Opposition Brief — Flipping v. Reilly (No. 08-608)

No. 08-608 EE ay

IN THE

Supreme Court of the United States

ROBERT FLIPPING and ARTHUR SNELLBAKER,

Petitioners,

ROBERT REILLY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

MICHAEL T. KIRKPATRICK FRANK L. CORRADO

LEAH M. NICHOLLS Counsel of Record

PUBLIC CITIZEN JOSEPH C. GRASSI

LITIGATION GROUP BARRY CORRADO

1600 20th Street, NW GRASSI & GIBSON, P.C.

Washington, DC 20009 2700 Pacific Avenue

(202) 588-1000 Wildwood, NJ 08260

(609) 729-1333

January 2009

]

QUESTIONS PRESENTED

1. Whether a public employee’s truthful trial

testimony is citizen speech protected by the First

Amendment.

2. Whether the Third Circuit erred in denying

qualified immunity on the ground that it is clearly

established that retaliation for truthful trial

testimony violates the First Amendment.

3. Whether the Third Circuit erred by declining to

resolve a fact dispute as to whether petitioners

would have treated respondent the same way

absent his protected conduct.

ll

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... i

BAe OF AUTHORITIES ........cccscccces iv

RESPONDENT'S BRIEF IN OPPOSITION .... 1

EE. 9 6. bk 5-4 oS ow as oa oe Oe a 2

REASONS FOR DENYING THE WRIT ....... 6

I. There Is No Compelling Reason to Review

the Lower Court’s Determination That

Truthful Trial Testimony Is Citizen Speech .. 6

A. The Decision Below Does Not Conflict

SE ara neu gem eee =, «24 7

B. The Decision Below Does Not Conflict

with Precedential Decisions of Any

Other Appellate Court ................ 10

II]. Petitioners’ Assertion That the Third

Circuit Erred in Holding That the

Protected Status of Reilly’s Speech Was

Clearly Established at the Time of the

Alleged Retaliation Is Unsupported........ 14

11

III. Genuine Issues of Material Fact Are

Properly Considered by a Factfinder

and Are Not Subject to Resolution on

Summary Judgment or Interlocutory

PIORTIGRO TROVIG ov nc cect vee seer asas 17

68 kee 8 ee ee ee ee eee 20

lv

TABLE OF AUTHORITIES

CASES

Baldassare v. New Jersey,

oe ae ee CGA. BOO)) . «oi ceive cee. 4

Bender v. Williamsport Area School District,

Bie Sie. ee TO nae ck osu evesiesvewes 20

Blackmer v. United States,

vo 2) a 8

Blair v. United States,

ee es ee Ee) cw 6 6 6s es ee eee es 8-9

Charles v. Grief,

dee © OG aoe (etn Cir. 2008) ... ce ccc eees 19

Fairly v. Fermaint,

462 F 3G S37 (ith Cit: 2007) 2. ccc cece 11, i2

Foraker v. Chaffinch,

S04 F.3d 2ai (20 Cir. 2007)... ccc cece es. 13, 14

Garcetti v. Ceballos,

eT Ps CO) 8 ovo cs kere vesnvwss passim

Green v. Barrett,

254 Fed. App’x 883 (11th Cir. 2007) ........ 10

Vv

Hill v. Borough of Kutztown,

ae © ee re (ae Cit, 2O0G, .. cc ccccens 12,13

Johnson v. Jones,

ee 19

Larsen v. Senate of the Commonwealth of

Pennsylvania,

Be ee ee a i. BS) ww ww ee ees 18

Mitchell v. Forsyth,

Ee 18

Monteiro v. City of Elizabeth,

436 F.3d 397 (3d Cir. 2006) ............. 18, 19

Morales v. Jones,

494 F.3d 590 (7th Cir. 2007) ............ 11, 12

Mt. Healthy City School District Board of

Education v. Doyle,

on CUE Tae 06 hy } 17

New York v. O’Neill,

I 8

Pickering v. Board of Education,

OR 3

Piemonte v. United States,

RT ES 8

v1

Pro v. Donatucci,

$1 F.3a 1283 (3d Cir. 1996) ............07 3,49

Saucier v. Katz,

ee ED cere teuseevessees 18

Tamayo v. Blagojevich,

526 F.3d 1074 (7th Cir. 2008) ........... 10, 11

United States v. Calandra,

BEG Bs LEE) 5 ccc cece eesccevscnce 8, 10

United States v. Mandujano,

BR I EBT cco cscs cee eneeesvusees 8

United States v. Nixon,

Ee 9

Wilson v. Layne,

Oe Ms UL ISOO) ose cee vvcrevees 16, 17

STATUTES

are wage ao oos-4-e es 644 ¥5 0 0 3

RULES

mpupreme Court Rule WO) ...... ccc cece sv eees 13

Bieventh Circuit Rule 36-2 ........-ccccecces 10

1

RESPONDENT?’S BRIEF IN OPPOSITION

Petitioners seek this Court’s review of three

questions arising from a Third Circuit decision

affirming a district court’s denial of summary

