Albert Flora, Jr. v. County of Luzerne

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-1854

_____________

ALBERT FLORA, JR.,

Appellant

v.

COUNTY OF LUZERNE and ROBERT C. LAWTON,

County Manager, in his official capacity

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-13-cv-1049)

District Judges: Hon. Malachy E. Mannion

_______________

Argued

November 18, 2014

Before: RENDELL, JORDAN, and NYGAARD, Circuit

Judges.

(Filed: January 15, 2015)

_______________

Katherine U. Davis

Vernon L. Francis

Dechert

2929 Arch Street – 18th Fl.

Philadelphia, PA 19104

Mary Catherine Roper [ARGUED]

American Civil Liberties Union of Pennsylvania

P. O. Box 40008

Philadelphia, PA 19106

Michelle H. Yeary

Dechert

902 Carnegie Center – Ste. 500

Princeton, NJ 08540

Counsel for Appellant

John G. Dean

Elliott Greenleaf & Dean

201 Penn Avenue – Ste. 202

Scranton, PA 18503

Deborah H. Simon [ARGUED]

Elliott Greenleaf & Siedzikowski

925 Harvest Dr. – Ste. 300

Blue Bell, PA 18422

Counsel for Appellees

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OPINION OF THE COURT

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2

JORDAN, Circuit Judge.

Appellant, Albert Flora, Jr., the former Chief Public

Defender for Luzerne County, Pennsylvania, challenges the

order of the United States District Court for the Middle

District of Pennsylvania dismissing his First Amendment

retaliation claims against the County and its manager, Roger

Lawton. Because the District Court applied an incorrect

standard in determining whether the facts alleged in the

complaint set forth a claim for relief, and because, under the

Supreme Court’s recent decision in Lane v. Franks, __ U.S.

____, 134 S. Ct. 2369 (2014), Flora pled facts sufficient to

allege that he spoke as a citizen, we will vacate the District

Court’s order and remand for further proceedings.

I. Background 1

Flora worked for the Luzerne County Office of the

Public Defender from 1980 until 2013. He became the First

Assistant Defender in 1990 and the Acting Chief Public

Defender in March 2010. Three months later, the Luzerne

County Board of Commissioners (“the Commissioners”)

appointed him as the Chief Public Defender. He also

maintained a private criminal defense practice during his

tenure with the Public Defender’s Office.

1

Because we are reviewing the grant of a motion to

dismiss, we recount the facts as alleged by the non-movant,

Flora, accepting them as true and construing them in the light

most favorable to him. Santomenno ex rel. John Hancock

Trust v. John Hancock Life Ins. Co., 677 F.3d 178, 182 (3d

Cir. 2012).

3

The Public Defender’s Office is charged with

providing representation to indigent criminal defendants in 17

magisterial districts, the Luzerne County Court of Common

Pleas, and the appellate courts of Pennsylvania. It also

provides representation in state and county parole, probation,

and civil commitment proceedings. When Flora became the

Chief Public Defender, the office was “plagued with

problems as a result of years of insufficient funding.”

(Appellant’s Br. at 3; see also App. at 11.) His predecessor

had tried to secure additional funding from Luzerne County

by submitting weekly reports to the Commissioners that

detailed the excessive caseloads and staffing deficiencies. To

improve the quality of representation for juveniles, Flora

sought and obtained grant funding from the Pennsylvania

Commission on Crime and Delinquency and the Luzerne-

Wyoming Counties Mental Health Program. He was not,

however, able to obtain additional money to address the

funding crisis as it pertained to adult offenders. Flora

provided the County, the Commissioners, and Lawton with a

report in June 2010 that detailed funding inadequacies and

stated that the current level of resources did not allow the

Public Defender’s Office to provide constitutionally adequate

representation to its clients. The County was unresponsive to

Flora’s concerns, so he restricted the types of clients that the

Office would represent, refusing representation to those who

were not faced with a period of incarceration if convicted.

Flora continued battling the County on funding,

submitting his 2012 budget “under protest” and stating that

“[c]urrent staffing levels and existing caseloads[] prevent this

office from providing the level of representation required by

ethical standards and by Federal and State Constitutions ... .

