                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                    No. 16-1187
                                 ________________


                               KENNETH ROSSITER

                                          v.

                             CITY OF PHILADELPHIA;
                              CHARLES H. RAMSEY,

                                       Charles H. Ramsey,
                                             Appellant

                                 ________________

                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 2-13-cv-03429)
                     District Judge: Honorable Gerald A. McHugh
                                  ________________

                             Argued September 28, 2016

         Before: SMITH, Chief Judge, AMBRO and FISHER, Circuit Judges

                          (Opinion filed: December 29, 2016)

Elise M. Bruhl, Esquire   (Argued)
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102


 Honorable D. Brooks Smith, United States Circuit Judge for the Third Circuit, assumed
Chief Judge Status on October 1, 2016.
       Counsel for Appellant

James E. Beasley, Jr., Esquire
David A. Yanoff, Esquire (Argued)
The Beasley Firm
1125 Walnut Street
Philadelphia, PA 19107

       Counsel for Appellee
                                   ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge

       Appellee Kenneth Rossiter brought a First Amendment retaliation claim against

Philadelphia Police Commissioner Charles Ramsey and the Philadelphia Police

Department for allegedly violating his First Amendment right to associate with the police

union. On a motion for summary judgment, the District Court ruled that Rossiter had

alleged a colorable claim of unlawful retaliation and that then-Commissioner Ramsey and

the Department were not entitled to qualified immunity. Ramsey and the Department

filed this appeal. As the First Amendment right at issue was not clearly established, we

hold that Ramsey and the Department are entitled to qualified immunity.

                                           Facts

       Because this case comes to us on appeal of a motion for summary judgment

raising a qualified immunity defense, we view the facts on the record in the light most



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

                                             2
favorable to Rossiter. Bayer v. Monroe Country Children & Youth Servs., 577 F.3d 186,

191 (3d Cir. 2009). He joined the Department in 1982. At the outset he became a

member of the local chapter of the Fraternal Order of Police, a local police labor union,

and he remains so. As a member of the FOP, Rossiter has been covered by the terms of a

collective bargaining agreement between the City of Philadelphia and the FOP.

       An ongoing dispute between the FOP and the Department lays the context for

Rossiter’s retaliation claim. Between January 2008 and January 2016, Ramsey served as

Commissioner of the Department. In 2010, he implemented without approval from the

FOP a new Disciplinary Code covering officers in the Department. In response, the FOP

filed a complaint with the Pennsylvania Labor Relations Board alleging that the Code set

a category of new rules under the labor agreement and therefore required the parties to

negotiate prior to implementation.

       For over two years, Ramsey and his representatives pressed the union to rescind

the complaint instead of proceeding to a formal hearing. In September 2012 the FOP’s

Vice President informed the Department that the union was moving forward with

hearings, which began shortly thereafter.

       During negotiations with the FOP over its labor complaint, the Department began

a separate disciplinary action against Rossiter, who was then employed as a detective in

the Homicide Unit. In July 2011, the Department received an anonymous complaint that

Rossiter was at home when he was supposed to be on duty. In response, it began an

investigation of Rossiter’s conduct. Department officials observed Rossiter at his

residence 16 times when payroll records stated that he was working. In December 2011,

                                             3
a Department investigator questioned Rossiter about each instance; he claimed that he

had permission to be at home and was working on cases.

       In March 2012, the Department charged Rossiter with two counts of Conduct

Unbecoming of a Police Officer under Sections 1-§010-10 and 1-§021-20 of the

Disciplinary Code. He pleaded not guilty and requested a hearing before the Police Board

of Inquiry.

       On the day of his hearing, Rossiter learned it was postponed because the

Department and the FOP were engaged in plea negotiations regarding him and three other

members of the Homicide Unit. Rossiter met with the Vice President of the FOP over the

proposed plea deal in his case. He maintained his unwillingness to plead. Over the next

month, the FOP continued to discuss disciplinary actions against the four officers, yet the

Department never rescheduled Rossiter’s hearing.

       In mid-June 2012, representatives from the FOP met with Deputy Commissioner

Gaittens for their monthly grievance meeting. At the end of the meeting, the Deputy

Commissioner noted two remaining issues. He brought up the disciplinary proceedings

against Rossiter and the three other members of his unit. Gaittens suggested the

Department would be willing to issue reprimands and allow the officers to remain

employed. Next, he addressed the ongoing dispute over the labor complaint. According

to the FOP’s Vice-President, the Department offered to resolve the pending individual

disciplinary actions in a favorable manner if the FOP would agree to withdraw the

complaint against the Department. When the FOP continued to assert its intent to

proceed with the complaint, Gaittens threatened to terminate Rossiter immediately. A

                                             4
few days later Ramsey issued a Commissioner Direct Action suspending Rossiter for

thirty days with intent to dismiss. Four weeks later, he was terminated.

