We, Inc. v. City of Philadelphia

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

4-1-1999

We Inc v. City of Philadelphia

Precedential or Non-Precedential:

Docket 97-1958

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Filed April 1, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-1958

WE, INC., t/a UNIVERSITY COIN LAUNDRY;

WILLIAM SCHOEPE, JR., t/a UNIVERSITY PINBALL

v.

CITY OF PHILADELPHIA, DEPARTMENT OF LICENSES

AND INSPECTIONS; RUDOLPH M. PALIAGA,

INDIVIDUALLY AND IN HIS CAPACITY AS DIRECTOR OF

BUSINESS REGULATORY ENFORCEMENT OF THE

DEPARTMENT OF LICENSES AND INSPECTIONS FOR

THE CITY OF PHILADELPHIA; UNIVERSITY OF

PENNSYLVANIA; MAUREEN RUSH, INDIVIDUALLY AND IN

HER OFFICIAL CAPACITY AS DIRECTOR OF POLICE

OPERATIONS FOR THE UNIVERSITY OF PENNSYLVANIA

University of Pennsylvania, a/k/a Trustees of the

University of Pennsylvania and Maureen Rush,

Appellants

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 97-cv-02874)

District Judge: Hon. Marvin Katz

Argued September 14, 1998

BEFORE: STAPLETON and ROTH, Circuit Judges, and

LONGOBARDI,* District Judge

(Opinion Filed April 1, 1999)

_________________________________________________________________

*Honorable Joseph J. Longobardi, Senior United States District Judge for

the District of Delaware, sitting by designation.

Ronald J. Shaffer (Argued)

Stephanie Resnick

Fox, Rothschild, O'Brien & Frankel

2000 Market Street, 10th Floor

Philadelphia, PA 19103

Attorneys for Appellees

Roger F. Cox (Argued)

Robert A. Burke

Jordana Cooper

One Logan Square

Philadelphia, PA 19103-6998

Attorneys for Appellants

OPINION OF THE COURT

STAPLETON, Circuit Judge:

The University of Pennsylvania ("the University") appeals

from an order of the District Court denying its motion for

summary judgment. The University premised its summary

judgment motion on a claimed immunity from liability

under the Noerr-Pennington doctrine. See United Mine

Workers v. Pennington, 381 U.S. 657 (1965); Eastern R.R.

Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.

127 (1961). Before reaching the merits of the District

Court's decision, we must determine whether a denial of a

summary judgment motion that is predicated on Noerr-

Pennington immunity constitutes a final, collateral order

appealable under 28 U.S.C. S 1291. Because we conclude

that such an order is not appealable under the narrow

collateral order doctrine, we will dismiss for lack of

jurisdiction.

I.

The appellee, We, Inc., is the owner and operator of two

adjacent establishments, a coin laundry and a pinball

arcade, located near the appellant University of

Pennsylvania's dental school in West Philadelphia. This suit

2

arises out of a Cease Operations Order that was issued to

appellee by the City of Philadelphia after the University

lodged numerous complaints with the City. The University

alleges that, prior to the Order's issuance, appellee's

businesses were a nuisance and a threat to public safety

because they were the locus of a variety of disorderly and

unlawful activities, including assaults, batteries, and

curfew and truancy violations. Pursuant to this concern,

the University repeatedly contacted the City of Philadelphia

and urged action by the City to address what it perceived

to be unlawful activity associated with the businesses. The

University met with City representatives regarding its

concern on several occasions and provided data gathered

by the University Police to support its allegations.

Without first providing notice or an opportunity for a

hearing, the City issued a Cease Operations order to the

businesses and posted it on the premises in the presence of

University police officers. Following the order's posting, We,

Inc., filed suit against the City and the University under 42

U.S.C. SS 1983 and 1985, alleging a deprivation of its

property without due process. The City of Philadelphia

settled the claims against them and the University moved

for summary judgment, claiming immunity for at least

some of its actions under the Noerr-Pennington doctrine.

The District Court denied the University's motion after

finding that, by participating in the posting and execution

of the Cease Operations Order, the University defendants'

conduct arguably went beyond the mere "petitioning" of

government that the Noerr-Pennington doctrine is designed

to protect. The University now appeals the District Court's

denial of summary judgment.

II.

A.

Under 28 U.S.C. S 1291, appeals as of right are limited to

"final decisions of the district courts." 1 The denial of a

_________________________________________________________________

1. 28 U.S.C. S 1291 provides: "The courts of appeals ... shall have

jurisdiction of appeals from all final decisions of the district courts of

the

United States...."

