                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 18-2168
                                   ________________

       WILLIAM A. REED, JR, as personal representative for ELSIE M. REED,
        an incompetent individual, and WILLIAM A. REED, JR., individually,

                                                                             Appellant

                                             v.

                KAREN SCHEFFLER, Mayor of the Borough of Palmyra;
               *TRACY KILMER, Housing Official, Borough of Palmyra;
                         *BOROUGH OF PALMYRA

                   *Dismissed Pursuant to Clerk’s Order dated 9/26/18


                     On Appeal from the United States District Court
                              for the District of New Jersey
                        (D. C. Civil Action No. 1-16-cv-00423)
                       District Judge: Honorable Noel L. Hillman
                                   ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                  on January 25, 2019

                    Before: JORDAN, KRAUSE and ROTH, Circuit Judges

                              (Opinion filed: June 24, 2019)


                                        OPINION ∗



∗
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ROTH, Circuit Judge

          William Reed alleges that the mayor of his town violated his free speech rights

when she criticized the condition of property owned by Reed’s mother. He contends that

the mayor’s statements, made in the local newspaper, constituted “viewpoint

discrimination” because they were harmful criticisms directed only at his mother’s

property. Because the District Court did not err in dismissing Reed’s claims, we will

affirm.

                                               I1

          In 2014, Reed had a power of attorney to act for his mother during the sale of her

house in the Borough of Palmyra, New Jersey. As part of the property sale process, the

owner of the home was required to obtain a Certificate of Occupancy (CO) by passing an

inspection of the house by the Borough. Following the inspection, the Borough required

that thirty-three code violations be remedied prior to the issuance of a CO. Reed

corrected the code violations, and the property passed a subsequent inspection. As a

result, the Borough issued a CO and the house was sold several months later.

          In early 2015, Reed spoke at an official session of the Borough Council, where he

“told the Borough Council that he wanted them to be aware of the hardship and expense

he experienced in the sale of the family home.” 2 Two days later, the online edition of the

Burlington County Times published statements made by the Mayor of Palmyra, Karen



          1
        For purposes of resolving this motion to dismiss, we assume all facts alleged in
the complaint are true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
      2
        App. 39.
                                               2
Scheffler, in response to Reed’s comments at the Borough Council meeting. According

to Scheffler:

       • The house was in extreme disrepair—dangerous even—and had been vacant
         for some time.
       • Properties of this sort negatively affect the entire neighborhood and bring
         down property values.
       • The property was a real eyesore for the neighborhood and a liability for Mr.
         Reed.
       • The property had too many problems.
       • There were many deficient areas, including electrical and plumbing problems,
         numerous holes, leaks, lack of CO detectors, a lack of hot water, crumbled
         chimney cement, no working stove and exposed wiring. 3

       Reed filed a complaint in the District of New Jersey against the Borough of

Palmyra, Scheffler, and the Borough’s Housing Official, Tracy Kilmer. He alleged, in

relevant part, that Scheffler (1) violated his rights to free speech and to petition the

government under the United States and New Jersey constitutions and (2) defamed him.

Scheffler filed a motion to dismiss all counts against her for failure to state a claim, and

the District Court granted the motion. Following the District Court’s denial of Reed’s

motions for reconsideration and for leave to amend his complaint, all causes of action

against the Borough and Kilmer were resolved and this appeal followed.

       In this appeal, Reed challenges the dismissal of two claims he brought against

Scheffler: (1) Count V, for alleged violation of the First Amendment, pursuant to 42

U.S.C. § 1983; and (2) Count VI, for alleged violation of the right to freedom of speech

and to petition the government, pursuant to N.J.S.A. 10:6-2(c) and Article I, ¶¶ 1 and 18




       3
           App. 39-40.
                                               3
of the New Jersey Constitution. Neither party challenges the District Court’s conclusion

that the analysis for both claims is identical.

                                              II 4

       Reed’s sole argument on appeal is that Scheffler violated Reed’s right to free

speech by failing to act in a viewpoint neutral manner. 5 However, in this case, Reed does

not allege the existence of any government restriction on his speech, nor does he allege

that he was unlawfully prevented from speaking freely before the Palmyra Borough

Council. Instead, he contends that Scheffler’s statements to the press—i.e., government

speech—should have been viewpoint neutral.

       The Supreme Court has consistently rejected the notion that government speech

must be viewpoint neutral, holding that “the First Amendment does not say that . . .

government entities must abridge their own ability to speak freely,” 6 and that “the

Government’s own speech . . . is exempt from First Amendment scrutiny.” 7 This is

because “[w]hen a government entity embarks on a course of action, it necessarily takes a

particular viewpoint and rejects others. The Free Speech Clause does not require


       4
         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §
1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise “plenary review
of a motion to dismiss pursuant to Rule 12(b)(6).” Encompass Ins. Co. v. Stone Mansion
Rest. Inc., 902 F.3d 147, 151 (3d Cir. 2018).
       5
         In this appeal, Reed abandons all claims based on a theory of retaliation.
Similarly, Reed fails to raise any arguments challenging the District Court’s denial of his
motion to amend the complaint. In re Asbestos Prod. Liab. Litig. (No. VI), 873 F.3d 232,
237 (3d Cir. 2017) (“As a general matter, an appellant waives an argument in support of
reversal if it is not raised in the opening brief.” (citing McCray v. Fidelity Nat’l Title Ins.
Co., 682 F.3d 229, 241 (3d Cir. 2012))).
       6
         Matal v. Tam, 137 S. Ct. 1744, 1757 (2017).
       7
         Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005).
                                                  4
government to maintain viewpoint neutrality when its officers and employees speak

about that venture.” 8 Thus, the First Amendment did not require Scheffler to speak in a

viewpoint neutral manner. Reed’s argument to the contrary must fail.

                                           III

      For the above reasons, we will affirm the judgment of the District Court.




      8
          Matal, 137 S. Ct. at 1757.
                                            5