4

[T]he office is ethically required to withdraw from existing

cases or refuse new cases.” (App. at 47.) By April 2012,

insufficient funding coupled with a hiring freeze and several

attorney resignations meant that the resource issue had

reached a critical stage.2 Flora thus decided to initiate a class

action lawsuit for the benefit of indigent criminal defendants.

With three clients of the Public Defender’s Office as the

named plaintiffs in the suit, he filed a complaint in the

Luzerne County Court of Common Pleas on April 10, 2012,

and petitioned for a writ of mandamus compelling the County

to provide adequate funding, office space, and attorney

staffing. That same day, he filed a federal court complaint

and a motion for a preliminary injunction, seeking an order to

prevent the County from firing him for his actions. Flora v.

Luzerne Cnty., No. 12-665 (M.D. Pa. filed Apr. 10, 2012).

Rather than litigate the federal claim, the parties entered into

a stipulation allowing Flora to remain Chief Public Defender.

On June 15, 2012, the state court granted Flora’s

petition for mandamus. It ordered the County to provide

adequate funding and staffing to the Public Defender’s

Office,3 and it further ordered the parties into mediation and

2

Flora’s complaint suggests that the attorneys resigned

due to unreasonable workloads, inadequate funding, and the

ethical quandaries those issues created.

3

The County appears to have confined its entire

defense of the state court funding action to arguing that the

statute requiring the County to provide a public defender

mandated only that the County have an individual titled

“Public Defender” and not that it staff the public defender’s

office or provide it with any funding.

5

prohibited the Public Defender’s Office from refusing

representation to any indigent defendants. On December 19,

2012, while the parties were in mediation, the County Council

approved an amendment to the Public Defender’s budget to

add a full-time Chief Public Defender position and to

maintain a part-time Assistant Public Defender. 4 Three

months later, Flora and other candidates interviewed with a

panel of representatives from the County government for the

Chief Public Defender position, with Flora and two others

receiving the panel’s recommendation for further

consideration.

Meanwhile, the funding litigation Flora had instituted

in state court was unfolding amidst the fallout from the “Kids

for Cash” scandal. Between 2003 and 2008, approximately

50% of juvenile offenders in Luzerne County appeared in

court without the benefit of counsel – about ten times the state

average. Virtually all were adjudicated delinquent.

Eventually, federal investigators uncovered a scheme in

which two Luzerne County Common Pleas judges had been

accepting kickbacks from for-profit juvenile detention

facilities in exchange for sending unrepresented juvenile

defendants to those facilities. The Pennsylvania Supreme

4

After creating the new full-time public defender

position, the County petitioned the state court to end the

mediation and also answered the federal complaint that Flora

had filed, alleging that it was moot. Flora responded by

voluntarily dismissing his federal complaint. Flora v.

Luzerne Cnty., No. 12-665 (M.D. Pa. dismissed Mar. 11,

2013).

6

Court responded to these revelations by appointing a Special

Master – Senior Judge Arthur Grim of the Bucks County

Court of Common Pleas – to recommend ameliorative

measures. Based on Judge Grim’s report and

recommendation, the Supreme Court in 2009 ordered the

vacatur and expungement of thousands of delinquency

adjudications and consent decrees. Notwithstanding the

Supreme Court’s order, Flora alleges that, in early 2013,

during a routine meeting with court administrative staff, he

learned that over 3,000 of the adjudications and decrees had

not yet been expunged. He then brought that failure to the

attention of the County, the District Attorney for the County,

the Administrator of the Court of Common Pleas, the public

interest law firm that represented the juveniles in the

expungement proceedings, and Judge Grim. Lawton, who, as

previously noted, was the County Manager, was angry that

Flora had reported the expungement issue to Judge Grim,

even though Flora explained that, “as an officer of the Court,”

he felt compelled to do so.

Lawton interviewed Flora for the Chief Public

Defender position in March 2013, but ultimately

recommended – and the Commissioners approved – a

different attorney, Steven Greenwald. As the County hired

Greenwald, one Commissioner informed the media that Flora

was a “controversial” candidate because of the funding

lawsuit. Flora had been scheduled to stay in office until

April 29, 2013, but on April 17, 2013, Lawton informed him

that he was relieved of all duties as Chief Public Defender.