3

motion for summary judgment ordinarily is not afinal order

and, accordingly, is not normally appealable. Sacred Heart

Medical Center v. Sullivan, 958 F.2d 537, 543 (3d Cir.

1992). Under the "collateral order" doctrine, however, a

decision of a district court may be appealable as a"final

decision" under 28 U.S.C. S 1291 if it (1)"conclusively

determine[s]" the disputed question; (2)"resolve[s] an

important issue completely separate" from the merits of the

action; and (3) is "effectively unreviewable" on appeal from

a final judgment. Coopers & Lybrand v. Livesay, 437 U.S.

463, 468-69 (1978). If the order at issue fails to satisfy any

one of these requirements, it is not an appealable collateral

order. See Gulfstream Aerospace Corp. v. Mayacamas Corp.,

485 U.S. 271, 276 (1988); Christy v. Horn 115 F.3d 201,

204 (3d Cir. 1997).

Since Coopers & Lybrand, the Supreme Court has

repeatedly referred to the collateral order doctrine as

"narrow," described the conditions for its applications as

"stringent" and urged that it "should stay that way and

never be allowed to swallow the general rule." See e.g.,

Digital Equip. Corp. v. Desktop Direct Inc., 511 U.S. 863,

868 (1994); Midland Asphalt Corp., v. United States, 489

U.S. 794, 799 (1989). We have followed this admonition

and consistently construed the collateral order exception

narrowly "lest the exception swallow up the salutary

general rule that only final orders be appealed." Yakowicz

v. Pennsylvania, 683 F.2d 778, 783 n.10 (3d Cir. 1982); see

also Transtech Indus., Inc. v. A & Z Septic Clean, 5 F.3d 51

(3d Cir. 1993). Moreover, strict construction of the

collateral order doctrine is consistent with the longstanding

congressional policy against piecemeal appeals that

underlies the final judgment rule. See Lusardi v. Xerox

Corp., 747 F.2d 174, 177 (3d Cir. 1984).

To guard against the temptation to expand the doctrine's

reach, the Supreme Court has instructed that "the issue of

appealability under S 1291 is to be determined for the

entire category to which a claim belongs." Desktop Direct

Inc., 511 U.S. at 868; Christy, 115 F.3d at 204. This

approach reflects the Court's insistence that thefinality

requirement of S 1291 must not be reduced to a case-by-

case determination, see Richardson-Merrill Inc. v. Koller,

4

472 U.S. 424, 439 (1985), and that courts consider

appealability "without regard to the chance that the

litigation at hand might be speeded, or a particular

injustice averted, by a prompt appellate court decision."

Desktop Direct, 511 U.S. at 868 (citation omitted). Thus, in

this case, we consider whether an order denying a claim of

immunity under the Noerr-Pennington doctrine is an

immediately appealable collateral order.

B.

The University contends that the denial of its claim of

immunity under the Noerr-Pennington doctrine is

immediately appealable under the collateral order doctrine.

It likens Noerr-Pennington immunity to the absolute and

qualified immunity enjoyed by public officials, the denial of

which is immediately appealable under that doctrine. See

Mitchell v. Forsythe, 472 U.S. 511, 526 (1985); Nixon v.

Fitzgerald, 457 U.S. 731, 743 (1982). It is true, as the

University stresses, that a denial of a motion for summary

judgment based on Noerr-Pennington immunity, like the

denial of a summary judgment based on official immunity,

ordinarily will conclusively determine an important issue

unrelated to the merits of the case. We therefore focus our

attention on the third requirement of the collateral order

doctrine -- that the District Court's decision be effectively

unreviewable on appeal from the final judgment.

In holding that an order denying qualified immunity to a

public official is "effectively unreviewable on appeal from

final judgment," the Supreme Court reasoned in Mitchell v.

Forsythe that an "essential attribute" of qualified immunity

is "an entitlement not to stand trial under certain

circumstances," and thus qualified immunity entails "an

immunity from suit rather than a mere defense to liability."

Mitchell, 472 U.S. at 526, 530 (emphasis in original). As

with absolute immunity, this entitlement "is effectively lost

if a case is erroneously permitted to go to trial." Id. at 526.

Since Mitchell, denials of a state's Eleventh Amendment

immunity from suit in a federal court similarly have been

held to be immediately appealable. See Puerto Rico

Aqueduct & Sewer Authority v. Metcalf & Eddy, 506 U.S.

