                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2004

Eichenlaub v. Twp of Indiana
Precedential or Non-Precedential: Precedential

Docket No. 03-2707




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                       PRECEDENTIAL

        UNITED STATES                                   On Appeal from the
       COURT OF APPEALS                             United States District Court
     FOR THE THIRD CIRCUIT                   for the Western District of Pennsylvania
                                                 (Dist. Ct. Nos. 99-cv-01607 and
                                                            99-cv-01667)
             No. 03-2707                                  District Judge:
                                                   Honorable Arthur J. Schwab

      DAVID EICHENLAUB;
      IKE CONSTRUCTION;                              Argued March 26, 2004
      DANIEL EICHENLAUB;
     BARBARA EICHENLAUB,                       Before: AMBRO, CHERTOFF, and
                                                   BECKER, Circuit Judges.
                  Appellants
                                                   (Filed: September 21, 2004)
                  v.
                                             BLAINE A. LUCAS (Argued)
      TOWNSHIP OF INDIANA;                   GERRI L. SPERLING
 TOWNSHIP OF INDIANA BOARD                   Springer Bush & Perry P.C.
          OF SUPERVISORS;                    Two Gateway Center, 15th Floor
 DOROTHY T. CLAUS; GEORGE E.                 Pittsburgh, PA 15222-1402
DULL, JR.; CHARLES R. FEDEROFF;
   JEFFREY D. PECK; DANIEL L.                Counsel for Appellants
 TAYLOR, in their official capacities;
  TOWNSHIP OF INDIANA CODE                   SCOTT G. DUNLOP (Argued)
     ENFORCEMENT OFFICER,                    STEPHEN J. POLJAK
  JEFFREY S. CURTI, in his official          Marshall, Dennehey, Warner, Coleman
  capacity; DAN ANDERSON, in his             & Goggin, P.C.
official capacity; MILDRED BROZEK,           2900 U.S. Steel Tower
      Administratix of the Estate of         600 Grant Street
    Kevin Brozek; TOWNSHIP OF                Pittsburgh, PA 15219
 INDIANA ENGINEER, DANIEL B.
SLAGLE, in his individual and official       Counsel for Appellees, except for
                 capacity                    Dorothy T. Claus

                                             JEFFREY COHEN (Argued)
                                             MARK A. ECK


                                         1
Meyer, Darragh, Buckler, Bebeneck &                       The District Court granted
Eck                                                summary judgment on the substantive due
U.S. Steel Tower, Suite 4850                       process, equal protection, and First
600 Grant Street                                   Amendment charges but denied the
Pittsburgh, PA 15219                               Eichenlaubs’ mandamus claim as moot.
                                                   We affirm the District Court’s judgment
Counsel for Appellee, Dorothy T. Claus             with respect to the substantive due process
                                                   and free speech and petition claims.
                                                   However, we will reverse as to the First
      OPINION OF THE COURT                         Amendment retaliation, equal protection,
                                                   and writ of mandamus claims.
                                                                       I.
CHERTOFF, Circuit Judge.
                                                          David, Daniel, and Barbara
        Appellants, members of the                 Eichenlaub own two parcels of property in
Eichenlaub family and their family-owned           Indiana Township: seven lots in the
business, have been embroiled in a                 Fairview Gardens Plan and a separate tract
contentious zoning d ispute with                   of land located along Saxonburg
Appellees, the Township of Indiana,                Boulevard.      In the mid-1990s, the
Pennsylvania, and several of its officials.        Eichenlaubs commenced plans to develop
The controversy arises from the                    their Fairview Gardens property, which
Eichenlaubs’ desire to develop certain             was part of a twenty-seven lot subdivision
pieces of property, and from the                   of single family residences approved by
Township’s insistence that the                     the Allegheny County Planning
development comply with a number of                Commission and the Board of Supervisors
regulations.       The disagreement has            of the Township in 1940 (the “Plan”). In
engendered claims that Township officials          April of 1999, the Eichenlaubs submitted
violated the Eichenlaubs’ substantive due          an application to the Township for
process and equal protection rights by             approval of a revised Plan related to the
denying or delaying authorization to               seven lots (the “Revised Plan”). After
develop the properties; that officials             several rejections and subsequent
violated David Eichenlaub’s First                  revisions, the Township approved the
Amendment petition and free speech                 Eichenlaubs’ amended subdivision plan
rights by curtailing his speech during a           on June 22, 1999, conditioned upon an
public meeting and removing him from               execution of a satisfactory developer’s
the meeting; that officials retaliated             agreement. However, several weeks later,
against David Eichenlaub for exercising            the Eichenlaubs withdrew their Revised
his First Amendment rights; and that               Plan, claiming that they had been subject
officials are also liable under Pennsylvania       to “unnecessary and onerous obligations”
state law for damages.                             by the Township. Appellant Br. 12.