judgment based on qualified immunity. Petitioners

have failed to show any compelling reason to grant

the wr't.

First, petitioners claim that the Third Circuit’s

conclusion that truthful trial testimony is citizen

speech protected by the First Amendment is

contrary to Garcetti v. Ceballos, 547 U.S. 410 (2006),

and conflicts with the decisions of. other courts.

Petitioners’ premise is flawed because Garcetti did

not reach the question, and the court below applied

the principles of Garcetti and numerous other

decisions of this Court in finding that, because it is a

duty of all citizens, courtroom testimony is protected

by the First Amendment even when the speaker is a

public employee. Further, the only decision cited by

petitioners that even arguably conflicts with the

decision below is an unpublished and cursory

decision from the Eleventh Circuit that did not

consider this Court’s precedents holding that the

duty to testify truthfully in court is shared by all

citizens. Because the only decision that arguably

conflicts with the decision below is not binding on

any court, it does not establish a circuit split

warranting this Court’s review.

2

Petitioners also seek review to correct an alleged

error in the Third Circuit’s determination that it is

clearly established that retaliation for truthful trial

testimony violates the First Amendment. This claim

does not provide a basis for granting the writ

because, as discussed below, numerous cases from

well before the event in question had demonstrated

that the conduct at issue is unlawful.

Finally, petitioners suggest that the Court grant

certiorari to correct the Third Circuit’s supposed

error in declining to determine whether respondent

would have been treated the same way even absent

the protected conduct. Because this issue is one of

fact that the district court found to be in dispute, it

was not subject to resolution on summary judgment

or interlocutory appellate review, and thus provides

no basis for granting a writ of certiorari.

STATEMENT

Respondent Robert Reilly was an Atlantic City

police officer from 1978 until June 1, 2003. Pet. App.

4a. Reilly faced disciplinary charges for conduct

alleged to have created a hostile work environment.

An independent hearing officer heard testimony

from a dozen witnesses and issued a lengthy opinion

finding that Reilly had violated departmental rules

and regulations but that, due to mitigating

circumstances, a reduction in rank or lengthy

suspension was inappropriate. The hearing officer

3

recommended that Reilly be suspended without pay

for four days. Id. at 6a.

Petitioners Robert Flipping and Arthur

Snellbaker were Atlantic City’s Public Safety

Director and Police Chief, respectively. Id. at 4a.

Flipping and Snellbaker rejected the hearing

officer’s recommendation and instead proposed that

Reilly be removed from the promotions list and

suffer a demotion from sergeant to patrolman and a

suspension of ninety days without pay. Id. at 7a.

Reilly retired by agreement to avoid such

punishment and then sued petitioners under 42

U.S.C. § 1983 alleging, in relevant part, that Flipping

and Snellbaker violated his First Amendment rights

by seeking to impose excessive discipline on him in

retaliation for his -trial testimony in a_ police

corruption prosecution of Flipping’s friend and

colleague, Dennis Munoz. Id. at Ya.

Petitioners moved for summary judgment on

Reilly’s First Amendment retaliation claim. The

district court, in a decision issued two months before

this Court decided Garcetti, applied the Pickering

test and held that Reilly’s First Amendment claim

could proceed. See Pickering v. Bd. of Educ., 391

U.S. 563, 568 (1968). First, the district court held

‘“(tlhat testifying at a criminal trial is clearly

protected speech.” Pet. App. 59a (citing Pro v.

Donatucci, 81 F.3d 1283, 1291 n.4 (3d Cir. 1996)).

