                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-1997

Green v. Phila Housing Auth
Precedential or Non-Precedential:

Docket 95-1908




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                          ___________

                          No. 95-1908
                          ___________


                         DONALD GREEN,
                                   Appellant

                               v.

                PHILADELPHIA HOUSING AUTHORITY;
           WILLIAM BERGMAN, INTERIM CHIEF OF POLICE;
     DANIEL ROSENSTEIN, CAPTAIN; JOHN CRESCI, DEPUTY CHIEF,
          IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES
       AS OFFICIALS OF THE PHILADELPHIA HOUSING AUTHORITY


         _______________________________________________

         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
               (D.C. Civil Action No. 94-cv-02885)
                       ___________________


                      Argued June 12, 1996

            Before: SCIRICA and ROTH, Circuit Judges
        and RESTANI, Judge, Court of International Trade*


                    (Filed January 31, 1997)



                         DAVID RUDOVSKY, ESQUIRE (ARGUED)
                         Kairys, Rudovsky, Kalman,
                           Epstein & Messing
                         924 Cherry Street, 5th Floor
                         Philadelphia, Pennsylvania 19107

                           Attorney for Appellant




*The Honorable Jane A. Restani, Judge, United States Court of
International Trade, sitting by designation.


                               1
                           M. KEVIN HUBBARD, ESQUIRE (ARGUED)
                           Philadelphia Housing Authority
                           2012 Chestnut Street
                           Philadelphia, Pennsylvania 19103

                             Attorney for Appellees


                          __________________

                       OPINION OF THE COURT
                        __________________


SCIRICA, Circuit Judge.


          The Philadelphia Housing Authority transferred one of

its police officers from special drug enforcement duty to regular

patrol duty after his appearance at a bail hearing as a character

witness for a reputed organized crime associate.       The officer

contends his transfer violated his free speech and association

rights.   At trial, after the close of all evidence, the district

court granted defendants judgment as a matter of law under Fed.

R. Civ. P. 50.   We will affirm.1
                            I.   Background

          The plaintiff, Donald Green, has been employed as a

police officer for the Philadelphia Housing Authority Police

Department since November, 1991.        In February, 1994, he was

assigned to the Housing Authority Police Department's Drug

Elimination Task Force ("DETF").        The DETF is a special unit that

works together with other law enforcement agencies to combat

illegal drug activity on Philadelphia Housing Authority property.


1. We have jurisdiction under 28 U.S.C. § 1291. Our standard of
review is plenary. See Watters v. City of Philadelphia, 55 F.3d
886, 891 (3d Cir. 1995).




                                    2
            Several weeks after his assignment to the DETF, Green

received a telephone call from Norman Keller, a friend of over

twenty years, asking him to testify as a character witness on

behalf of his son, Herbert Keller, at a bail hearing in federal

court.   Pursuant to Housing Authority Police Department

regulations, Green made a written request to his immediate

supervisor for permission to testify.   Green received approval,

provided that he testify during his lunch hour and in civilian

clothing.

            On March 23, 1994, Green appeared at the bail hearing,

and Keller's attorney introduced him by name and occupation.    The

magistrate judge then proceeded to read the charges pending

against Keller, which included organized crime activity in

connection with the Stanfa crime organization.   Green, who until

that time was unaware of the organized crime charges, told Keller

he could not be associated with the case and left the hearing

without testifying.

            Later that day, an unidentified law enforcement officer

told the DETF Captain, defendant Daniel Rosenstein, that Green

had appeared as a character witness for a member of the Stanfa

crime organization.   Rosenstein ordered Green removed from

"street" work and told him there would be an investigation into

his possible ties with organized crime.    Rosenstein then sent a

memorandum to the Housing Authority Police Department's Deputy

Chief of Police, defendant John Cresci, recommending such an

investigation and requesting Green's temporary transfer to

regular patrol duty pending its outcome.


                                 3
          Subsequently, Cresci discussed the matter with the

Housing Authority Police Department's Acting Chief of Police,

defendant William Bergman.   They decided a departmental

investigation was unnecessary because it would duplicate the

ongoing federal investigation of the Stanfa crime organization,

and also because they did not believe Green was affiliated with

organized crime.   But Cresci and Bergman agreed with Rosenstein

that Green should be transferred.   On March 31, 1994, Green was

formally transferred from the DETF to regular patrol duty.