A few days later, Flora filed the present action,

alleging that he had been terminated from his position as

Chief Public Defender in retaliation for his efforts to secure

7

funding for the Office of the Public Defender and for

reporting the County’s noncompliance with the Pennsylvania

Supreme Court’s expungement order. He asserted claims

under 42 U.S.C. § 1983 based on a theory of First

Amendment retaliation,5 and he also included in his

5

Section 1983 is the vehicle public employees use to

bring claims that their First and Fourteenth Amendment rights

have been violated. Collins v. City of Harker Heights, Tex.,

503 U.S. 115, 120 (1992). The County and Lawton argue for

the first time on appeal that Flora’s complaint did not contain

a § 1983 First Amendment claim based on his reporting about

the juvenile expungements. While it is true that Count I of

the complaint describes only the filing of the state court

action, the complaint makes numerous references to the

expungement issue as a factor in Flora’s dismissal, and Count

I of the complaint contains an incorporation-by-reference

paragraph which sweeps in those earlier allegations regarding

the expungement issue. Moreover, in their motion to dismiss,

the County and Lawton acknowledged the existence of

Flora’s claim with respect to the expungement report, and

they expressly argued that Flora could not state a First

Amendment retaliation claim based on that issue. In short,

that claim was contained, and understood by all to be

contained, in Flora’s complaint. See Rosenthal v. Rizzo, 555

F.2d 390, 392 n.2 (3d Cir. 1977) (“[T]he amended complaint

expressly declared that Plaintiff realleges and incorporates by

reference herein paragraphs 1-27, and 29-36 ... . Thus, the

crucial paragraph 10 was realleged.”) (internal quotation

marks omitted); see also Rowinski v. Salomon Smith Barney

Inc., 398 F.3d 294, 300 (3d Cir. 2005) (“These allegations,

which are incorporated by reference in every count of the

8

complaint state-law wrongful termination and Whistleblower

Act claims. He sought an order restoring him to the Chief

Public Defender position but did not seek monetary damages.

The District Court dismissed Flora’s complaint,

concluding that he had failed to state a First Amendment

claim because the filing of the state court action and the

reporting of unfinished expungements “related to” his official

duties as Chief Public Defender and thus, under Garcetti v.

Ceballos, 547 U.S. 410 (2006), were not protected by the

First Amendment. (App. at 3-31.) After dismissing Flora’s

only federal claim, the District Court declined to exercise

supplemental jurisdiction over his state law claims. This

appeal followed.6

complaint, readily satisfy the misrepresentation requirement

… .”).

6

The District Court dismissed the state law claims

without prejudice to Flora’s refiling them in state court,

which Flora did on on April 9, 2014. Flora v. Luzerne Cnty.,

No. 2014-4731 (Ct. C.P. Luzerne Cnty. filed Apr. 9, 2014).

9

II. Discussion 7

Public employees do not renounce their First

Amendment rights upon employment; however, “the

government’s countervailing interest in controlling the

operation of its workplaces” limits the First Amendment’s

ordinarily broad protections. Lane, 134 S. Ct. at 2377 (citing

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

To establish a First Amendment retaliation claim, a

public employee must show that his speech is protected by

the First Amendment and that the speech was a substantial or

motivating factor in what is alleged to be the employer’s

retaliatory action. See Gorum v. Sessoms, 561 F.3d 179, 184

(3d Cir. 2009). If the employee establishes both of those

predicates, the burden shifts to the employer to show that it

would have taken the same action even if the speech had not

occurred. Id. In this case, the second predicate was in effect

conceded for purposes of the motion to dismiss, 8 so the only

7

The District Court had subject matter jurisdiction

under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28

U.S.C. § 1291. We review de novo a dismissal under Rule

12(b)(6). Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230

(3d Cir. 2008).

8

The County and Lawton failed to include any

argument on their motivations in their 12(b)(6) motion, and

thus they conceded the issue for the purposes of that motion

and this appeal. Delaware Nation v. Pennsylvania, 446 F.3d

410, 416 & n.9 (3d Cir. 2006), as amended (June 14, 2006)

(“Although [the plaintiff] now contends that it did not

concede the argument … , it does not, and cannot, argue that

10

issue before us is whether Flora’s speech was protected by the

First Amendment.