Second, it found that “the balance of interests favors

Reilly” because “‘the public’s interest in exposing

4

potential wrongdoing by public employees is

especially powerful,” id. (quoting Baldassare v. New

Jersey, 250 F.3d 188, 198 (3d Cir. 2001)), and easily

outweighs the police department’s interest in

avoiding any workplace disruption that might result

from the revelation of criminal wrongdoing within

the department. Id. at 60a.

Third, the trial court recognized that “it is for the

fact-finder to decide: (a) whether Reilly’s increased

punishment was substantially motivated by his

participation in the Munoz case and (b) whether his

increased punishment would have occurred in the

absence of his participation,” and concluded that

Reilly had “met his burden of establishing a prima

facie case.” Id. Specifically, the district court found

that Reilly had put forth sufficient evidence to create

a triable issue of fact with regard to whether

Flipping and Snellbaker had retaliated against him

on account of his testimony in the Munoz case, citing

Reilly’s own testimony, the corroborating testimony

of another police officer, and the severity of the

discipline petitioners sought to impose in contrast to

the recommendation of the hearing officer. Id. at

60a-6 la.

Finally, the district court held that petitioners

were not entitled to qualified immunity on Reilly’s

First Amendment claim because the Baldassare

decision was “factually similar to Reilly’s case” such

that “a reasonable official in Flipping’s or

Snellbaker’s position in 2003 would have understood

o

that increasing Reilly’s punishment in retaliation for

his participation in the Munoz investigation and trial

violated Reilly’s First Amendment rights.” Id. at 62a.

Petitioners appealed from the denial! of qualified

immunity, arguing that the district court erred by

holding that Reilly’s trial testimony was protected by

the First Amendment. Petitioners argued that under

Garcetti, 547 U.S. at 421 (holding that the First

Amendment does not protect employee expression

made pursuant to official responsibilities), Reilly’s

trial testimony was not protected speech because

testifying at trial was part of Reilly’s duties as a

police officer. Pet. App. 19a. Noting that “there was

no argument, let alone fact finding, by the District

Court as to whether Reilly’s speech was made

pursuant to his official duties,” id. at 20a—21la, the

Third Circuit concluded that it could resolve the

issue as a matter of law based solely on “the fact of

Reilly’s sworn testimony at the Munoz trial.” Id. at

28a. The court held that Reilly testified pursuant to

his duties as a citizen, and affirmed the district

court’s denial of petitioners’ motion for summary

judgment based on qualified immunity. Id. at 3la,

35a.

In explaining its decision, the Third Circuit noted

that Garcetti focused on speech in an internal

memorandum and did not reach the question

whether an employee’s truthful testimony in court is

protected by the First Amendment, and that no

precedential appellate decision after Garcetti had

6

addressed the question. Id. at 28a. The court found,

however, that because of the well-established

principle that every citizen has a duty to offer

truthful testimony in court, and because trial

testimony is inherently a matter of public concern

and necessary to the integrity of the judicial process,

trial testimony is citizen speech, even if it stems from

a public employee’s job duties. Thus, the court

below held that First Amendment retaliation claims

based on courtroom testimony are “not foreclosed by

the ‘official duties’ doctrine enunciated in Garcetti.”

Id. at 31a.

The court of appeals denied Flipping’s petition

for rehearing or rehearing en banc, and Justice

Souter denied petitioners’ application for a stay of

the judgment pending disposition of the petition.

REASONS FOR DENYING THE WRIT

I. There Is No Compelling Reason to Review the

Lower Court’s Determination That Truthful

Trial Testimony Is Citizen Speech.

Petitioners seek certiorari on the first question

presented based on their assertion that the decision

below is contrary to Garcetti and conflicts with the

decisions of other courts. As explained below,

petitioners’ arguments are misplaced because

Garcetti did not reach the first question presented

and there is no meaningful circuit split on the issue.

a]

é

A. The Decision Below Does Not Conflict with

Garcetti.

Petitioners’ claim that the decision below

contradicts Garcetti is based on their

misapprehension of both decisions. First, Garcetti

never reached the question whether truthful trial

testimony is citizen speech protected by the First

Amendment even where it may also be a part of the

speaker’s job. The plaintiff in Garcetti claimed that

his employer retaliated against him for submitting a

disposition memorandum, discussing the matter

with two supervisors, testifying truthfully at a

hearing, and speaking at a bar association meeting,

but the Court’s decision addressed only the

disposition memorandum. Resolution of the claims

involving the other activities, including the plaintiff's

testimony in court, was left to be decided on remand.

