamus. This Court has open to unfettered public speech, for the
jurisdiction pursuant to 28 U.S.C. § 1291. “First Amendment does not guarantee
Our review over a District Court’s grant of access to property simply because it is
summary judgment is plenary. See Fed. owned or controlled by the government.”
Home Loan Mortgage Corp. v. Scottsdale United States Postal Serv. v. Council of
Ins. Co., 316 F.3d 431, 443 (3d Cir. Greenburgh Civic Ass’ns, 453 U.S. 114,
2003). We assess the record using the 129 (1981). Government facilities that are
same summary judgment standard that not committed to public communicative
guides district courts. See Farrell v. activity may regulate speech by the
Planters Lifesavers Co., 206 F.3d 271, 278 general public so long as that regulation is
(3d Cir. 2000). To prevail on a motion for reasonable and not based on opposition to
summary judgment, the moving party must a particular viewpoint. Id. at 131 n.7.
demonstrate “that there is no genuine issue That is because the government “may
as to any material fact and that the moving legally preserve the property under its
party is entitled to a judgment as a matter control for the use to which it is
of law.” Fed. R. Civ. P. 56(c). dedicated.” Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S.
II.
384, 390 (1993).
David Eichenlaub’s Fir st
On the other hand, public areas that
Amendment claims present two distinct
5
are open to general “assembly and debate” U.S. 819, 829 (1995); Lamb’s Chapel, 508
as a matter of tradition or by specific U.S. at 392-93. An example of this kind
government designation are characterized of limited public forum is a university
as a public forum, within which speech facility open for meetings of student
can be limited only narrowly. Ark. Educ. groups, but not for the general public.
Television Comm’n v. Forbes, 523 U.S. See, e.g., Widmar v. Vincent, 454 U.S.
666, 677 (1998), quoting Perry Educ. 263, 268 (1981). The Supreme Court has
Ass’n v. Perry Local Educators’ Ass’n, not precisely instructed where the limited
460 U.S. 37, 45 (1983)); see also public forum is located on the First
Whiteland Woods, L.P. v. Township of Amendment spectrum between the strict
West Whiteland, 193 F.3d 177, 182 n.2 test for public forum regulation and the
(3d Cir. 1999). Streets and parks are more relaxed test for nonpublic regulation.
examples of traditional public forums. See Whiteland Woods, 193 F.3d at 182
See, e.g., Hague v. CIO, 307 U.S. 496, n.2. Earlier decisions, such as Widmar
515 (1939). Public forums are also itself, 454 U.S. at 269-70, and Perry Educ.
established when the government opens Ass’n, 460 U.S. at 45-46 & n.7, suggest
property for general “expressive activity,” that content-based restraints on limited
Perry Educ. Ass’n, 460 U.S. at 45, as in public forums must be subject to strict
the case of theaters, Southeastern scrutiny, and can survive only if they are
Promotions, Ltd. v. Conrad, 420 U.S. 546, supported by a compelling interest.
555 (1975). Absent a compelling interest, Recently, however, the Court has
speech in a public forum may not be apparently moved to the position that
regulated based upon content. regulation of a limited forum may survive
Furthermore, in a public forum any under a test that is less strict than that
restrictions as to time, place, and manner applied in the case of a general open
of speech (1) must be unrelated to content; forum. Good News Club v. Milford Cent.
(2) must be “‘narrowly tailored to serve a Sch., 533 U.S. 98, 106 (2001). Under this
significant governmental interest’”; and refined test for reviewing limited forum
(3) must allow alternative ways of restrictions, content-based restraints are
communicating the same information. permitted, so long as they are designed to
Whiteland Woods, 193 F.3d at 182 n.2 confine the “forum to the limited and
(quoting Ward v. Rock Against Racism, legitimate purposes for which it was
491 U.S. 781, 791 (1989)). created.” Rosenberger, 515 U.S. at 829;
see also Brody v. Spang, 957 F.2d 1108,
There is a third type of public
1118 (3d Cir. 1992). Two limitations
setting that the courts have recognized—a
remain. Any restrictions on speech must
forum created by the government that is
be viewpoint neutral and must be
limited to certain groups or to discussion
“‘reasonable in light of the purpose served
of certain topics. See Rosenberger v.
by the forum.’” Good News Club, 533
Rector & Visitors of the Univ. of Va., 515
U.S. at 106-07 (quoting Cornelius v.
