                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-1-1999

We Inc v. City of Philadelphia
Precedential or Non-Precedential:

Docket 97-1958




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Filed April 1, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-1958

WE, INC., t/a UNIVERSITY COIN LAUNDRY;
WILLIAM SCHOEPE, JR., t/a UNIVERSITY PINBALL

v.

CITY OF PHILADELPHIA, DEPARTMENT OF LICENSES
AND INSPECTIONS; RUDOLPH M. PALIAGA,
INDIVIDUALLY AND IN HIS CAPACITY AS DIRECTOR OF
BUSINESS REGULATORY ENFORCEMENT OF THE
DEPARTMENT OF LICENSES AND INSPECTIONS FOR
THE CITY OF PHILADELPHIA; UNIVERSITY OF
PENNSYLVANIA; MAUREEN RUSH, INDIVIDUALLY AND IN
HER OFFICIAL CAPACITY AS DIRECTOR OF POLICE
OPERATIONS FOR THE UNIVERSITY OF PENNSYLVANIA

University of Pennsylvania, a/k/a Trustees of the
University of Pennsylvania and Maureen Rush,
Appellants

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 97-cv-02874)
District Judge: Hon. Marvin Katz

Argued September 14, 1998

BEFORE: STAPLETON and ROTH, Circuit Judges, and
LONGOBARDI,* District Judge

(Opinion Filed April 1, 1999)
_________________________________________________________________

*Honorable Joseph J. Longobardi, Senior United States District Judge for
the District of Delaware, sitting by designation.
       Ronald J. Shaffer (Argued)
       Stephanie Resnick
       Fox, Rothschild, O'Brien & Frankel
       2000 Market Street, 10th Floor
       Philadelphia, PA 19103
        Attorneys for Appellees

       Roger F. Cox (Argued)
       Robert A. Burke
       Jordana Cooper
       One Logan Square
       Philadelphia, PA 19103-6998
        Attorneys for Appellants

OPINION OF THE COURT

STAPLETON, Circuit Judge:

The University of Pennsylvania ("the University") appeals
from an order of the District Court denying its motion for
summary judgment. The University premised its summary
judgment motion on a claimed immunity from liability
under the Noerr-Pennington doctrine. See United Mine
Workers v. Pennington, 381 U.S. 657 (1965); Eastern R.R.
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.
127 (1961). Before reaching the merits of the District
Court's decision, we must determine whether a denial of a
summary judgment motion that is predicated on Noerr-
Pennington immunity constitutes a final, collateral order
appealable under 28 U.S.C. S 1291. Because we conclude
that such an order is not appealable under the narrow
collateral order doctrine, we will dismiss for lack of
jurisdiction.

I.

The appellee, We, Inc., is the owner and operator of two
adjacent establishments, a coin laundry and a pinball
arcade, located near the appellant University of
Pennsylvania's dental school in West Philadelphia. This suit

                               2
arises out of a Cease Operations Order that was issued to
appellee by the City of Philadelphia after the University
lodged numerous complaints with the City. The University
alleges that, prior to the Order's issuance, appellee's
businesses were a nuisance and a threat to public safety
because they were the locus of a variety of disorderly and
unlawful activities, including assaults, batteries, and
curfew and truancy violations. Pursuant to this concern,
the University repeatedly contacted the City of Philadelphia
and urged action by the City to address what it perceived
to be unlawful activity associated with the businesses. The
University met with City representatives regarding its
concern on several occasions and provided data gathered
by the University Police to support its allegations.

Without first providing notice or an opportunity for a
hearing, the City issued a Cease Operations order to the
businesses and posted it on the premises in the presence of
University police officers. Following the order's posting, We,
Inc., filed suit against the City and the University under 42
U.S.C. SS 1983 and 1985, alleging a deprivation of its
property without due process. The City of Philadelphia
settled the claims against them and the University moved
for summary judgment, claiming immunity for at least
some of its actions under the Noerr-Pennington doctrine.
The District Court denied the University's motion after
finding that, by participating in the posting and execution
of the Cease Operations Order, the University defendants'
conduct arguably went beyond the mere "petitioning" of
government that the Noerr-Pennington doctrine is designed
to protect. The University now appeals the District Court's
denial of summary judgment.

II.

A.

Under 28 U.S.C. S 1291, appeals as of right are limited to
"final decisions of the district courts." 1 The denial of a
_________________________________________________________________

1. 28 U.S.C. S 1291 provides: "The courts of appeals ... shall have
jurisdiction of appeals from all final decisions of the district courts of
the
United States...."