139, 146 (1993) ("the very object and purpose of the 11th

5

Amendment [are] to prevent the indignity of subjecting a

State to the coercive process of judicial tribunals at the

instance of private parties") (citation omitted).

The Supreme Court has repeatedly urged courts to

employ caution and restraint, however, in reviewing claims

of a right not to stand trial. Not all defenses that warrant

a pretrial dismissal entail a right not to stand trial. As the

Supreme Court has explained, there is "a crucial distinction

between a right not to be tried and a right whose remedy

requires the dismissal of charges." United States v.

Hollywood Motor Car Co., 458 U.S. 263, 269 (1982). In Van

Cauwenberghe v. Biard, 486 U.S. 517, 524-25 (1988), the

Court noted that "[b]ecause of the important interests

furthered by the final-judgment rule and the ease with

which certain pretrial claims for dismissal may be alleged to

entail the right not to stand trial, we should examine the

nature of the right asserted with special care to determine

whether an essential aspect of the claim is the right to be

free of the burdens of a trial."

In Desktop Direct, the Court was even more emphatic in

insisting that efforts to obviate S 1291's final judgment rule

by claiming an immunity from suit should be critically

assessed. "We have, after all, acknowledged that virtually

every right that could be enforced appropriately by pretrial

dismissal might loosely be described as conferring a"right

not to stand trial. . . . Thus, precisely because candor

forces us to acknowledge that there is no single, `obviously

correct way to characterize' an asserted right, we have held

that S 1291 requires courts of appeals to view claims of a

`right not to be tried' with skepticism, if not a jaundiced

eye." Desktop Direct, 511 U.S. at 873.

Thus, as the Supreme Court has framed it, "[t]he critical

question, following Mitchell, is whether `the essence' of the

claimed right is a right not to stand trial." Van

Cauwenberghe, 486 U.S. at 524. This Court has not yet

addressed this critical question in the context of a claim to

Noerr-Pennington immunity. We now proceed to do so,

based on the nature and extent of protection afforded by

Noerr-Pennington immunity and the Supreme Court's

general admonition that claims to immunity from suit be

critically assessed. Because we conclude that the Noerr-

6

Pennington doctrine does not provide an "immunity from

suit" but rather only a defense against liability, we hold

that a denial of a summary judgment motion predicated on

Noerr-Pennington "immunity" is not effectively unreviewable

on appeal from a final judgment.

III.

The Noerr-Pennington doctrine originated in the anti-trust

context as the proposition that "joint efforts to influence

public officials do not violate the antitrust laws even though

intended to eliminate competition. Such conduct is not

illegal, either standing alone or as part of a broader scheme

itself violative of the Sherman Act." See United Mine

Workers v. Pennington, 381 U.S. 657, 670 (1965); Eastern

R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365

U.S. 127 (1961). The Supreme Court has predicated this

antitrust "immunity" on two principles: first, the First

Amendment right of citizens to petition the government and

participate in the legitimate processes of government, and

second, a statutory interpretation of the Sherman Act

under which Congress is viewed as not intending the Act to

reach the political process. As Noerr explained, "[t]o hold

that the government retains the power to act in this

representative capacity and yet hold, at the same time, that

the people cannot freely inform the government of their

wishes would impute to the Sherman Act a purpose to

regulate, not business activity, but political activity, a

purpose which would have no basis whatever in the

legislative history of that Act. Secondly, and of at least

equal significance, such a construction of the Sherman Act

would raise important constitutional questions. The right of

petition is one of the freedoms protected by the Bill of

Rights, and we cannot, of course, lightly impute to

Congress an intent to invade these freedoms." Noerr, 365

U.S. at 137-38 (footnote omitted); see also City of Columbia

v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380 (1991)

("The [Noerr-Pennington] doctrine .. . rests ultimately upon

a recognition that the antitrust laws, `tailored as they are

for the business world, are not at all appropriate for

application in the political arena.' ") (quoting Noerr, 365

U.S. at 141).