                                               2
       Following the withdrawal of their                  The Eichenlaubs also sparred with
revised plan application, the Eichenlaubs         Township officials over the development
continued their development efforts for           of their Saxonburg Boulevard property. In
their Fairview Gardens lots. On August            1998, the Eichenlaubs filed a permit
19, 1999, Daniel and Barbara Eichenlaub           application to grade the property to plant
executed deeds granting two of the                nursery stock for their landscaping
Fairview Gardens lots to family members,          business.       The following year, the
David and Carl Eichenlaub. One week               Eichenlaubs fulfilled a Township request
later, David Eichenlaub submitted a               to file a site plan for the project. In June
building permit application for a single          of 2000, the Board approved the
family residence on Lot 7 of the Plan. The        Eichenlaubs’ plan.          However, the
Township rejected that application, as well       Township had not executed the
as a subsequent application filed on              Developer’s Agreement because, as the
August 3, 2000, claiming that the family          Magistrate Judge found, the Eichenlaubs
was trying to develop the seven residential       have refused to pay the engineering fees
lots in a serial fashion so as to claim           for the project. App. A37.
colorable e x e m p tion from th e
                                                         In September of 1999, the
requirements of the Township Subdivision
                                                  Eichenlaubs filed two separate civil
and Land Development Ordinance.
                                                  actions in federal court. In the first case,
       The Eichenlaubs maintained that            docket 99-cv-01607, the Township, the
they were not required to obtain the              Township Board of Supervisors, the
Township’s approval of their subdivision          Township Board Code Enforcement
plans under the then-current land                 Officer, the Township Manager, and the
development regulations. They claimed             Townsh ip Engineer were named
that because the Fairview Gardens                 defendants. David Eichenlaub alleged that
subdivision development was part of the           the Township violated his First
twenty-seven lot plan approved in 1940,           Amendment rights to petition government
subsequent revisions to the development           for redress of grievances when he was
codes did not apply to them. The                  limited in his right to speak at a public
Township argued otherwise and                     meeting on September 14, 1999, and was
maintained that the Eichenlaubs were              removed from the same meeting2 (Count I)
obliged to comply with development
regulations enacted following the original
subdivision approval granted in 1940.1            1980), the Township Grading Ordinance
                                                  (enacted in 1987), and the Stormwater
                                                  Management Ordinance (enacted in 1988).
       1
        The Township’s position has been
                                                         2
that the Eichenlaubs were required to                    David Eichenlaub contends that at
comply with the requirements of the               the September 14, 1999 meeting, board
current Subdivision Ordinance (enacted in         chairman Peck also “repeatedly

                                              3
and was subject to various alleged                development applications in the time and
retaliatory actions taken by the Defendants       manner required under the Pennsylvania
(Count II). David Eichenlaub and his              Municipalities Planning Code (“MPC”)
business, Ike Construction, also asserted         entitled them to a writ of mandamus
defamation claims regarding Defendants’           compelling approval of those projects
involvement in a newspaper article                (Count IV).
recounting that David Eichenlaub had
                                                          The two complaints were
violated an Indiana Township Ordinance
                                                  consolidated at 99-cv-01667.           The
(Count II).
                                                  Defendants moved for summary judgment
       In the second case, docket 99-cv-          on all counts, and the Eichenlaubs moved
01667, David, Daniel, and Barbara                 for partial summary judgment on the
Eichenlaub raised conspiracy claims under         counts initially listed in 99-cv-01667.
42 U.S.C. § 1983 asserting: (1) violation
                                                           On August 27, 2002, the Magistrate
of their Fourteenth Amendment rights to
                                                  J u d g e issued his Report and
substantive due process (Count I) arising
                                                  Reco m m en d a t i o n .    The report
out of delays and disputes in securing
                                                  recommended that the District Court: (1)
authorization to develop the Fairview
                                                  Grant summary judgment for Defendants
Gardens and Saxonburg Boulevard
                                                  on David Eichenlaub’s First Amendment
properties; and (2) denial of equal
                                                  free speech and petition claim as well his
protection under the Fourteenth
                                                  state defamation claim; the Eichenlaubs’
Amendment by being denied the
                                                  equal protection, conspiracy, and official
opportunity to proceed with their projects
                                                  capacity claims alleged against the
(Count II); and (3) arbitrary action,
                                                  individual Defendants;           (2) deny
selective enforcement and retaliation
                                                  Defendants’ motions for summary
regarding both the Fairview Gardens and
                                                  judgment on the David Eichenlaub’s First
Saxonburg Boulevard properties (Count
                                                  Amendment retaliation claims; (3) deny
III). The Eichenlaubs also alleged that the
                                                  motions by the Eichenlaubs and
Defendants’ failure to act on their
                                                  Defendants for summary judgment on the
                                                  Eichenlaubs’ substantive due process
interrupted him and did not let him finish        claim; and (4) grant the Eichenlaubs’
his comments.” Appellant Br. 22. He also          request for a writ of mandamus based on
claims that Peck had called him earlier on        (a) Defendants’ failure to notify the
August 25, 1999, and suggested that he            Eichenlaubs of its April 1999 decision to
“not come back and speak at the                   deny approval of the subdivision plan for
Township meetings, at the citizens                Fairview Gardens and (b) Defendant’s
forum.” Id. Finally, David Eichenlaub’s           failure to act on the Eichenlaubs’ grading
complaint, 99-1607, asserts without any           permit and site plan applications for the
specificity that the Township hindered him        Saxonburg Boulevard property.
from speaking at meetings.

