                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                    No. 16-3975
                                 ________________

                             HAROLD WERKHEISER,
                                       Appellant

                                          v.

                POCONO TOWNSHIP BOARD OF SUPERVISORS;
              FRANK HESS, Supervisor; HENRY BENGEL, Supervisor
                            ________________

                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (M.D. Pa. No. 3-13-cv-01001)
                     District Judge: Honorable A. Richard Caputo
                                  ________________

                                Argued July 11, 2017

                Before: MCKEE, AMBRO, and ROTH, Circuit Judges

                           (Opinion filed: August 10, 2017)

Michael S. Fettner
Cletus P. Lyman            [Argued]
Michael T. Sweeney
Lyman & Ash
1612 Latimer Street
Philadelphia, PA 19103
       Counsel for Appellant

Steven E. Hoffman          [Argued]
Norris McLaughlin & Marcus
515 West Hamilton Street, Suite 502
Allentown, PA 18101
       Counsel for Appellees
                                   ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge

I.     BACKGROUND

       From 2008 through 2013 Harold Werkheiser served as one of three members of

the Pocono Township’s Board of Supervisors, a publicly elected body that acts as the

Township’s municipal government. As part of his service, Werkheiser was appointed

annually by his colleagues to act as the Township’s “Roadmaster,” an office that oversees

the municipality’s infrastructure. “Pennsylvania law expressly allows for a member of

the Board to serve as a superintendent or roadmaster.” Squires v. Bonser, 54 F.3d 168,

170 (3d Cir. 1995), as amended on reh’g (May 8, 1995), as amended on reh’g (June 22,

1995); accord 53 Pa. Stat. § 65602(a). Werkheiser notes that his two immediate

predecessors as Roadmaster were members of the Board of the Supervisors, as was his

successor. (Indeed, the Township submits that, during the 30 years for which it has

records, every one of its Roadmasters had been concurrently a member of the Board of

Supervisors.)

       The Roadmaster appointment came to an end before the conclusion of

Werkheiser’s service as a Supervisor. In 2012, when another member of the Board,

Frank Hess, became sick, the Township hired an interim town manager to perform



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
administrative duties that Hess had previously handled. When Hess recovered, and the

Board hired the interim town manager on a permanent basis, Werkheiser broke ranks

with the other members of the Board. He believed Hess should have taken back the

duties left to the town manager in Hess’s absence. So Werkheiser publicly criticized

Hess and the town manager on a number of occasions, objecting that, now that Hess had

recovered, the Township was paying two people to do one job.

      In response to Werkheiser’s public criticism, a majority of the Board of

Supervisors declined to reappoint him as Roadmaster at a public meeting in January

2013. Instead the Board appointed its third member, Henry Bengel, for the position.

Despite the loss of his Roadmaster job, Werkheiser remained an active member of the

Board throughout 2013.

      Werkheiser filed a complaint alleging that the Township and his fellow

Supervisors violated the First Amendment by retaliating against him for his public

criticism and that Hess and Bengel violated Pennsylvania’s Sunshine Act, 65 Pa. Stat.

§ 701 et seq., by discussing Township business without him. The District Court initially

rejected Hess and Bengel’s qualified-immunity defense, but a panel of our Court reversed

on appeal. Werkheiser v. Pocono Twp., 780 F.3d 172, 181 (3d Cir. 2015).

      Before us now are the District Court’s grant of summary judgment to the

Township on Werkheiser’s First Amendment claim and the Court’s dismissal without

prejudice of his claim under the Sunshine Act. Because we agree with the Court that the




                                            3
type of retaliation Werkheiser cites is not actionable under the First Amendment1 and

dismissal without prejudice of his remaining state-law claim was appropriate under 28

U.S.C. § 1367, we affirm.

II.    ANALYSIS

       A.     First Amendment Retaliation

       As an elected member of the Board of Supervisors, Werkheiser sought and

obtained a job directly accountable to his fellow Supervisors. In order to continue his

work as Roadmaster, he had to stay in the good favor of the Board. Moreover, he served

at its pleasure. Although the parties agree the Board could have elected a non-member as

Roadmaster, all of Werkheiser’s known predecessors and his immediate successor were

elected Supervisors like him. In short, Werkheiser’s Roadmaster job was a political one

and depended on maintaining favor with a majority of his colleagues on the Board.

       By publicly criticizing his colleagues’ positions on an issue of Township policy,

Werkheiser lost favor, and without it also lost his position as Roadmaster. Thus he

“essentially asks this court to declare that a politically motivated act, undertaken by a

majority of his fellow elected Board of Supervisors, pursuant to their proper authority,

nonetheless violates the First Amendment if it is taken in retaliation for speech made in

1
  In Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), the Supreme Court explored the
limits on freedom of speech that citizens must accept when they choose to enter
government service as employees. While the previous panel in this case cast doubt on
Garcetti’s applicability to elected officials, Werkheiser, 780 F.3d at 178 (“Many of the
reasons for restrictions on employee speech appear to apply with much less force in the
context of elected officials.”), it declined to settle the issue. We do the same. Because
we hold that the retaliation Werkheiser alleges is not actionable under the First
Amendment, we need not decide whether his service as an elected official curtailed his
right to freedom of speech.
                                              4
his capacity as an elected official.” Werkheiser, 780 F.3d at 181. But as the previous

panel to hear this case noted, “not all retaliation violates the First Amendment” because

the right to free speech does not “guard against every form of political backlash that

might arise out of the everyday squabbles of hardball politics.” Id.

