                                                         NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 10-3042
                                _____________

                                ERIC BEYER,
                                         Appellant

                                      v.

                        DUNCANNON BOROUGH;
                          DUANE HAMMAKER;
                        PATRICK BRUNNER; AND
                            GERALD BELL
                            ______________

  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
                    DISTRICT OF PENNSYLVANIA
                   (D.C. Civ. Action No. 09-CV-1398)
                District Judge: Honorable John E. Jones III
                             ______________

                  Submitted Under Third Circuit LAR 34.1(a)
                              February 8, 2011
                              ______________

      Before: JORDAN, GREENAWAY, JR., and STAPLETON, Circuit Judges

                       (Opinion Filed: April 14, 2011)

                                ______________

                                   OPINION
                                ______________

GREENAWAY, JR., Circuit Judge
         Eric Beyer (“Beyer”) appeals the District Court‟s December 15, 2009, February 5,

2010, and June 25, 2010 Orders and Memoranda dismissing his Amended Complaint and

Second Amended Complaint against Duncannon Borough, Duane Hammaker

(“Hammaker”), and Patrick Brunner (“Brunner”) (collectively, “Appellees”).1 Beyer

contends that the District Court erred in holding that he did not plead facts sufficient to

overcome a motion to dismiss his First Amendment retaliation claim. We agree with

Beyer that the District Court erred in dismissing his First Amendment retaliation claim.

To the extent that Beyer appeals the District Court‟s dismissal of his First Amendment

petitioning claim, we believe that the District Court did not err in dismissing this claim.

For the following reasons, we will reverse in part, affirm in part, and remand to the

District Court for further proceedings consistent with this opinion.

                                     I. BACKGROUND

         We write primarily for the benefit of the parties and recount only the essential

facts.

         Beyer worked as a police officer for the Duncannon Borough. On November 9,

2005, two officers were involved in a shootout with a man who was using a 7mm

Remington Magnum rifle. The two officers were armed with standard 12 gauge

shotguns. One of the officers was struck during the encounter and died. This tragedy

initiated a public discussion about whether the officers had sufficient weaponry to combat

1
  Although the District Court issued multiple Orders and Memoranda, for purposes of our
review, it is only the District Court‟s June 25, 2010 Order and Memorandum that we
currently consider since Beyer‟s Second Amended Complaint is before this Court.
                                               2
criminals. Beyer alleges that a 12 gauge shotgun cannot match the performance of a

7mm Remington Magnum rifle. As a result of the shooting, Beyer recommended the

purchase of AR-15s, weapons which allegedly shoot at a high velocity. Mayor Kraig

Nace (“Nace”) subsequently authorized the purchase of two AR-15 rifles to be carried in

the patrol cars for the Duncannon Borough. In February 2006, the Duncannon Borough

Council (“Council”) approved Nace‟s decision to purchase the two AR-15s. Beyer

alleges that after the acquisition of the AR-15s, the Council criticized the purchase and

contended that the rifles were purchased without authorization.

       In January 2008, Beyer used the pseudonym “big bear”2 and posted comments on

the internet in opposition to the views of the Council members, who had been criticizing

the purchase of the AR-15s. In particular, Beyer opposed the views of Council members

Gerald Bell (“Bell”);3 Hammaker, President of the Council; and Brunner, Chairman of

the Council. A debate ensued over the AR-15s and that discussion generated interest by

the press. In the winter of 2008, Beyer appeared on Fox 43 “News at Ten” to “report[]

accurately many facts about the weapons.” (App. at 60.) On March 6, 2008, an “ad hoc

committee,” chaired by Michael Fedor (“Fedor”), investigated the AR-15s. The

committee ultimately recommended to keep one of the AR-15s and sell the other. The

Council agreed with the committee‟s recommendation. Beyer alleges that during Fedor‟s

2
  Beyer alleges that he posted on the internet under the pseudonym “big bear” and the
Council inquired about postings by “Big Bear.” We refer to “big bear” and “Big Bear”
interchangeably as Beyer did in the Second Amended Complaint.
3
  Defendant Gerald Bell was dismissed from the case by Order granting Motion to
Dismiss on December 15, 2009.
                                             3
investigation, Fedor “openly attacked” Beyer about the information Beyer had presented

to the public.