          Green's duties changed as a result of his transfer.      As

a DETF officer, Green participated in drug raids, made drug-

related arrests, and was generally responsible for enforcing the

drug laws.   After the transfer to regular patrol duty, Green was

principally assigned to work out of a building's security booth.

 Green's salary was not reduced, although he claims his

opportunities to work overtime (and consequently to earn overtime

pay) decreased.

          Green contends his transfer constituted unlawful

retaliation for protected First Amendment activity.   He brought

this action against the Philadelphia Housing Authority,

Rosenstein, Cresci and Bergman under: 42 U.S.C. § 1983 for

violation of his First Amendment rights to freedom of speech and

association; 42 U.S.C. § 1985(2) for violation of his right to be

free from retaliation for his appearance as a witness in federal

court; and the Pennsylvania Constitution for deprivation of

reputation without due process of law.




                                4
             At trial, defendants Bergman and Cresci testified they

had no information or even suspicion Green was involved with

organized crime,2 but that his transfer was nonetheless

justified.    They explained Green was transferred "in case there

was anything where [the Housing Authority Police Department]

might be embarrassed . . ." and because it "was right for the

organization."    (J.A. at 122, 164.)   In their brief on appeal,

defendants maintain they transferred Green out of their concern

that the appearance of his ties to organized crime would "bring[]

. . . discredit upon the image of the [Housing Authority Police

Department], [and] endanger[] the plaintiff."      (Appellee's Br. at

10.)3

          At the close of evidence at trial, the district court

granted defendants' Rule 50 motion for judgment as a matter of

law on all claims.    Green brought this appeal.    In reviewing the

district court's judgment, we must determine whether "viewing all

the evidence which has been tendered and should have been

admitted in the light most favorable to the party opposing the

motion, no jury could decide in that party's favor." Watters v.

City of Philadelphia, 55 F.3d 886, 891 (3d Cir. 1995) (quoting



2. Bergman also testified that, if he had any such suspicion, he
would have fired Green instead of merely transferring him.

3. As far as we know, Green has not been reinstated to DETF
duty. At trial, Cresci and Bergman testified that Green may be
reinstated after the close of the Stanfa trial. Rosenstein
testified somewhat differently, stating that Green's
reinstatement turned on whether the Housing Authority Police
Department found him innocent of wrongdoing. Green testified
that Cresci told him his transfer was permanent.



                                  5
Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.

1993)).
                          II.    Discussion

                A.   Section 1983 (First Amendment)

           On appeal Green contends his First Amendment right to

free speech was violated because he was transferred in

retaliation for his appearance as a character witness at Keller's

bail hearing.   A public employee's claim of retaliation for

engaging in a protected activity is analyzed under a three-step

process.   See Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.

1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.

1995); Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d

Cir. 1994).   A plaintiff must first demonstrate the activity in

question was protected.   Second, the plaintiff must show the

protected activity was a substantial or motivating factor in the

alleged retaliatory action. See Swineford, l5 F.3d at l270.

Finally, defendants may defeat plaintiff's claim by demonstrating

"that the same action would have been taken even in the absence

of the protected conduct."      Id.       The district court did not reach

the last two factors because it resolved the first factor in

defendants' favor as a matter of law.           Accordingly, our

discussion will focus on the first step, whether Green's

appearance in court was a protected activity.

           To qualify as a protected activity, Green's court

appearance must satisfy the Pickering balancing test.           See

Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will
County, 391 U.S. 563 (1968).     First, the court appearance must



                                      6
constitute "speech . . . on a matter of public concern."

Watters, 55 F.3d at 892.   Second, the public interest favoring

his expression "must not be outweighed by any injury the speech

could cause to the interest of the state as an employer in

promoting the efficiency of the public services it performs

through its employees."    Id.   See also Pickering, 391 U.S. at 568

("The problem in any case is to arrive at a balance between the

interests of the [employee], as a citizen, in commenting upon

matters of public concern and the interests of the State, as an

employer, in promoting the efficiency of the public services it

performs through its employees."); Versarge v. Township of

Clinton N.J., 984 F.2d 1359, 1366 (3d Cir. 1993) ("On plaintiff's

side of the balance, we must . . . consider the interests of the

public in plaintiff's speech.").      Determining whether Green's

appearance is protected activity under Pickering is an issue of

law for the court to decide.     See Waters v. Churchill, 114 S. Ct.