A public employee’s statement is protected by the First

Amendment when: “(1) in making it, the employee spoke as a

citizen, (2) the statement involved a matter of public concern,

and (3) the government employer did not have ‘an adequate

justification for treating the employee differently from any

other member of the general public’ as a result of the

statement he made.” Hill v. Borough of Kutztown, 455 F.3d

225, 241-42 (3d Cir. 2006) (quoting Garcetti, 547 U.S. at

418). At present, the parties dispute only whether Flora was

speaking as a citizen or as an employee of the Public

Defender’s Office when he spoke out through the funding

lawsuit and through his report about incomplete

expungements. In other words, the survival of the case comes

down to whether that speech was within Flora’s job duties.

See Lane, 134 S.Ct. at 2379 (noting that the key question in

it raised the issue before the District Court. Therefore, the

issue is waived.” (internal citation omitted)). Insofar as they

attempted to introduce in their factual background portion of

their briefing before the District Court a dispute about their

motivations in refusing to hire Flora, the District Court

properly rejected their efforts as raising matters outside the

pleadings and therefore being inappropriate in a motion to

dismiss. (App. at 5 n.1 (“The court notes that the defendants

have relied on materials outside of the pleadings in support of

the factual background set forth in their motion to dismiss. In

accordance with the standard for considering a motion to

dismiss, the court has not considered the outside materials in

deciding the defendants’ pending motion.”).)

11

the citizen speech analysis is “whether the speech at issue is

itself ordinarily within the scope of an employee’s duties.”).

A. Factual Dispute

“‘Whether a particular incident of speech is made

within a particular plaintiff’s job duties is a mixed question of

fact and law.’” Dougherty v. Sch. Dist. of Phila., ___ F.3d

____, No. 13-3868, 2014 WL 6600421, at *5 (3d Cir. Nov.

21, 2014) (brackets omitted) (quoting Foraker v. Chaffinch,

501 F.3d 231, 240 (3d Cir. 2007), abrogated on other

grounds by Borough of Duryea, Pa. v. Guarnieri, ___ U.S.

____,131 S. Ct. 2488 (2011)). Specifically, the scope and

content of a plaintiff’s job responsibilities is a question of

fact, but the ultimate constitutional significance of those facts

is a question of law. Ellins v. City of Sierra Madre, 710 F.3d

1049, 1058 (9th Cir. 2013).

When deciding a motion to dismiss under Federal Rule

of Civil Procedure 12(b)(6), a district court must accept all

facts alleged in the complaint as true and construe the

complaint in the light most favorable to the nonmoving party.

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.

2008). The district court may not make findings of fact and,

insofar as there is a factual dispute, the court may not resolve

it. See Animal Sci. Prods., Inc. v. China Minmetals Corp.,

654 F.3d 462, 469 n.9 (3d Cir. 2011), as amended (Oct. 7,

2011) (district court is not permitted to make independent

findings of fact when deciding a Rule 12(b)(6) motion).

Here, there was a factual dispute as to whether Flora’s job

12

duties encompassed making the statements at issue. 9 Rather

than accepting the facts alleged in the complaint as true, the

District Court in effect made factual determinations as to the

scope of Flora’s duties. 10 In doing so, it erred. See Andrew v.

9

That such a dispute exists at this stage does not mean

that one will, after discovery, remain for trial, and we do not

imply that summary judgment will necessarily be

inappropriate. That is a question left for the District Court

after development of the record.

10

For example, in his complaint, Flora makes the

following allegations: that the funding issue had reached a

“crisis stage” (App. at 39); that his duties included “managing

the OPD: overseeing its lawyers and employees, establishing

its policies, managing its budget, and ensuring its compliance

with constitutional, statutory, and professional/ethical

guidelines” (App. at 40); that he was statutorily obligated

only to “provide representation to indigent criminal

defendants where constitutionally mandated” (App. at 41);