6
NAACP Legal Def. & Ed. Fund, Inc., 473 include such expressive activities as
U.S. 788, 806 (1985)). performance art, lectures on medieval
history, or arguments about private
Put another way, we may say that
disputes involving town citizens. “Plainly,
under contemporary public forum
public bodies may confine their meetings
jurisprudence, a designated (as opposed to
to specified subject matter . . . .” City of
traditional) forum is reviewed under a
Madison Joint Sch. Dist. v. Wis.
sliding standard that allows for content-
Employment Relations Comm’n, 429 U.S.
related regulation so long as the content is
167, 175 n.8 (1976); see White v. City of
tied to the limitations that frame the scope
Norwalk, 900 F.2d 1421, 1425 (9th Cir.
of the designation, and so long as the
1990). Thus, matters presented at a
regulation is neutral as to viewpoint within
citizen’s forum may be limited to issues
the subject matter of that content.
germane to town government.
In this case, the primary restrictions
With this framework, we agree with
placed on David Eichenlaub’s speech
the District Court that summary judgment
occurred during his appearance at the
against David Eichenlaub on his restraint
citizen’s forum portion of the Township
of speech and petition claims was
Board of Supervisors meeting on
appropriate. The record of the September
September 14, 1999, during which he was
14, 1999 meeting discloses that he was
eventually removed. Whether the citizen’s
repetitive and truculent, and that he
forum was a general public forum or a
repeatedly interrupted the chairman of the
limited public forum is a close question.
meeting. Restricting such behavior is the
Certainly, the citizen’s forum is not
sort of time, place, and manner regulation
limited to a particular class of speakers, as
that passes muster under the most stringent
was the case in Cornelius (charities),
scrutiny for a public forum. Indeed, for
Rosenberger (student groups), or Forbes
the presiding officer of a public meeting to
(political candidates). Indeed, the record
allow a speaker to try to hijack the
discloses that the citizen’s forum—as its
proceedings, or to filibuster them, would
name suggests—is open to all citizens
impinge on the First Amendment rights of
who wish to address the Township
other would-be participants. We have no
government. At the same time, a review
difficulty sustaining the decision to
of the transcript of the forum confirms that
remove David Eichenlaub on that basis.
even the public discussion session of the
Township meeting was designed to be To be sure, the chairman of the
limited to matters pertaining to town meeting sought to restrict the discussion to
government. The meeting was not the topics of public interest and requested that
equivalent of a municipal theater, as in David Eichenlaub not discuss matters of
Southeastern Promotions, or a public park private concern. To the extent those
or street. One would certainly not expect restrictions were not strictly content-
the forum of a Township meeting to neutral, the chairman’s actions served the
7
function of confining the discussion to the by the First Amendment.4
purpose of the meeting. As we have
The District Court’s opinion
observed, speech at a citizen’s forum may
misconceives the scope of protection for
be limited according to its germaneness to
speech under the First Amendment.
the purpose of the meeting.3 At any rate,
the overwhelming, and wholly sufficient, The issue of government retaliation
motive to eject David Eichenlaub from the for unwelcome communication arises in
meeting was the perfectly sustainable and various contexts. Sometimes, public
content-neutral desire to prevent his employees claim adverse employment
badgering, constant interruptions, and action resulted because of their speech.
disregard for the rules of decorum. Prisoners not infrequently allege that
punishment was spurred by their
We will affirm summary judgment
complaints. And, as is the case here,
for the defendants on this claim.
citizens may charge that the government
B. hurt them in retaliation for some criticism
against the authorities. See Bd. of County
The Eichenlaubs’ retaliation claims
Comm’rs v. Umbehr, 518 U.S. 668, 671-
stand on different footing, however. The
72 (1996).
Magistrate Judge determined that there
were material issues of fact as to whether In general, constitutional retaliation
the defendants took steps to retaliate claims are analyzed under a three-part test.
against the Eichenlaubs for David Plaintiff must prove (1) that he engaged in
Eichenlaub’s various statements and constitutionally-protected activity; (2) that
complaints, including his speech at the the government responded with
September 14, 1999 meeting. The District retaliation; and (3) that the protected
Court entered summary judgment against activity caused the retaliation. Anderson
the Eichenlaubs, however, on the ground v. Davila, 125 F.3d 148, 161 (3d Cir.