1878, 1884 (1994).
                 1.   A Matter of Public Concern

          Initially we must determine whether Green's appearance

as a character witness is a matter of public concern.      See
Swineford, l5 F.3d at l270-72.    We have held a public employee's

appearance as a witness, even in the absence of actual testimony,

is "speech" under Pickering.     Pro, 81 F.3d at 1291.   A public

employee's speech involves 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."      Connick v. Myers,
461 U.S. 138, 146 (1983); see also Watters, 55 F.3d at 892;



                                  7
Versarge, 984 F.2d at 1364.    This determination turns on the

content, form and context of the public employee's speech.      See

Watters, 55 F.3d at 892.4   The district court held Green's court

appearance was a matter of public concern.    We agree.

          In Pro v. Donatucci, we recognized that a public

employee's court appearance in response to a subpoena is a matter

of public concern.    81 F.3d at 1291.   The plaintiff in that case,

Sisinia Pro, was subpoenaed by her employer's wife to appear as a

witness at her employer's divorce proceedings.    Pro appeared at

the hearing but was never called to testify.    She was fired

shortly thereafter.   Pro brought suit against her employer under

42 U.S.C. § 1983, claiming he fired her in retaliation for

protected activity.   We found that Pro had a First Amendment

right to appear in court despite the fact that the content of her

speech was "purely private," because the form and context of her

speech was of public concern, i.e. an appearance to deliver sworn

testimony before an adjudicatory body.    In explaining our

holding, we stated, "[T]he public employee's interest in

4. In Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993),
we explained:

The content of the speech may help to characterize it as relating
          to a matter of social or political concern of the
          community if, for example, the speaker seeks to `bring
          to light actual or potential wrongdoing or breach of
          public trust' on the part of government officials. The
          form and context of the speech may help to characterize
          it as relating to a matter of social or political
          concern to the community if, for example, the forum
          where the speech activity takes place is not confined
          merely to the public office where the speaker is
          employed.

Id. at 195 (citations omitted).



                                  8
responding to a subpoena and the judicial interest in having

state employees respond to subpoenas without fear of employer

reprisal justify our ruling.    Moreover, . . . there is no

`practical distinction between retaliation on the basis of a

public employee's actual testimony and the retaliation that Pro

alleges.'"   Id. (quoting Pro v. Donatucci, No. 94-CV-6001, 1995

WL 552980, at *4 n.3 (E.D. Pa. Sept. 18, 1995)).

           We declined to rule in Pro whether a public employee's

voluntary appearance in court, not under subpoena, would be a

matter of public concern.    See id. at 1291 n.3.   That is one of

the issues facing us here, and it merits some discussion.

           Although in practical terms it may be inconsequential

whether a witness has been subpoenaed (one can "volunteer" to

receive a subpoena), there would appear to be a conceptual

distinction that turns on a witness's will or desire to testify,

especially in this context where the witness is a law enforcement

officer.   It should matter, therefore, whether a police officer

chooses to interject himself into a bail hearing, which is an

adversary proceeding, as a character witness for a defendant.     On

the other hand, there is a compelling reason to find Green's

appearance to be a matter of public concern regardless of its

voluntary nature.   That reason, of course, is the integrity of

the truth seeking process.

           For guidance we will turn, as we did in Pro, to a line
of cases from the Court of Appeals for the Fifth Circuit holding

a public employee's truthful testimony, even if voluntary, is

inherently a matter of public concern protected by the First


                                 9
Amendment.    See id. at 1288 (citing Reeves v. Claiborne County

Bd. of Educ., 828 F.2d 1096, 1100-01 (5th Cir. 1987); Johnston v.

Harris County Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir.

1989), cert. denied, 493 U.S. 1019 (1990)).     As the Fifth Circuit

observed, "When an employee testifies before an official

government adjudicatory or fact-finding body he speaks in a

context that is inherently of public concern.    Our judicial

system is designed to resolve disputes, to right wrongs.     We

encourage uninhibited testimony, under penalty of perjury, in an

attempt to arrive at the truth.    We would compromise the

integrity of the judicial process if we tolerated state

retaliation for testimony that is damaging to the state."

