STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:20-cv-01487-JDW

HUDSON v. MONTGOMERY COUNTY Assigned to: HONORABLE JOSHUA D. WOLSON related Case: 2:20-cv-01486-JDW Cause: 42:1983 Civil Rights (Employment Discrimination)

Date Filed: 03/17/2020 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff KEISHA HUDSON

represented by CHARLES L. GERSTEIN CIVIL RIGHTS CORPS 1601 CONNECTICUT AVE NW SUITE 800 WASHINGTON, DC 20009 202-894-6128 Email: charlie@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING FEINBERG & LIN, LLP THE CAST IRON BLDG STE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 215-925-4400 Fax: 215-925-5365 Email: drudovsky@krlawphila.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

OLEVIA D. BOYKIN CIVIL RIGHTS CORPS 1601 CONNECTICUT AVE NW SUITE 800 WASHINGTON, DC 20009 202-894-6138 Email: olevia@civilrightscorps.org

V.
Defendant
MONTGOMERY COUNTY PENNSYLVANIA

TERMINATED: 09/09/2020 LEAD ATTORNEY
represented by RAYMOND MCGARRY Brown McGarry Nimeroff LLC Two Penn Center, Suite 610 1500 JFK Boulevard Philadelphia, PA 19102 United Sta 267-570-0789 Email: rmcgarry@bmnlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMI B. NIMEROFF Brown McGarry Nimeroff LLC Two Penn Center, Suite 610 1500 JFK Boulevard Philadelphia, PA 19102 267-861-5335 Fax: 267-350-9050 Email: jnimeroff@bmnlawyers.com ATTORNEY TO BE NOTICED
MARY KAY BROWN Brown McGarry Nimeroff LLC Two Penn Center, Suite 610 1500 JFK Boulevard Philadelphia, PA 19102 267-861-5330 Fax: 267-350-9050 Email: mkbrown@bmnlawyers.com ATTORNEY TO BE NOTICED

Date Filed 03/17/2020

# Docket Text
1 COMPLAINT against MONTGOMERY COUNTY ( Filing fee $ 400 receipt number PPE213130.), filed by KEISHA HUDSON. (Attachments: # 1 Cover Sheets)(tjd) (Entered: 03/20/2020)

03/17/2020 03/17/2020 03/25/2020 05/06/2020 05/06/2020 05/13/2020 05/13/2020 05/14/2020
05/14/2020
05/15/2020 05/15/2020 05/15/2020

DEMAND for Trial by Jury by KEISHA HUDSON. (tjd) (Entered: 03/20/2020)
One Summons Issued as to MONTGOMERY COUNTY. Forwarded To: COUNSEL on 3/20/2020. (tjd) (Entered: 03/20/2020)
2 WAIVER OF SERVICE Returned Executed by KEISHA HUDSON. KEISHA HUDSON waiver sent on 3/19/2020, answer due 5/18/2020. (RUDOVSKY, DAVID) (Entered: 03/25/2020)
3 MOTION for Pro Hac Vice filed by KEISHA HUDSON.application pro hac vice.(RUDOVSKY, DAVID) (Entered: 05/06/2020)
4 MOTION for Pro Hac Vice filed by KEISHA HUDSON.application pro hac vice.(RUDOVSKY, DAVID) (Entered: 05/06/2020)
Filing Fee for PRO HAC VICE by KEISHA HUDSON. (Filing Fee $40, receipt number 0313-14290581). (RUDOVSKY, DAVID) (Entered: 05/13/2020)
Filing Fee for PRO HAC VICE by KEISHA HUDSON. (Filing Fee $40, receipt number 0313-14290651). (RUDOVSKY, DAVID) (Entered: 05/13/2020)
5 ORDER THAT THE APPLICATION OF OLEVI BOYKIN TO APPEAR PRO HAC VICE IS GRANTED; ETC.. SIGNED BY HONORABLE JOSHUA D. WOLSON ON 5/14/20. 5/14/20 ENTERED AND E-MAILED, NOT MAILED TO COUNSEL ALONG WITH ECF FORMS.(JL) (Entered: 05/14/2020)
6 ORDER THAT THE APPLICATION OF CHARLES GERSTEIN TO APPEAR PRO HAC VICE IS GRANTED; ETC.. SIGNED BY HONORABLE JOSHUA D. WOLSON ON 5/14/20. 5/14/20 ENTERED AND E-MAILED, NOT MAILED TO COUNSEL ALONG WITH ECF FORMS.(JL) (Entered: 05/14/2020)
7 NOTICE of Appearance by RAYMOND MCGARRY on behalf of MONTGOMERY COUNTY with Certificate of Service(MCGARRY, RAYMOND) (Entered: 05/15/2020)
8 NOTICE of Appearance by MARY KAY BROWN on behalf of MONTGOMERY COUNTY with Certificate of Service(BROWN, MARY) (Entered: 05/15/2020)
9 NOTICE of Appearance by JAMI B. NIMEROFF on behalf of MONTGOMERY COUNTY with Certificate of Service(NIMEROFF, JAMI) (Entered: 05/15/2020)

05/18/2020

10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant's Motion to Dismiss Plaintiff's Complaint Pursuant to Rules 12(b)(6) and 12(b)(1) filed by MONTGOMERY COUNTY.Memorandum of Law, Certification, Certificate of Service.

(Attachments: # 1 Memorandum of Law, # 2 Exhibit A - Amicus Curiae Brief of MontCo PD in Support of Petitioners, # 3 Exhibit B Docket Entries of Prior Amicus Briefs filed by OPD, # 4 Exhibit C Certification of Raymond McGarry, Esquire, # 5 Text of Proposed Order)(MCGARRY, RAYMOND) (Entered: 05/18/2020)

05/26/2020

11 ORDER THAT PLAINTIFF KEISHA HUDSON REQUEST FOR A ONE-WEEK EXTENSION OF TIME TO RESPOND TO DEFENDANT MONTGOMERY COUNTY'S MOTION TO DISMISS IS GRANTED. HUDSON RESPONSE IS DUE 6/8/20; ETC.. SIGNED BY HONORABLE JOSHUA D. WOLSON ON 5/26/20. 5/26/20 ENTERED AND E-MAILED.(JL ) (Entered: 05/26/2020)

06/08/2020

12 RESPONSE in Opposition re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant's Motion to Dismiss Plaintiff's Complaint Pursuant to Rules 12(b)(6) and 12(b)(1) filed by KEISHA HUDSON. (GERSTEIN, CHARLES) (Entered: 06/08/2020)

06/15/2020

13 MOTION for Leave to File Reply in Further Support of Motion to Dismiss Plaintiff's Complaint Pursuant to Rules 12(b)(6) and 12(b)(1) filed by MONTGOMERY COUNTY.Certificate of Service. (Attachments: # 1 Exhibit 1 - Reply Brief, # 2 Text of Proposed Order)(MCGARRY, RAYMOND) (Entered: 06/15/2020)