                                              4
       While the case was pending in               issues. He complains that the Township
District Court, the parties entered into two       restricted his ability to speak at various
partial settlement agreements, dated               Township Board of Supervisors Meetings
February 12, 2003, and February 24, 2003,          and that he was removed from one such
under which the Township agreed to grant           meeting on September 14, 1999. In effect,
building permits at Fairview Gardens and           David Eichenlaub alleges a direct restraint
approve the subdivision plan and grading           on speech in a particular public forum, as
permits for the Saxonburg property.                well as a restraint on his ability to petition
                                                   under the Petition Clause of the First
       On May 29, 2003, the District
                                                   Amendment. Second, David Eichenlaub
Court entered an order granting
                                                   urges that Township officials took adverse
Defendants’ motion for summary
                                                   action against his family in retaliation for
judgment on all counts. The Court also
                                                   his statements. We examine each claim in
dismissed the Eichenlaubs’ mandamus
                                                   turn.
requests as moot in light of the partial
settlement agreements.                                                  A.
        The Eichenlaubs appeal from that                   The government’s power to prevent
order as it relates to the § 1983 claims for       or limit speech on public property is
substantive due process, equal protection,         carefully circumscribed by the First
free speech, and retaliation as well as the        Amendment. Not all public property is
denials of mandamus. This Court has                open to unfettered public speech, for the
jurisdiction pursuant to 28 U.S.C. § 1291.         “First Amendment does not guarantee
Our review over a District Court’s grant of        access to property simply because it is
summary judgment is plenary. See Fed.              owned or controlled by the government.”
Home Loan Mortgage Corp. v. Scottsdale             United States Postal Serv. v. Council of
Ins. Co., 316 F.3d 431, 443 (3d Cir.               Greenburgh Civic Ass’ns, 453 U.S. 114,
2003). We assess the record using the              129 (1981). Government facilities that are
same summary judgment standard that                not committed to public communicative
guides district courts. See Farrell v.             activity may regulate speech by the
Planters Lifesavers Co., 206 F.3d 271, 278         general public so long as that regulation is
(3d Cir. 2000). To prevail on a motion for         reasonable and not based on opposition to
summary judgment, the moving party must            a particular viewpoint. Id. at 131 n.7.
demonstrate “that there is no genuine issue        That is because the government “may
as to any material fact and that the moving        legally preserve the property under its
party is entitled to a judgment as a matter        control for the use to which it is
of law.” Fed. R. Civ. P. 56(c).                    dedicated.”     Lamb’s Chapel v. Ctr.
                                                   Moriches Union Free Sch. Dist., 508 U.S.
                    II.
                                                   384, 390 (1993).
     David Eichenlaub’s Fir st
                                                          On the other hand, public areas that
Amendment claims present two distinct

                                               5
are open to general “assembly and debate”         U.S. 819, 829 (1995); Lamb’s Chapel, 508
as a matter of tradition or by specific           U.S. at 392-93. An example of this kind
government designation are characterized          of limited public forum is a university
as a public forum, within which speech            facility open for meetings of student
can be limited only narrowly. Ark. Educ.          groups, but not for the general public.
Television Comm’n v. Forbes, 523 U.S.             See, e.g., Widmar v. Vincent, 454 U.S.
666, 677 (1998), quoting Perry Educ.              263, 268 (1981). The Supreme Court has
Ass’n v. Perry Local Educators’ Ass’n,            not precisely instructed where the limited
460 U.S. 37, 45 (1983)); see also                 public forum is located on the First
Whiteland Woods, L.P. v. Township of              Amendment spectrum between the strict
West Whiteland, 193 F.3d 177, 182 n.2             test for public forum regulation and the
(3d Cir. 1999). Streets and parks are             more relaxed test for nonpublic regulation.
examples of traditional public forums.            See Whiteland Woods, 193 F.3d at 182
See, e.g., Hague v. CIO, 307 U.S. 496,            n.2. Earlier decisions, such as Widmar
515 (1939). Public forums are also                itself, 454 U.S. at 269-70, and Perry Educ.
established when the government opens             Ass’n, 460 U.S. at 45-46 & n.7, suggest
property for general “expressive activity,”       that content-based restraints on limited
Perry Educ. Ass’n, 460 U.S. at 45, as in          public forums must be subject to strict
the case of theaters, Southeastern                scrutiny, and can survive only if they are
Promotions, Ltd. v. Conrad, 420 U.S. 546,         supported by a compelling interest.
555 (1975). Absent a compelling interest,         Recently, however, the Court has
speech in a public forum may not be               apparently moved to the position that
regulated based upon content.                     regulation of a limited forum may survive
Furthermore, in a public forum any                under a test that is less strict than that
restrictions as to time, place, and manner        applied in the case of a general open
of speech (1) must be unrelated to content;       forum. Good News Club v. Milford Cent.
(2) must be “‘narrowly tailored to serve a        Sch., 533 U.S. 98, 106 (2001). Under this
significant governmental interest’”; and          refined test for reviewing limited forum
(3) must allow alternative ways of                restrictions, content-based restraints are
communicating the same information.               permitted, so long as they are designed to
Whiteland Woods, 193 F.3d at 182 n.2              confine the “forum to the limited and
(quoting Ward v. Rock Against Racism,             legitimate purposes for which it was
491 U.S. 781, 791 (1989)).                        created.” Rosenberger, 515 U.S. at 829;
                                                  see also Brody v. Spang, 957 F.2d 1108,
        There is a third type of public
                                                  1118 (3d Cir. 1992). Two limitations
setting that the courts have recognized—a
                                                  remain. Any restrictions on speech must
forum created by the government that is
                                                  be viewpoint neutral and must be
limited to certain groups or to discussion
                                                  “‘reasonable in light of the purpose served
of certain topics. See Rosenberger v.
                                                  by the forum.’” Good News Club, 533
Rector & Visitors of the Univ. of Va., 515
                                                  U.S. at 106-07 (quoting Cornelius v.