that, even if there was retaliation, the 1997) (public employee retaliation);
speech in question related to private Rauser v. Horn, 241 F.3d 330, 333 (3d
matters, rather than matters of public Cir. 2001). The threshold requirement is
concern, and, therefore, was unprotected that the plaintiff identify the protected
activity that allegedly spurred the
3 4
Of course, viewpoint-based Appellants challenge the District
regulation is not proper. We do not read Court’s determination that David
the record of the proceedings to indicate Eichenlaub’s speech was not about matters
that the presiding officer attempted to of public concern. Since we determine
muzzle David Eichenlaub because he that the public concern test is not
disagreed with Eichenlaub’s viewpoint. applicable, we need not address this
App. A1225-35. challenge.
8
retaliation. In this case, David Eichenlaub protection includes private expression not
argues that his exercise of his freedom of related to matters of public concern. See
speech and ability to petition the Capitol Square Review & Advisory Bd. v.
government under the First Amendment Pinette, 515 U.S. 753, 760 (1995);
are the protected activities in question. Connick v. Myers, 461 U.S. 138, 147
(1983); United Mine Workers of Am.
The District Court relied in part on
Dist. 12 v. Ill. State Bar Ass'n, 389 U.S.
our opinion in Anderson to hold that
217, 223 (1967).
“plaintiff must show that speech is a
matter of public concern in order to The “public concern” test was
receive First Amendment protection.” formulated by the Supreme Court in
App. A17 (quoting Anderson, 125 F.3d at addressing speech restrictions placed by
162). This reading of our case law, governmental entities on their own public
however, is overbroad. Our decision in employees. Regulation of public
Anderson—and all the other decisions employee speech presented two features
relied upon in the District Court or by the not present in other forms of speech
parties—provide only that a “public control. First, acting as an employer, the
concern” requirement applies when a government has some authority to impose
claim of First Amendment retaliation is conditions upon those who seek jobs,
brought by a public employee against his including conditions that limit the exercise
or her government employer. Anderson, of otherwise available constitutional
125 F.3d at 162. The speech on public rights. See, e.g., Broadrick v. Oklahoma,
concerns requirement embodied in these 413 U.S. 601 (1973). Second, “[w]hen
decisions has not been applied, however, someone who is paid a salary so that she
when non-employees complain that will contribute to an agency’s effective
government has retaliated against them as operation begins to do or say things that
citizens for their speech. To expand this detract from the agency’s effective
public concern limitation into the broader operation, the government employer must
context of all citizen speech would wrench have some power to restrain her.” Waters
it from its original rationale and curtail a v. Churchill, 511 U.S. 661, 675 (1994)
significant body of free expression that (plurality opinion).
has traditionally been fully protected
The Supreme Court approached
under the First Amendment.
public employee speech, therefore, as a
We begin with the proposition that, balance between the rights those
except for certain narrow categories employees enjoy as citizens and the
deemed unworthy of full First Amendment obligations they bear as loyal employees.
protection—such as obscenity, “fighting In Connick v. Myers, 461 U.S. 138words” and libel—all speech is protected (1983), the Court held that while
by the First Amendment. R.A.V. v. St. government employers, like their private
Paul, 505 U.S. 377, 382-90 (1992). That counterparts, have authority to manage
9
their workers—including the authority to to avoid any implication that speech on
restrict various kinds of expression—the private matters is not entitled to
First Amendment imposes limits on that constitutional protection:
authority when the employees are
We do not suggest,
speaking about matters of public concern.
however, that Myers’
To strike the balance, the Court carved out
speech, even if not touching
speech on matters of public concern as a
upon a matter of public
species of expression that would remain
concern, is totally beyond
protected even for government employees.
the protection of the First
The Court reasoned that speech on public
Amendment. “[The] First
issues “occupies the ‘highest rung of the
Amendment does not
hierarchy of First Amendment values,’ and
protect speech and assembly
is entitled to special protection.” Id. at
only to the extent it can be
145 (quoting Carey v. Brown, 447 U.S.
characterized as political . .
455, 467 (1980)).5
..