that he normally obtained funding by applying for grants

(App. at 44) and petitioning the Commissioners (App. at 45-

48); that he “ha[d] done everything that he could do without

additional resources to improve the functioning of the adult

unit of the OPD and the services it provides to indigent

defendants” before turning to extraordinary measures (App. at

50); that he juxtaposed the lawsuit with “work[ing] within the

County’s procedures to obtain proper funding and staffing for

the OPD” (App. at 51); that Lawton was angry he had gone

outside the chain of command in reporting the failure to

complete the expungements (App. at 55); and that Flora

believed that he was obligated as “an Officer of the Court” to

report the issue (App. at 55). Rather than accepting these

13

allegations as true, the District Court made independent

findings as to disputed facts. (See App. at 29 (“[T]he court

finds that [Flora] pursuant to his duties as the Chief Public

Defender, took these actions and, as such, was acting as a

government employee, not a private citizen.”); App. at 28-29

(“From the record before the court, there is no indication that

[Flora] was acting as a citizen when he attempted to obtain

additional funding for the OPD or took steps to remedy the

failure of court administrative staff to expunge juvenile

records as ordered by the court. [Flora] was performing some

of the very tasks for which he was hired ... .”); App. at 27

(“As it is the public defender and not the average citizen that

has the obligation to ensure that eligible criminal defendants

are provided adequate legal representation ... , the plaintiff

could not have filed the state court action in any other

capacity than as that of the Chief Public Defender and clearly

his actions in doing so related to his duties as the Chief Public

Defender.”); App. at 28 (concluding that, because Flora

alleged he learned of the failed expungements during a

“routine” meeting, he was “‘routinely’ involved in overseeing

the proper docketing of juvenile matters” and thus that

“[Flora] was acting in his capacity as, and pursuant to his

official duties as, the Chief Public Defender”); App. at 29

(concluding that Flora’s actions were pursuant to his official

duties because “[he] indicates in his motion for a preliminary

injunction that the defendants had no legitimate interest ‘in

preventing the Chief Public Defender [not Al Flora, Jr., as a

citizen] from taking every lawful step necessary’”) (alteration

in original); App. at 29 (“It is not the average citizen who

would file a state court funding action in order to ensure that

the OPD had adequate funding to provide indigent criminal

defendants with adequate representation.”).)

14

Clark, 561 F.3d 261, 267 (4th Cir. 2009) (“[T]he question

whether [a memorandum] was written as part of [the

plaintiff’s] official duties was a disputed issue of material fact

that cannot be decided on a motion to dismiss pursuant to

Rule 12(b)(6).”).

B. Citizen Speech

That error was compounded by the District Court’s

application of an incorrect legal standard to the facts it had

improperly found. In determining whether Flora’s job duties

encompassed the statements at issue, the District Court

identified the relevant legal question as whether Flora’s filing

the state court lawsuit and reporting the inadequate progress

on expungements “related to” his job duties. (App. at 25.)

That approach misapprehends the question posed by Garcetti.

The Supreme Court’s opinion in Garcetti sets forth the

controlling test for determining whether a public employee’s

speech was made incident to his employment duties: “when

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.” 547 U.S. at

421. In Garcetti, a deputy district attorney wrote a

dispositional memorandum, in which he recommended

dismissing a prosecution based on an improper search warrant

affidavit. Id. at 414-15. The district court concluded that,

because the statements were made pursuant to his official job

duties, they were not protected speech. Id. at 415. The

United States Court of Appeals for the Ninth Circuit reversed,

holding that the speech was inherently a matter of public

concern and that it did not unduly disrupt the operations of

15

the District Attorney’s Office. Id. at 415-16. The Supreme

Court in turn reversed the court of appeals and held that

courts must first inquire as to whether an employee spoke as a

citizen or in his role as an employee. Id. at 418. The Court

expressly recognized that “the First Amendment protects a

public employee’s right, in certain circumstances, to speak as

a citizen addressing matters of public concern.” Id. at 417.

The Court also stressed that, whether the speech at issue

“concern[s] the subject matter of [the speaker’s]

employment” is “nondispositive,” because the First

Amendment “protects some expressions related to the

speaker’s job.” Id. at 421. Instead, the “controlling factor” is

whether the statements were “made pursuant to [the speaking

employee’s] duties,” that is, whether such utterances were

among the things that the employee “was employed to do.”

Id. at 421. The Garcetti Court did not advance a framework

for defining when an employee speaks pursuant to his official

duties. Id. at 424. It did, however, condemn reliance on

“excessively broad job descriptions. ” Id. at 424-25. And, it

cautioned against a focus on formal job descriptions because

“[t]he proper inquiry is a practical one.” Id.