                                              6
NAACP Legal Def. & Ed. Fund, Inc., 473               include such expressive activities as
U.S. 788, 806 (1985)).                               performance art, lectures on medieval
                                                     history, or arguments about private
        Put another way, we may say that
                                                     disputes involving town citizens. “Plainly,
under contemporary public forum
                                                     public bodies may confine their meetings
jurisprudence, a designated (as opposed to
                                                     to specified subject matter . . . .” City of
traditional) forum is reviewed under a
                                                     Madison Joint Sch. Dist. v. Wis.
sliding standard that allows for content-
                                                     Employment Relations Comm’n, 429 U.S.
related regulation so long as the content is
                                                     167, 175 n.8 (1976); see White v. City of
tied to the limitations that frame the scope
                                                     Norwalk, 900 F.2d 1421, 1425 (9th Cir.
of the designation, and so long as the
                                                     1990). Thus, matters presented at a
regulation is neutral as to viewpoint within
                                                     citizen’s forum may be limited to issues
the subject matter of that content.
                                                     germane to town government.
        In this case, the primary restrictions
                                                             With this framework, we agree with
placed on David Eichenlaub’s speech
                                                     the District Court that summary judgment
occurred during his appearance at the
                                                     against David Eichenlaub on his restraint
citizen’s forum portion of the Township
                                                     of speech and petition claims was
Board of Supervisors meeting on
                                                     appropriate. The record of the September
September 14, 1999, during which he was
                                                     14, 1999 meeting discloses that he was
eventually removed. Whether the citizen’s
                                                     repetitive and truculent, and that he
forum was a general public forum or a
                                                     repeatedly interrupted the chairman of the
limited public forum is a close question.
                                                     meeting. Restricting such behavior is the
Certainly, the citizen’s forum is not
                                                     sort of time, place, and manner regulation
limited to a particular class of speakers, as
                                                     that passes muster under the most stringent
was the case in Cornelius (charities),
                                                     scrutiny for a public forum. Indeed, for
Rosenberger (student groups), or Forbes
                                                     the presiding officer of a public meeting to
(political candidates). Indeed, the record
                                                     allow a speaker to try to hijack the
discloses that the citizen’s forum—as its
                                                     proceedings, or to filibuster them, would
name suggests—is open to all citizens
                                                     impinge on the First Amendment rights of
who wish to address the Township
                                                     other would-be participants. We have no
government. At the same time, a review
                                                     difficulty sustaining the decision to
of the transcript of the forum confirms that
                                                     remove David Eichenlaub on that basis.
even the public discussion session of the
Township meeting was designed to be                          To be sure, the chairman of the
limited to matters pertaining to town                meeting sought to restrict the discussion to
government. The meeting was not the                  topics of public interest and requested that
equivalent of a municipal theater, as in             David Eichenlaub not discuss matters of
Southeastern Promotions, or a public park            private concern. To the extent those
or street. One would certainly not expect            restrictions were not strictly content-
the forum of a Township meeting to                   neutral, the chairman’s actions served the