                               3
motion for summary judgment ordinarily is not afinal order
and, accordingly, is not normally appealable. Sacred Heart
Medical Center v. Sullivan, 958 F.2d 537, 543 (3d Cir.
1992). Under the "collateral order" doctrine, however, a
decision of a district court may be appealable as a"final
decision" under 28 U.S.C. S 1291 if it (1)"conclusively
determine[s]" the disputed question; (2)"resolve[s] an
important issue completely separate" from the merits of the
action; and (3) is "effectively unreviewable" on appeal from
a final judgment. Coopers & Lybrand v. Livesay, 437 U.S.
463, 468-69 (1978). If the order at issue fails to satisfy any
one of these requirements, it is not an appealable collateral
order. See Gulfstream Aerospace Corp. v. Mayacamas Corp.,
485 U.S. 271, 276 (1988); Christy v. Horn 115 F.3d 201,
204 (3d Cir. 1997).

Since Coopers & Lybrand, the Supreme Court has
repeatedly referred to the collateral order doctrine as
"narrow," described the conditions for its applications as
"stringent" and urged that it "should stay that way and
never be allowed to swallow the general rule." See e.g.,
Digital Equip. Corp. v. Desktop Direct Inc., 511 U.S. 863,
868 (1994); Midland Asphalt Corp., v. United States, 489
U.S. 794, 799 (1989). We have followed this admonition
and consistently construed the collateral order exception
narrowly "lest the exception swallow up the salutary
general rule that only final orders be appealed." Yakowicz
v. Pennsylvania, 683 F.2d 778, 783 n.10 (3d Cir. 1982); see
also Transtech Indus., Inc. v. A & Z Septic Clean, 5 F.3d 51
(3d Cir. 1993). Moreover, strict construction of the
collateral order doctrine is consistent with the longstanding
congressional policy against piecemeal appeals that
underlies the final judgment rule. See Lusardi v. Xerox
Corp., 747 F.2d 174, 177 (3d Cir. 1984).

To guard against the temptation to expand the doctrine's
reach, the Supreme Court has instructed that "the issue of
appealability under S 1291 is to be determined for the
entire category to which a claim belongs." Desktop Direct
Inc., 511 U.S. at 868; Christy, 115 F.3d at 204. This
approach reflects the Court's insistence that thefinality
requirement of S 1291 must not be reduced to a case-by-
case determination, see Richardson-Merrill Inc. v. Koller,

                                4
472 U.S. 424, 439 (1985), and that courts consider
appealability "without regard to the chance that the
litigation at hand might be speeded, or a particular
injustice averted, by a prompt appellate court decision."
Desktop Direct, 511 U.S. at 868 (citation omitted). Thus, in
this case, we consider whether an order denying a claim of
immunity under the Noerr-Pennington doctrine is an
immediately appealable collateral order.

B.

The University contends that the denial of its claim of
immunity under the Noerr-Pennington doctrine is
immediately appealable under the collateral order doctrine.
It likens Noerr-Pennington immunity to the absolute and
qualified immunity enjoyed by public officials, the denial of
which is immediately appealable under that doctrine. See
Mitchell v. Forsythe, 472 U.S. 511, 526 (1985); Nixon v.
Fitzgerald, 457 U.S. 731, 743 (1982). It is true, as the
University stresses, that a denial of a motion for summary
judgment based on Noerr-Pennington immunity, like the
denial of a summary judgment based on official immunity,
ordinarily will conclusively determine an important issue
unrelated to the merits of the case. We therefore focus our
attention on the third requirement of the collateral order
doctrine -- that the District Court's decision be effectively
unreviewable on appeal from the final judgment.

In holding that an order denying qualified immunity to a
public official is "effectively unreviewable on appeal from
final judgment," the Supreme Court reasoned in Mitchell v.
Forsythe that an "essential attribute" of qualified immunity
is "an entitlement not to stand trial under certain
circumstances," and thus qualified immunity entails "an
immunity from suit rather than a mere defense to liability."
Mitchell, 472 U.S. at 526, 530 (emphasis in original). As
with absolute immunity, this entitlement "is effectively lost
if a case is erroneously permitted to go to trial." Id. at 526.
Since Mitchell, denials of a state's Eleventh Amendment
immunity from suit in a federal court similarly have been
held to be immediately appealable. See Puerto Rico
Aqueduct & Sewer Authority v. Metcalf & Eddy, 506 U.S.
139, 146 (1993) ("the very object and purpose of the 11th

                               5
Amendment [are] to prevent the indignity of subjecting a
State to the coercive process of judicial tribunals at the
instance of private parties") (citation omitted).

