                                                              NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 13-3488
                                   ______________

                               WILLIAM A. MORGAN,
                                             Appellant

                                           v.

          COVINGTON TOWNSHIP; SGT BERNARD KLOCKO, Individually;
               THOMAS M. YERKE, Township Chairman, Individually

                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                             (D.C. No. 3-09-cv-00651)
                   District Judge: Honorable A. Richard Caputo
                                 ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 28, 2014
                                  ______________

Before: FUENTES and SHWARTZ, Circuit Judges, and ROSENTHAL, District Judge.*

                                 (Filed: April 16, 2014)
                                    ______________

                                      OPINION
                                   ______________


      *
         The Honorable Lee H. Rosenthal, United States District Judge for the Southern
District of Texas, sitting by designation.
ROSENTHAL, District Judge



      Plaintiff-Appellant William Morgan filed two lawsuits alleging that his

disciplinary suspension and termination from his job as a police officer with the

Covington Township Police Department violated his due process and First Amendment

rights. Morgan’s first lawsuit was tried, and the jury returned a defense verdict. The

District Court dismissed the second lawsuit as precluded by the result in the first. We

affirmed the judgment in the first lawsuit but reversed and remanded the dismissal of the

second. That suit proceeded to trial. The District Court granted the defendants’ motion

for judgment as a matter of law at the close of Morgan’s case-in-chief. Morgan then filed

this appeal. We will affirm.

                                            I

      Because we set out much of the relevant background in Morgan’s first appeal and

the parties are familiar with the subsequent events, we briefly describe the facts and

procedural history only as needed to decide the issues now on appeal.

      Morgan began working as a police officer for the Covington Township Police

Department in 2001. On August 16, 2007, Defendant-Appellee Sgt. Bernard Klocko sent

a letter to the Covington Township Board of Supervisors describing two incidents

involving Morgan. The first incident involved Morgan’s alleged attempt to interfere in

another officer’s investigation of an altercation between Morgan’s ex-girlfriend and a

                                            2
security guard. Sgt. Klocko accused Morgan of trying to coerce the guard into dropping

her complaint against the ex-girlfriend and of interfering with the police department’s

investigation. Sgt. Klocko’s letter alleged that this amounted to “official oppression,

intimidation of witnesses or victims, and/or retaliation against witnesses, victim, or

party.” App. 399. The second incident involved Morgan’s alleged unauthorized entry

into the apartment of a more recent ex-girlfriend.     Sgt. Klocko accused Morgan of

“conduct unbecoming an officer.”       Id.   Sgt. Klocko also stated that Morgan was

“inefficient,” “neglectful,” and “disobedient” in performing his duties. Id. Sgt. Klocko

recommended that the Board suspend Morgan without pay and then terminate his

employment.

      The next day, the Township sent Morgan a letter indefinitely suspending him and

notifying him that the Township was considering employment termination. The letter

notified Morgan of his right to respond to the charges in writing, to request a public

hearing, and to be represented by counsel.

      In a letter dated August 22, 2007, Morgan’s lawyer requested a public hearing on

Sgt. Klocko’s accusations and the Board’s suspension. On August 24, 2007, the Board

told Morgan that Sgt. Klocko’s official-oppression charge had been forwarded to the

Pennsylvania State Police and that he would be on administrative leave with pay until the

investigation was complete. The state police declined to pursue the charge. Sgt. Klocko




                                             3
then referred the matter to the Lackawanna County District Attorney, who also declined

to pursue it.

       On September 28, 2007, the Board informed Morgan that no criminal charges

would be brought because of the incidents described in Sgt. Klocko’s letter but that

someone else had made a new complaint against him. The Township reinstituted the

disciplinary charge and continued Morgan’s paid administrative leave.          The Board

informed Morgan that the Township was considering employment termination and again

offered him an opportunity to respond in writing and to appear at a public hearing.

       On October 27, 2007, Morgan sued the Township; Thomas Yerke, the Chair of its

Board of Supervisors; and Sgt. Klocko. See Morgan v. Covington Twp., 3:07-cv-1972,

2009 WL 585480, at *1–*4 (M.D. Pa. Mar. 6, 2009) (“Morgan I”). In the complaint,

Morgan alleged that the defendants had retaliated against him for exercising his First

Amendment right to petition because two days after the August 2007 letter from his

lawyer requesting a public hearing on his suspension, the official-oppression allegation

was sent to the state police for investigation and possible criminal prosecution. Morgan

also alleged that he had been denied a hearing, in violation of his procedural due process

rights, and that the Township had failed to train its employees properly.

