JOSEPH E. DE RITIS
THOMAS J. MCGARRIGLE; MARIO J. CIVERA, JR.; COLLEEN P. MORRONE; JOHN P. MCBLAIN; DAVID J. WHITE, INDIVIDUALLY AND AS COUNTY COUNCIL OF DELAWARE COUNTY; CHAD F. KENNEY, INDIVIDUALLY AND AS PRESIDENT OF THE BOARD OF JUDGES OF THE COURT OF COMMON PLEAS OF DELAWARE COUNTY; DOUGLAS C. ROGER, JR., INDIVIDUALLY AND AS EXECUTIVE DIRECTOR OF THE OFFICE OF THE PUBLIC DEFENDER OF DELAWARE COUNTY; MICHAEL L. MADDREN, INDIVIDUALLY AND AS SOLICITOR OF DELAWARE COUNTY; DELAWARE COUNTY Douglas C. Roger, Jr., Appellant
Argued: January 17, 2017
Appeal from the United States District Court for the Eastern
District of Pennsylvania (E.D. Pa. Civil Action No.
2:13-cv-06212) Honorable Cynthia M. Rufe, U.S. District Judge
De Ritis, Esq. (Argued) Plaintiff-Appellee Joseph De Ritis,
A. Raith, Esq. (Argued) Holsten & Associates Attorney for
Defendant-Appellant Douglas C. Roger, Jr.
Before: VANASKIE, KRAUSE, and NYGAARD, Circuit Judges
KRAUSE, Circuit Judge.
explain a perceived demotion to judges, other attorneys, and
county officials, Appellee, an Assistant Public Defender,
circulated a rumor he had heard and alleged he was being
punished for taking too many cases to trial. After the Public
Defender fired Appellee for those statements, Appellee filed
suit, claiming a violation of his First Amendment rights, and
the District Court denied the Public Defender's motion
for summary judgment on the basis of qualified immunity.
Because we conclude the First Amendment does not protect the
speech at issue here-statements made while performing
official job responsibilities, speculative comments about the
reason for a perceived demotion, and recklessly false rumors
circulated to government officials-we will reverse and
Joseph De Ritis became an Assistant Public Defender for
Delaware County in December 2005. Consistent with the typical
progression for attorneys in the Office of the Public
Defender, De Ritis was first assigned to the Office's
preliminary hearing unit, was elevated to the juvenile court
unit in May 2007, and was ultimately assigned to a
"trial team, " or a group of three attorneys
assigned to handle trials in a particular judge's
courtroom, in November 2007.
things changed in June 2012, when the Public Defender,
Douglas C. Roger, Jr., informed De Ritis that staffing
changes were necessary in the wake of another Assistant
Public Defender's motorcycle accident and that De Ritis
would be transferred back to the juvenile court unit. Roger
justified the transfer by noting that De Ritis was "an
expert at juvenile law." App. 128A. Although De Ritis
was not actually interested in juvenile law, he agreed to the
Ritis suspected, however, that Roger had other reasons for
transferring him, so he asked others whether they knew the
true reasons for the transfer. He asserts his inquiries
yielded fruit on two occasions. First, De Ritis contends
that, one or two weeks after his transfer, First Assistant
Public Defender Francis Zarilli told De Ritis that Roger had
transferred him because De Ritis's clients were not
pleading guilty fast enough, which was contrary to the wishes
of Delaware County's President Judge, Chad Kenney.
Second, De Ritis asserts that, later that month, Jake Dolan,
a former Assistant Public Defender, gave him the same
explanation, i.e., that Roger removed De Ritis from a trial
team because he was not "moving [his] cases, " App.
129A, 200A, though De Ritis concedes that his conversation
with Dolan occurred during a "Taco Tuesday" session
of after-work "gossip" and that Dolan professed his
account was "fourth-person hearsay, " App. 129A. De
Ritis assumed Zarilli and Dolan's information was
accurate, however, and he immediately began sharing it as the
reason for his transfer-and continued to do so over the
course of the next eleven months.