The Supreme Court has repeatedly urged courts to
employ caution and restraint, however, in reviewing claims
of a right not to stand trial. Not all defenses that warrant
a pretrial dismissal entail a right not to stand trial. As the
Supreme Court has explained, there is "a crucial distinction
between a right not to be tried and a right whose remedy
requires the dismissal of charges." United States v.
Hollywood Motor Car Co., 458 U.S. 263, 269 (1982). In Van
Cauwenberghe v. Biard, 486 U.S. 517, 524-25 (1988), the
Court noted that "[b]ecause of the important interests
furthered by the final-judgment rule and the ease with
which certain pretrial claims for dismissal may be alleged to
entail the right not to stand trial, we should examine the
nature of the right asserted with special care to determine
whether an essential aspect of the claim is the right to be
free of the burdens of a trial."

In Desktop Direct, the Court was even more emphatic in
insisting that efforts to obviate S 1291's final judgment rule
by claiming an immunity from suit should be critically
assessed. "We have, after all, acknowledged that virtually
every right that could be enforced appropriately by pretrial
dismissal might loosely be described as conferring a"right
not to stand trial. . . . Thus, precisely because candor
forces us to acknowledge that there is no single, `obviously
correct way to characterize' an asserted right, we have held
that S 1291 requires courts of appeals to view claims of a
`right not to be tried' with skepticism, if not a jaundiced
eye." Desktop Direct, 511 U.S. at 873.

Thus, as the Supreme Court has framed it, "[t]he critical
question, following Mitchell, is whether `the essence' of the
claimed right is a right not to stand trial." Van
Cauwenberghe, 486 U.S. at 524. This Court has not yet
addressed this critical question in the context of a claim to
Noerr-Pennington immunity. We now proceed to do so,
based on the nature and extent of protection afforded by
Noerr-Pennington immunity and the Supreme Court's
general admonition that claims to immunity from suit be
critically assessed. Because we conclude that the Noerr-

                                6
Pennington doctrine does not provide an "immunity from
suit" but rather only a defense against liability, we hold
that a denial of a summary judgment motion predicated on
Noerr-Pennington "immunity" is not effectively unreviewable
on appeal from a final judgment.

III.

The Noerr-Pennington doctrine originated in the anti-trust
context as the proposition that "joint efforts to influence
public officials do not violate the antitrust laws even though
intended to eliminate competition. Such conduct is not
illegal, either standing alone or as part of a broader scheme
itself violative of the Sherman Act." See United Mine
Workers v. Pennington, 381 U.S. 657, 670 (1965); Eastern
R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961). The Supreme Court has predicated this
antitrust "immunity" on two principles: first, the First
Amendment right of citizens to petition the government and
participate in the legitimate processes of government, and
second, a statutory interpretation of the Sherman Act
under which Congress is viewed as not intending the Act to
reach the political process. As Noerr explained, "[t]o hold
that the government retains the power to act in this
representative capacity and yet hold, at the same time, that
the people cannot freely inform the government of their
wishes would impute to the Sherman Act a purpose to
regulate, not business activity, but political activity, a
purpose which would have no basis whatever in the
legislative history of that Act. Secondly, and of at least
equal significance, such a construction of the Sherman Act
would raise important constitutional questions. The right of
petition is one of the freedoms protected by the Bill of
Rights, and we cannot, of course, lightly impute to
Congress an intent to invade these freedoms." Noerr, 365
U.S. at 137-38 (footnote omitted); see also City of Columbia
v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380 (1991)
("The [Noerr-Pennington] doctrine .. . rests ultimately upon
a recognition that the antitrust laws, `tailored as they are
for the business world, are not at all appropriate for
application in the political arena.' ") (quoting Noerr, 365
U.S. at 141).