06/16/2020

14 ORDER THAT DEFENDANT'S MOTION FOR LEAVE TO FILE A REPLY IN FURTHER SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT IS GRANTED; ETC.. SIGNED BY HONORABLE JOSHUA D. WOLSON ON 6/16/20.6/16/20 ENTERED AND E-MAILED.(JL ) (Entered: 06/16/2020)

06/16/2020

15 DEFENDANTS REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF ITSMOTION TO DISMISS PLAINTIFFS COMPLAINT PURSUANT TORULES 12(b)(6) and 12(b)(1) (JL) (Entered: 06/16/2020)

09/06/2020 16 MOTION to Withdraw as Attorney filed by KEISHA HUDSON.Certificate of Service.(BOYKIN, OLEVIA) (Entered: 09/06/2020)

09/09/2020

17 ORDER THAT THE 16 MOTION TO WITHDRAW AS ATTORNEY IS GRANTED AND OLEVIA BOYKIN IS GRANTED LEAVE TO WITHDRAW AS COUNSEL FOR PLAINTIFF IN THIS MATTER.

SIGNED BY HONORABLE JOSHUA D. WOLSON ON 9/9/20.9/9/20 ENTERED & E-MAILED.(fdc) (Entered: 09/09/2020)

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 Case 2:20-cv-01487-JDW Document 10-1 Filed 05/18/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEISHA HUDSON, Plaintiff, v.
MONTGOMERY COUNTY, Defendant.

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CIVIL ACTION NO. 20-1487

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DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO RULES 12(b)(6) and 12(b)(1)

Dated: May 18, 2020

BROWN MCGARRY NIMEROFF LLC Mary Kay Brown, Esquire Raymond McGarry, Esquire Jami B. Nimeroff, Esquire 2 Penn Center, Suite 610 1500 John F. Kennedy Boulevard Philadelphia, PA 19102 T: (267) 861-5330
Attorneys for Defendant