                                                 7
function of confining the discussion to the       by the First Amendment.4
purpose of the meeting. As we have
                                                        The District Court’s opinion
observed, speech at a citizen’s forum may
                                                  misconceives the scope of protection for
be limited according to its germaneness to
                                                  speech under the First Amendment.
the purpose of the meeting.3 At any rate,
the overwhelming, and wholly sufficient,                 The issue of government retaliation
motive to eject David Eichenlaub from the         for unwelcome communication arises in
meeting was the perfectly sustainable and         various contexts. Sometimes, public
content-neutral desire to prevent his             employees claim adverse employment
badgering, constant interruptions, and            action resulted because of their speech.
disregard for the rules of decorum.               Prisoners not infrequently allege that
                                                  punishment was spurred by their
        We will affirm summary judgment
                                                  complaints. And, as is the case here,
for the defendants on this claim.
                                                  citizens may charge that the government
                    B.                            hurt them in retaliation for some criticism
                                                  against the authorities. See Bd. of County
       The Eichenlaubs’ retaliation claims
                                                  Comm’rs v. Umbehr, 518 U.S. 668, 671-
stand on different footing, however. The
                                                  72 (1996).
Magistrate Judge determined that there
were material issues of fact as to whether                In general, constitutional retaliation
the defendants took steps to retaliate            claims are analyzed under a three-part test.
against the Eichenlaubs for David                 Plaintiff must prove (1) that he engaged in
Eichenlaub’s various statements and               constitutionally-protected activity; (2) that
complaints, including his speech at the           the government responded with
September 14, 1999 meeting. The District          retaliation; and (3) that the protected
Court entered summary judgment against            activity caused the retaliation. Anderson
the Eichenlaubs, however, on the ground           v. Davila, 125 F.3d 148, 161 (3d Cir.
that, even if there was retaliation, the          1997) (public employee retaliation);
speech in question related to private             Rauser v. Horn, 241 F.3d 330, 333 (3d
matters, rather than matters of public            Cir. 2001). The threshold requirement is
concern, and, therefore, was unprotected          that the plaintiff identify the protected
                                                  activity that allegedly spurred the


       3                                                 4
          Of course, viewpoint-based                     Appellants challenge the District
regulation is not proper. We do not read          Court’s determination that David
the record of the proceedings to indicate         Eichenlaub’s speech was not about matters
that the presiding officer attempted to           of public concern. Since we determine
muzzle David Eichenlaub because he                that the public concern test is not
disagreed with Eichenlaub’s viewpoint.            applicable, we need not address this
App. A1225-35.                                    challenge.

                                              8
retaliation. In this case, David Eichenlaub        protection includes private expression not
argues that his exercise of his freedom of         related to matters of public concern. See
speech and ability to petition the                 Capitol Square Review & Advisory Bd. v.
government under the First Amendment               Pinette, 515 U.S. 753, 760 (1995);
are the protected activities in question.          Connick v. Myers, 461 U.S. 138, 147
                                                   (1983); United Mine Workers of Am.
       The District Court relied in part on
                                                   Dist. 12 v. Ill. State Bar Ass'n, 389 U.S.
our opinion in Anderson to hold that
                                                   217, 223 (1967).
“plaintiff must show that speech is a
matter of public concern in order to                       The “public concern” test was
receive First Amendment protection.”               formulated by the Supreme Court in
App. A17 (quoting Anderson, 125 F.3d at            addressing speech restrictions placed by
162). This reading of our case law,                governmental entities on their own public
however, is overbroad. Our decision in             employees.        Regulation of public
Anderson—and all the other decisions               employee speech presented two features
relied upon in the District Court or by the        not present in other forms of speech
parties—provide only that a “public                control. First, acting as an employer, the
concern” requirement applies when a                government has some authority to impose
claim of First Amendment retaliation is            conditions upon those who seek jobs,
brought by a public employee against his           including conditions that limit the exercise
or her government employer. Anderson,              of otherwise available constitutional
125 F.3d at 162. The speech on public              rights. See, e.g., Broadrick v. Oklahoma,
concerns requirement embodied in these             413 U.S. 601 (1973). Second, “[w]hen
decisions has not been applied, however,           someone who is paid a salary so that she
when non-employees complain that                   will contribute to an agency’s effective
government has retaliated against them as          operation begins to do or say things that
citizens for their speech. To expand this          detract from the agency’s effective
public concern limitation into the broader         operation, the government employer must
context of all citizen speech would wrench         have some power to restrain her.” Waters
it from its original rationale and curtail a       v. Churchill, 511 U.S. 661, 675 (1994)
significant body of free expression that           (plurality opinion).
has traditionally been fully protected
                                                          The Supreme Court approached
under the First Amendment.
                                                   public employee speech, therefore, as a
       We begin with the proposition that,         balance between the rights those
except for certain narrow categories               employees enjoy as citizens and the
deemed unworthy of full First Amendment            obligations they bear as loyal employees.
protection—such as obscenity, “fighting            In Connick v. Myers, 461 U.S. 138
words” and libel—all speech is protected           (1983), the Court held that while
by the First Amendment. R.A.V. v. St.              government employers, like their private
Paul, 505 U.S. 377, 382-90 (1992). That            counterparts, have authority to manage