                               7
This court, along with other courts, has by analogy
extended the Noerr-Pennington doctrine to offer protection to
citizens' petitioning activities in contexts outside the anti-
trust area as well. For example, in Brownsville Golden Age
Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d Cir. 1988),
we found that the Noerr-Pennington doctrine protected
individuals from tort liability for their actions in petitioning
the government to shut down a nursing home that was
operating in violation of applicable regulations. Citing to the
Noerr-Pennington doctrine in Brownsville, we affirmed an
order granting summary judgment for the defendants,
noting that:

       "The rule that liability cannot be imposed for damage
       caused by inducing legislative, administrative, or
       judicial action is applicable here. The conduct on
       which this suit is based is protected by the firmly
       rooted principle, endemic to a democratic government,
       that enactment of and adherence to law is the
       responsibility of all. The problem is not too much
       citizen involvement but too little. Thus, we hold that as
       a matter of law, defendants' actions in calling
       Brownsville's violations to the attention of state and
       federal authorities and eliciting public interest cannot
       serve as the basis of tort liability."

Id. at 160.

Thus, the purpose of Noerr-Pennington as applied in areas
outside the antitrust field is the protection of the right to
petition. Immunity from liability is necessary so as not to
chill the exercise of that right. The question presented by
this case is whether immunity from the burden of suit is
also necessary to avoid an unconstitutional chill of the right
to petition.

It is helpful at the outset to note that the Petition Clause
of the First Amendment neither enjoys "special First
Amendment status" nor confers an "absolute immunity" for
privilege. McDonald v. Smith, 472 U.S. 479, 484-85 (1985).
As the Court held in McDonald, the Petition Clause is on a
par with the freedoms to speak, publish, and assemble. It
follows that the protection afforded by Noerr-Pennington is
no more absolute or extensive than that provided by other

                               8
First Amendment guarantees. We find this helpful because
relevant jurisprudence concerning burdens of the right to
freedom of speech is more fully developed than that
concerning the right to petition.

Citizens who exercise their First Amendment rights of
free speech and free press enjoy significant protection from
defamation liability in order to prevent undue chill on the
exercise of those rights. See, e.g., New York Times v.
Sullivan, 376 U.S. 254 (1964) (liability to public officials);
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (liability
to public figures); Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974) (liability to private individuals). The courts have
never recognized, however, that an immunity from suit was
necessary to prevent an unacceptable chill of those First
Amendment rights. Indeed, the law appears to be to the
contrary.

In Calder v. Jones, 465 U.S. 783 (1984), respondent
actress Shirley Jones claimed that she had been libeled in
an article written by petitioners in Florida and published in
a national magazine with a large circulation in California
where she resided. Petitioners were served in Florida with
process issued by a California court, and the issue was
whether that court could exercise personal jurisdiction over
petitioners. Although the intermediate appellate court in
California concluded that petitioners' contacts with
California would ordinarily be sufficient, it held that
jurisdiction could not be exercised "because of the potential
`chilling effect' on reporters and editors which would result
from requiring them to appear in remote jurisdictions to
answer for the content of articles upon which they worked."
Id. at 786.

The Supreme Court disagreed. While in no way
disparaging petitioners' First Amendment rights, the Court
found that the burden of litigating in a distant forum was
insufficient to constitute an unacceptable chill of the
journalists' exercise of such rights. As Chief Justice
Rehnquist, writing for a unanimous court, put it:

       . . . [t]he potential chill on protected First Amendment
       activity stemming from libel and defamation actions is
       already taken into account in the constitutional

                                9
       limitations in the substantive law governing such suits.
       See New York Times Co. v. Sullivan, 376 U.S. 254
       (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323
       (1974). To reintroduce those concerns at the
       jurisdictional stage would be a form of double
       counting. We have already declined in other contexts to
       grant special procedural protections to defendants in
       libel and defamation actions in addition to the
       constitutional protections embodied in the substantive
       laws. See, e.g., Herbert v. Lando, 441 U.S. 153 (1979)
       (no First Amendment privilege bars inquiry into
       editorial process). See also Hutchinson v. Proxmire, 443
       U.S. 111, 120, n.9 (1979) (implying that no special
       rules apply for summary judgment).

Id. at 790-91. If safeguarding the First Amendment rights
asserted in Calder did not also require protecting against
the burden of litigating in a distant forum, it is unlikely the
Supreme Court will find that the First Amendment
protection Noerr-Pennington provides against liability for
petitioning also includes an across-the-board immunity
from suit.