See 547 U.S. at 443-44 (Souter, J., dissenting) (noting

that “the claim relating to truthful testimony in court

must surely be analyzed independently to protect the

integrity of the judicial process”). Moreover, the

Court in Garcettz noted that its decision did not

“articulate a comprehensive framework” and that

certain types of expression not addressed in Garcetti

might “implicate[] additional constitutional interests

that are not fully accounted for by this Court’s

customary employee-speech jurisprudence.” 547

U.S. at 424-25.

Second, petitioners misinterpret Garcetti as

holding that speech arising from the speaker’s

8

official duties can never be citizen speech for First

Amendment purposes. In fact, the Court

distinguished between expressive activities that are

conducted solely because of the speaker’s job duties

(such as drafting the disposition memo at issue in

Garcetti), and those that may be conducted in the

speaker’s capacity as a private citizen (such as

drafting a letter to the newspaper). The former lack

First Amendment protection because they do not

exist outside the employment relationship. Thus, the

employer can restrict those activities without

infringing “any liberties the employee might have

enjoyed as a private citizen.” 547 U.S. at 421-22. But

the latter are protected because “(t]he First

Amendment limits the ability of a public employer to

leverage the employment relationship to restrict,

incidentally or intentionally, the liberties employees

enjoy in their capacities as private citizens.” Id. at

419.

The court below considered Garcetti and

concluded that truthful trial testimony is citizen

speech entitled to First Amendment protection. The

Third Circuit rested its conclusion on the many

decisions of this Court upholding the principle that

trial testimony is a duty owed by all citizens. Pet.

App. 23a—24a (citing United States v. Mandujano, 425

U.S. 564, 576 (1976); United States v. Calandra, 414

U.S. 338, 345 (1974); Piemonte v. United States, 367

U.S. 556, 559 n.2 (1961); New York v. O'Neill, 359 U.S.

1, 11 (1959); Blackmer v. United States, 284 U.S. 421,

438 (1932); Blair v. United States, 250 U.S. 273, 281

9

(1919)). Finding that “(t]he notion that all citizens

owe an independent duty to society to testify in court

proceedings is thus well-grounded in Supreme Court

precedent,” id. at 25a, the court below held: “That an

employee’s official responsibilities provided the

initial impetus to appear in court is immaterial to

his/her independent obligation as a citizen to testify

truthfully.” Id. at 30a. The court further found that

trial testimony is a matter of public concern because

uninhibited testimony is essential to the integrity of

the judicial process.’ It concluded that “Reilly’s

truthful testimony in court constituted citizen speech

and [] his claim is not foreclosed by the ‘official

duties’ doctrine enunciated in Garcetti.” Id. at 3la.

Thus, the decision below faithfully applied the

Indeed, this Court has observed that “the fundamental

demands of due process of law in the fair administration of

criminal justice” require the disclosure of all relevant

evidence—it rises to the level of a “constitutional need.”

United States v. Nixon, 418 U.S. 683, 713 (1974). In other

words, because the withholding of evidence can impair “the

basic function of the courts,” id. at 712, it is in the interest of

due process and the judicial system to have witnesses give

complete and truthful testimony. If that testimony is not

protected speech, there is a risk that the courts will not

receive full and accurate information and justice will not be

served. This interest has been held to be strong enough to

trump the confidentiality of presidential records, id. at 713,

and it is sufficient to outweigh the interest of a local police

department in protecting itself from testimony about police

corruption.

10

principles of Garcetti and did not construct anew or

conflicting “forum analysis” as petitioners claim.

B. The Decision Below Does Not Conflict with

Precedential Decisions of Any Other

Appellate Court.

Petitioners claim that there is a circuit split on the

first question presented, but they are unable to cite

a single precedential decision holding that truthful

trial testimony is not citizen speech. Petitioners rely

primarily on the Eleventh Circuit’s unpublished

decision in Green v. Barrett, 254 Fed. App’x 883 (11th

Cir. 2007), but, under Eleventh Circuit Rule 36-2, an

unpublished decision of that court is not binding

circuit precedent. Thus, Green cannot establish a

circuit split because no court is bound to follow the

decision. In any event, the Eleventh Circuit’s

cursory decision in Green failed to consider this

Court’s precedents holding that the duty to testify

truthfully in court is imposed on every citizen, not

just on government employees. See, e.g., Calandra,

414 U.S. at 345. Because any conflict between the

decision below and Green is explained by Green’s

superficial treatment of the issue, the disagreement

is too shallow and insignificant to warrant this

Court’s review.