                                               9
their workers—including the authority to           to avoid any implication that speech on
restrict various kinds of expression—the           private matters is not entitled to
First Amendment imposes limits on that             constitutional protection:
authority when the employees are
                                                          We do not suggest,
speaking about matters of public concern.
                                                          however, that Myers’
To strike the balance, the Court carved out
                                                          speech, even if not touching
speech on matters of public concern as a
                                                          upon a matter of public
species of expression that would remain
                                                          concern, is totally beyond
protected even for government employees.
                                                          the protection of the First
The Court reasoned that speech on public
                                                          Amendment. “[The] First
issues “occupies the ‘highest rung of the
                                                          Amendment does not
hierarchy of First Amendment values,’ and
                                                          protect speech and assembly
is entitled to special protection.” Id. at
                                                          only to the extent it can be
145 (quoting Carey v. Brown, 447 U.S.
                                                          characterized as political . .
455, 467 (1980)).5
                                                          ..
       Nothing about the reasoning of
                                                   Id. at 147 (quoting United Mine Workers
Connick suggests that this public/private
                                                   of Am. Dist. 12, 389 U.S. at 223). Thus,
concern distinction has any role to play
                                                   the Court distinguished between types of
regarding speech outside the public
                                                   speech only in order to accommodate the
employment setting.
                                                   strong countervailing need for
       To the contrary. In singling out            governments to discipline their own
speech on matters of public concern for            personnel.
the highest protection in the government
                                                          This Court has also observed, albeit
workplace, the Supreme Court took pains
                                                   in dictum, that “[s]peech unrelated to a
                                                   matter of public concern is not, like
                                                   obscenity, entirely outside the protection
       5
         That special status for speech            of the First Amendment. While the
about matters of public interest drew              government as employer may discharge a
support from other lines of First                  public employee for such speech, the
Amendment case law that gives                      government as sovereign may not sanction
extraordinary protection to even                   the same individual when she engages in
defamatory speech and invasions of                 such speech as a citizen, outside the
privacy when they concern public figures           employment context.” Azzaro v. County
or matters of public interest. See Dun &           of Allegheny, 110 F.3d 968, 976 n.3 (3d
Bradstreet v. Greenmoss Builders, 472              Cir. 1997).
U.S. 749, 758-59 (1985); New York
Times v. Sullivan, 376 U.S. 254, 279-80                   To be sure, numerous cases,
(1984); Time, Inc. v. Hill, 385 U.S. 374,          including those cited by the District Court
387-88 (1967).                                     and by the parties, have reiterated the

                                              10
public/private matters distinction in the         mistreatment. We do not, however,
context of retaliation claims brought by          impose a “public concern” threshold.
public employees. Mt. Healthy City Sch.
                                                          In short, while speech on topics of
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
                                                  public concern may stand on the “highest
(1997); Anderson, 125 F.3d at 160-61 (3d
                                                  rung” on the ladder of the First
Cir. 1997); Kokkinis v. Ivkovich and Vill.
                                                  Amendment, private speech (unless
of Bridgeview, 183 F.3d 840 (7th Cir.
                                                  obscene or fighting words or the like) is
1999); Russolini v. Salisbury Township,
                                                  still protected on the First Amendment
126 F. Supp. 2d. 821 (E.D. Pa. 1999);
                                                  ladder. See Capitol Square Review, 515
Alvarez v. City of New York, 31 F. Supp.
                                                  U.S. at 760.        The rationale for a
2d 334 (S.D.N.Y. 1998). What is pivotal,
                                                  public/private concern distinction that
though, is that these cases do not involve
                                                  applies to public employees simply does
retaliation by government bodies against
                                                  not apply to citizens outside the
citizens who are not employed by the
                                                  employment context. By the same token,
government (and who, incidentally, cannot
                                                  the decisions of the Supreme Court and of
be viewed as having limited their speech
                                                  our court have not established a public
as a condition of voluntary employment).6
                                                  concern threshold to the protection of
Indeed, many other cases point to the
                                                  citizen private speech. We decline to
principle that outside the employment
                                                  fashion one now. “[C]onstitutional review
context the First Amendment forbids
                                                  of government employment decisions
retaliation for speech even about private
                                                  must rest on different principles that
matters. For example, we have held that
                                                  review of speech restraints imposed by the
First Amendment claims may be based on
                                                  government as sovereign.” Waters, 511
allegations that a prisoner’s complaint
                                                  U.S. at 674.
against a guard caused retaliation.
Mitchell v. Horn, 318 F.3d 523 (3d Cir.                  Accordingly, David Eichenlaub’s
2003). Realistically, these kinds of              speech, even if concerned with private
complaints are often highly particularized        grievances, is entitled to First Amendment
objections to alleged individual                  protection.7


      6                                                  7
         The District Court did rely upon                  The District Court opinion also
Grimm v. Borough of Norristown, 226               overlooked the fact that the Eichenlaubs
F.Supp. 2d 606, 636 n.19 (E.D.Pa. 2002),          raised claims of retaliation for the exercise
in which another District Court translated        of rights under the Petition Clause of the
the public concern requirement from the           First Amendment. We held in San Filippo
public employee setting to the zoning             v. Bongiovanni, 30 F.3d 424 (1994), that
setting. That opinion is, of course, not          under the Petition Clause, the filing of a
binding on us, and for the reasons stated         “non-sham” petition was protected activity
here, we disagree.                                in the public employee context—without