We, too, have forgone any attempt to create a

comprehensive framework for determining whether speech is

made pursuant to an employee’s official job duties.

Dougherty, 2014 WL 6600421, at *6. We have, rather,

attempted to “give[] contours to Garcetti’s practical inquiry.”

Id. (internal citations omitted). For example, in Foraker v.

Chaffich, we declined to extend First Amendment protection

when the speech in question was directed “up the chain of

command.” 501 F.3d at 241-43 (holding that police officers’

statements concerning hazardous conditions at a firing range

were made pursuant to their official duties since they were

16

obligated to report that type of information up the chain of

command), abrogated on other grounds by Guarnieri, 131 S.

Ct. at 2488. In Gorum v. Sessoms, we held that a professor

who spoke on behalf of a student at a disciplinary hearing was

speaking pursuant to his official duties when he was a “de

facto” advisor to students on disciplinary matters. 561 F.3d at

186.

The County and Lawton rely on our statement that a

“claimant’s speech might be considered part of his official

duties if it relates to ‘special knowledge’ or ‘experience’

acquired through his job,” Foraker, 501 F.3d at 240; accord

Gorum, 561 F.3d at 185. They contend that because the

speech here relates to special knowledge Flora obtained as

Chief Public Defender – in essence that it owes its existence

to Flora’s job duties – it was not citizen speech. (Appellees’

Br. at 15-16, 19.) Foraker and Gorum, however, considered

how the employee learned of the information as only one

non-dispositive factor among many. Indeed,

[we have] never applied the “owes its existence

to” test ... and for good reason: this nearly all-

inclusive standard would eviscerate citizen

speech by public employees simply because

they learned the information in the course of

their employment, which is at odds with the

delicate balancing and policy rationales

underlying Garcetti.

To this end, it bears emphasis that whether an

employee’s speech “concern[s] the subject

matter of [his] employment” is “nondispositive”

under Garcetti. 547 U.S. at 421. This is because

17

the First Amendment necessarily “protects

some expressions related to the speaker’s job.”

Id. In fact, as the Supreme Court recently

reiterated, speech by public employees “holds

special value precisely because those

employees gain knowledge of matters of public

concern through their employment.” Lane, 134

S. Ct. at 2379 (emphasis added) … .

Dougherty, 2014 WL 6600421, at *7.

In Lane, the Supreme Court clarified that “[t]he critical

question under Garcetti is whether the speech at issue is itself

ordinarily within the scope of an employee’s duties, not

whether it merely concerns those duties.” 134 S. Ct. at 2379

(emphasis added). The Court held that a public employee

could not be terminated for providing to a grand jury truthful,

sworn testimony under subpoena, even though the testimony

concerned matters related to the employee’s job. Id. at 2378-

79. According to the Court, the term “official

responsibilities,” means the responsibilities an employee

undertook when he “went to work and performed the tasks he

was paid to perform,” which did not, in that case, encompass

testifying in legal proceedings. Id. (internal quotation marks

omitted). And, the Court cautioned, there is “considerable

value” in “encouraging, rather than inhibiting, speech by

public employees. For, [they] are often in the best position to

know what ails the agencies for which they work.” Id. at

2377 (internal quotation marks omitted). The Court therefore

concluded that giving grand jury testimony was not part of

that employee’s “ordinary job responsibilities” even though

the testimony “relate[d] to [the employee’s] public

18

employment or concern[ed] information learned during that

employment.” Id. at 2378 (emphasis added).

Further, in Dougherty v. School District of

Philadelphia, we had occasion to consider the implications of

Lane for a School District employee who was terminated after

saying to The Philadelphia Inquirer that the District

Superintendent had improperly skirted competitive bidding

rules and steered a lucrative contract to a personal

acquaintance. 2014 WL 6600421 at *1. We ruled that the

employee spoke as a citizen rather than pursuant to his

official duties, even though he oversaw the school district’s

procurement program and learned of the alleged misconduct

in that role. Id. at *5-7. We further decided that, because the

employee’s “routine job responsibilities” did not include

reporting misconduct to the press or to the school board, his

speech was not within the scope of his employment “merely

because the subject matter of the speech concern[ed] or

relate[d] to those duties.” Id. at *7, *9. While it was not

necessary to our conclusion, we noted that “Lane may

broaden Garcetti’s holding by including ‘ordinary’ as a

modifier to the scope of an employee’s job duties.” Id. at *9.

