                                                NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                         _____________

                          No. 08-3949
                         _____________


                  CHARLES J. GUARNIERI, JR.,

                                v.

      DURYEA BOROUGH; DURYEA BOROUGH COUNCIL;
     ANN DOMMES, Individually and in her Official Capacity as
     Council President; LOIS MORREALE, Individually and in her
   Official Capacity as Borough Secretary; FRANK GROBLEWSKI,
        Individually and in his Official Capacity as Councilman;
   EDWARD ORKWIS, Individually and in his Official Capacity as
Councilman; ROBERT WEBB, Individually and in his Official Capacity
  as Councilman; AUDREY YAGER, Individually and in her Official
 Capacity as Councilwoman; JOAN ORLOSKI, Individually and in her
     Official Capacity as Councilwoman; AKULONIS, Individually
               and in his Official Capacity as Councilman,
                                                     Appellants

                         _____________

                          No. 08-4428
                         _____________


                  CHARLES J. GUARNIERI, JR.,
                                      Appellant
                              v.

     DURYEA BOROUGH; DURYEA BOROUGH COUNCIL;
      ANN DOMMES, Individually and in her Official Capacity
     as Council President; LOIS MORREALE, Individually and
           in her Official Capacity as Borough Secretary;
      FRANK GROBLEWSKI, Individually and in his Official
     Capacity as Councilman; EDWARD ORKWIS, Individually
            and in his Official Capacity as Councilman; ROBERT WEBB,
               Individually and in his Official Capacity as Councilman;
             AUDREY YAGER, Individually and in her Official Capacity
             as Councilwoman; JOAN ORLOSKI, Individually and in her
            Official Capacity as Councilwoman; AKULONIS, Individually
                      and in his Official Capacity as Councilman

                                         _______

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                               (D.C. No. 3-05-cv-01422)
                    District Judge: Honorable A. Richard Caputo
                                       _______

                             Argued October 27, 2009
                   Not Precedential Opinion filed February 4, 2010

                              Certiorari granted June 20, 2011

               On Remand from the Supreme Court of the United States


           Before: SLOVITER, FUENTES and HARDIMAN Circuit Judges.

                                       ___________

Cynthia L. Pollick (Argued)
The Employment Law Firm
Pittston, PA 18640

      Attorney for Appellant in No. 08-4428
                    Appellee in No. 08-3949

Karoline Mehalchick (Argued)
Joseph A. O‟Brien
Oliver, Price & Rhodes
Clarks Summit, PA l8411

Jennifer Walsh
Ufberg & Associates
                                             2
Scranton, PA l8503

       Attorneys for Appellees in No. 08-4428
                     Appellants in No. 08-3949


                                  (Filed : August 2, 2011)
                                           ______

                                         OPINION
                                          _____

SLOVITER, Circuit Judge.

       The Supreme Court has vacated our opinion and judgment in this matter and

remanded to this court. See Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488

(2011), reversing Guarnieri v. Duryea Borough, 364 F. App‟x 749 (3d Cir. 2010).

       Charles Guarnieri filed a grievance challenging his termination as Chief of Police

of the Borough of Duryea (“Borough”). The matter proceeded to arbitration pursuant to

the police union‟s collective bargaining agreement. The arbitrator found, inter alia, that

Guarnieri engaged in misconduct, but ordered his reinstatement after disciplinary

suspension. Thereafter, the Borough Council issued eleven directives instructing

Guarnieri in the performance of his duties, but he challenged those directives in a second

union grievance and filed a lawsuit pursuant to 42 U.S.C. § 1983 claiming the directives

were in retaliation for prior activity that he claimed was protected under the Petition

Clause of the United States Constitution. Following a jury trial, the jury awarded

Guarnieri compensatory and punitive damages which the District Court sustained. The


                                             3
Borough appealed to this court, arguing that Guarnieri‟s actions were not protected under

the Petition Clause.

       Bound by its prior published opinions,1 this court rejected the Borough‟s position,

which was contrary to our precedent holding that “a public employee who has petitioned

the government through a formal mechanism such as the filing of a lawsuit or grievance

is protected under the Petition Clause from retaliation for that activity, even if the petition

concerns a matter of solely private concern.” Foraker v. Chaffinch, 501 F.3d 231, 236

(3d Cir. 2007) (citing San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)). That

holding has now been definitively rejected by the Supreme Court in this case where it

held that a government employee‟s claim under the Petition Clause is subject to the

public concern test applicable to a government employee who files a Free Speech Clause

claim. Guarnieri, 131 S. Ct. at 2501 (citing Connick v. Myers, 461 U.S. 138 (1983)).

       On receipt of the Supreme Court‟s opinion, we asked the parties to file

simultaneous memoranda regarding the effect of the Supreme Court‟s decision on the

remaining issues in this case. Both parties urge this court to determine whether

Guarnieri‟s Petition Clause claims relate to a matter of public concern. In the alternative,


          1
              See 3d Cir. I.O.P. 9.1:

                It is the tradition of this court that the holding of a panel in a
                precedential opinion is binding on subsequent panels. Thus, no
                subsequent panel overrules the holding in a precedential
                opinion of a previous panel. Court en banc consideration is
                required to do so.

                                               4
the Borough asks this court to vacate the judgment of the District Court and to remand

this matter to the District Court for its reconsideration in light of the Supreme Court‟s

decision.

       As the Supreme Court stated, and the parties agree, whether something is a matter

of public concern is a question of law for the court. See Connick, 461 U.S. at 148 n.7. In

its supplemental memorandum the Borough notes the language in the Supreme Court‟s

Guarnieri opinion where the Court stated that a “petition that involves nothing more than

a complaint about a change in the employee‟s own duties does not relate to a matter of

public concern.” Guarnieri, 131 S. Ct. at 2501 (quotations omitted). Guarnieri responds

that his dismissal was a matter of great actual concern to the residents of Duryea, and he

refers to newspaper reports of the dispute. The Supreme Court stated that “whether an

employee‟s petition relates to a matter of public concern will depend on „the content,

form, and context of [the petition], as revealed by the whole record.‟” Id. (alteration in

original) (quoting Connick, 461 U.S. at 147-48 n.7). We are not prepared to hold on this

meager record that the dismissal of a police chief in a small town can never be a matter of

public concern in that community.2 It might be, for example, if the Chief were dismissed

because he disfavored one race over another, or because he overlooked actions of a

sexual predator. We do not suggest that there is any such issue lurking in this matter, but

            2
              Guarnieri has filed a motion to expand record and file supplemental
       appendix. Counsel is aware that this court is not the forum to decide questions of
       fact in the first instance. On remand, the parties may raise that issue with the
       District Court. We express no view on that motion.

                                              5
merely note that not all dismissals of government employees would necessarily fall on

one side or another of the rule. As the Supreme Court itself recognized, it would depend

on the circumstances.

       This is a matter more appropriately to be decided by the District Court. We will

therefore allow the District Court the opportunity to consider the issue in the first

instance.

       Accordingly, we will vacate the order of the District Court and remand for

consideration in light of the Supreme Court‟s opinion.




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