Johnston, 869 F.2d at 1578 (quotations and citations omitted);

see also Smith v. Hightower, 693 F.2d 359, 368 (5th Cir. 1982)

("[T]he first amendment protects the right to testify truthfully

at trial.").

             Identical concerns are implicated by Green's voluntary

appearance at Keller's bail hearing, where the court depends upon

accurate testimony by those familiar with the defendant in order

to determine whether the defendant is likely to flee or endanger

the community.    See 18 U.S.C. § 3142 (judicial officer must
release defendant on bail unless such release "will not

reasonably assure the appearance of the person as required or

will endanger the safety of any other person or the community.").

 The utility of uninhibited testimony and the integrity of the

judicial process would be damaged if we were to permit unchecked

retaliation for appearance and truthful testimony at such


                                  10
proceedings.   Not only would "the first amendment right of the

witness be infringed by this type of coercion, the judicial

interest in attempting to resolve disputes by arriving at the

truth would be in jeopardy.   Furthermore, a witness who succumbed

to any real or imagined coercion could also be subject to a

charge of perjury."   Reeves, 828 F.2d at 1100.

           In Pro, we held the context of a courtroom appearance

raises speech to a level of public concern, regardless of its

content.   Pro, 81 F.3d at 1291; see also Johnston, 869 F.2d at

1578 ("The goal of grand jury proceedings, of criminal trials,

and of civil trials is to resolve a dispute by gathering the

facts and arriving at the truth, a goal sufficiently important to

render testimony given in these contexts speech `of public

concern.'"); Reeves, 828 F.2d at 1100 (holding sworn subpoenaed

testimony is matter of public concern, even though the content of

the testimony "did not concern the type of political speech which

lies at the core of first amendment freedoms"); Langley v. Adams

County, Colo., 987 F.2d 1473, 1479 (10th Cir. 1993) ("The law is

clearly established that the `First Amendment protects the right

to testify truthfully at trial.'").   But see Wright v. Illinois
Dep't of Children & Families Servs., 40 F.3d 1492, 1505 (7th Cir.

1994) (declining to adopt Fifth Circuit analysis); Arvinger v.

Mayor and City Council of Baltimore, 862 F.2d 75, 79 (4th Cir.

1988) (emphasizing the importance of content over context).    We

can discern no reason why a voluntary appearance would eliminate




                                11
the public interest.    Therefore, we hold that Green's voluntary

appearance as a character witness is a matter of public concern.5
                       2.   Balance of Interests

          The question remains whether Green's free speech

interest in testifying as a character witness is outweighed by

any injury the speech could cause to the interests of the Housing

Authority Police Department as employer.     See Waters, 114 S. Ct.

at 1884; Pickering, 391 U.S. at 568; Swineford, l5 F.3d at l272.

 If Green's court appearance could potentially disrupt the work

of the Housing Authority Police Department, and this potential

for injury outweighs the public's interest in Green's speech,

then judgment for the defendants is proper.        See Waters, 114 S.

Ct. at 1890 (weighing First Amendment "value" of speech against

"the potential disruptiveness of the speech").       The district

court granted the Housing Authority judgment as a matter of law,

finding Green's appearance injured the DETF's interests in

minimizing departmental disruption and maintaining an environment

of trust and security.


5. Judge Roth would note that had this Court not held in Pro v.
Donatucci, 81 F.3d at 1288-91, that a public employee's potential
sworn testimony before an adjudicatory body was a matter of
public concern and protected by the First Amendment, she would
dissent on the issue of whether the public employee's actions
here were a matter of public concern. She dissented in Pro on
the basis that compliance with a subpoena is not speech. She
does not, however, believe that she can distinguish the present
case from Pro on the sole basis that here the public employee had
not been subpoenaed. Were Pro not precedent, she would disagree
with the panel that a non-subpoenaed appearance by a public
employee, much less than a subpoenaed appearance, is a matter of
public concern. She would nevertheless concur in the ultimate
conclusion that, due to their potential disruptive impact, the
actions here were not protected speech.



                                   12
           Normally, this balancing test would be an issue of fact

and would remain in the hands of the fact finder.    But where the

presence of factual disputes would normally preclude the court

from ruling as a matter of law, Supreme Court precedent requires

the trial court to do so.   "Although such particularized

balancing is difficult, the courts must reach the most

appropriate possible balance of the competing interests. . . .