Case 2:20-cv-01487-JDW Document 10-1 Filed 05/18/20 Page 2 of 22
TABLE OF CONTENTS
I. BACKGROUND .................................................................................................................... 1 II. ARGUMENT .......................................................................................................................... 1
A. Standard on a 12(b)(6) Motion ........................................................................................... 1 B. Counts I and II of Plaintiff’s Complaint for First Amendment Retaliation Should be
Dismissed with Prejudice Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1). ................... 3 1. The Speech At-Issue is Not Speech of Plaintiff Keisha Hudson .................................. 5 2. The Speech At-Issue is not Citizen Speech .................................................................. 6
a. The Brief was Prepared by the OPD as a part of its Professional Duties ................. 7 b. The Brief Was Prepared By the OPD Using Its Specialized Knowledge................. 9 C. Count III of Plaintiff’s Complaint for Wrongful Discharge Should be Dismissed with Prejudice Pursuant to Fed. R. Civ. P. 12(b)(6). ................................................................ 10 1. Count III is Barred by the Pennsylvania Political Subdivision Tort Claims Act........ 10 2. Count III Does Not State a Valid Claim for Relief Since it Does Not Set Forth a
Clearly Defined Public Policy. ................................................................................... 13 D. Plaintiff’s Request To Be Reinstated With a Guaranty that She May Operate
Independently Must Be Stricken....................................................................................... 16 E. The Court Should Refrain From Exercising its Supplemental Jurisdiction...................... 17 III. CONCLUSION................................................................................................................. 18
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TABLE OF AUTHORITIES
Cases Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) ................................. 1 Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973) ............... 11 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) ............................................................... 1, 2 Clark v. Modern Grp. Ltd., 9 F.3d 321 (3d Cir. 1993) ................................................................. 14 Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917 (1988)...................... 13 DeMuro v. Philadelphia Housing Authority, No. 98-3137 1998 WL 962103 (E.D. Pa.
Dec. 22, 1998)........................................................................................................................... 12 DeSimone v. Coatesville Area School District, 248 F.Supp.2d 387 (E.D. Pa. 2003) ................... 12 Dougherty v. School Dist. of Philadelphia, 772 F.3d 979 (3d Cir. 2014) ...................................... 3 Field v. Phila. Elec. Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) ........................................... 14 Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995) ............................................... 11 Foraker v. Chaffnich, 501 F.3d 231 (3d Cir. 2007) .................................................................... 4, 5 Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir.2003) ................................................ 15 Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231 (3d Cir. 2016) ................... 4 Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)................... 3, 4, 5, 7 Goldinger v. County of Butler, No. 89-632, 1990 WL 309411 (Pa. Com. Pl.
September 6, 1990) ................................................................................................................... 12 Gorum v. Sessoms, 561 F.3d 179 (3d Cir. 2009) ............................................................................ 5 Greenwood Partners, L.P. v. Cimnet, Inc., 2003 WL 22238981 (E.D.Pa. Sept. 2003) ............... 17 Growth Horizons, Inc. v. Delaware Cty., Pa., 983 F.2d 1277 (3d Cir. 1993) .............................. 17 Haiden v. Greene Cty. Career and Tech. Ctr., No. 08–1481, 2009 WL 2341922 (W.D.Pa.
July 27, 2009)............................................................................................................................ 12 Hennessy v. Santiago, 708 A.2d 1269, 1273 (Pa.Super. 1998) .............................................. 15, 16 Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006) ............................................................ 3 Hunger v. Grand Central Sanitation, 670 A.2d 173 (Pa. Super. 1996)........................................ 14 Katzenmoyer v. City of Reading, 158 F. Supp 2d 491 (E.D. Pa. 2001) ........................................ 12 Kiley by Kiley v. City of Philadelphia, 537 Pa. 502, 645 A.2d 184 (1994) .................................. 11 Kroen v. Bedway Security Agency, 633 A.2d 628 (Pa. Super. 1993) ........................................... 14 Lancine v. Giles, 132 Pa.Cmwlth. 255, 572 A.2d 827 (Pa. Commw. Ct. 1990) ......................... 12 Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987) .......................................... 11 McLaughlin v. Gastrointestinal Specialists, Inc., 561 Pa. 307, 750 A.2d 283 (2000) ................. 13 McNichols v. Commonwealth, Dep’t. Of Transportation, 804 A.2d 1264, 1267
(Pa. Commw. Ct. 2002) ............................................................................................................ 12 Munroe v. Central Bucks School Dist., 805 F.3d 454 (3d Cir. 2015)............................................. 3 Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192 (3d Cir. 1993) ................... 2 Phillips v. Cnty. of Allegheny, 515 F.3d 224 (3d Cir. 2008)........................................................... 2 Plaza v. Herbert, Rowland & Grubic, Inc., No. 344 C.D. 2016, 2017 WL 519827
(Pa. Commw. Ct. Jan. 30, 2017) ............................................................................................... 12 Polite v. Rendell, 2010 WL 1254334 (E.D. Pa. Apr. 1, 2010)...................................................... 18 Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548 (3d Cir. 2002) ........................................... 2 Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) .............................. 3 Reuther v. Fowler & Williams, Inc., 386 A.2d 119 (Pa. Super. 1977) ......................................... 14 Rooney v. City of Phila., 623 F.Supp.2d 644 (E.D. Pa. 2009)...................................................... 12 Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114 (Pa. Super. 2002) ............................. 13, 17
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Sands v. McCormick, 502 F.3d 263 (3d Cir.2007) ......................................................................... 2 Shick v. Shirey, 716 A.2d 1231 (Pa. 1998) ....................................................................... 14, 15, 16 Snavely v. Arnold, No. 08–2165, 2009 WL 1743737 (M.D. Pa. June 18, 2009).......................... 12 Swift v. Department of Transportation, 937 A.2d 1162 (Pa. Cmwlth. 2007)............................... 12 United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) . 18 Weaver v. Harpster, 601 Pa. 488, 975 A.2d 555 (2009)............................................................... 14 Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699 (3d Cir. 1988) .................................. 13 Statutes 16 P.S. §9960.1 et seq. .................................................................................................................. 17 23 P.S. § 6311 ............................................................................................................................... 16 42 Pa.C.S. § 8541-8564 .......................................................................................................... 11, 12 28 U.S.C. § 1367........................................................................................................................... 17 Rules Fed. R. Civ. P. 12(b)(1)............................................................................................................. 1, 18 Fed. R. Civ. P. 12(b)(6)......................................................................................................... 1, 3, 10
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Defendant Montgomery County (the “County”), pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure, files the within Motion to Dismiss Plaintiff’s Complaint, and in support thereof, states as follows. I. BACKGROUND