                                             11
         Because the District Court did not           kinds of gross misconduct that have
consider the Magistrate’s Report that                 shocked the judicial conscience. In
found material issues of fact with regard to          Conroe Creosoting Co. v. Montgomery
the other elements of the retaliation claim,          County, 249 F.3d 337 (5th Cir. 2001), the
we will vacate the judgment on the First              Court of Appeals determined that whether
Amendment retaliation claim and remand                a plaintiff’s substantive due process had
for further proceedings.                              been violated by local officials was a
                                                      triable allegation. But that was not a
                     III.
                                                      zoning dispute. Rather, plaintiffs charged
                     A.                               that the officials fraudulently converted a
                                                      tax levy for a $75,000 deficiency into an
        The District Court properly held,
                                                      unauthorized seizure and forced sale and
and the Eichenlaubs do not dispute, that
                                                      destruction of an $800,000 ongoing
whether a zoning official’s actions or
                                                      business.      The principal defendant
inactions violate due process is determined
                                                      conceded that the sale was unauthorized.
by utilizing a “shocks the conscience” test.
                                                      The facts carried a whiff of self-dealing,
United Artists Theatre Circuit, Inc. v.
                                                      since the principal defendant’s friends
Township of Warrington, 316 F.3d 392,
                                                      were alleged to have been engaged to
399 (3d Cir. 2003). That test, of course, is
                                                      perform auction services. In effect, the
not precise, see County of Sacramento v.
                                                      court found that the facts asserted
Lewis, 523 U.S. 833, 847 (1998), and it
                                                      amounted to a claim of an unconstitutional
also “varies depending on the factual
                                                      “taking” without just compensation, in
context,” United Artists, 316 F.3d at 400.
                                                      violation of the Fifth Amendment, or an
What is clear is that this test is designed to
                                                      improper seizure, in violation of the
avoid converting federal courts into super
                                                      Fourth Amendment. Id. at 340 n. 9.
zoning tribunals. What “shocks the
conscience” is “‘only the most egregious                     Associates in Obstetrics &
official conduct.’” Id. (quoting Lewis, 523           Gynecology v. Upper Merion Township,
U.S. at 846).                                         270 F. Supp. 2d 633 (E.D.Pa. 2003), is
                                                      also a case that implicates more than just
      Cases cited by the Eichenlaubs in
                                                      disagreement about conventional zoning
support of their argument illustrate the
                                                      or planning rules.      In Obstetrics, the
                                                      District Court denied a motion to dismiss
                                                      a claim that municipal defendants denied
regard to the “public concern” test. In               substantive due process when they
view of our disposition, we need not                  selectively closed plaintiff’s medical
address whether the Petition Clause                   office for the purpose of blocking the
creates broader rights than the Free                  provision of abortion services. Because
Speech Clause in the non-employee                     the municipal action there implicated
context. See id. at 449 (Becker, J.,                  abortion rights, the District Court’s
dissenting).

                                                 12
analysis of the “shocks the conscience”              requirements to their property that were
standard proceeded largely under those               not applied to other parcels; that they
judicial decisions that address protection           pursued unannounced and unnecessary
of abortion services under the Fourteenth            inspection and enforcement actions; that
Amendment. That analysis is inapplicable             they delayed certain permits and
to a zoning controversy that does not                approvals; that they improperly increased
involve allegations of hostility to                  tax assessments; and that they maligned
constitutionally-protected activity on the           and muzzled the Eichenlaubs. With the
premises.8                                           exception of the previously discussed First
                                                     Amendment retaliation claims, these
       By way of contrast, as the District
                                                     complaints are examples of the kind of
Court found, the misconduct alleged here
                                                     disagreement that is frequent in planning
does not rise sufficiently above that at
                                                     disputes. As counsel for appellants
issue in a normal zoning dispute to pass
                                                     acknowledged during argument, there is
the “shocks the conscience test.”9
                                                     no allegation of corruption or self-dealing
Basically, the Eichenlaubs assert that
                                                     here. The local officials are not accused
zoning officials applied subdivision
                                                     of seeking to hamper development in
                                                     order to interfere with otherwise
       8
                                                     constitutionally protected activity at the
          Two other decisions relied upon            project site, or because of some bias
by the Eichenlaubs are just inapposite.              against an ethnic group. There is no
Brady v. Town of Colchester, 863 F.2d                virtual “taking” as in Conroe. And as we
205 (2d Cir. 1988), which involved                   have previously observed,
allegations that defendants were making
zoning decisions to harm members of an                      [E]very appeal by a
opposing political party, was decided                       disappointed developer
before Lewis and under a different legal                    from an adverse ruling of
standard than the “shocks the conscience”                   the local planning board
test. Rubinovitz v. Rogato, 60 F.3d 906                     involves some claim of
(1st Cir. 1995), is an equal protection case,               abuse of legal authority, but
not a substantive due process case.                         “it is not enough simply to
                                                            give these state law claims
       9
         The Magistrate Judge initially                     constitutional labels such as
analyzed the substantive due process claim                  ‘due process’ or ‘equal
under the “improper motive” test of Bello                   protection’ in order to raise
v. Walker, 840 F.2d 1124 (3d Cir.), cert.                   a substantia l federal
denied, 488 U.S. 851 (1988), 488 U.S.                       question under section
868 (1988). The District Court had the                      1983.”
benefit of our intervening decision in
United Artists, which made clear that                United Artists, 316 F.3d at 402 (quoting
“shocks the conscience” applies.                     Creative Env’ts, Inc. v. Estabrook, 680