[Courts] are compelled to examine for [them]selves the statements

in issue and the circumstances under which they [are] made to see

whether or not they . . . are of a character which the principles

of the First Amendment . . . protect."   Connick, 461 U.S. at 150

& n.10 (quoting Pennekamp v. Florida, 328 U.S. 331, 335 (1946)).

           In weighing the competing interests, we begin with the

proposition that all court appearances are matters of public

concern.   That is so because all court appearances implicate the

public's interest in the integrity of the truth seeking process

and the effective administration of justice.   But at the same

time, it would appear that the strength of the public's interest

can vary based on the nature of the court appearance.    See Pro,

81 F.3d at 1291 n.4 ("We have not held that courtroom testimony

should receive `absolute' First Amendment protection.")

           It is of some moment, therefore, that Green appeared

voluntarily, not in response to a subpoena.    As we have held, a

voluntary court appearance is a matter of public concern.    We

encourage voluntary testimony so that parties and courts have

access to all available information and witnesses.    But the

public interest favoring subpoenaed testimony is even stronger.


                                13
It implicates not only the integrity of the truth seeking process

and the effective administration of justice, but also the

public's interest in protecting court-ordered conduct.     See id.

at 1290 ("A subpoenaed witness has no choice but to appear at a

trial, unless he is willing to risk a finding of contempt.")

(quoting Pro v. Donatucci, No. 94-CV-6001, 1995 WL 552980, at

*13-14 (E.D. Pa. Sept. 18, 1995)).     As Green appeared

voluntarily, it would seem that the public's interest in his

court appearance is somewhat more limited than it would be if his

appearance were subpoenaed.

            Nor do we find it significant that Green appeared as a

witness at a bail hearing as opposed to a trial.     Reputation

testimony is probative in either.     In addition, while some

commentators have implied that character testimony is less

important than fact testimony,6 we believe no distinction should

be made between character and fact testimony for Pickering

purposes.   Both are essential to the truth seeking process.7


6. See, e.g., McCormick on Evidence 549 (Edward W. Cleary ed.)
(3d ed. 1984) ("[I]n many situations, the probative value [of
character evidence] is slight and the potential for prejudice
large.").

7. See, e.g., United States v. Logan, 717 F.2d 84, 87-93 (3d
Cir. 1983) (discussing the importance of character testimony, and
recommending a jury instruction that, "[w]here a defendant has
offered evidence of good general reputation for truth and
veracity, . . . the jury should consider such evidence along with
all the other evidence in the case" and that "[e]vidence of a
[criminal] defendant's reputation . . . may give rise to a
reasonable doubt"); see also Committee on Model Crim. Jury
Instructions Within the 8th Cir., Manual of Model Crim. Jury
Instructions for the District Courts of the 8th Cir. 89 (1994)
(some circuits now favor a jury instruction that character
evidence should be considered together with all other evidence in
a case; the "standing alone" charge is seen as an unwarranted


                                 14
           In comparison, the interests of the Housing Authority

Police Department as employer are very significant.   They include

successfully fighting drugs and crime, protecting the safety of

its officers and other members of the community, fostering trust

and confidence among its officers and between its officers and

other law enforcement drug units, and protecting the Housing

Authority Police Department's reputation.    As defendants state in

their brief on appeal, they were concerned "that the plaintiff's

voluntary appearance, as a narcotics officer, at a bail hearing

on behalf of a reputed organized crime associate would bring

discredit upon the [Housing Authority Police Department],

endanger the plaintiff and tarnish the image of the [Housing

Authority Police Department] in the eyes of the residents of

public housing the department serves . . . ."   (Appellee's Br. at

5.)   These interests merit substantial protection, and any risk

of departmental injury or disruption weighs heavily under the

Pickering balancing test.

           We agree with the district court that there was a risk

of departmental injury based on the "potential disruptiveness of

the speech."   Waters, 114 S. Ct. at 1890.   First, an unnamed

police officer telephoned Rosenstein to report Green's appearance

at Keller's hearing.   Second, Green testified at trial he heard

comments from co-workers and friends that "[g]uys wouldn't want

to work with me because they were afraid that I knew people in

the mob . . . ." (J.A. at 59.) Finally, because of the nature of
(..continued)
invasion of the jury's special function in deciding what weight
to give any particular item of evidence.).