Plaintiff Keisha Hudson (“Plaintiff” or “Hudson”) filed this lawsuit against the County seeking damages in connection with the termination of her employment with Montgomery County as the Deputy Chief Public Defender. Plaintiff contends that she was fired in retaliation for the filing by the Montgomery County Office of Public Defender (“OPD”) of an Amicus Curiae Brief (the “Brief”) with the Pennsylvania Supreme Court on issues related to the bail practices of the courts located within Montgomery County and throughout the Commonwealth. The Complaint alleges causes of action for First Amendment Retaliation (Counts I and II) and for Wrongful Discharge in Violation of Public Policy (Count III). For the reasons set forth below, Plaintiff’s claims must be dismissed with prejudice. II. ARGUMENT
A. Standard on a 12(b)(6) Motion Federal Rule of Civil Procedure 12(b)(6) provides that a cause of action may be dismissed when the complaint fails to state a claim upon which relief can be granted. To survive such a motion, the complaint must meet two criteria: (1) it must assert a plausible claim; and (2) it must set forth sufficient factual allegations to support the claim. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1941, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Neither a “formulaic recitation of the elements of a cause of action nor naked assertions of fact devoid of further factual enhancement” is sufficient to withstand dismissal. Id. To satisfy the Twombly and Iqbal standard, “a complaint must contain sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’” Id. (citing Twombly, 550 U.S. at 570). A claim has facial plausibility when enough factual content is plead that allows the court to draw the reasonable inference that the defendant is liable under the alleged claim. Id. (citing Twombly, 550 U.S. at 556). “A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. In addition, those facts constituting more than mere conclusions, and thus assumed true, must also “plausibly suggest an entitlement to relief.” Id. at 1951. The plaintiff must describe “‘enough facts to raise a reasonable expectation that discovery will reveal evidence of’ [each] necessary element” of the claims alleged in the complaint and that justifies “moving the case beyond the pleadings to the next stage of litigation.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. See Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). Therefore, the Court may consider the Amicus Brief, attached hereto as Exhibit “A,” because Counts I and II of the Complaint are based precisely on what is stated in the Brief, who made those statements and the fact that it was filed with the Pennsylvania Supreme Court.
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B. Counts I and II of Plaintiff’s Complaint for First Amendment Retaliation Should be Dismissed with Prejudice Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1).
To establish a First Amendment retaliation claim, “a public employee must show that (1) his activity is protected by the First Amendment and (2) the activity was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that (3) the same action would have been taken even if the activity had not occurred.” Munroe v. Central Bucks School Dist., 805 F.3d 454, 466 (3d Cir. 2015) (quoting Dougherty v. School Dist. of Philadelphia, 772 F.3d 979, 986 (3d Cir. 2014)).
With respect to the first element, a public employee’s speech is protected by the First Amendment when: (1) the employee spoke as a citizen; (2) the statement involved a matter of public concern; and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public’ as a result of the statement he made.” Hill v. Borough of Kutztown, 455 F.3d 225, 241–42 (3d Cir. 2006) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). A public employee does not speak “as [a] citizen” when he makes a statement “pursuant to [his] official duties.” Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Rankin v. McPherson, 483 U.S. 378, 384–85, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (quoting Connick v. Myers, 461 U.S. 138, 147–48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).
In Garcetti, the Supreme Court described this inquiry as “a practical one,” noting that “[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the
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employee's professional duties for First Amendment purposes.” Id. at 424–25, 126 S.Ct. 1951. Put another way, the First Amendment does not shield the consequences of “expressions employees make pursuant to their professional duties.” Id. at 426, 126 S.Ct. 1951.
Following Garcetti, the Third Circuit Court of Appeals held that an employee does not speak as a citizen if the mode and manner of his speech were possible only as an ordinary corollary to his position as a government employee. For example, police officers do not speak as citizens when they object to police department policies by means of “police department counseling forms,” as “[c]itizens do not complete internal police counseling forms.” Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 243-44 (3d Cir. 2016).
The Third Circuit Court of Appeals has further held that a public employee’s speech does not constitute citizen speech if the activity or speech performed is within the “scope of their routine operations.” See Foraker v. Chaffnich, 501 F.3d 231, 241–42 (3d Cir. 2007). In Foraker, three State Police firearms instructors complained to their superiors about intolerable conditions at the firing range. The HVAC system did not work properly, the bullet trap was malfunctioning, and officers and students at the range were suffering contamination effects, including elevated levels of heavy metals in their blood. Id. at 233. The officers complained up the chain of command and also met with the State Auditor investigating the facility. After this meeting, the officers’ attorney read the statements they had made to the Auditor, verbatim, to the media. Foraker, 501 F.3d at 233. In affirming the grant of judgment as a matter of law to the Defendants, the court analyzed Garcetti and held that the officers' complaints to supervisors were made pursuant to their official duties because the issues they complained of related to their day-to-day employment responsibilities:
[The officers] were acting within their job duties when they expressed their concerns up the chain of command because they needed to have a functioning bullet
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trap to conduct their educational programs and it was their special knowledge and experience with the bullet trap that demonstrated their responsibility for ensuring its functionality by reporting problems to their superiors. Id. at 240. The court noted that “[t]he special knowledge and experience referenced here is their daily interaction with the equipment, which puts them in the position to know when problems arose.” Id. at 204 n. 6. In Gorum v. Sessoms, 561 F.3d 179 (3d Cir. 2009), the Third Circuit Court of Appeals further refined its Foraker analysis. In Gorum, a tenured faculty member of a state university argued that he was dismissed in retaliation for advising an All–American football player in connection with a disciplinary hearing for violating the school’s weapons possession policy, and for disinviting the school’s President to speak at a prayer breakfast. The court rejected plaintiff’s argument that, because he went above and beyond his specified job responsibilities, he was speaking as citizen rather than as an employee. Relying on its decision in Foraker, the court found that it was “Gorum’s special knowledge of, and experienced with” the school’s disciplinary code that gave him the opportunity to speak on the student’s behalf, and it was his position as faculty advisory to the fraternity that allowed him to rescind the President’s invitation to speak. Gorum, 561 F.3d at 186. In reaching this conclusion, the court relied on the Supreme Court’s direction in Garcetti that the “proper inquiry” into an individual’s official duties “is a practical one.” Id. at 185 (quoting Garcetti, 547 U.S. at 424).
1. The Speech At-Issue is Not Speech of Plaintiff Keisha Hudson In this case, Plaintiff alleges that the Amicus Brief constitutes her expression of free speech. (ECF #1, Complaint ¶¶ 116-118). Yet, as Plaintiff readily admits, the Brief was not filed by or on behalf of Plaintiff; but rather, on behalf of the OPD. (ECF #1, Complaint ¶ 32). More precisely, the Brief was filed on behalf of the OPD by Lee Awbrey, Chief of Appeals, Office of the Public Defender. Plaintiff admits she did not draft the Brief, did not file the Brief and is not