Nothing about the reasoning of
Id. at 147 (quoting United Mine Workers
Connick suggests that this public/private
of Am. Dist. 12, 389 U.S. at 223). Thus,
concern distinction has any role to play
the Court distinguished between types of
regarding speech outside the public
speech only in order to accommodate the
employment setting.
strong countervailing need for
To the contrary. In singling out governments to discipline their own
speech on matters of public concern for personnel.
the highest protection in the government
This Court has also observed, albeit
workplace, the Supreme Court took pains
in dictum, that “[s]peech unrelated to a
matter of public concern is not, like
obscenity, entirely outside the protection
5
That special status for speech of the First Amendment. While the
about matters of public interest drew government as employer may discharge a
support from other lines of First public employee for such speech, the
Amendment case law that gives government as sovereign may not sanction
extraordinary protection to even the same individual when she engages in
defamatory speech and invasions of such speech as a citizen, outside the
privacy when they concern public figures employment context.” Azzaro v. County
or matters of public interest. See Dun & of Allegheny, 110 F.3d 968, 976 n.3 (3d
Bradstreet v. Greenmoss Builders, 472 Cir. 1997).
U.S. 749, 758-59 (1985); New York
Times v. Sullivan, 376 U.S. 254, 279-80 To be sure, numerous cases,
(1984); Time, Inc. v. Hill, 385 U.S. 374, including those cited by the District Court
387-88 (1967). and by the parties, have reiterated the
10
public/private matters distinction in the mistreatment. We do not, however,
context of retaliation claims brought by impose a “public concern” threshold.
public employees. Mt. Healthy City Sch.
In short, while speech on topics of
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274public concern may stand on the “highest
(1997); Anderson, 125 F.3d at 160-61 (3d
rung” on the ladder of the First
Cir. 1997); Kokkinis v. Ivkovich and Vill.
Amendment, private speech (unless
of Bridgeview, 183 F.3d 840 (7th Cir.
obscene or fighting words or the like) is
1999); Russolini v. Salisbury Township,
still protected on the First Amendment
126 F. Supp. 2d. 821 (E.D. Pa. 1999);
ladder. See Capitol Square Review, 515
Alvarez v. City of New York, 31 F. Supp.
U.S. at 760. The rationale for a
2d 334 (S.D.N.Y. 1998). What is pivotal,
public/private concern distinction that
though, is that these cases do not involve
applies to public employees simply does
retaliation by government bodies against
not apply to citizens outside the
citizens who are not employed by the
employment context. By the same token,
government (and who, incidentally, cannot
the decisions of the Supreme Court and of
be viewed as having limited their speech
our court have not established a public
as a condition of voluntary employment).6
concern threshold to the protection of
Indeed, many other cases point to the
citizen private speech. We decline to
principle that outside the employment
fashion one now. “[C]onstitutional review
context the First Amendment forbids
of government employment decisions
retaliation for speech even about private
must rest on different principles that
matters. For example, we have held that
review of speech restraints imposed by the
First Amendment claims may be based on
government as sovereign.” Waters, 511
allegations that a prisoner’s complaint
U.S. at 674.
against a guard caused retaliation.
Mitchell v. Horn, 318 F.3d 523 (3d Cir. Accordingly, David Eichenlaub’s
2003). Realistically, these kinds of speech, even if concerned with private
complaints are often highly particularized grievances, is entitled to First Amendment
objections to alleged individual protection.7
6 7
The District Court did rely upon The District Court opinion also
Grimm v. Borough of Norristown, 226 overlooked the fact that the Eichenlaubs
F.Supp. 2d 606, 636 n.19 (E.D.Pa. 2002), raised claims of retaliation for the exercise
in which another District Court translated of rights under the Petition Clause of the
the public concern requirement from the First Amendment. We held in San Filippo
public employee setting to the zoning v. Bongiovanni, 30 F.3d 424 (1994), that
setting. That opinion is, of course, not under the Petition Clause, the filing of a
binding on us, and for the reasons stated “non-sham” petition was protected activity
here, we disagree. in the public employee context—without
11
Because the District Court did not kinds of gross misconduct that have
consider the Magistrate’s Report that shocked the judicial conscience. In
found material issues of fact with regard to Conroe Creosoting Co. v. Montgomery
the other elements of the retaliation claim, County, 249 F.3d 337 (5th Cir. 2001), the
we will vacate the judgment on the First Court of Appeals determined that whether
Amendment retaliation claim and remand a plaintiff’s substantive due process had
for further proceedings. been violated by local officials was a
triable allegation. But that was not a
III.
zoning dispute. Rather, plaintiffs charged
A. that the officials fraudulently converted a
tax levy for a $75,000 deficiency into an
The District Court properly held,
unauthorized seizure and forced sale and
and the Eichenlaubs do not dispute, that
destruction of an $800,000 ongoing
whether a zoning official’s actions or
business. The principal defendant
inactions violate due process is determined
conceded that the sale was unauthorized.
by utilizing a “shocks the conscience” test.