                                15
DETF work, any perceived breach of trust and security could

reasonably constitute a threat to the DETF, its officers and its

relationships with other police drug units and the community it

serves.   This risk of injury to the Housing Authority Police

Department outweighs the public interest favoring Green's speech.

 Judgment as a matter of law for defendants is proper under

Pickering.

           Green argues he should not be held responsible for

creating the potential disruption because he followed

departmental procedures and testified only after receiving

express permission from his superiors.   But a public employee in

a sensitive position like Green cannot turn a blind eye to the

possible consequences of his voluntary testimony.    The

responsibility must lie with Green to investigate the nature of

the criminal charges, and to bear any risks associated with his

voluntary court appearance.8

          Green also claims that the Housing Authority Police

Department's reasons for his transfer were pretextual, i.e. that

the potential for departmental disruption was not the true cause

for his transfer.   But the test in Waters is an objective one for

"potential disruptiveness."    Waters, 114 S. Ct. at 1890; see also

Watters, 55 F.3d at 896.   Therefore any pretext is irrelevant to

our weighing analysis.


8. Nor do we believe this case raises questions of equitable
estoppel. For example, if Green had been granted permission to
testify after advising his supervisors that Keller was an
organized crime associate, the Housing Authority Police
Department might well be estopped from imposing sanctions.



                                 16
          The second step in the Pickering analysis, whether the

protected activity was a substantial or motivating factor in the

transfer decision, would be a factual issue for the jury.     But

under Pickering we do not reach this step.     Nor do we reach the

third step in the analysis, whether defendants would have

transferred Green even in the absence of his speech.    Therefore

we will affirm the district court.
                         3.   Conclusion

          Implicit in Green's claims is the notion his transfer

was unfair under the circumstances.   Green voluntarily chose to

testify as a character witness for the son of a friend.    He

followed the applicable rules and received permission to testify,

although neither the Housing Authority Police Department nor he

knew of the organized crime association.    He appeared at the bail

hearing, but when he realized the nature of the charges facing

Keller and his association with organized crime, he left the

hearing without testifying.   His superiors testified they do not

believe he has any association with organized crime and, in fact,

if they had, Green would have been fired.

          Nonetheless, the Housing Authority Police Department

contends Green's actions were potentially disruptive to the

proper functioning of the department.   Whether there is potential

disruption is an issue of law for the court.    We have found there

was a likelihood of disruption and that it outweighs the

interests favoring the protected activity.

          Had Green been fired instead of reassigned, the penalty

would have appeared especially severe in view of his supervisors'


                                17
belief that he had no association with organized crime.        It may

be argued, therefore, that the degree of harm should be factored

into the test.   But if the proper standard is the potential for

disruption, it is difficult to see how the extent of harm can be

taken into account.

           Of course, different facts can change the calculus.       In

weighing the protected interest against the likelihood of

disruption, it is especially significant that a law enforcement

officer whose primary duty is to fight drugs testified as a

character witness for a defendant who was part of an organization

well known for its involvement in the drug trade.        The

correlation could not be more direct nor more damaging to the

Housing Authority Police Department's role.        A more oblique

correspondence might well bring a different result under the

weighing process.
                         B.    Section 1985(2)

           Green also brought a claim under 42 U.S.C. § 1985(2),

alleging defendants illegally conspired to transfer him in

retaliation for his appearance as a character witness in federal

court.   But, as we have held, defendants' transfer of Green was

not unlawful.    For the reasons we have stated and for those given

by the district court, we hold the dismissal of Green's § 1985(2)

claim was proper.
                       C.     State Constitution

           Green also sued defendants under the Pennsylvania

Constitution for deprivation of reputation without due process.

The district court rejected Green's deprivation of reputation


                                   18
claim as a matter of law because Green could not establish a

causal connection between his reputation injury and the

defendants' conduct.   We agree this claim was properly dismissed.
                         III.   Conclusion

          For these reasons we will affirm the judgment of the

district court.9




9. In light of our decision to uphold the district court's
dismissal of Green's claims, there is no need to discuss the
other issues on appeal: whether the trial court erred in
excluding certain evidence of harm to plaintiff's reputation and
in ruling that punitive damages could not be awarded.



                                 19