       The public hearing Morgan requested occurred as scheduled on November 5,

2007. Morgan’s lawyer appeared, but Morgan did not. Because the Board wanted to

hear from Morgan, it scheduled a second public hearing, for January 15, 2008. Morgan

                                             4
again failed to appear. The Board voted four to one to terminate Morgan after that

hearing.

       Morgan’s lawsuit proceeded. More than a year after his termination but just two

weeks before the scheduled jury trial, on April 9, 2009, Morgan sought to amend his

complaint to add his job termination as another basis for the retaliation claim. The

District Court denied Morgan leave to amend because the case was so close to trial.

Morgan promptly filed his second lawsuit (“Morgan II”), naming the same defendants

and adding his job termination to the First Amendment retaliation claim.

       The retaliation claim in Morgan I was tried to a jury in April 2009.1 The jury

found that the Township and Board Supervisor Yerke, but not Sgt. Klocko, had retaliated

against Morgan for exercising his First Amendment right to petition. But the jury also

found that the Township and Yerke would have suspended and terminated Morgan even

if he had not requested a hearing. The result was a defense verdict.

       In November 2009, the District Court dismissed Morgan II based on the res

judicata effect of Morgan I. On appeal, we affirmed the judgment in Morgan I but

reversed the dismissal in Morgan II and remanded. We “conclude[d] that the District

Court should not have dismissed” Morgan II because the termination he contested

occurred after he had filed Morgan I and “res judicata does not bar claims that are

       1
         The District Court had granted summary judgment dismissing the due process
claim on the grounds that Morgan was not entitled to a hearing before his suspension
with pay and that he had failed to identify a public accusation of a crime that could
support a reputational-harm claim.
                                          5
predicated on events that postdate the filing of the initial complaint.”      Morgan v.

Covington Twp., 648 F.3d 172, 178 (3d Cir. 2011).

      On remand, Morgan II proceeded to trial. At the close of Morgan’s case-in-chief,

the defendants moved for judgment as a matter of law. The District Court granted the

motion, relying on Borough of Duryea v. Guarnieri, 131 S.Ct. 2488 (2011), to conclude

that neither Morgan’s request for a public hearing nor the filing of the first lawsuit was

protected under the First Amendment because neither addressed a matter of public

concern. This appeal followed.

                                            II

      The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(2), and

we have appellate jurisdiction under 28 U.S.C. § 1291. “Our review of a judgment as a

matter of law under Rule 50(a) is plenary.” Brownstein v. Lindsay, 742 F.3d 55, 63 (3d

Cir. 2014) (citing Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)). “‘A

motion for judgment as a matter of law under Federal Rule [of Civil Procedure] 50(a)

should be granted only if, viewing the evidence in the light most favorable to the

nonmoving party, there is no question of material fact for the jury and any verdict other

than the one directed would be erroneous under the governing law.’” Id. (quoting Beck,

89 F.3d at 971).

                                           III




                                            6
       Morgan states in his brief that he raises six appellate issues, but five raise a single

question: whether the District Court erred when it concluded that Morgan’s request for a

public hearing and his filing of the Morgan I complaint were not protected activities

under the Petition Clause of the First Amendment.

       A public employee may bring a retaliation claim pursuant to 42 U.S.C. § 1983 if

his public employer retaliated against him for exercising his constitutional rights. See

Guarnieri, 131 S.Ct. at 2494.      “Among other rights essential to freedom, the First

Amendment protects ‘the right of the people . . . to petition the Government for a redress

of grievances.’” Id. at 2491 (quoting U.S. Const., Amdt. 1). “The right of a public

employee under the Petition Clause is a right to participate as a citizen, through

petitioning activity, in the democratic process. It is not a right to transform everyday

employment disputes into matters of constitutional litigation in the federal courts.” Id. at

2501. “[W]hether an employee’s petition relates to a matter of public concern will

depend on ‘the content, form, and context of [the petition], as revealed by the whole

record.’” Id. (quoting Connick v. Myers, 461 U.S. 138, 147–48, & n.7 (1983)).

       The District Court concluded that the evidence failed to show that Morgan had

requested a public hearing and filed Morgan I to “participat[e in] the democratic process

as a citizen to call attention to matters of public interest, public concern, matters of

performance of public officials in terms of corruption, malfeasance in office” or similar

issues. App. 358. The District Court carefully examined the content and context of both

                                              7
the letter from Morgan’s counsel requesting a public hearing on the suspension and of the

complaint filed in Morgan I. The letter requesting the hearing made only a “vague

reference to misconduct,” and the context “was purely in the form of [Morgan’s] job.”