Here, the District Court identified the relevant question

as whether Flora’s actions “related to” his job duties. (App.

at 26.) It then held that, because Flora’s statements did

“relate[]” to his role as the Chief Public Defender, they were

not citizen speech and were unprotected. (App. at 26-29.) In

thus using the “related to” standard, the District Court did not

apply the correct test under Garcetti, as Lane has made clear.

Lane, 134 S. Ct. at 2379 (“Garcetti said nothing about

speech that simply relates to public employment or concerns

information learned in the course of public employment.”).

19

In particular, the Supreme Court in Garcetti said that “[t]he

First Amendment protects some expressions related to the

speaker’s job.” Garcetti, 547 U.S. at 421 (emphasis added).

The decision to dismiss Flora’s complaint is thus at odds with

controlling precedent. While the District Court did not have

the benefit of Lane and Dougherty when it ruled, Garcetti

alone should have steered it away from applying the “related

to” standard. With the further light that Lane and Dougherty

provide, the proper framing of the question is whether the

filing of the state court funding suit and the reporting of the

failure to finish the expungements were within Flora’s

ordinary job duties as the Chief Public Defender, not whether

they concerned or were related to those duties. Lane, 134 S.

Ct. at 2379.

Because the District Court’s decision rests on an errant

reading of Garcetti and is at odds with Lane and Dougherty,

it cannot stand. We need not decide whether Lane modified

or merely clarified Garcetti.11 Because Lane now controls,

11

Lane introduced the word “ordinary” to modify “job

duties” in the First Amendment retaliation test. Some courts

have speculated whether this new adjective signals a shift in

the law that broadens the scope of First Amendment

protection for public employees. See, e.g., Mpoy v. Rhee, 758

F.3d 285, 295 (D.C. Cir. 2014) (“In particular, the use of the

adjective ordinary – which the court repeated nine times –

could signal a narrowing of the realm of employee speech left

unprotected by Garcetti. Neither Garcetti nor any other

previous Supreme Court case had added ordinary as a

qualifier.”); Hagan v. City of New York, ___ F. Supp. 2d ___,

No. 13-1108, 2014 WL 4058067, at *21 (S.D.N.Y. Aug. 15,

2014) (“After Lane, the focus is on her ordinary job

20

cf. Perez v. Dana Corp., Parish Frame Div., 718 F.2d 581,

584 (3d Cir. 1983) (“As a general rule an appellate court must

apply the law in effect at the time it renders its decision.”),

the responsibility of a district court in evaluating whether a

public employee’s speech was made as a private citizen is to

ask whether the speech at issue was “outside the scope of his

ordinary job responsibilities.” Id. at 2378.

C. Applying Lane to Flora’s Complaint

Against that legal backdrop, we consider the viability

of Flora’s complaint.12 If the facts alleged are taken as true

and construed in the light most favorable to Flora, the

complaint contains sufficient factual allegations to plausibly

establish that Flora’s statements were not made pursuant to

responsibilities.”). Flora argues that Lane merely clarified the

Garcetti holding and does not represent any shift in the law.

In Dougherty, we expressly declined to resolve that question

because, on those facts, we did not need to do so. 2014 WL

6600421 at *9. Likewise, here, we do not need to decide

whether Lane represents more than a clarification of existing

law. Due to the relief Flora is seeking, there is no qualified

immunity determination to be made, so we can leave for

another day the ramifications of deciding whether Lane

constitutes new law.

12

Because this case presents a purely legal issue – the

facts having to be accepted as alleged at the motion-to-

dismiss stage – we apply Lane in the first instance rather than

remanding for the District Court to do so.

21

his ordinary job responsibilities. 13 Flora’s complaint does

concede some ground. It includes allegations that, as the

Chief Public Defender, he was responsible for his office’s

representation of its clients and that he was terminated for

enforcing those clients’ rights. He also alleges that he learned

about both the funding crisis and the expungement issue in

the course of his job duties. But Flora also alleges that, when

channeling his speech “up the chain of command” failed to

produce results, he took drastic measures by filing the

funding lawsuit against the County and by reporting the

unfinished expungements.14 Foraker, 501 F.3d at 237-38.