       On June 3, 2008, Beyer posted “information critical of [the Council] on the

internet.” (Id. at 61.) Beyer did not use his own name or identify any Council members

by name. On June 17, 2008, Bell sent Beyer a letter indicating the Council‟s awareness

of the internet postings by “Big Bear,” informing Beyer that some of the postings were

inappropriate, and asking Beyer if he was “Big Bear.” Beyer alleges that he was given

twenty-four hours to respond to the letter. He chose not to answer the Council‟s question

as to whether he was “Big Bear,” without the advice of counsel. On June 24, 2008, upon

the advice of counsel, Beyer responded that he had used the pseudonym “Big Bear” to

post information on the internet, but did not know if the “Big Bear” or “big bear”

postings that the Council was referring to were his. Beyer did admit to criticizing

Council.

       On July 1, 2008, Bell wrote Beyer and requested that Beyer appear on July 8, 2008

at 8:00 a.m. before the committee for a “fact-finding interview.” (Id. at 62.) According

to Beyer, he discussed scheduling the interview with Mayor Nace and Derr and informed

Bell that he would agree to meet at a time that did not interfere with his full-time

employment. On July 16, 2008, Bell allegedly wrote Beyer a letter stating that “during a

regular session of the Duncannon Borough Council[,] Council voted to terminate your

(Eric Beyer‟s) employment with the Duncannon Borough Police Department effective

immediately.” (Id. at 63.) Hammaker signed the letter as President of Council.
                                              4
       On July 17, 2009, Beyer filed a complaint in federal court. On August 27, 2010

and September 11, 2009, Appellees filed Motions to Dismiss the Complaint. On

September 25, 2009, Beyer filed an Amended Complaint. On December 15, 2009, the

District Court granted in part, and denied in part, Appellees‟ Motions to Dismiss the

Amended Complaint. On December 29, 2009, Beyer filed a Motion for Reconsideration.

On February 5, 2010, the District Court denied Beyer‟s Motion for Reconsideration.

       On February 19, 2010, Beyer filed a Second Amended Complaint asserting a First

Amendment retaliation claim, a First Amendment right to petition claim, and a wrongful

discharge claim under Pennsylvania law. On June 25, 2010, the District Court granted

Appellees‟ Motions to Dismiss the Second Amended Complaint. The District Court held

that despite the existence of protected speech and retaliation, Beyer did not plead facts to

support an inference that the protected speech was a substantial factor in the retaliation.

The District Court also dismissed Beyer‟s First Amendment petitioning claim on the

ground that Beyer filed no petition prior to the alleged retaliation.4 Finally, the District

Court did not retain supplemental jurisdiction over Beyer‟s wrongful discharge claim

under Pennsylvania law.5


4
  Beyer does not raise any arguments regarding the District Court‟s dismissal of his First
Amendment petitioning claim in his opening brief on appeal and has accordingly waived
it. Graden v. Conexant Sys. Inc., 496 F.3d 291, 296 n.6 (3d Cir. 2007) (“Absent
compelling circumstances . . . failing to raise an argument in one‟s opening brief waives
it.”). Nonetheless, we agree with the District Court‟s conclusion that Beyer did not
petition the government prior to the Appellees‟ retaliation.
5
  Appellant does not seek review of the District Court‟s determination that pendant state
claims should not be addressed.
                                              5
                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over Beyer‟s claims, pursuant to 28 U.S.C. §

1331. We have jurisdiction, pursuant to 28 U.S.C. § 1291, to review the District Court‟s

final order.

       We review a district court‟s order granting a motion to dismiss de novo. Victaulic

Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). A Rule 12(b)(6) motion to dismiss

should be granted only if the plaintiff is unable to articulate “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also Ashcroft v. Iqbal, --U.S.--, 129 S. Ct. 1937, 1949 (2009). A plaintiff is

required, by Federal Rule of Civil Procedure 8(a)(2), to provide the “grounds of his

entitle[ment] to relief [which] requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(citation and internal quotation marks omitted).