App. 358–59. The Morgan I complaint did “not contain any indication of participation as

a citizen in the democratic process in terms of this petition but rather to get [his] job back.

That’s what it was about.” App. 359. The District Court noted Morgan’s own repeated

testimony that “all he wanted was his job back.” Id. The District Court granted the

defendants’ motion for judgment as a matter of law because the form, content, and

context of the actions Morgan asserted as the bases for his retaliation claim addressed

only matters of private concern. Our review of the record and the law reveals no error.

       In Guarnieri, the Supreme Court rejected our precedents holding that a public

employee who has filed a lawsuit or formal complaint is protected from retaliation under

the Petition Clause even if the suit or complaint addressed only private concerns. The

law in other circuits was contrary to our approach. Other circuits followed the rule that

“whether the grievance is considered under the Speech Clause or the Petition Clause, the

government employer is entitled to take adverse action against the employee unless the

dispute involves a matter of public concern.” Id. at 2493. The Supreme Court agreed

with our sister circuits that the same framework applies to both Speech Clause and

Petition Clause claims by public employees. “If a public employee petitions as an

employee on a matter of purely private concern, the employee’s First Amendment

                                              8
interest must give way, as it does in speech cases.” Id. at 2500. While the Petition

Clause protects a public employee’s use of the courts, a First Amendment retaliation

claim under the Petition Clause will not succeed unless the employee used the courts to

address matters of public concern.

      The complaints filed in both Morgan I and Morgan II alleged that Sgt. Klocko’s

official-misconduct allegation against Morgan was referred to the state police and a

county prosecutor for investigation in retaliation for Morgan’s internal request for a

public hearing on his suspension. But the record shows that Morgan did not even attend

the two public hearings the Board held, much less use them to present his views. The

content and context of the letter from Morgan’s counsel requesting a public hearing did

not seek public communication in order to advance a point of view or concern.

      Morgan argues that his Morgan I complaint addressed matters of public concern

because it “made allegations of abuse of power and violations of [his] constitutional

rights.” Blue Br. at 19. He overstates. The Morgan I complaint was brief. It alleged

that the defendants’ decisions about Morgan’s employment were unfair and retaliatory

toward Morgan. The Morgan I complaint did not allege that the Township’s internal

procedures for handling complaints lodged against its police officers were generally

abusive or retaliatory. The complaint did not communicate information to the public

other than about the specific circumstances of Morgan’s own job. The complaint did not

“advance a political or social point of view.” See Guarnieri, 131 S.Ct. at 2501.

                                            9
       A complaint arising out of public employment need not include “indications that

there is a systemic problem interfering with the public agency’s performance of its

governmental functions” to address a matter of public concern.         Azzaro v. Cnty. of

Allegheny, 110 F.3d 968, 980 (3d Cir. 1997) (en banc). Morgan did not have to allege

that the Township’s actions reflected systemic problems causing interference with the

Township’s or the police department’s performance, or that the actions reflected repeated

or pervasive abuses of authority. See id. But Morgan had to do more than allege

retaliation arising out of the unusual circumstances of his individual employment dispute.

See Feldman v. Philadelphia Housing Auth., 43 F.3d 823, 829 (3d Cir. 1994) (“Thus, in

order to determine whether [the] speech [or petition] was protected, we must first

determine if [it] related to matters of public concern, or constituted merely personal

grievances . . . .”).

       Morgan correctly argues that his focus on what he experienced in his employment

and on the relief he sought from the court does not preclude a finding that he addressed

matters of public concern. The petitioner’s “motive, while often a relevant part of the

context of the [petition], is not dispositive in determining whether a particular statement

relates to a matter of public concern.” Azzaro, 110 F.3d at 978. But recognizing that a

petitioner may have mixed motives in filing a petition does not remove the need to show

that the petition addressed matters of public concern. Guarnieri, 131 S.Ct. at 2500.

Morgan failed to make this showing. See Singer v. Ferro, 711 F.3d 334, 343 (2d Cir.

                                            10
2013) (“As explained above, we conclude that the corruption alleged here is not the sort

that is of ‘general interest to the public.’ And, even if it were, the thrust of this lawsuit is

not towards remediating this corruption, but towards the ‘entirely personal’ relief of

monetary damages for what are, at bottom, allegations of wrongful treatment as

employees and wrongful termination.”).