The facts carried a whiff of self-dealing,
United Artists Theatre Circuit, Inc. v.
since the principal defendant’s friends
Township of Warrington, 316 F.3d 392,
were alleged to have been engaged to
399 (3d Cir. 2003). That test, of course, is
perform auction services. In effect, the
not precise, see County of Sacramento v.
court found that the facts asserted
Lewis, 523 U.S. 833, 847 (1998), and it
amounted to a claim of an unconstitutional
also “varies depending on the factual
“taking” without just compensation, in
context,” United Artists, 316 F.3d at 400.
violation of the Fifth Amendment, or an
What is clear is that this test is designed to
improper seizure, in violation of the
avoid converting federal courts into super
Fourth Amendment. Id. at 340 n. 9.
zoning tribunals. What “shocks the
conscience” is “‘only the most egregious Associates in Obstetrics &
official conduct.’” Id. (quoting Lewis, 523 Gynecology v. Upper Merion Township,
U.S. at 846). 270 F. Supp. 2d 633 (E.D.Pa. 2003), is
also a case that implicates more than just
Cases cited by the Eichenlaubs in
disagreement about conventional zoning
support of their argument illustrate the
or planning rules. In Obstetrics, the
District Court denied a motion to dismiss
a claim that municipal defendants denied
regard to the “public concern” test. In substantive due process when they
view of our disposition, we need not selectively closed plaintiff’s medical
address whether the Petition Clause office for the purpose of blocking the
creates broader rights than the Free provision of abortion services. Because
Speech Clause in the non-employee the municipal action there implicated
context. See id. at 449 (Becker, J., abortion rights, the District Court’s
dissenting).
12
analysis of the “shocks the conscience” requirements to their property that were
standard proceeded largely under those not applied to other parcels; that they
judicial decisions that address protection pursued unannounced and unnecessary
of abortion services under the Fourteenth inspection and enforcement actions; that
Amendment. That analysis is inapplicable they delayed certain permits and
to a zoning controversy that does not approvals; that they improperly increased
involve allegations of hostility to tax assessments; and that they maligned
constitutionally-protected activity on the and muzzled the Eichenlaubs. With the
premises.8 exception of the previously discussed First
Amendment retaliation claims, these
By way of contrast, as the District
complaints are examples of the kind of
Court found, the misconduct alleged here
disagreement that is frequent in planning
does not rise sufficiently above that at
disputes. As counsel for appellants
issue in a normal zoning dispute to pass
acknowledged during argument, there is
the “shocks the conscience test.”9
no allegation of corruption or self-dealing
Basically, the Eichenlaubs assert that
here. The local officials are not accused
zoning officials applied subdivision
of seeking to hamper development in
order to interfere with otherwise
8
constitutionally protected activity at the
Two other decisions relied upon project site, or because of some bias
by the Eichenlaubs are just inapposite. against an ethnic group. There is no
Brady v. Town of Colchester, 863 F.2d virtual “taking” as in Conroe. And as we
205 (2d Cir. 1988), which involved have previously observed,
allegations that defendants were making
zoning decisions to harm members of an [E]very appeal by a
opposing political party, was decided disappointed developer
before Lewis and under a different legal from an adverse ruling of
standard than the “shocks the conscience” the local planning board
test. Rubinovitz v. Rogato, 60 F.3d 906 involves some claim of
(1st Cir. 1995), is an equal protection case, abuse of legal authority, but
not a substantive due process case. “it is not enough simply to
give these state law claims
9
The Magistrate Judge initially constitutional labels such as
analyzed the substantive due process claim ‘due process’ or ‘equal
under the “improper motive” test of Bello protection’ in order to raise
v. Walker, 840 F.2d 1124 (3d Cir.), cert. a substantia l federal
denied, 488 U.S. 851 (1988), 488 U.S. question under section
868 (1988). The District Court had the 1983.”
benefit of our intervening decision in
United Artists, which made clear that United Artists, 316 F.3d at 402 (quoting
“shocks the conscience” applies. Creative Env’ts, Inc. v. Estabrook, 680
13
F.2d 822, 833 (1st Cir. 1982)). as a device to dilute the stringent
requirements needed to show a substantive
The District Court applied the
due process violation. It may be very
correct legal standard and did not abuse its
unlikely that a claim that fails the
discretion in dismissing the substantive
substantive due process test will survive
due process claim.
under an equal protection approach.