7

This court, along with other courts, has by analogy

extended the Noerr-Pennington doctrine to offer protection to

citizens' petitioning activities in contexts outside the anti-

trust area as well. For example, in Brownsville Golden Age

Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d Cir. 1988),

we found that the Noerr-Pennington doctrine protected

individuals from tort liability for their actions in petitioning

the government to shut down a nursing home that was

operating in violation of applicable regulations. Citing to the

Noerr-Pennington doctrine in Brownsville, we affirmed an

order granting summary judgment for the defendants,

noting that:

"The rule that liability cannot be imposed for damage

caused by inducing legislative, administrative, or

judicial action is applicable here. The conduct on

which this suit is based is protected by the firmly

rooted principle, endemic to a democratic government,

that enactment of and adherence to law is the

responsibility of all. The problem is not too much

citizen involvement but too little. Thus, we hold that as

a matter of law, defendants' actions in calling

Brownsville's violations to the attention of state and

federal authorities and eliciting public interest cannot

serve as the basis of tort liability."

Id. at 160.

Thus, the purpose of Noerr-Pennington as applied in areas

outside the antitrust field is the protection of the right to

petition. Immunity from liability is necessary so as not to

chill the exercise of that right. The question presented by

this case is whether immunity from the burden of suit is

also necessary to avoid an unconstitutional chill of the right

to petition.

It is helpful at the outset to note that the Petition Clause

of the First Amendment neither enjoys "special First

Amendment status" nor confers an "absolute immunity" for

privilege. McDonald v. Smith, 472 U.S. 479, 484-85 (1985).

As the Court held in McDonald, the Petition Clause is on a

par with the freedoms to speak, publish, and assemble. It

follows that the protection afforded by Noerr-Pennington is

no more absolute or extensive than that provided by other

8

First Amendment guarantees. We find this helpful because

relevant jurisprudence concerning burdens of the right to

freedom of speech is more fully developed than that

concerning the right to petition.

Citizens who exercise their First Amendment rights of

free speech and free press enjoy significant protection from

defamation liability in order to prevent undue chill on the

exercise of those rights. See, e.g., New York Times v.

Sullivan, 376 U.S. 254 (1964) (liability to public officials);

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (liability

to public figures); Gertz v. Robert Welch, Inc., 418 U.S. 323

(1974) (liability to private individuals). The courts have

never recognized, however, that an immunity from suit was

necessary to prevent an unacceptable chill of those First

Amendment rights. Indeed, the law appears to be to the

contrary.

In Calder v. Jones, 465 U.S. 783 (1984), respondent

actress Shirley Jones claimed that she had been libeled in

an article written by petitioners in Florida and published in

a national magazine with a large circulation in California

where she resided. Petitioners were served in Florida with

process issued by a California court, and the issue was

whether that court could exercise personal jurisdiction over

petitioners. Although the intermediate appellate court in

California concluded that petitioners' contacts with

California would ordinarily be sufficient, it held that

jurisdiction could not be exercised "because of the potential

`chilling effect' on reporters and editors which would result

from requiring them to appear in remote jurisdictions to

answer for the content of articles upon which they worked."

Id. at 786.

The Supreme Court disagreed. While in no way

disparaging petitioners' First Amendment rights, the Court

found that the burden of litigating in a distant forum was

insufficient to constitute an unacceptable chill of the

journalists' exercise of such rights. As Chief Justice

Rehnquist, writing for a unanimous court, put it:

. . . [t]he potential chill on protected First Amendment

activity stemming from libel and defamation actions is

already taken into account in the constitutional

9

limitations in the substantive law governing such suits.

See New York Times Co. v. Sullivan, 376 U.S. 254

(1964); Gertz v. Robert Welch, Inc., 418 U.S. 323

(1974). To reintroduce those concerns at the

jurisdictional stage would be a form of double

counting. We have already declined in other contexts to

grant special procedural protections to defendants in

libel and defamation actions in addition to the

constitutional protections embodied in the substantive

laws. See, e.g., Herbert v. Lando, 441 U.S. 153 (1979)

(no First Amendment privilege bars inquiry into

editorial process). See also Hutchinson v. Proxmire, 443

U.S. 111, 120, n.9 (1979) (implying that no special

rules apply for summary judgment).

Id. at 790-91. If safeguarding the First Amendment rights

asserted in Calder did not also require protecting against

the burden of litigating in a distant forum, it is unlikely the

Supreme Court will find that the First Amendment

protection Noerr-Pennington provides against liability for

petitioning also includes an across-the-board immunity

from suit.