This court as well has rejected the notion that the burden
of litigation poses an unacceptable threat to First
Amendment values. At one point, the Fourth, Fifth, Eighth
and D.C. Courts of Appeals took the position that summary
judgment should enjoy a special status in defamation cases
because "[t]he threat of being put to the defense of a
lawsuit . . . may be as chilling to the exercise of First
Amendment freedoms as fear of the outcome of the lawsuit
itself." Washington Post Co. v. Keogh, 365 F.2d 965, 968
(D.C. Cir. 1966); see Anderson v. Cramlet, 789 F.2d 840,
843 (10th Cir. 1986) (collecting cases). The Supreme Court
"express[ed] some doubt" about such an approach in
Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979),
however, and this court flatly rejected it in Lavin v. New
York News, Inc., 757 F.2d 1416, 1419 (3d Cir. 1985)
(footnote omitted):

       In this case, the bench opinion of the district judge can
       reasonably be interpreted as expressing the view that,
       because of First Amendment concerns, summary
       judgment is more easily obtainable by a media

                                10
       defendant in a defamation case than by defendants in
       other cases. We reject that approach. A substantial
       dispute of material fact does not disappear merely
       because a media defendant is being sued, or because
       a public official is the plaintiff; and plaintiff 's right to
       a jury trial is entitled to no less respect.

Accord Clark v. American Broadcasting Co., Inc. , 684 F.2d
1208, 1212 (6th Cir. 1982) (rejecting the argument that
different considerations apply to summary judgment
motions in the defamation context); Yiamouyiannis v.
Consumers Union of United States, Inc., 619 F.2d 932, 939-
40 (2d Cir. 1980) (same); Anderson, 789 F.2d at 842-43
(declining to apply a preference either for or against
summary judgment in defamation cases).

If, as McDonald requires, the right to petition enjoys no
special status among First Amendment rights, these
authorities suggest that Noerr-Pennington immunity
provides only a defense to liability, not an immunity from
suit. Under the collateral order doctrine, therefore, the
denial of a motion for summary judgment predicated on
Noerr-Pennington is not a collateral order subject to
immediate review. The only other court of appeals to have
considered this issue reached a similar conclusion. In Segni
v. Commercial Office of Spain, 816 F.2d 344 (7th Cir. 1987),
the defendants moved to dismiss a civil rights complaint on
the ground that "their conduct enjoy[ed] an `absolute
immunity' by virtue of the guarantee in the First
Amendment of the right to petition government for redress."
Id. at 345. The District Court denied the motion and the
defendants appealed. The Court of Appeals acknowledged
that "[w]here the right asserted by way of defense to a
lawsuit is (or includes) a right not to bear the burden of
suit itself, regardless of outcome, the denial of that right, as
by denying a motion to dismiss the suit, is appealable
immediately by virtue of the collateral order doctrine." Id. at
345. It nevertheless dismissed the appeal for want of
jurisdiction, observing:

       It's quite a leap, though, to say that anytime a motion
       to dismiss on First Amendment grounds is denied, the
       defendant can appeal the denial, on the theory that the
       failure to dismiss the suit at the earliest opportunity is

                                11
       itself an infringement of the defendant's First
       Amendment rights.

Id.

The Segni court distinguished Noerr-Pennington immunity
from "state action" doctrine under Parker v. Brown, 317
U.S. 341 (1943), on the ground that the latter doctrine "had
been interpreted to create an immunity from suit and not
just from judgment -- to spare state officials the burdens
and uncertainties of the litigation itself as well as the cost
of an adverse judgment." Id. at 346. The possibility that the
"burdens of suit . . . might deter [public officials] from
vigorous execution of their office [was] a consideration
missing in the case of the private defendant." Id.

We agree with the conclusion reached by the Segni court
and with its explanation of the distinction between cases
involving immunity for a public official and those involving
immunity for a private defendant. Moreover, we have been
unable to find any case holding that the burden of litigation
on a private defendant justifies an immunity from suit as
well as a defense to liability.

In re: Asbestos School Litigation, 46 F.3d 1284 (3d Cir.
1994), a case heavily relied upon by the University, seems
to us to support our conclusion. In that case, we
considered a request for a writ of mandamus that would
require the District Court to dismiss the claim against the
petitioner, Pfizer, Inc. The underlying suit was a nationwide
class action by 30,000 school districts against Pfizer and
other former manufacturers of asbestos-containing building
products. The plaintiffs claimed that Pfizer, by associating
with a trade association, Safe Building Alliance ("SBA"), had
joined an ongoing civil conspiracy and had thus become
liable for all of the other defendants' prior tortious conduct.
After the District Court denied Pfizer's motion for summary
judgment, Pfizer petitioned this court, contending that the
burden of further litigation in the District Court would chill
its exercise of its First Amendment right of association.