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even a signatory to the Brief. (ECF #1, Complaint, ¶¶ 31, 116; Ex. A, Brief, p. 20). The introduction to the Brief leaves no doubt as to whose interest is being advanced: “[t]he Montgomery County Office of the Public Defender represents indigent individuals facing criminal charges in all stages of their proceedings. Our office has a substantial interest in this matter.” (Ex. A, Brief, p. 1). Thus, Plaintiff has no standing to seek the protections of the First Amendment for speech that factually is not even her speech. Thus, in addition to dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Plaintiff’s Complaint must be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure. “Under Fed.R.Civ.P. 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim. “A motion to dismiss for want of standing is ... properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012) (citing Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007)).
2. The Speech At-Issue is not Citizen Speech Plaintiff alleges that the Amicus Brief constitutes her expression of free speech. (ECF #1, Complaint, ¶¶116-118).  According to the Complaint and the Brief, the Brief:
 was not prepared by Plaintiff, but rather was prepared by the staff of the Montgomery County Public Defenders’ Office at the direction of Plaintiff, specifically by the Chief of Appeals, Lee Awbrey (ECF #1, Complaint, ¶¶31 and 116);  outlines the practices of the courts in Montgomery County and discusses specific cases handled by the OPD, as examples to support the arguments in the brief. (ECF #1, Complaint, ¶25; Ex. A, Brief, generally);
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 was filed by the OPD, and not Plaintiff (ECF #1, Complaint, ¶116 and Ex. A, Brief, p. 1) (“Amicus Curiae Brief of The Montgomery County Office of The Public Defender In Support Of Petitioners”);  was signed by Lee Awbrey, Chief of Appeals for the OPD, and not Plaintiff (Ex. A, Brief, p. 20);  was filed because the OPD determined that it had a “substantial interest in the matter” because the OPD “represents indigent individuals facing criminal charges at all stages of their proceedings.” (Ex. A., Brief p. 1);  was filed because the OPD determined that it had “a direct interest in the petition for judicial intervention that seeks to curb improper and excessive bail determinations, increase accountability, promote uniform practices amongst the counties, and fortify Pennsylvania’s existing law.” (Ex. A., Brief p. 1).  was not the first Amicus Brief ever filed by the OPD. In fact, the OPD had recently filed other Amicus Curiae briefs on issues surrounding the imposition of fees and fines on criminal defendants. (ECF #1, Complaint, ¶¶ 26 and 29; Ex. B., Docket Entries). Given those undisputed facts, the Brief was undeniably prepared for and submitted by the OPD for the benefit of its indigent clients. As such, under no circumstances could the Brief constitute “citizen speech” of Plaintiff as defined by the United States Supreme Court in Garcetti and binding caselaw developed in the wake of that decision.
a. The Brief was Prepared by the OPD as a part of its Professional Duties Plaintiff alleges that the filing of the Brief was not a part of her “ordinary job duties at the Office.” (ECF #1, Complaint, ¶117). This allegation, however, belies the facts set forth in the Brief and contradicts allegations contained in the Complaint.
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There is no question that the ordinary job duties of a public defender include advocating on behalf of the indigent defendants in their County. Here, that is exactly what the OPD did when it made the decision to file this Brief. In fact, the OPD confirmed as much in the Brief itself. The OPD made a representation to the Supreme Court of Pennsylvania that it had a “direct interest” in the litigation and that the bail practices at issue “affects our clients”. (Ex. A., Brief p. 1). The Brief reiterates that “[o]ur office has a substantial interest in this matter.” On its face, the Brief makes clear, that this is not the speech of Plaintiff as a citizen, but rather, the speech of the OPD on behalf of its clients. The fact that it advanced the interests of many of the OPD’s clients - as opposed to a single client - is of no import in the analysis of whether the Brief constitutes “citizen speech.”
Moreover, Plaintiff concedes in her Complaint that the OPD has, as a practice, filed amicus briefs in the past. Specifically, in paragraphs 26 and 29 of the Complaint, Plaintiff concedes that ‘the Office’s prior amicus briefs…” and “Beer had never before sent a copy of an amicus brief to Soltysiak, Stein, or anyone else in the County administration.” In fact, in the 12 months prior to the filing of the Brief relevant to this matter, the OPD participated as an amicus in two other cases. (See the publicly available docket entries attached as Exhibit “B” hereto). This makes it clear that the filing of amicus briefs is not outside the scope of the OPD’s course of conduct in advancing the interests of its indigent clients. As such, the filing of an amicus brief by the OPD cannot be considered “citizen speech” of the Plaintiff, especially where here, the Plaintiff did not even participate in the drafting of the Brief, nor did she sign the Brief.
Moreover, Plaintiff concedes that the Brief was filed in connection with her official duties in Count III of the Complaint where she asserts that the County improperly interfered with
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the independence of the OPD by terminating her employment purportedly in retaliation for filing the Brief. Specifically, Plaintiff alleges that:
Firing Hudson for presenting arguments to the Supreme Court of Pennsylvania, in interference with the independence of the Office, is repugnant to the public policy of the Commonwealth of Pennsylvania as reflected in its Constitution and statutes, and the judicial decisions interpreting its Constitution and statutes. (ECF #1, Complaint, ¶128). Certainly, the County could not interfere with the independence of the OPD if the filing of the Brief was done as a citizen, and not as a part of the operations of the OPD. Taking all of these factors into consideration, and applying a very “practical approach” as urged by the Supreme Court, there is no question that Plaintiff was acting in her official capacity as Deputy Chief Public Defender, and not as a private citizen, when she directed the OPD to file the Brief. Thus, Plaintiff’s actions are not protected by the First Amendment and her claim must fail.
b. The Brief Was Prepared By the OPD Using Its Specialized Knowledge As the Third Circuit Court of Appeals in Foraker and Gorum held, speech based upon a public employee’s specialized knowledge and experience gained on the job is not speech protected by the First Amendment. In Gorum, the court found that it was “Gorum’s special knowledge of, and experienced with” the school’s disciplinary code that gave him the opportunity to speak on the student’s behalf; it was his position as faculty advisory to the fraternity that allowed him to rescind the President’s invitation to speak. Gorum, 561 F.3d at 186. Here, the Brief was clearly written based upon the specialized knowledge and experience of the OPD, gained during the representation of indigent defendants. As alleged in both the Complaint and the Brief, the OPD used specific examples of cases handled by OPD attorneys to
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support the arguments in the Brief. (ECF #1, Complaint ¶¶ 35-38; Ex. A, Brief, pp 2-5) The OPD’s knowledge of these specific examples, and their experience with the cash bail system in the Courts located in Montgomery County, could only have been acquired as a result of the specialized knowledge and experience gained during the course and scope of employment at the OPD. Thus, under Foraker and Gorum, the Brief cannot be considered “citizen speech,” and is not protected by the First Amendment.
For all of these reasons, Counts I and II of Plaintiff’s Complaint must be dismissed. C. Count III of Plaintiff’s Complaint for Wrongful Discharge Should be
Dismissed with Prejudice Pursuant to Fed. R. Civ. P. 12(b)(6). Count III of Plaintiff’s Complaint is entitled “Wrongful Discharge in Violation of Public Policy.” Other than incorporating prior factual allegations, it is very short. In asserts that by firing Plaintiff allegedly in retaliation for the filing of the Brief, the County violated Pennsylvania public policy. (ECF #1, Complaint ¶¶127-128). This Court should dismiss Count III since the County has immunity for a claim of wrongful discharge, and the claim itself does not state a viable claim for relief under Pennsylvania law. Plaintiff’s counsel has stated that they will not oppose the County’s Motion to Dismiss this claim to the extent it seeks money damages because the County has immunity for such claims.1 (see Certification of Raymond McGarry attached as Exhibit “C”.) However, Plaintiff does intend to oppose this motion to the extent her Complaint seeks reinstatement. (Id.)
1. Count III is Barred by the Pennsylvania Political Subdivision Tort Claims Act
In response to the Supreme Court’s abrogation of government immunity in Ayala v.