Petitioners also claim that the decision below

conflicts with the Seventh Circuit’s decision in

Tamayo v. Blagojevich, 526 F.3d 1074, 1091-92 (7th

Cir. 2008), but they concede that Tamayo did not

11

address the issue of testimony in court. Pet. 13-14.

Rather, Tamayo involved an agency administrator’s

testimony before a legislative committee charged

with oversight of the agency, and her testimony

concerned attempts by other public officials to

encroach on the agency’s independence. Because

the administrator was discharging the duties of her

office by reporting allegedly improper political

influence over the agency to her supervisors, the

Seventh Circuit concluded that she was speaking as

an employee and not as a citizen. 526 F.3d at

1091-92. The result in Tamayo is consistent with this

Court’s conclusion in Garcetti that the First

Amendment does not protect “communications

between and among government employees and

their superiors in the course of official business.” 547

U.S. at 423. Because the legislative testimony in

Tamayo was, like the memorandum at issue in

Garcetti, a report made by an employee to her

superiors in the course of her job duties, Tamayo

does not conflict with the Third Circuit’s conclusion

that trial testimony is citizen speech. Even where

trial testimony stems from the speaker’s job, such

testimony is distinct from an employee’s report

through the chain of command.

Two other Seventh Circuit decisions cited by

petitioners, Morales v. Jones, 494 F.3d 590 (7th Cir.

2007), and Fairly v. Fermaint, 482 F.3d 897 (7th Cir.

2007), are also consistent with both Tamayo and the

decision below. In Morales, the Seventh Circuit

found that a police officer’s discussions with an

12

assistant district attorney about an investigation and

arrest were not protected by the First Amendment

because such discussions were part of the officer’s

job duties, but the same speech was protected when

the officer testified at a deposition in a civil suit. 494

F.3d at 598. The court in Morales explained that

under Garcetti, the same speech can lack First

Amendment protection when it is made as a part of

the speaker’s job duties, but be entitled to protecticn

when it is made as a result of a duty independent of

the employment relationship, such as the duty to

testify at a deposition pursuant to subpoena.

Similarly, in Fairly, the Seventh Circuit rejected

defendants’ claim that Garcetti precluded all of

plaintiffs’ First Amendment retaliation claims,

noting that plaintiffs had alleged retaliation for “two

kinds of speech: not only statements made as part of

their duties at work (the kind of speech to which

Garcetti applies) but also to testimony that plaintiffs

gave in inmates’ suits.” 482 F.3d at 902. The court

recognized that Garcetti does not preclude a First

Amendment retaliation claim premised on testimony

in court, because such speech is citizen speech and

not a job duty. Because the Seventh Circuit’s

decisions in Tamayo, Morales, and Fairly are

consistent with the decision below, they offer no

support for petitioners’ claim of conflict.

Petitioners also claim that the decision below “is

in tension” with the Third Circuit’s decisions in Hill

v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006),

13

and Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007),

and that the purported intra-circuit tension is a

reason to grant the petition. Pet. 17. To the

contrary, an intra-circuit split is not generally a basis

for review. See Supreme Court Rule 10. Rather, it is

the role of the court of appeals to resolve intra-circuit

conflicts, but Flipping failed to even raise the issue in

his petition for rehearing or rehearing en banc. In

any event, the decision below is entirely consistent

with Hill and Foraker.

In Hill, the Third Circuit held that the plaintiff

Borough Manager’s report to his superiors on the

Borough Council regarding complaints about the

Mayor’s treatment of Borough employees was a

fulfillment of the Borough Manager’s job duties

because the Manager was the appointed enforcer of

the Borough’s personnel policies. Thus, the

Manager’s report to his superiors on the Council

lacked First Amendment protection under Garcetti.

455 F.3d at 242. But the Third Circuit further held

that the Borough Manager’s expression of support

for a telecommunications project may have been

entitled to protection as citizen speech because, as

opposed to the speech regarding employee

complaints, there was no indication that the speech

was made pursuant to official duties. Id.