B. Nevertheless, the District Court simply did
not address the equal protection claim at
In the District Court, the
all. Bearing in mind that we have
Eichenlaubs also raised an equal
remanded the retaliation claims for further
protection challenge to what they claimed
consideration by the District Court, we
was selective or unequal enforcement of
will remand this somewhat overlapping
local development rules. Indeed, they
claim as well so that the District Court
argue here that other property owners have
may consider whether it is appropriate for
not been held to the same rigorous
summary judgment.
procedures that they claim were applied to
the Eichenlaubs’ parcels. They do not, IV.
however, assert that any differences in
Finally, the Eichenlaubs appeal the
treatment stem from racial or other
District Court’s decision to dismiss their
invidious forms of discrimination, or from
request for a writ of mandamus to obtain a
an effort to burden fundamental rights
“deemed approval” of their proposed
(again, except for their First Amendment
subdivision and development plans. In his
rights, which we treat above).
Report and Recommendation of August
The Supreme Court has held that a 27, 2002, Magistrate Judge Caiazza
“‘class of one’” can attack intentionally recommended that the Eichenlaubs’
different treatment if it is “‘irrational and request for a writ of mandamus be granted
w h o lly arbitrary.’” Village of with respect to (1) the failure to inform the
Willowbrook v. Olech, 528 U.S. 562, 564, Eichenlaubs in writing of the Town
565 (2000) (internal citations omitted) (per Board’s April 1999 vote denying the
curiam). The Magistrate Judge briefly revised Fairview Gardens subdivision plan
addressed this issue in denying the motion and (2) the Township’s failure to timely
for summary judgment on this claim, but review the Eichenlaubs’ Saxonburg
the District Court reversed and granted Boulevard grading permit and site plan
summary judgment without discussion. applications.
The “irrational and wholly However, the District Court
arbitrary” standard is doubtless difficult determined that the Eichenlaubs’ request
for a plaintiff to meet in a zoning dispute, for “deemed approval” of the Fairview
id. at 565-66 (Breyer, J., concurring), and Gardens and Saxonburg property plans
we do not view an equal protection claim was moot because the parties had executed
14
two partial settlement agreements on claim for monetary relief. We remand this
February 12, 2003, and February 24, 2003. issue to the District Court for a
The Eichenlaubs allege here that this determination whether summary judgment
decision was improper because the partial is appropriate on the claim for damages
settlement agreements left open the issue incidental to mandamus.
of payment of damages. The District
We will affirm the District Court’s
Court never addressed whether damages
order granting summary judgment to the
were appropriate.
Township of Indiana on the Eichenlaubs’
Mandamus will issue to compel a substantive due process and David
government agency’s performance of a Eichenlaub’s free speech and petition
ministerial act when the plaintiff has a claim. With regard to David Eichenlaub’s
clear legal right to the remedy, the First Amendment retaliation claim and the
defendant has a duty, and there is no other Eichenlaubs’ equal protection claim, we
equitable or appropriate remedy. Malone will vacate the District Court’s judgment
v. W. Marlborough Township Bd. of and remand for further proceedings. We
Supervisors, 570 A.2d 147, 148-49 (Pa. will also remand the District Court’s order
C o m mw . C t . 1 9 9 0 ) . U n d er denying the Eichenlaubs’ application for a
Commonwealth law, as the Township writ of mandamus for consideration of
itself noted, “[d]amages recoverable in damages incurred, if any.
mandamus are those incidental to the
specific relief being sought.” Stoner v.
Township of Lower Merion, 587 A.2d
879, 885 (Pa. Commw. Ct. 1991). “[A]ny
damages available to the land owners as a
result of the township’s wrongful
withholding of approval must be confined
to those incidental to the specific relief
available in mandamus.” Id.On appeal, we cannot determine
whether summary judgment for damages
incidental to mandamus was appropriate.
Neither the Magistrate Court nor the
District Court discussed the issue of
damages sustained by the Eichenlaubs
with respect to the delay in receiving the
permits. In addition, neither the
Eichenlaubs nor the Township has pointed
to evidence in the record on which this
Court could rely to sustain or reject a
15