1

In light of the fact that Plaintiff agreed only that she would not oppose a motion to

dismiss Count III to the extent Plaintiff seeks damages from Defendant, Defendant makes its

substantive arguments regarding immunity below.

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Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), the Pennsylvania Legislature enacted the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8541-8564 (“PTSCA”). See Mascaro v. Youth Study Center, 514 Pa. 351, 355, 523 A.2d 1118, 1120 (1987). The Act “raises the shield of governmental immunity against any damages on account of any injury to a person or property caused by any act of a local agency or employee thereof or any other person, except as otherwise provided in 42 Pa.C.S. § 8542.” Id.
Since the Legislature intended through the enactment of PSTCA to provide governmental immunities, exceptions to such immunity should be narrowly construed. Finn v. City of Philadelphia, 541 Pa. 596, 601, 664 A.2d 1342, 1344 (1995). See also Kiley by Kiley v. City of Philadelphia, 537 Pa. 502, 506, 645 A.2d 184, 185–86 (1994) (“Because of the clear intent to insulate government from exposure to tort liability for any of its acts, exceptions carved out by the Legislature from this general rule are strictly construed.”).
Under PSTCA, local agencies are generally exempt from damages for any injuries caused by the agency or its employees. 42 Pa.C.S. § 8541. An injured party may recover in tort from a municipality only if: (1) damages would be otherwise recoverable under common law or statute; (2) the injury was caused by the negligent act of the local agency or an employee acting within the scope of his official duties; and (3) the negligent act of the local agency falls within one of eight enumerated categories. Id. The eight exceptions to local agency immunity are: (1) vehicle liability; (2) care, custody or control of personal property; (3) care, custody, or control of real property; (4) trees, traffic controls, and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks; and (8) care, custody, or control of animals. 42 Pa.C.S. § 8542.
It is well-settled that a wrongful discharge claim does not fall within any of the exceptions to immunity laid out in PSTCA § 8542. See, e.g., DeSimone v. Coatesville Area
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School District, 248 F.Supp.2d 387 (E.D. Pa. 2003) (citing DeMuro v. Philadelphia Housing Authority, No. 98-3137 1998 WL 962103 at *4 (E.D. Pa. Dec. 22, 1998) (the tort of wrongful discharge is not recognized as an exception to sovereign immunity in the PSTCA)); Haiden v. Greene Cty. Career and Tech. Ctr., No. 08–1481, 2009 WL 2341922, at *2 (W.D.Pa. July 27, 2009); Snavely v. Arnold, No. 08–2165, 2009 WL 1743737, at *6, fn. 8 (M.D. Pa. June 18, 2009) (citing Lancine v. Giles, 132 Pa.Cmwlth. 255, 572 A.2d 827, 830 (Pa. Commw. Ct. 1990) (wrongful discharge is not one of the articulated exceptions to 42 Pa.C.S. § 8541-8542)); Katzenmoyer v. City of Reading, 158 F. Supp 2d 491, 502-03 (E.D. Pa. 2001) (dismissed claim for wrongful discharge as to the city because PSTCA bars claims for intentional torts); McNichols v. Commonwealth, Dep’t. Of Transportation, 804 A.2d 1264, 1267 (Pa. Commw. Ct. 2002) (same); Goldinger v. County of Butler, No. 89-632, 1990 WL 309411 (Pa. Com. Pl. September 6, 1990) (the tort of wrongful discharge is not listed as an exception to immunity).
Even to the extent that Plaintiff seeks reinstatement of his employment via a request for injunctive relief, the County remains immune under PSTCA because such immunity applies both to damages claims and to claims for injunctive relief that require the government agency to take affirmative action. See Plaza v. Herbert, Rowland & Grubic, Inc., No. 344 C.D. 2016, 2017 WL 519827, at *3 (Pa. Commw. Ct. Jan. 30, 2017) (citing Swift v. Department of Transportation, 937 A.2d 1162, 1168 & n.7 (Pa. Cmwlth. 2007)) (“The General Assembly has not waived immunity for equitable claims seeking affirmative action by way of injunctive relief”); see also Rooney v. City of Phila., 623 F.Supp.2d 644 (E.D. Pa. 2009) (city and SEPTA immune from suit for affirmative action by way of injunctive relief under PSTCA).
Here, Count III asserts a common law claim for wrongful discharge in violation of Pennsylvania public policy. The County is broadly immune from such claim under PSTCA, and
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none of the Complaint’s allegations take Count III outside of the immunity. 2. Count III Does Not State a Valid Claim for Relief Since it Does Not Set Forth a Clearly Defined Public Policy.
Plaintiff asserts that her termination violated Pennsylvania public policy. The Complaint does not, however, define with any clarity the public policy allegedly violated or the source of that public policy. It cites only to a generalized policy of independence of public defenders’ offices within the Commonwealth “as reflected in its Constitution and statutes, and the judicial decisions interpreting its Constitution and statutes.” (ECF #1, Complaint ¶128). The Complaint allegations do not state a valid claim for wrongful discharge in violation of public policy.
Pennsylvania is an at-will employment state. In general, “an employer may discharge an employee with or without cause, at pleasure, unless restrained by some contract.” Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114, 117 (Pa. Super. 2002). As the Pennsylvania Supreme Court has stated, “[a]s a general proposition, the presumption of all non-contractual employment relations is that it is at-will and that this presumption is an extremely strong one. An employee will be entitled to bring a cause of action for a termination of that relationship only in the most limited of circumstances where the termination implicates a clear mandate of public policy in this Commonwealth.” McLaughlin v. Gastrointestinal Specialists, Inc., 561 Pa. 307, 314, 750 A.2d 283, 287 (2000); see also Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 918 (1988) (while there is no common law cause of action for termination of an at-will employment relationship, there are “the most limited of circumstances, where discharges of atwill employees threaten clear mandates of public policy.”); see also Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699, 701 (3d Cir. 1988) (A wrongful discharge claim under
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Pennsylvania law sounds in tort and may be maintained “only when important and well recognized facets of public policy [are] at stake.”) (citations omitted).
In order to state a claim for wrongful discharge based on the public policy exception to the at-will-employment doctrine, “the employee must point to a clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision.” Hunger v. Grand Central Sanitation, 670 A.2d 173, 175 (Pa. Super. 1996). Courts should find that a termination violates Commonwealth public policy “only in the clearest of cases.” Weaver v. Harpster, 601 Pa. 488, 975 A.2d 555, 563 (2009). Accordingly, violations of public policy sufficient to state a claim for wrongful discharge have been found only in certain, very specific circumstances, e.g., when an employee was terminated for applying for worker’s compensation benefits, Shick v. Shirey, 716 A.2d 1231 (Pa. 1998); when an employee was terminated for refusing to submit to a polygraph test; Kroen v. Bedway Security Agency, 633 A.2d 628 (Pa. Super. 1993); when an employee was terminated for serving on a jury, Reuther v. Fowler & Williams, Inc., 386 A.2d 119 (Pa. Super. 1977); and when an employee was terminated for making a report mandated by federal law. Field v. Phila. Elec. Co., 388 Pa.Super. 400, 565 A.2d 1170, 1180 (1989).
In fact, courts have been reluctant to recognize a public policy sufficient to give rise to a wrongful discharge claim unless the discharge is a result of the employee’s compliance with or refusal to violate the law. “Absent a violation of law, it is difficult for an at-will employee seeking recovery for wrongful discharge to point to a common law, legislative or constitutional principle from which a clear public policy exception to Pennsylvania's doctrine of at-will employment could be inferred.” Clark v. Modern Grp. Ltd., 9 F.3d 321, 328 (3d Cir. 1993).
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The Third Circuit Court of Appeals has observed that the narrow exceptions to the at-will employment doctrine in Pennsylvania generally fall into three categories: “an employer (1) cannot require an employee to commit a crime; (2) cannot prevent an employee from complying with a statutorily imposed duty; and (3) cannot discharge an employee when specifically prohibited from doing so by statute.” Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 111-12 (3d Cir. 2003) (“[i]t is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring”) (citing Hennessy v. Santiago, 708 A.2d 1269, 1273 (Pa.Super. 1998)). See also Shick v. Shirey, 456 Pa.Super. 668, 691 A.2d 511, 513–14 (1997), rev’d, 552 Pa. 590, 716 A.2d 1231 (1998).
Here, the Complaint fails to set forth conduct by Plaintiff that falls within the recognized public policy exceptions. Plaintiff does not allege that she was compelled by the County to commit a crime. Nor does she cite to any specific statute prohibiting the County from terminating her employment. According to the Complaint, the conduct giving rise to Plaintiff’s termination was the filing of the Brief, which was done on behalf of the OPD. (ECF #1, Complaint ¶¶31, 126). While that conduct was taken in her official capacity as a representative of the OPD, she does not allege, nor could she allege that the filing of the Brief by the OPD was required by any statutory or regulatory duty placed upon her.
Contrast this case with those where a plaintiff complains of being terminated for engaging in conduct compelled by statute or law. Even there, courts have not recognized a viable wrongful discharge claim when the specific statutes relied upon did not create an actual affirmative duty to engage in the conduct that gave rise to the termination. For example, in Hennessy, a counselor was terminated after reporting a patient’s rape to the local district
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attorney. 708 A.2d at 1272. The plaintiff claimed that different Pennsylvania statutes, parts of the administrative code, and her national association’s code of ethics imposed an affirmative duty upon her to report the rape of a client. Id. at 1273-74. The Superior Court declined to find a valid wrongful discharge claim existed because none of the statutes or codes cited actually imposed an affirmative obligation upon the plaintiff to report violations. Id. Contrasting the case before it with a statute that imposed an affirmative duty to report, the Hennessy Court cited a section titled, “Persons required to report suspected child abuse.” Id. at 1274 (citing 23 P.S. § 6311). “As its title suggests, this section [explicitly] requires certain people, including mental health professionals, to report suspected child abuse.” Id. That was not the case with the statute and codes cited by the Hennessy plaintiff, and thus, a wrongful discharge in violation of public policy claim did not exist. Id.
Plaintiff fails to identify with any specificity the alleged Commonwealth policy regarding independence of public defenders’ offices and how her termination violated such policy. Simply stated, Plaintiff has not alleged any Commonwealth public policy sufficient to give rise to a valid wrongful discharge claim, certainly not any defined policy that is extremely clear with virtual unanimity of opinion in regard to it. Shick, 716 A.2d at 1235–36 (quotation omitted). Thus, Plaintiff’s claim should be dismissed.
D. Plaintiff’s Request To Be Reinstated With a Guaranty that She May Operate Independently Must Be Stricken
Plaintiff’s Complaint seeks an order requiring “Montgomery County to reinstate Hudson to her prior position and to guarantee that she may operate independently in that position.” The Court should strike this requested relief from the Complaint as Plaintiff was an employee at will, not entitled to any guarantees on the terms of her employment, especially one that vaguely would require the County to guarantee that she may operate independently in that position.
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Under the Public Defender Act, 16 P.S. §9960.1 et seq, the County Board of Commissioners have the right to appoint the Chief Public Defender. Under that same Act, the right of the Chief Public Defender to hire other attorneys in the office derives from the Board of Commissioners. The Act does not provide for the right to any guarantees of the terms of employment - and it certainly does not guarantee that the County would have no control over the OPD. In fact, the opposite must be inferred since it is the Board of Commissioners that have the right to appoint the Chief Public Defender. Thus, under the very Act that establishes the public defender, the County has the right to control the operations of the OPD.
Moreover, under Pennsylvania law, Plaintiff was an at-will employee of the County. As discussed in Section D(1)(c) of this Memorandum supra, “an employer may discharge an employee with or without cause, at pleasure, unless restrained by some contract.” Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114, 117 (Pa. Super. 2002). There is no legal authority for abrogating the provisions of the Public Defender Act and imposing any guarantees on the terms of Plaintiff’s employment. As such, the requested relief is inappropriate and must be stricken.
E. The Court Should Refrain From Exercising its Supplemental Jurisdiction. Should the Court dismiss Counts I and II of the Complaint as a matter of law, it should refrain from exercising its supplemental jurisdiction over the remaining state claim. When the district court has dismissed all claims over which it has original jurisdiction, the district court has the express authority to decline to exercise supplemental jurisdiction over any related state law claims. 28 U.S.C. § 1367(c)(3); Growth Horizons, Inc. v. Delaware Cty., Pa., 983 F.2d 1277, 1284 (3d Cir. 1993) (“a district court may decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has original jurisdiction”); See also Greenwood Partners, L.P. v. Cimnet, Inc., 2003 WL 22238981, at *4 (E.D. Pa. Sept. 26, 2003). “Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by
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procuring for them a surer-footed reading of applicable law.” United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 725–26, 86 S. Ct. 1130, 1138–39, 16 L. Ed. 2d 218 (1966). Here,