       The FOP filed a grievance on behalf of Rossiter under its labor agreement on the

ground that he did not receive a hearing before the Police Board of Inquiry prior to

termination.1 Under the Agreement’s grievance procedures, the FOP demanded an

arbitration hearing on Rossiter’s behalf. 2 The arbitrator found the Department did not

have just cause to terminate Rossiter and ordered it to restore him to his former position

as a detective in the Homicide Unit without loss of seniority. Thus he returned to work.

                                     Procedural History

       In June 2013, Rossiter filed an action in the District Court alleging five claims

related to his termination. The Court dismissed all but his First Amendment association

claim—that Ramsey and the Department retaliated against him because of his association

with the police union. After discovery, Ramsey and the Department filed a motion for

summary judgment. They asserted that the First Amendment does not provide a cause of

action because Rossiter himself did not engage in any protected activity and that, in any

event, they were entitled to qualified immunity because there was no clearly established

right to engage in the allegedly protected activity. The District Court rejected the

qualified immunity defense. It then denied the motion for summary judgment, finding

that Rossiter asserted a colorable claim of retaliation.


1
  The FOP also filed a complaint against the Department for its conduct at the June 2012
meeting.
2
  The FOP filed similar grievances on behalf of the three other members of the Homicide
Unit. They settled by accepting a written reprimand and withdrawing their grievances.
                                              5
       Ramsey and the Department filed a motion for reconsideration. They argued that

the Court defined too broadly Rossiter’s right to associate and that case law did not

clearly establish First Amendment protection for the activity involved here—passive

membership of a union member who does not himself engage in any further expressive

activity. The Court rejected this motion. It reiterated its belief that the law clearly

established a right to associate with the union without fear of retaliation such that Ramsey

and the Department would have been on notice that firing Rossiter because of his

membership violated the First Amendment.

       Ramsey and the Department appeal that decision. We have appellate jurisdiction

over the District Court's resolution of questions of law, but not its determination that

material issues of fact remain under 28 U.S.C. § 1291 and the collateral order doctrine.3

       Our review is de novo, and we view inferences based on the underlying facts in the

light most favorable to the nonmoving party. Haybarger v. Lawrence Cty. Adult Prob. &

Parole, 551 F.3d 193, 197 (3d Cir. 2008) (internal quotation marks and citation omitted).

                                         Discussion

    1. Qualified Immunity




3
  The latter is an exception to the usual requirement of a final decision for appellate
review. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993).
It requires that an order “[1] conclusively determine the disputed question, [2] resolve an
important issue completely separate from the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349
(2006) (citations omitted) (quotations omitted).


                                              6
       Qualified immunity from suits “shield[s] officials from harassment, distraction,

and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S.

223, 231 (2009). To overcome that immunity, the facts alleged by the plaintiff must

show (1) the violation of a constitutional right and (2) that the right was clearly

established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201

(2001). We may exercise our discretion to address the two Saucier prongs in either order

in light of the circumstances in the particular case. Pearson, 555 U.S. at 236. Because we

do not believe the right at issue here was clearly established, we begin with the second

inquiry.

       A Government official's conduct violates clearly established law when, at the time

of the challenged conduct, every reasonable official would understand that what he is

doing violates the right alleged. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); Anderson

v. Creighton, 483 U.S. 635, 640 (1987). The Supreme Court recently emphasized that

“‘[w]e do not require a case directly on point’ before concluding that the law is clearly

established, ‘but existing precedent must have placed the statutory or constitutional

question beyond debate.’” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (quoting al–Kidd, 563

U.S. at 741). We look first for applicable Supreme Court precedent. If none exists, it

may be possible that a “robust consensus of cases of persuasive authority” in the Courts

of Appeals could clearly establish a right for purposes of qualified immunity. Taylor v.

Barkes, 135 S. Ct. 2042, 2044 (2015).

       To make out a First Amendment retaliation claim under 42 U.S.C. § 1983, a

plaintiff must establish: (1) he engaged in First Amendment protected activity, (2) the

                                              7
defendant took adverse action sufficient to deter a person of ordinary firmness from

exercising his First Amendment rights, and (3) the adverse action was prompted by the

plaintiff's protected activity. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).

       Rossiter alleged that Ramsey and the Department retaliated against him because

he exercised his First Amendment right to be a member of the FOP, his union. The

District Court found a clearly established right of a public-sector employee to be a

member of an association. Rossiter v. Ramsey, No. CV 13-3429, 2015 WL 7756175

(E.D. Pa. Dec. 2, 2015) (citing Smith v. Ark. State Highway Emps., Local 131, 441 U.S.

463 (1979)). However, what it did not do was focus specifically on the kind of

associational activity present in this case. See Saucier, 533 U.S. at 200-201 (instructing

that we must frame clearly established law “in light of the specific context of the case,

not as a broad general proposition.”). That a public employee has a right to associate

with a union is unchallenged. What is contested here is whether there is an established

right of that employee in a pending disciplinary proceeding to associate passively with a

union whose representatives oppose internal policies.

