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De Ritis v. McGarrigle

United States Court of Appeals, Third Circuit

June 29, 2017

JOSEPH E. DE RITIS
v.
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

         On 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

          Joseph De Ritis, Esq. (Argued) Plaintiff-Appellee Joseph De Ritis, pro se.

          Mark A. Raith, Esq. (Argued) Holsten & Associates Attorney for Defendant-Appellant Douglas C. Roger, Jr.

          Before: VANASKIE, KRAUSE, and NYGAARD, Circuit Judges

          OPINION

          KRAUSE, Circuit Judge.

         To 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 remand.

         I. Background

         Appellee 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.

         But 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 transfer.

         De 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.

         De 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.

         Second, 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.

         Third, 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. App. 175A.

         De 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 the matter.

         This 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.

         De 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.[1] 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.

         II. Jurisdiction[2] and Standard of Review

         Where, 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, " ...


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