This court as well has rejected the notion that the burden

of litigation poses an unacceptable threat to First

Amendment values. At one point, the Fourth, Fifth, Eighth

and D.C. Courts of Appeals took the position that summary

judgment should enjoy a special status in defamation cases

because "[t]he threat of being put to the defense of a

lawsuit . . . may be as chilling to the exercise of First

Amendment freedoms as fear of the outcome of the lawsuit

itself." Washington Post Co. v. Keogh, 365 F.2d 965, 968

(D.C. Cir. 1966); see Anderson v. Cramlet, 789 F.2d 840,

843 (10th Cir. 1986) (collecting cases). The Supreme Court

"express[ed] some doubt" about such an approach in

Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979),

however, and this court flatly rejected it in Lavin v. New

York News, Inc., 757 F.2d 1416, 1419 (3d Cir. 1985)

(footnote omitted):

In this case, the bench opinion of the district judge can

reasonably be interpreted as expressing the view that,

because of First Amendment concerns, summary

judgment is more easily obtainable by a media

10

defendant in a defamation case than by defendants in

other cases. We reject that approach. A substantial

dispute of material fact does not disappear merely

because a media defendant is being sued, or because

a public official is the plaintiff; and plaintiff 's right to

a jury trial is entitled to no less respect.

Accord Clark v. American Broadcasting Co., Inc. , 684 F.2d

1208, 1212 (6th Cir. 1982) (rejecting the argument that

different considerations apply to summary judgment

motions in the defamation context); Yiamouyiannis v.

Consumers Union of United States, Inc., 619 F.2d 932, 939-

40 (2d Cir. 1980) (same); Anderson, 789 F.2d at 842-43

(declining to apply a preference either for or against

summary judgment in defamation cases).

If, as McDonald requires, the right to petition enjoys no

special status among First Amendment rights, these

authorities suggest that Noerr-Pennington immunity

provides only a defense to liability, not an immunity from

suit. Under the collateral order doctrine, therefore, the

denial of a motion for summary judgment predicated on

Noerr-Pennington is not a collateral order subject to

immediate review. The only other court of appeals to have

considered this issue reached a similar conclusion. In Segni

v. Commercial Office of Spain, 816 F.2d 344 (7th Cir. 1987),

the defendants moved to dismiss a civil rights complaint on

the ground that "their conduct enjoy[ed] an `absolute

immunity' by virtue of the guarantee in the First

Amendment of the right to petition government for redress."

Id. at 345. The District Court denied the motion and the

defendants appealed. The Court of Appeals acknowledged

that "[w]here the right asserted by way of defense to a

lawsuit is (or includes) a right not to bear the burden of

suit itself, regardless of outcome, the denial of that right, as

by denying a motion to dismiss the suit, is appealable

immediately by virtue of the collateral order doctrine." Id. at

345. It nevertheless dismissed the appeal for want of

jurisdiction, observing:

It's quite a leap, though, to say that anytime a motion

to dismiss on First Amendment grounds is denied, the

defendant can appeal the denial, on the theory that the

failure to dismiss the suit at the earliest opportunity is

11

itself an infringement of the defendant's First

Amendment rights.

Id.

The Segni court distinguished Noerr-Pennington immunity

from "state action" doctrine under Parker v. Brown, 317

U.S. 341 (1943), on the ground that the latter doctrine "had

been interpreted to create an immunity from suit and not

just from judgment -- to spare state officials the burdens

and uncertainties of the litigation itself as well as the cost

of an adverse judgment." Id. at 346. The possibility that the

"burdens of suit . . . might deter [public officials] from

vigorous execution of their office [was] a consideration

missing in the case of the private defendant." Id.

We agree with the conclusion reached by the Segni court

and with its explanation of the distinction between cases

involving immunity for a public official and those involving

immunity for a private defendant. Moreover, we have been

unable to find any case holding that the burden of litigation

on a private defendant justifies an immunity from suit as

well as a defense to liability.

In re: Asbestos School Litigation, 46 F.3d 1284 (3d Cir.

1994), a case heavily relied upon by the University, seems

to us to support our conclusion. In that case, we

considered a request for a writ of mandamus that would

require the District Court to dismiss the claim against the

petitioner, Pfizer, Inc. The underlying suit was a nationwide

class action by 30,000 school districts against Pfizer and

other former manufacturers of asbestos-containing building

products. The plaintiffs claimed that Pfizer, by associating

with a trade association, Safe Building Alliance ("SBA"), had

joined an ongoing civil conspiracy and had thus become

liable for all of the other defendants' prior tortious conduct.

After the District Court denied Pfizer's motion for summary

judgment, Pfizer petitioned this court, contending that the

burden of further litigation in the District Court would chill

its exercise of its First Amendment right of association.