       The District Court relied on Smith to find a clearly established right to be free of

the retaliation Rossiter alleges in this case. However, in Smith the Court addressed

whether the First Amendment requires the government to recognize the union as a

negotiating agent. It affirmed that “[t]he public employee surely can associate and speak

freely and petition openly, and he is protected by the First Amendment from retaliation

for doing so,” but held that the First Amendment “does not impose any affirmative

obligation on the government to listen, to respond or, in this context, to recognize the

                                              8
association and bargain with it.” Smith, 441 U.S. at 464-65. In a dictum, the Court

suggested that the government’s action might not be lawful had it “tak[en] steps to

prohibit or discourage union membership or association.” Id. at 466. However, the case

did not present that set of facts (the Court did not rule on it in any event), and nothing in

the record suggests that any such steps occurred here. Moreover, Connick v. Myers, 461

U.S. 138, 154 (1983), subsequently clarified that the First Amendment Speech Clause

provides a cause of action for retaliation claims only when a public employee speaks on

matters of public concern. See also Borough of Duryea v. Guarnieri, 564 U.S. 379

(2011) (applying the public concern requirement to causes of action under the

Amendment’s Petition Clause).

       The District Court also grounded its conclusion in Labov v. Lalley, 809 F.2d 220

(3d Cir. 1987), in which we held that the First Amendment protects the right of a public

employee to organize an association for the purposes of collective bargaining. We later

clarified that Labov held “only that efforts of public employees to associate together for

the purpose of collective bargaining involve associational interests which the First

Amendment protects from hostile state action.” Sanguigni v. Pittsburgh Bd. of Pub.

Educ., 968 F.2d 393, 400 (3d Cir. 1992) (internal quotations omitted). Neither Smith nor

Labov establish whether, and to what extent, the First Amendment’s right to expressive

association provides a cause of action for a union member in an employment dispute who

claims retaliation based on his passive membership in a union whose representatives

oppose internal policies.



                                              9
       In Sanguigni, we emphasized Labov “d[id] not make clear” whether Connick’s

public concern requirement for public employee speech applies in associational cases. Id.

We recognized that, in the years since we decided Labov, our Court had not settled the

question of whether a public employee must demonstrate that the union representative’s

advocacy raises a matter of public concern in bringing a claim for expressive association.

Id. We reserved judgment on whether the public concern requirement applies to

association claims when those claims do not allege retaliation for the member’s speech.

Id.

       Our sister Circuits are split on whether an employee must demonstrate that the

protected activity relates to a matter of public concern to trigger First Amendment

associational rights and consequent protections against retaliation. See Cobb v. Pozzi,

363 F.3d 89, 107 (2d Cir. 2004) (“In sum, Connick ’s reliance on freedom of association

cases and the Supreme Court’s warning against the stratification of First Amendment

freedoms convince us that a public employee bringing a freedom of association claim

must demonstrate that the association or associational activity at issue touches on a

matter of public concern.”); Klug v. Chi. Sch. Reform Bd. of Trs., 197 F.3d 853, 857 (7th

Cir. 1999) (“[A] public employee is protected from adverse employment consequences

based on the exercise of the right to freedom of association only when the associational

conduct relates to a matter of public concern.”); Edwards v. City of Goldsboro, 178 F.3d

231, 249–50 (4th Cir. 1999) (applying public concern requirement after concluding that

“the limitations on a public employee's right to associate are ‘closely analogous' to the

limitations on his right to speak”); Boals v. Gray, 775 F.2d 686, 692 (6th Cir. 1985) (“We

                                             10
perceive no logical reason for differentiating between speech and association in applying

Connick to first amendment claims, and hold that it is so applicable.”); Martin v. City of

Del. City, 179 F.3d 882, 888 (10th Cir. 1999) (“This court has applied the[ ] principles

from Connick v. Myers . . . in deciding First Amendment claims [for] violations of [the

public employee’s] right to freedom of speech, freedom of association, and to petition for

redress of grievances.”); but see Boddie v. City of Columbus, 989 F.2d 745, 747 (5th Cir.

1993) (holding that a plaintiff asserting a First Amendment freedom-of-association claim

need not show that his or her purely associational activity touched upon a matter of

public concern); Hatcher v. Bd. of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th

Cir. 1987) (holding that a principal who based a claim on her association with protesting

parents was not required to demonstrate her association implicated a matter of public

concern).

       We accordingly find no consensus of authority that leveraging a claim against a

specific union member facing good faith disciplinary action in an effort to settle internal

police affairs implicates a clearly established constitutional right. What the Deputy

Commissioner attempted to resolve by tethering Rossiter’s case to resolution of union

opposition to the Disciplinary Code may not be Hoyle, but it was not established as

unconstitutional when it occurred. Therefore, Ramsey and the Department are entitled to

qualified immunity, and we reverse the decision of the District Court and remand this

case for it to enter judgment in their favor.




                                                11