                                                13
F.2d 822, 833 (1st Cir. 1982)).                      as a device to dilute the stringent
                                                     requirements needed to show a substantive
       The District Court applied the
                                                     due process violation. It may be very
correct legal standard and did not abuse its
                                                     unlikely that a claim that fails the
discretion in dismissing the substantive
                                                     substantive due process test will survive
due process claim.
                                                     under an equal protection approach.
                     B.                              Nevertheless, the District Court simply did
                                                     not address the equal protection claim at
        In the District Court, the
                                                     all. Bearing in mind that we have
Eichenlaubs also raised an equal
                                                     remanded the retaliation claims for further
protection challenge to what they claimed
                                                     consideration by the District Court, we
was selective or unequal enforcement of
                                                     will remand this somewhat overlapping
local development rules. Indeed, they
                                                     claim as well so that the District Court
argue here that other property owners have
                                                     may consider whether it is appropriate for
not been held to the same rigorous
                                                     summary judgment.
procedures that they claim were applied to
the Eichenlaubs’ parcels. They do not,                                   IV.
however, assert that any differences in
                                                            Finally, the Eichenlaubs appeal the
treatment stem from racial or other
                                                     District Court’s decision to dismiss their
invidious forms of discrimination, or from
                                                     request for a writ of mandamus to obtain a
an effort to burden fundamental rights
                                                     “deemed approval” of their proposed
(again, except for their First Amendment
                                                     subdivision and development plans. In his
rights, which we treat above).
                                                     Report and Recommendation of August
        The Supreme Court has held that a            27, 2002, Magistrate Judge Caiazza
“‘class of one’” can attack intentionally            recommended that the Eichenlaubs’
different treatment if it is “‘irrational and        request for a writ of mandamus be granted
w h o lly arbitrary.’” Village of                    with respect to (1) the failure to inform the
Willowbrook v. Olech, 528 U.S. 562, 564,             Eichenlaubs in writing of the Town
565 (2000) (internal citations omitted) (per         Board’s April 1999 vote denying the
curiam). The Magistrate Judge briefly                revised Fairview Gardens subdivision plan
addressed this issue in denying the motion           and (2) the Township’s failure to timely
for summary judgment on this claim, but              review the Eichenlaubs’ Saxonburg
the District Court reversed and granted              Boulevard grading permit and site plan
summary judgment without discussion.                 applications.
        The “irrational and wholly                         However, the District Court
arbitrary” standard is doubtless difficult           determined that the Eichenlaubs’ request
for a plaintiff to meet in a zoning dispute,         for “deemed approval” of the Fairview
id. at 565-66 (Breyer, J., concurring), and          Gardens and Saxonburg property plans
we do not view an equal protection claim             was moot because the parties had executed


                                                14
two partial settlement agreements on                claim for monetary relief. We remand this
February 12, 2003, and February 24, 2003.           issue to the District Court for a
The Eichenlaubs allege here that this               determination whether summary judgment
decision was improper because the partial           is appropriate on the claim for damages
settlement agreements left open the issue           incidental to mandamus.
of payment of damages. The District
                                                            We will affirm the District Court’s
Court never addressed whether damages
                                                    order granting summary judgment to the
were appropriate.
                                                    Township of Indiana on the Eichenlaubs’
        Mandamus will issue to compel a             substantive due process and David
government agency’s performance of a                Eichenlaub’s free speech and petition
ministerial act when the plaintiff has a            claim. With regard to David Eichenlaub’s
clear legal right to the remedy, the                First Amendment retaliation claim and the
defendant has a duty, and there is no other         Eichenlaubs’ equal protection claim, we
equitable or appropriate remedy. Malone             will vacate the District Court’s judgment
v. W. Marlborough Township Bd. of                   and remand for further proceedings. We
Supervisors, 570 A.2d 147, 148-49 (Pa.              will also remand the District Court’s order
C o m mw . C t . 1 9 9 0 ) .        U n d er        denying the Eichenlaubs’ application for a
Commonwealth law, as the Township                   writ of mandamus for consideration of
itself noted, “[d]amages recoverable in             damages incurred, if any.
mandamus are those incidental to the
specific relief being sought.” Stoner v.
Township of Lower Merion, 587 A.2d
879, 885 (Pa. Commw. Ct. 1991). “[A]ny
damages available to the land owners as a
result of the township’s wrongful
withholding of approval must be confined
to those incidental to the specific relief
available in mandamus.” Id.
       On appeal, we cannot determine
whether summary judgment for damages
incidental to mandamus was appropriate.
Neither the Magistrate Court nor the
District Court discussed the issue of
damages sustained by the Eichenlaubs
with respect to the delay in receiving the
permits.      In addition, neither the
Eichenlaubs nor the Township has pointed
to evidence in the record on which this
Court could rely to sustain or reject a

                                               15