Plaintiff's Section 1983 claim was the sole basis of the Court's original jurisdiction. For reasons

already discussed, that claim fails as a matter of law. As a result, the Court is well within its right

to refuse to exercise supplemental jurisdiction over Plaintiff's remaining state law claims. This is

particularly called for when the claim involves a matter of state public policy such as Count III,

and where the action is in its early procedural stages. Cf Growth Horizons, supra, 983 F.2d at

1284-85 (no dismissal of state claims where trial on merits had already occurred). As such, the

Court should dismiss Count III under Rule 12(b)(1) for lack of subject matter jurisdiction. See

Polite v. Rendell, 2010 WL 1254334, at *4–5 (E.D. Pa. Apr. 1, 2010).

III. CONCLUSION

For the reasons set forth above, Defendant Montgomery County respectfully requests that

the Court dismiss Plaintiff’s Complaint in its entirety and for such other relief the Court deems

just and appropriate.

Respectfully submitted,

Date: May 18, 2020

/s/ Raymond McGarry Mary Kay Brown, Esquire Raymond McGarry, Esquire Jami B. Nimeroff, Esquire Brown McGarry Nimeroff LLC 2 Penn Center, Suite 610 1500 John F. Kennedy Boulevard Philadelphia, PA 19102 T: (267) 861-5330

Attorneys for Defendant

18

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEISHA HUDSON, Plaintiff,
v. MONTGOMERY COUNTY, Pennsylvania,
Defendant.

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Case No.:

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JURY TRIAL DEMAND

)

)

)

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COMPLAINT

Statement of the Case 1. In early February 2020, Plaintiff Keisha Hudson, who was then Deputy Chief Public Defender for Montgomery County, Pennsylvania, directed the filing of an extraordinary brief in an extraordinary case of statewide importance. In an amicus brief before the Pennsylvania Supreme Court, Hudson exposed the injustice of the money-bail system in Montgomery County, which jails thousands of presumptively innocent people for no reason other than their ability to pay money. 2. Because of this effort, Hudson and her colleague, then–Chief Public Defender Dean Beer, were fired on February 26, 2020. 3. Defendant Montgomery County, Pennsylvania, has not provided Hudson with a specific reason for her firing, has not formally disciplined her at any point in her four-year tenure, and has not previously found Hudson’s performance to be deficient in any respect. 4. Hudson was fired because she challenged statewide injustice by exposing the truth about Montgomery County’s unjust and unconstitutional bail system. 5. Because the drafting and filing of the amicus brief was not part of Hudson’s officially described ordinary job duties as Deputy Chief Public Defender, the brief was protected speech. She brings this case for First Amendment retaliation under 42 U.S.C. § 1983, and for wrongful discharge under the common law of Pennsylvania.
Parties 6. Plaintiff Keisha Hudson has practiced law in Pennsylvania for the past 15 years. In 2016, after ten years at the Federal Community Defender Office for the Eastern District of Pennsylvania, in Philadelphia, Hudson was recruited by the Public Defender in Montgomery County (“the Office”), which represents indigent clients in criminal cases. She began work as Deputy Chief Public Defender on May 9, 2016.

7. Defendant Montgomery County, Pennsylvania (“the County”), is a municipality formed under Pennsylvania law. The County is governed by a three-member commission, and its day-to-day operations are managed by a Chief Operating Officer, Lee Soltysiak. The County is sued for damages and injunctive relief.
Jurisdiction 8. Hudson brings this action under 42 U.S.C. § 1983 and the law of the Commonwealth of Pennsylvania. 9. This Court has jurisdiction over Hudson’s federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction over Hudson’s state-law claims under 28 U.S.C. § 1367.
Background1 10. On May 9, 2016, Hudson began her employment at the Office as Deputy Chief Public Defender. 11. At all times during Hudson’s employment at the Office, Dean Beer served as Chief Public Defender. 12. In her role as Deputy Chief, Hudson managed the Office’s day-to-day operations and was responsible for training and supervision of attorneys and interns. 13. Throughout her tenure, Hudson interacted with the County Board of Commissioners and with Soltysiak only to seek approval for budgetary matters, and those contacts were limited to assisting Beer, who was responsible for negotiating the budget with the County. 14. When she began working at the Office, Hudson was given a copy of the Montgomery County Employee Handbook and County Ethics Policy (collectively “employment policies”).
1 All facts not based on Hudson’s personal knowledge are pleaded on information and belief.