We first held that Pfizer had a "clear and indisputable"
right to the issuance of the writ because the District Court's
decision was "squarely inconsistent" with the Supreme
Court's holding in Claiborne Hardware that conspiracy

                               12
liability cannot, consistent with the First Amendment, be
imposed based upon mere association. Id. at 1289; NAACP
v. Claiborne Hardware, 458 U.S. 886, 918-20 (1982). We
then turned to the question of whether Pfizer had other
adequate means to attain the desired relief, such as by
waiting to appeal from the final judgment. We did not, as
the University suggests, establish a rule that anyone with
First Amendment protection from liability was entitled to an
immediate appeal from the denial of a motion for summary
judgment based on that protection. To the contrary, we
issued the writ only after making a specific finding that
waiting for an appeal from a final judgment would cause
Pfizer irreparable injury throughout the remainder of
extensive proceedings before the trial court. We found that
"[w]hile the district court's ruling did not directly prohibit
Pfizer from associating with the SBA during the remainder
of the district court proceedings, there [could] be little
question that in reality the district court ruling[would]
powerfully inhibit Pfizer from doing so." In re: Asbestos, 46
F.3d at 1295. Pfizer had a need "to engage, by means of the
SBA, in a `public dialogue on the important issue of safety
of in-place asbestos containing building products,' and
Pfizer would suffer irreparable harm if it were deprived of
the opportunity to engage in such constitutionally protected
activity." Id. at 1294-95 (footnote omitted). The fact that we
found it necessary to find a specific and continuing chill on
Pfizer supports the conclusion that the generalized chill of
anticipated litigation on others who wish to petition is,
alone, insufficient to overcome the strong policy against
piecemeal appeals. Unlike Pfizer, the University has pointed
to no specific continuing chill on anticipated petitioning,
but rather only to the burden of defending the remainder of
this litigation.2
_________________________________________________________________

2. This court's decision in San Fillipo v. Bongiovanni, 30 F.3d 424 (3d
Cir. 1994), is also consistent with the result that we reach. In San
Fillipo, this court held that a government employee is protected against
retaliation under the Petition Clause for havingfiled suit against his
employer on a matter of purely private concern. Although the employee
would have had no First Amendment immunity against employer
discipline if his expressive conduct had constituted speech, Connick v.
Myers, 461 U.S. 138, 147 (1983), the court held that Connick's "public

                               13
In sum, the Noerr-Pennington doctrine provides immunity
from liability for certain types of constitutionally protected
activity. While of course "there is value -- to all but the
most unusual litigant -- in triumphing before trial," Van
Cauwenberghe, 486 U.S. at 524, the interest protected by
Noerr-Pennington can be fully vindicated after trial. Without
diminishing the importance of the First Amendment right to
petition that is protected by the Noerr-Pennington doctrine,
we hold that a right not to be burdened with a trial is
simply not an aspect of this protection.

Because we conclude that the Noerr-Pennington doctrine
does not confer a right not to stand trial, but rather
provides only a defense against liability for certain conduct,
we find that an order denying Noerr-Pennington immunity is
effectively reviewable on appeal from a final judgment, and
thus is not an appealable collateral order.

IV.

We will dismiss the defendant's appeal from the district
court's order denying summary judgment for lack of
appellate jurisdiction.
_________________________________________________________________

concern" limit on the right of free speech did not apply to the plaintiff
's
exercise of his right to petition in this context. Id. at 443. The
justification behind the "public concern" limitation on the Free Speech
Clause protection of public employees was found inapplicable in the
context of disciplinary action taken in retaliation for the employee's
availing himself of a mechanism formally adopted by his government
employer for the redress of grievances against the employer. Although
the San Fillipo court found that the Petition Clause provided broader
protection than the right of free speech, both its holding and its
reasoning were explicitly confined to the public employment/retaliatory
discharge context. See id. at 438 ("the scope of the petition right
depends
upon the context in which the right is exercised"); id. at 438 n.17
(rejecting as inapposite various cases arising outside the public
employment/retaliatory discharge context); id. at 441-42 (finding that
the government's adoption of a formal redress process provides an
"independent reason" for essentially "affording special treatment to
speech found in a grievance" or similar petition). Thus, nothing in San
Fillipo contravenes our conclusion that, like other First Amendment
rights, the right to petition protected by Noerr-Pennington immunity
conveys an immunity from liability, but not from suit.

                               14
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15