                                      III. ANALYSIS

       To state a First Amendment retaliation claim, a public employee plaintiff must

allege that the plaintiff‟s “activity is protected by the First Amendment, and that the

protected activity was a substantial factor in the alleged retaliatory action.” Gorum v.

Sessoms, 561 F.3d 179, 184 (3d Cir. 2009) (citation omitted) (explaining that after these

two elements are established, the burden shifts to the defendants to demonstrate that the

same action would occur if the speech had not occurred).

A. Protected Activity
                                              6
       To determine whether a public employee‟s speech is protected by the First

Amendment, we must make two inquiries:

              The first requires determining whether the employee spoke as
              a citizen on a matter of public concern. If the answer is no,
              the employee has no First Amendment cause of action based
              on his or her employer‟s reaction to the speech. If the answer
              is yes, then the possibility of a First Amendment claim arises.
              The question becomes whether the relevant government entity
              had an adequate justification for treating the employee
              differently from any other member of the general public.

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citation omitted).

       Our inquiry begins with determining whether we can “read the complaint to allege

that [Beyer] was speaking as a „citizen.‟” Hill v. Borough of Kutztown, 455 F.3d 225,

242 (3d Cir. 2006) (“[O]n a 12(b)(6) motion, the court examines „whether, under any

reasonable reading of the complaint, the plaintiff may be entitled to relief.” (citation

omitted) (emphasis added)). We believe that Beyer has alleged facts that he was

speaking as a citizen, rather than as, on the other hand, a public official.6 Public

employees do not speak “as citizens” when they make statements “pursuant to their

official duties.” Garcetti, 547 U.S. at 421. In Garcetti, the Supreme Court held that the

public employee had written a memo “pursuant to [his] official duties,” and thus as a

public employee, because “that is part of what he, as a calendar deputy, was employed to

do.” Id. at 421. The Supreme Court contrasted Garcetti to Pickering v. Bd. of Educ., 391


6
 The District Court held that Beyer did not establish a causal connection and stated that it
did not need to reach the issue of whether Beyer was acting as a citizen or public
employee.
                                              7
U.S. 563 (1968), where the speaker‟s “letter to the newspaper had no official significance

and bore similarities to letters submitted by numerous citizens every day.” Garcetti, 547

U.S. at 422.

       We conclude that Beyer sufficiently alleged facts that he was speaking as a citizen,

rather than as a public employee. See id. at 421. Beyer was a police officer who

recommended the purchase of the AR-15s after “hours of research, on his own time, to

determine what would be the best weapon system and caliber for use in Duncannon

Borough, considering the price of the weapons, ease of use and training, cost of

ammunition, and maintenance.” (App. at 57.) Beyer alleges that his research and

discussion about the weapons were “on his time,” rather than pursuant to his duties as a

police officer. Also, Beyer‟s comments, at issue, were posted pseudonymously on an

internet site and not pursuant to his duties as a police officer.

       Next, we must determine whether Beyer pled sufficient facts that his discussion

about the AR-15s was a matter of public concern. An employee‟s speech is a matter of

public concern if “it can be fairly considered as relating to any matter of political, social,

or other concern to the community.” Holder v. City of Allentown, 987 F.2d 188, 195 (3d

Cir. 1993) (citation and internal quotation marks omitted). Determining whether speech

is a matter of public concern “requires us to examine the content, form, and context of

that speech.” Snyder v. Phelps, --U.S.--, 131 S. Ct. 1207, 1216-17 (2011) (internal

quotation marks and citation omitted) (explaining that an individual‟s credit report did

not address public concern, while matters regarding the political and moral conduct of the
                                               8
United States and its citizens were of public concern even where the messages “fall short

of refined social or political commentary”). Speech about police misconduct, for

example, is a matter of public concern. Vose v. Kliment, 506 F.3d 565, 569 (7th Cir.

2007); Markos v. City of Atlanta, Texas, 364 F.3d 567, 570 (5th Cir. 2004).