       The Board decided to terminate Morgan’s employment after he twice failed to

attend the public hearing he requested. The termination decision came after Morgan I

was filed but before it was tried. The Morgan II complaint added the allegation that the

job termination was in retaliation for the filing of Morgan I. The fact that Morgan I

asserted a First Amendment violation does not mean that the lawsuit addresses a matter

of public concern. See Singer, 711 F.3d at 343. The First Amendment retaliation claim

in Morgan I was limited to the claim that Sgt. Klocko’s official-oppression complaint

against Morgan was referred to two agencies charged with investigating possible criminal

prosecution, in retaliation for Morgan’s request for the public hearing the Board had

offered. The fact that Morgan filed a lawsuit claiming retaliation by his employer in

violation of the First Amendment does not transform the lawsuit into one raising a matter

of public concern.

       Morgan primarily relies on the cases following Azzaro v. County of Allegheny, 110

F.3d at 978. In Azzaro, “[w]e addressed the question of whether a public employee’s

speech regarding sexual harassment can constitute protected speech, where the plaintiff, a

                                              11
former Allegheny County employee, was fired after reporting that she was sexually

harassed by an assistant to the County Commissioner.” Montone v. City of Jersey City,

709 F.3d 181, 193 (3d Cir. 2013) (internal citation omitted). Applying Connick, “we

noted that the key to the ‘public concern’ inquiry is ‘whether expression of the kind at

issue is of value to the process of self-governance.’” Id. (quoting Azzaro, 110 F.3d at

977). We observed that an allegation of racial discrimination in the assignment of school

personnel was a matter of public concern under Connick and extended that reasoning to

conclude that alleged gender discrimination by public officials under similar

circumstances was also a matter of public concern. Id. (quotation omitted). This is not a

case in which a public official was alleged to have retaliated against an employee on a

basis that could well apply to others, such as retaliation for complaining about gender

inequality in the workplace, id., sexual harassment, Azzaro, 110 F.3d at 977, or racial

discrimination, id. And in Montone and Azzaro, we were careful to note “that not ‘all

public employee complaints about sexual harassment are matters of public concern,’ and

that examination of ‘all of the surrounding circumstances’ is required when making such

a determination.’” Montone, 709 F.3d at 193–94 (quoting Azzaro, 110 F.3d at 980). The

content and context of Morgan’s request for a public hearing and his lawsuit were limited

to his particularized employment circumstances and grievances.

      Accordingly, we agree with the District Court’s conclusion that the content and

context of the letter from Morgan’s lawyer requesting a public hearing and the filing of

                                           12
Morgan I addressed matters of personal and private concern—Morgan’s allegations that

his former employer had unfairly suspended him with pay after he was accused of official

misconduct and poor performance; sought a decision as to whether his conduct warranted

criminal prosecution; and then terminated his employment.

       Morgan also argues that the fact that local newspapers ran stories about his

suspension, termination, and lawsuit is strong evidence that he was pursuing a matter of

public concern. We have “taken additional notice of statements that are disseminated in

public media or delivered in an official proceeding” as “indications that the substance of

the message ha[d] significant importance to the community.” See Pro v. Donatucci, 81

F.3d 1283, 1297 (3d Cir. 1996) (internal citation omitted) (citing Holder v. City of

Allentown, 987 F.2d 188, 195–96 (3d Cir. 1993); Czurlanis v. Albanese, 721 F.2d 98, 104

(3d Cir. 1983)). As Morgan concedes, the fact of a news story has only “some relevance”

to whether the issue is a matter of public concern. Blue Br. at 12 (quoting Watters v. City

of Philadelphia, 55 F.3d 886, 895 (3d Cir. 1995)). We have been clear that it is the

content and context of the news coverage that matters. Watters, 55 F.3d at 895.

       The cases Morgan cites are distinguishable. In Holder, 987 F.2d at 195–96, we

addressed allegations of retaliation for the content of a plaintiff’s published letter to the

editor. In Monsanto v. Quinn, 674 F.2d 990, 997 (3d Cir. 1982), we also addressed

alleged retaliation based on the content of letters that the local news media published. In

this case, by contrast, Morgan’s argument is that the mere fact of news coverage about

                                             13
the employment dispute makes it a matter of public concern. And unlike the plaintiffs in

the cases Morgan cited, Morgan did not use the news coverage to disseminate or advance

his views. See Eisenhower v. Weber Cnty., – F.3d –, –, 2014 WL 958468, at *5–*6 (10th

Cir. Mar. 12, 2014). The newspaper articles that Morgan submitted state that he did not

talk to reporters or speak in a forum where reporters were present. App. 417 (“Officer

Morgan could not be reached for comment. His attorney . . . said she could not comment

on information from the case that has not been released to the public.”); App. 419

(“Morgan did not attend Tuesday night’s hearing. Efforts to reach him after the meeting

were unsuccessful.”).