       Courts have been reluctant to interfere with intra-legislative political retaliation

that falls short of impeding a legislator’s ability to carry out his basic duties. Zilich v.

Longo, 34 F.3d 359, 363 (6th Cir. 1994) (“The First Amendment is not an instrument

designed to outlaw partisan voting or petty political bickering through the adoption of

legislative resolutions.”). For example, the Second Circuit has held the First Amendment

did not protect a legislative aide fired in retaliation for the political affiliations and votes

of his boss, a city councilor. Camacho v. Brandon, 317 F.3d 153, 162 (2d Cir. 2003).

The Court noted that the dismissal of an opponent’s key staffers is a time-honored means

of exacting political retribution consistent with the Constitution’s constraints; it reasoned

that “to hold otherwise would subject to litigation all manners and degrees of politically

motivated, retaliatory conduct directed at public officials.” Id. at 162 & n.8 (citing

Robert A. Caro, The Years of Lyndon Johnson: Master of the Senate 565–66 (2002)).

       Other courts have reacted similarly when asked to second-guess an official’s

removal from a political post in response to public policy disagreements. See e.g., Blair

v. Bethel Sch. Dist., 608 F.3d 540, 544 (9th Cir. 2010) (no action under First Amendment

after school board declined to reelect board member to position of vice president because

majority of members desired “a vice president who shared their views”); Rash–Aldridge

v. Ramirez, 96 F.3d 117, 118 (5th Cir. 1996) (per curiam) (city councilor could not

                                                5
pursue First Amendment claims when removed from appointment to metropolitan

planning board for taking position at odds with council majority); Kinsey v. Salado Indep.

Sch. Dist., 950 F.2d 988, 996 (5th Cir. 1992) (First Amendment did not protect school

superintendent from relief from duties because of his public opposition to winning school

board candidates). “Disagreement is endemic to politics, and naturally plays out in how

votes are cast.” Blair, 608 F.3d at 546. Indeed, “we expect political officials to cast votes

in internal elections in a manner that is, technically speaking, retaliatory, i.e., to vote

against candidates whose views differ from their own.” Id. at 544 (emphasis in original).

Put simply, a job like Werkheiser’s gained through politics may be lost the same way.

       None of this is to say, of course, that absolutely anything goes in the political

arena. Because “[t]he manifest function of the First Amendment in a representative

government requires that legislators be given the widest latitude to express their views on

issues of policy[,]” an elected legislator may not be refused his seat in the legislature

because of his public statements. Bond v. Floyd, 385 U.S. 116, 135–36 (1966). Courts

have interpreted Bond to “prohibit retaliation against elected officials for speech pursuant

to their official duties [] when the retaliation interferes with their ability to adequately

perform their elected duties.” Werkheiser, 780 F.3d at 181; Rash-Aldridge, 96 F.3d at

119 (city councilor’s removal from metropolitan planning board did not implicate Bond,

as her “capacity as an elected official was not compromised because the council did not

try to remove her from her seat on the council nor take away any privileges of that office

because of what she said or did”).



                                               6
       But Werkheiser does not claim the Board’s failure to reelect him as Roadmaster

interfered with his duties as an elected Supervisor. Indeed, he explicitly disclaimed any

such interference at oral argument.2 Accordingly, we affirm the District Court’s grant of

summary judgment on Werkheiser’s First Amendment claim.

       B.     Sunshine Act

       Having decided to grant summary judgment to the Pocono Township on

Werkheiser’s First Amendment claim, the District Court dismissed without prejudice his

remaining claim brought under Pennsylvania’s Sunshine Act. Werkheiser contends the

District Court instead should have remanded the claim to state court.

       He cites 28 U.S.C. § 1447(c), which states, “If at any time before final judgment it

appears that the district court lacks subject matter jurisdiction, the case shall be

remanded.” But § 1447(c) does not bear on this case. The District Court did not lack

subject matter jurisdiction: 28 U.S.C. § 1367 provides “supplemental jurisdiction over all

other claims that are so related to claims in the action within such original jurisdiction

that they form part of the same case or controversy under Article III[.]” The Court

simply declined to exercise jurisdiction as permitted by § 1367(c)(3) and did not err by

dismissing the claim without prejudice. See Kach v. Hose, 589 F.3d 626, 650 (3d Cir.

2009) (“If a district court decides not to exercise supplemental jurisdiction and therefore

2
  See also Werkheiser, 780 F.3d at 183 (“There is no allegation here that the failure to
reappoint Werkheiser as Roadmaster in any way excluded him from Town Supervisors’
meetings, interfered with his rights, privileges, or responsibilities as an elected official, or
hindered his ability to fulfill his elected duties. Indeed, the complaint indicates that[,]
although he was not reappointed as Roadmaster in January of 2013, his term as [a]
Township Supervisor did not expire until the end of that year and there is no indication
that he did not fully and ably serve until the completion of his term.”).
                                               7
dismisses state-law claims, it should do so without prejudice, as there has been no

adjudication on the merits.”).

III.   CONCLUSION

       By convincing his colleagues on the Board of Supervisors to support his patronage

appointment as Roadmaster, Werkheiser held that position from 2008 to early 2013. He

lost that support, and position as Roadmaster, because of political disagreements with his

colleagues. Yet he remained an active member of the Board without any undue

restrictions on his ability to perform his duties as a Supervisor. In these circumstances,

the First Amendment offers Werkheiser no relief. Because his lone federal claim was not

actionable, the District Court acted within its discretion by dismissing without prejudice

the remaining state-law claim. Accordingly, we affirm.




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