13

Again, Lawton and the County have not challenged

that the statements touched on a matter of public concern or

that the County lacked an adequate justification for treating

Flora differently than other citizens, nor did they argue that

the statements were not a substantial or motivating factor in

prompting his discharge. Thus, at this stage in the litigation,

we need not address those issues.

14

While Flora’s institution of the funding lawsuit and

reporting of the failure to finish the expungements may be

construed as conduct, our precedent holds that verbal and

written communications do not become conduct, rather than

speech, merely because they happen to serve a certain

function or serve as a vehicle for some other purpose. King v.

Governor of N.J., 767 F.3d 216, 225 (3d Cir. 2014); accord

Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010).

We are not asked to and we do not undertake to consider

whether Flora’s lawsuit should be considered under the

petition clause of the First Amendment. Cf. Guarnieri, 131 S.

Ct. at 2494 (public employee whose speech consists of

22

He further alleges that his obligations as an attorney, rather

than as the Chief Public Defender, compelled him to make the

statements at issue. Finally, he describes both the funding

crisis and the expungement issue as extraordinary

circumstances impelling him to extraordinary speech.

A straightforward application of Lane leads us to

conclude that, given those allegations, Flora’s speech with

respect to both the funding litigation and the expungement

problems was not part of his ordinary responsibilities – it was

not part of the work he was paid to perform on an ordinary

basis. 134 S. Ct. at 2378-79. As claimed in his complaint,

and as described in the statute creating the Public Defender,

Flora’s ordinary job duties did not include the public

reporting of lingering effects from government corruption or

the filing of a class action suit to compel adequate funding for

his office. Rather, he represented indigent clients in criminal

court and in related proceedings. Lawton and the County

contend that, because Flora alleges his speech was partially

aimed at vindicating the rights of indigent criminal

defendants, he has conceded that it was within the scope of

his ordinary job duties. But, their argument sweeps too

broadly. While certain statements in Flora’s complaint do

suggest that the speech at issue bore some relation to his job

duties and may have, indirectly, benefitted his clients, that

does not bring the speech within the realm of his ordinary job

duties. Cf. Pickering, 391 U.S. at 568 (teacher who reported

funding deficiency was speaking as a citizen rather than as a

teacher even though additional funding would have facilitated

teacher’s education of students); Dougherty, 2014 WL

instituting a lawsuit may bring retaliation claim either under

speech or petition clause of First Amendment).

23

6600421 at *7, *9 (procurement director reporting

superintendent’s failure to abide by procurement policies was

speaking as citizen even though absence of wrongdoing

would arguably facilitate procurement office operations). To

view it otherwise would unduly restrict First Amendment

rights, because reporting malfeasance or misfeasance will

regularly benefit an employee in the execution of his job

duties by, presumably, removing impediments to proper

government functioning.

Accordingly, we conclude that Flora’s complaint

contains sufficient allegations that his ordinary job duties did

not include filing the funding suit or reporting the

expungement issue and the pleading should therefore have

survived the motion to dismiss. Whether Flora’s ordinary job

duties actually encompassed such tasks is an issue that may

need to be resolved later in the case.

III. Conclusion

For the forgoing reasons, we will vacate the order of

dismissal and remand for further proceedings.15

15

As the issue of remedy is not before us, we make no

ruling regarding the propriety of the remedy that Flora seeks,

but we note that care is in order in assessing it. See, e.g.,

Selgas v. Am. Airlines, Inc., 104 F.3d 9, 12 (1st Cir. 1997)

(noting that reinstatement may not be an available remedy if

it requires bumping or displacing an innocent employee in

favor of the plaintiff who would have held the job but for

illegal discrimination); Squires v. Bonser, 54 F.3d 168, 173 &

n.8 (3d Cir. 1995) (recognizing that reinstatement may not

always be practical); Ray v. Iuka Special Mun. Separate Sch.

24

Dist., 51 F.3d 1246, 1254 (5th Cir. 1995) (holding that district

court did not abuse its discretion in denying reinstatement

where there were no existing vacancies in school district and

where reinstating plaintiff would require displacement of an

existing employee).

25