       The record in this case shows that the newspaper coverage of Morgan’s

suspension and firing reported “the personal gripe of one employee.” Watters, 55 F.3d at

895; see also Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 133 (1st Cir. 1997);

Zorzi v. Cnty. of Putnam, 30 F.3d 885, 897 n. 11 (7th Cir. 1994); Wilson v. Littleton, 732

F.2d 765, 769 (10th Cir. 1984). The fact of newspaper coverage did not transform this

employment dispute and lawsuit into matters of public concern.

       Morgan also argues that whether his lawsuit raised an issue of public concern is a

fact issue for the jury. This argument is unpersuasive. Whether a petition raises an issue

of public concern is a question of law for the court. Baldassare v. State of N.J., 250 F.3d

188, 195 (3d Cir. 2001).




                                            14
       Finally, Morgan argues that the jury’s finding in Morgan I that his request for a

public hearing was a protected activity precluded the District Court from concluding

otherwise in Morgan II. This argument is also unpersuasive. When the District Court

instructed the jury in Morgan I, Guarnieri had not been decided. Under this circuit’s law

at the time, a defendant was not entitled to an instruction that a Petition Clause retaliation

claimant had to prove that the activity addressed a matter of public concern. Guarnieri

changed the law in this circuit. The change meant that preclusion did not apply to

prevent the District Court from deciding whether Morgan’s request for a public hearing

on his suspension, which the complaints in both Morgan I and Morgan II raised, and the

filing of the Morgan I lawsuit, addressed matters of public concern. See Burlington N.

R.R. Co. v. Hyundai Merch. Marine Co., Ltd., 63 F.3d 1227, 1237 (3d Cir. 1995) (“The

exception to the application of issue preclusion for unmixed questions of law is satisfied

[where] . . . a new determination is warranted in order to take account of an intervening

change in the applicable legal context . . . .” (quotation omitted)); see also Montana v.

United States, 440 U.S. 147, 159 (1979); C.I.R. v. Sunnen, 333 U.S. 591, 599–600

(1948). For these reasons, the District Court’s order granting judgment in the Appellees’

favor was warranted.

       The Township has moved for sanctions, arguing that this appeal was frivolous and

in bad faith. Rule 38 gives us the discretion to “award just damages and single or double

costs to the appellee.” Fed. R. App. P. 38. “We apply an objective standard to determine

                                             15
whether an appeal is frivolous.” Quiroga v. Hasbro, Inc., 943 F.2d 346, 347 (3d Cir.

1991) (citing Hilmon Co. v. Hyatt Int’l, 889 F.2d 250, 253 (3d Cir. 1990)). “An appeal is

frivolous if it is wholly without merit.” Id. (citation omitted). “The test is whether,

following a thorough analysis of the record and careful research of the law, a reasonable

attorney would conclude that the appeal is frivolous.” Hilmon, 889 F.2d at 254. A jury, a

prior panel of this court, a district judge, and this panel have all found the appellant’s

claims unpersuasive. But unsuccessful and even weak claims and arguments on appeal

are not the same as frivolous claims or arguments. In part because of our prior remand,

we do not find that Morgan’s appeal was frivolous and we decline to impose sanctions.2

      We affirm the District Court’s judgment and deny the sanctions motion.




2
  The Township seeks sanctions under 28 U.S.C. § 1927 and 42 U.S.C. § 1988(b) as well
as Rule 38. Sanctions under § 1927 may only be awarded upon “a finding that counsel’s
conduct resulted from bad faith, rather than misunderstanding, bad judgment, or well-
intentioned zeal.” LaSalle Nat’l Bank v. First Conn. Holding Grp., LLC, 287 F.3d 279,
289 (3d Cir. 2002). Moreover, a prevailing defendant may be awarded attorney’s fees
under 42 U.S.C. § 1988(b) only “‘upon a finding that the plaintiff’s action was frivolous,
unreasonable or without foundation.’” Barnes Found. v. Twp. of Lower Merion, 242 F.3d
151, 158 (3d Cir. 2001) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
416–17, 421 (1978)). For the reasons set forth in the text, sanctions under § 1927 or
§ 1988 for pursuing this appeal are not warranted.
                                            16