In Foraker, the Third Circuit held that Garcetti

foreclosed the plaintiffs’ First Amendment

retaliation claim because the plaintiffs were speaking

pursuant to their employment duties when they

14

reported unsafe workplace conditions through their

chain of command. 501 F.3d at 240. Thus, Hill and

Foraker are consistent with the decision below,

which turned on the Third Circuit’s conclusion that

Reilly testified at trial pursuant to a duty owed by all

citizens rather than simply in performance of an

employment duty.

Finally, petitioners cite numerous cases that have

applied Garcetti to foreclose First Amendment

retaliation claims where the speaker was acting

pursuant to official job duties and not pursuant toa

duty owed by all citizens. Pet. 18-19. Petitioners

concede that none of the cases they cite involve

testimony in court, but they claim that the decisions

are nevertheless in tension with the decision below

because under the Third Circuit’s reasoning “each

and every one of the cases cited [] would have come

out differently if the speech at issue involved

courtroom testimony.” Pet. 20. Petitioners’

observation simply reflects the distinction drawn in

Garcetti between citizen speech and employee

speech; it does not offer any reason for this Court to

review the decision below.

II. Petitioners’ Assertion That the Third Circuit

Erred in Holding That the Protected Status of

Reilly’s Speech Was Clearly Established at the

Time of the Alleged Retaliation Is Unsupported.

Petitioners assert that even if the Third Circuit

correctly concluded that Garcetti did not foreclose

15

Reilly’s First Amendment claim, certiorari should

still be granted because the Third Circuit erred in

finding that the protected status of courtroom

testimony was clearly established when petitioners

allegedly retaliated against Reilly. Pet. 21.

Petitioners make two arguments in support of their

claim of error. Neither has merit.

First, petitioners claim that the Third Circuit

erred in relying on its decision in Pro to show that

the protected status of courtroom testimony was

clearly established because, according to petitioners,

Pro articulated only a general principle and lacked

sufficient specificity to put petitioners on notice that

retaliation for truthful trial testimony violates the

First Amendment. Pet. 21. But Pro held clearly and

explicitly that courtroom testimony is protected by

the First Amendment; thus, petitioners’ conclusory

assertion that the decision lacks specificity is without

merit. 81 F.3d at 1291-92; see also Pet. App. 28a

(recognizing “the overwhelming weight of authority

concluding that an employee’s truthful testimony in

court is protected by the First Amendment”).

Second, petitioners claim that the holding in Pro

cannot be considered clearly established because, at

the time Pro was decided, there was a circuit split on

the issue. That argument was rejected when it was

raised by the defendant in Pro, 81 F.3d at 1292

(holding that a circuit split does not preclude a

finding that a right was clearly established), and it

has even less merit today, given that the Third

16

Circuit held that the right to be free from retaliation

for courtroom testimony was already clearly

established in 1996 when it decided Pro. Indeed, the

relevant question in this case is whether the right

was clearly established when Flipping and

Snellbaker acted in 2003.

Petitioners also rest their argument on this

Court’s conclusion in Wilson v. Layne, 526 U.S. 603,

618 (1999), that where judges “disagree on a

constitutional question, it is unfair to subject [public

officials] to money damages for picking the losing

side of the controversy.” See Pet. at 22. But

petitioners have failed to show that judges disagree

on the constitutional question presented here.

Moreover, Wilson involved a situation where there

was a lack of case law on the issue at the time of the

event, and the disagreement among judges that later

developed confirmed that the right had not been

clearly established at the earlier time.

In Wilson, the Court found that the police violated

the Fourth Amendment by bringing members of the

media into a home during the execution of a warrant,

926 U.S. at 614, but held that the right had not been

clearly established at the time of the search in

question. The Court held that a reasonable officer

could have believed that the action at issue was

lawful because it was not obvious that the conduct

violated the Fourth Amendment, the practice was

common, there were no cases of controlling

authority in the jurisdiction to establish the rule, and

17

there was no “consensus of cases of persuasive

authority such that a reasonable officer could not

have believed that his actions were lawful.” Id. at

617. The Court further found that, given the

undeveloped state of the law at the time, it was

reasonable for the officers to rely on their formal

policies that allowed the practice. In contrast to

Wilson, this case involves a right established by

numerous cases in the Third Circuit well before the

event in question. Thus, petitioners’ claim that the

Third Circuit erred in finding that the protected

status of courtroom testimony was clearly

established is without merit and provides no basis

for this Court to review the decision below.