We first held that Pfizer had a "clear and indisputable"

right to the issuance of the writ because the District Court's

decision was "squarely inconsistent" with the Supreme

Court's holding in Claiborne Hardware that conspiracy

12

liability cannot, consistent with the First Amendment, be

imposed based upon mere association. Id. at 1289; NAACP

v. Claiborne Hardware, 458 U.S. 886, 918-20 (1982). We

then turned to the question of whether Pfizer had other

adequate means to attain the desired relief, such as by

waiting to appeal from the final judgment. We did not, as

the University suggests, establish a rule that anyone with

First Amendment protection from liability was entitled to an

immediate appeal from the denial of a motion for summary

judgment based on that protection. To the contrary, we

issued the writ only after making a specific finding that

waiting for an appeal from a final judgment would cause

Pfizer irreparable injury throughout the remainder of

extensive proceedings before the trial court. We found that

"[w]hile the district court's ruling did not directly prohibit

Pfizer from associating with the SBA during the remainder

of the district court proceedings, there [could] be little

question that in reality the district court ruling[would]

powerfully inhibit Pfizer from doing so." In re: Asbestos, 46

F.3d at 1295. Pfizer had a need "to engage, by means of the

SBA, in a `public dialogue on the important issue of safety

of in-place asbestos containing building products,' and

Pfizer would suffer irreparable harm if it were deprived of

the opportunity to engage in such constitutionally protected

activity." Id. at 1294-95 (footnote omitted). The fact that we

found it necessary to find a specific and continuing chill on

Pfizer supports the conclusion that the generalized chill of

anticipated litigation on others who wish to petition is,

alone, insufficient to overcome the strong policy against

piecemeal appeals. Unlike Pfizer, the University has pointed

to no specific continuing chill on anticipated petitioning,

but rather only to the burden of defending the remainder of

this litigation.2

_________________________________________________________________

2. This court's decision in San Fillipo v. Bongiovanni, 30 F.3d 424 (3d

Cir. 1994), is also consistent with the result that we reach. In San

Fillipo, this court held that a government employee is protected against

retaliation under the Petition Clause for havingfiled suit against his

employer on a matter of purely private concern. Although the employee

would have had no First Amendment immunity against employer

discipline if his expressive conduct had constituted speech, Connick v.

Myers, 461 U.S. 138, 147 (1983), the court held that Connick's "public

13

In sum, the Noerr-Pennington doctrine provides immunity

from liability for certain types of constitutionally protected

activity. While of course "there is value -- to all but the

most unusual litigant -- in triumphing before trial," Van

Cauwenberghe, 486 U.S. at 524, the interest protected by

Noerr-Pennington can be fully vindicated after trial. Without

diminishing the importance of the First Amendment right to

petition that is protected by the Noerr-Pennington doctrine,

we hold that a right not to be burdened with a trial is

simply not an aspect of this protection.

Because we conclude that the Noerr-Pennington doctrine

does not confer a right not to stand trial, but rather

provides only a defense against liability for certain conduct,

we find that an order denying Noerr-Pennington immunity is

effectively reviewable on appeal from a final judgment, and

thus is not an appealable collateral order.

IV.

We will dismiss the defendant's appeal from the district

court's order denying summary judgment for lack of

appellate jurisdiction.

_________________________________________________________________

concern" limit on the right of free speech did not apply to the plaintiff

's

exercise of his right to petition in this context. Id. at 443. The

justification behind the "public concern" limitation on the Free Speech

Clause protection of public employees was found inapplicable in the

context of disciplinary action taken in retaliation for the employee's

availing himself of a mechanism formally adopted by his government

employer for the redress of grievances against the employer. Although

the San Fillipo court found that the Petition Clause provided broader

protection than the right of free speech, both its holding and its

reasoning were explicitly confined to the public employment/retaliatory

discharge context. See id. at 438 ("the scope of the petition right

depends

upon the context in which the right is exercised"); id. at 438 n.17

(rejecting as inapposite various cases arising outside the public

employment/retaliatory discharge context); id. at 441-42 (finding that

the government's adoption of a formal redress process provides an

"independent reason" for essentially "affording special treatment to

speech found in a grievance" or similar petition). Thus, nothing in San

Fillipo contravenes our conclusion that, like other First Amendment

rights, the right to petition protected by Noerr-Pennington immunity

conveys an immunity from liability, but not from suit.

14

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

15