Ritis's rumors proceeded in three phases. First, in the
wake of his transfer to the preliminary hearing unit, he
informed judges, private attorneys, and his colleagues at the
Office of the Public Defender that he was "being
punished" for "taking too many cases to
trial." App. 134A, 174A. Although De Ritis did not speak
"on the record" about why he was transferred, he
acknowledges he shared the rumor while he was representing
clients in court, "during the usual idle chatter while
waiting for court to begin or end." App. 175A. Despite
circulating the alleged reason for his transfer widely, De
Ritis did not discuss the issue with Roger.
four months later, De Ritis's statements about his
allegedly excessive trial practice intensified after Roger
granted De Ritis's voluntary request to be transferred to
the preliminary hearing unit. De Ritis continued sharing the
rumor about being punished with attorneys and judges, even to
the point of telling one judge, Judge Stephanie Klein, that
he had been transferred because he "had refused . . . to
obey a 'policy, ' established by [Roger], that the
Public Defenders' office should try to plead guilty as
many criminal defendants as possible in order to more easily
dispose of the cases assigned to us and pending before the
court." App. 38A. De Ritis still did not discuss the
issue with Roger himself.
a few months later, De Ritis thought things would change when
openings became available on the trial team for a newly
elected judge. They did not. Although De Ritis asked Roger to
assign De Ritis to the trial team, Roger declined. Unhappy
with that result, De Ritis turned his efforts toward
"seek[ing] an audience" with the County Council.
Ritis initially pursued that goal by approaching the County
Solicitor, Michael Maddren, and telling him the same
rumor-namely, that Roger had transferred De Ritis off of a
trial team because De Ritis was not "moving" cases
and "wanted to take too many cases to trial, "
which was at odds with President Judge Kenney's
preferences. App. 52A, 136A. De Ritis "suggested that
this was violating the rights of his clients, "
particularly in view of "the constitutional implications
of public defenders being demoted because they advise
defendants to seek trials." App. 52A, 176A. Although
Maddren agreed to investigate, Maddren ultimately declined to
pursue the matter further after contacting Roger and learning
that De Ritis "was not performing well" as an
Assistant Public Defender. App. 53A. De Ritis then met with
the chairman of the County Council, Thomas McGarrigle. De
Ritis had "the same conversation" with McGarrigle
that he had had with Maddren and stated that he would like to
address the County Council about his situation. App. 137A,
176A. As Maddren had done, McGarrigle agreed to investigate,
although it does not appear he contacted De Ritis again about
rumormongering finally came to an end in May 2013, when Roger
heard about De Ritis's allegations by means of Judge
Klein's comments to another Assistant Public Defender.
Astonished, Roger asked De Ritis whether the report from
Judge Klein was true, and De Ritis admitted that, after
appearing "in . . . court to handle a preliminary
hearing, " App. 38A, he had told Judge Klein that he was
being punished for taking too many cases to trial. What's
more, De Ritis also told Roger that he had made similar
comments to other attorneys, to other judges, to Maddren, and
to McGarrigle. Because of De Ritis's statements to all of
these individuals, Roger fired De Ritis.
Ritis brought suit against Roger soon after, seeking relief
under 42 U.S.C. § 1983 and claiming that Roger's
decision to fire De Ritis violated De Ritis's First
Amendment rights. After discovery, and in view of his status
as a government official, Roger moved for summary judgment on
qualified immunity grounds, but the District Court denied the
motion. See De Ritis v. Roger, 165 F.Supp.3d 231,
239-46 (E.D. Pa. 2016). This appeal timely followed.
Jurisdiction and Standard of
as here, a district court has denied summary judgment and
trial is still to come, we typically lack appellate
jurisdiction under 28 U.S.C. § 1291, which allows us to
review only "final" district court decisions.
See Johnson v. Jones, 515 U.S. 304, 309 (1995). But
"collateral orders, " or orders that "finally
determine claims of right separable from, and collateral to,
rights asserted in the action, too important to be denied
review and too independent of the cause itself to require
that appellate consideration be deferred, " ...