III. Genuine Issues of Material Fact Are

Properly Considered by a Factfinder and Are

Not Subject to Resolution on Summary

Judgment or Interlocutory Appellate

Review.

Petitioners contend that this Court should grant

certiorari because the Third Circuit failed to

determine whether Reilly would have been subjected

to the same discipline absent the protected conduct.

Pet. 23-27. Although petitioners are correct that a

disciplined employee may not recover when the

employee would have received the same penalty

even absent the constitutionally protected conduct,

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 285-86 (1977), nothing in the district court’s

or Third Circuit’s opinions challenges Mt. Healthy’s

18

holding or prevents the petitioners from attempting

to make such a showing at trial. Rather, the district

court in this case found that there was a fact dispute

on the issue, thus precluding its resolution on

summary judgment or interlocutory appellate

review.

A court ruling on a motion for summary judgment

made on the basis of qualified immunity must

construe the alleged facts in the light most favorable

to the party asserting the injury, Saucier v. Katz, 533

U.S. 194, 201 (2001), and motivation is a purely

factual issue. Monteiro v. City of Elizabeth, 436 F.3d

397, 405 (3d Cir. 2006) (citing Mitchell v. Forsyth, 472

U.S. 511, 529 (1985)). Here, Reilly alleged that the

increased discipline was substantially motivated by

his protected trial testimony, and, given that his

penalty was significantly more severe than that

recommended by the neutral hearing officer, Reilly’s

allegation is more than a bare assertion. See Larsen

v. Senate of the Commonwealth of Penn., 154 F.3d 82,

94-95 (3d Cir. 1998) (holding that a court must accept

the injured party’s allegations that the movant’s

actions were retaliatory when evaluating a motion

for summary judgment unless it can be concluded

from the face of the pleadings that the same action

would have been taken absent the protected speech).

Thus, in evaluating whether petitioners were

entitled to summary judgment on the basis of

qualified immunity, the courts below properly took

as true Reilly’s factual allegation that he faced

increased discipline in retaliation for his trial

19

testimony, and that his penalty would not have been

the same absent his trial testimony. Pet. App.

60a-6la. Even in the qualified-immunity context,

such questions of disputed fact are for the factfinder

to decide. See Johnson v. Jones, 515 U.S. 304 (1995)

(affirming denial of qualified-immunity summary

judgment and remanding for _ factual

determinations); Monteiro, 436 F.3d at 405.

Not only did the district court properly decline to

grant summary judgment when material facts were

in dispute, but the Third Circuit lacked appellate

jurisdiction to review the _ district court’s

determination that there was a fact dispute. Johnson,

515 U.S. at 319-20 (“[W]e hold that a defendant,

entitled to invoke a qualified immunity defense, may

not appeal a district court’s summary judgment

order insofar as that order determines whether or

not the pretrial record sets forth a ‘genuine’ issue of

fact for trial.”); Charles v. Grief, 522 F.3d 508, 512 (5th

Cir. 2008) (holding that a= district court’s

determination that there was a genuine issue of

material fact as to whether an employee was

retaliated against for protected speech, or whether

the termination would have occurred absent the

protected speech was unreviewable by an appellate

court). Johnson held that although questions of law

related to qualified immunity are immediately

appealable, determinations about whether factual

disputes are genuine are not final decisions and thus

not subject to interlocutory review, even in the

qualified-immunity context. 515 U.S. at 317.

20

Because the Third Circuit did not have appellate

jurisdiction over this issue, this Court lacks

jurisdiction to review it. See Bender v. Williamsport

Area School Dist., 475 U.S. 534, 541 (1986) (holding

that the Court lacks jurisdiction to decide the merits

of a claim if the court of appeals was without

jurisdiction).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully Submitted,

MICHAEL T. KIRKPATRICK

LEAH M. NICHOLLS

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

FRANK L. CORRADO

Counsel of Record

JOSEPH C. GRASSI

BARRY CORRADO GRASSI & GIBSON, P.C.

2700 Pacific Avenue

Wildwood, NJ 08260

(609) 729-1333

January 2009