       Focusing on the content, form, and context of Beyer‟s speech, we hold that Beyer

sufficiently pled that his speech was a matter of public concern. He alleges that the

content of his speech was to “report[] accurately many facts about the weapons,” (App. at

60), which is related to a matter of political, social, or other concern to the community.

See Holder, 987 F.2d at 195. Discussion about the AR-15s relates to issues about the

safety of the Duncannon Borough‟s Police Force, which implicates public safety and

extends beyond issues specific to Beyer. Beyer pleads sufficient facts that the AR-15s

were of public concern. In particular, Beyer alleges that the discussion regarding AR-15s

was an issue of “officer and citizen safety,” that the information about the weapons was

“highly technical” and unavailable to the average citizen, and a “press discussion of the

issue began to grow.” (App. at 57, 59); see Borden v. Sch. Dist. of the Twp. of E.

Brunswick, 523 F.3d 153, 170 (3d Cir. 2008) (noting that discussion regarding the

government‟s waste of taxpayers‟ money is a matter of public concern) (citation

omitted)); Cf. Gorum, 561 F.3d at 187 (holding that an individual student‟s future as a

professional athlete did not pertain to a public concern).

       Beyer‟s personal interest in the discussion of AR-15s because of his

recommendation to purchase the weapons does not lead to the conclusion that the speech
                                              9
is of purely personal interest. See Markos, 364 F.3d at 571 (“While speech on behalf of a

coworker would be private in many situations, it is infused with an element of public

interest here because it assured the public of the trustworthiness of some of its police

officers.”).

       Communicating the message in a public manner through the internet and news

further weighs in favor of the conclusion that the speech here is of public concern. See

id. (noting that public communication, rather than internal communication, weighs in

favor that the speech is a public concern); see also Reno v. ACLU, 521 U.S. 844, 870

(1997) (conduct protected by the First Amendment extends to communications made

through the medium of the internet).

       We hold that Beyer alleges facts that his speech was protected sufficient to

overcome a motion to dismiss.

B. Protected Activity Was A Substantial Factor In The Retaliation

       To establish that the protected conduct was a substantial factor in the retaliation, a

plaintiff usually must prove either

               (1) an unusually suggestive temporal proximity between the
               protected activity and the allegedly retaliatory action, or (2) a
               pattern of antagonism coupled with timing to establish a
               causal link. In the absence of that proof, the plaintiff must
               show that from the “evidence gleaned from the record as a
               whole” the trier of fact should infer causation.

Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citations omitted); see also

Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (noting that “[i]n

                                              10
certain narrow circumstances, an „unusually suggestive‟ proximity in time between the

protected activity and the adverse action may be sufficient, on its own, to establish the

requisite causal connection” (citation omitted)). The decision-makers must be aware of

the protected conduct for it to be a substantial or motivating factor in a decision. Gorum,

561 F.3d at 188.

       Beyer alleges that he posted on the internet in January 2008, appeared on Fox in

the winter of 2008, and posted on the internet again on June 3, 2008. Bell wrote Beyer a

letter on June 17, 2008 questioning him about the internet posts and again on July 1, 2008

demanding a meeting with Beyer. On July 16, 2008, Bell wrote Beyer a letter informing

him of the decision to terminate his employment. In light of the temporal proximity

among these events, we cannot agree with the District Court that Beyer failed to allege

facts regarding the causal connection and the retaliation. See Lauren W., 480 F.3d at

267; Marra, 497 F.3d at 302.7 The temporal proximity clearly makes it plausible that the

protected activity was a substantial factor.

                                    IV. CONCLUSION

       We will reverse, in part, and affirm, in part, the District Court‟s June 25, 2010

Order. Based on this Court‟s ruling, we will remand the First Amendment retaliation


7
  Throughout Appellant‟s brief, Appellant‟s Attorney, Don Bailey, asserts that the trial
courts and the appellate court in this Circuit have not permitted lawsuits that he has been
involved in to proceed unencumbered. This is not an issue that this Court needs to
address at present. There is no basis to believe or conclude regarding the instant
litigation that Appellant or Appellant‟s attorney is not being given the opportunity to be
heard.
                                               11
claim to the District Court for further proceedings consistent with this opinion.




                                             12