15. The employment policies detail the procedures that the County must follow to discipline an employee accused of violating County rules. In situations in which the County seeks to discipline or dismiss an employee, the employment policies require an investigation, written findings of fact sent to the employee and to each County Commissioner, an opportunity to appeal the findings of fact by the employee, a vote of the Commission on whether a violation occurred, and a written determination based on that vote.
Hudson Works to Reform the Bail System 16. Shortly after Hudson’s arrival at the Office, she worked with Beer to find innovative ways to ensure excellent representation of the Office’s clients. But she also sought to reform the criminal system in Pennsylvania through advocacy in matters that were not part of dayto-day representation of clients in their specific cases, including efforts to reform the bail system and to address the often-severe collateral consequences of criminal convictions. 17. The bail system in Montgomery County discriminates on the basis of wealth, causing many people, including those not represented by the Office, to be incarcerated pre-trial because they are too poor to pay money bail. 18. In 2019, the Office began working with the local Criminal Justice Advisory Board (on which the Office, the County, the local prosecutor’s office, and the local bench were represented) to suggest reforms to the bail system in Montgomery County. 19. The work of the Criminal Justice Advisory Board was conducted privately, and at no point in 2019 did Hudson or Beer publicly criticize Montgomery County’s bail system. 20. The reform efforts continued through 2019, but to date no significant changes have been made to the County’s bail system. 21. People are still jailed every day in Montgomery County for no reason other than their poverty.

The Office Files an Extraordinary Amicus Brief in the Pennsylvania Supreme Court 22. In March 2019, the ACLU of Pennsylvania filed a class-action mandamus petition in the Supreme Court of Pennsylvania, alleging that the bail system in Philadelphia County violated the Federal and State Constitutions: Philadelphia Community Bail Fund, et al., v. Arraignment Court Magistrates of the First Judicial District of the Commonwealth of Pennsylvania, No. 21 EM 2019 (“the Philadelphia case”). 23. On July 8, 2019, the Supreme Court of Pennsylvania accepted jurisdiction of the case under its King’s Bench powers to review issues of extraordinary statewide importance. 24. After reviewing the Petition and grant of review by the Supreme Court, Hudson decided to file an amicus brief in support of the Petitioners in the Philadelphia case to show that the constitutional violations alleged in that case were also being committed in Montgomery County and throughout the Commonwealth. Hudson was not representing any client who had been assigned to the Office; rather, she was using this opportunity to promote state-wide reform of the money bail system in Pennsylvania. 25. On February 3, 2020, shortly after the deadline to file amicus briefs had passed, the Office attempted to file the amicus brief. The brief begins with the story of a mother who was jailed for no reason other than her poverty and, as a result, was unable to breastfeed and bond with her newborn child. The brief goes on to explain that her story was not aberrational: Montgomery County’s money-bail system, the brief reads, senselessly separates countless families and disrupts countless lives. The brief argues that the Montgomery County bail system is illegal because cash bail is imposed without consideration of ability to pay and routinely results in illegal pretrial detention when the arrestee cannot pay. Magistrates in Montgomery County, the brief alleges, routinely set unaffordable money-bail amounts for the purpose of detaining people prior to trial, even though such a purpose is expressly forbidden by Pennsylvania law; and, the brief alleges,

they routinely delay hearings at which people could be released from jail, effectively forcing them to waive their rights in exchange for their freedom. The brief describes a system in which crucial decisions regarding people’s liberty are made by judges who often do not have formal legal training, without a formal record, without evidence, without counsel, and all in violation of the United States Constitution and Pennsylvania law.
26. The Office’s prior recent amicus briefs concerned important issues surrounding the imposition of fees and fines on criminal defendants, but none of the other briefs focused specifically on Montgomery County’s pervasive and illegal practices, and none of the other briefs prompted a reaction of any kind from County officials or local judges.
27. Because the deadline to file amicus briefs had passed in the Philadelphia case, the Office filed a motion to docket the brief as though it had been filed on time (referred to as “nunc pro tunc,” meaning “then as now”). As a result of this motion, the brief was not in fact docketed on February 3, 2020, and was not publicly available at that time.
28. Given the issues in the amicus brief, and in light of the reform efforts that were ongoing in the County, Beer sent Soltysiak and County Solicitor Josh Stein copies of the brief by email. This was done because this filing was intended to promote reform in a case in which the Office was not a party, where the office did not represent a client from Montgomery County, and where the issue was not a part of the required duties of the Office in its representation of clients in their individual criminal cases.
29. Beer had never before sent a copy of an amicus brief to Soltysiak, Stein, or anyone else in County administration.
30. Later the same day, in response, Stein emailed Beer: “[I]s this an amicus brief in support of the litigation against the [Philadelphia defendants] or just an opportunity to complain

about how things work in [Montgomery County]? I fully support your office in its mission to represent its clients, and if what is stated in the brief is true then I can see a desire for change. I just have to question the persuasive value of this brief for the actual underlying case. In some instances, it seems to function as an argument of how things are better in [Philadelphia].”
31. Beer forwarded Stein’s email to Lee Awbrey, who had drafted the brief for the Office, and Awbrey responded that the brief was intended to promote statewide reform and that she concluded, after consulting with other groups writing amicus briefs, that the brief would aid the underlying litigation.
32. Shortly thereafter, Beer added, also in response to Stein, that the goal of the brief was not merely to complain, but rather to show the Supreme Court that the issues in the underlying litigation affected jurisdictions across the state.
33. Stein did not respond. The President Judge and the County Pressure Beer to Withdraw the Brief
34. Three days later, on February 6, 2020, President Judge of the Court of Common Pleas Thomas Del Ricci asked Beer to come to his office.
35. In his office, Del Ricci held the still un-docketed amicus brief in his hand. 36. Del Ricci questioned Beer’s motives for filing it. 37. Del Ricci told Beer that he should have consulted with him prior to filing the amicus brief, that the brief should not have been filed, and that he believed some statements in the brief were not accurate. 38. Del Ricci did not identify any statement in the brief that was not accurate. 39. Del Ricci said that the amicus brief was an attack on the court and against him personally and instructed Beer to withdraw it.

40. Del Ricci threatened to withdraw his support from the not-yet-instituted pretrial programs on which the Office had been working, and which could provide significant relief for Defender clients.
41. On February 7, 2020, Stein and Soltysiak met with Beer and Awbrey to discuss the amicus brief. They questioned Beer and Awbrey about their motivations for filing the amicus brief and admonished them for not seeking prior approval from the County.
42. At no point in the conversation did either Stein or Soltysiak take issue with any of the facts alleged in the amicus brief.
43. As a matter of practice and procedure, the County had never requested or required the Chief Defender or the Deputy Chief Defender to seek approval with respect to any litigationrelated matter in the office on individual cases, or indeed on any amicus filings.
44. Stein’s and Soltysiak’s statements (as well as Del Ricci’s) reflected the fact that this amicus filing was not done pursuant to the ordinary duties of the Office or of the Chief Defender and Deputy Chief Defender and was not related to the representation of clients of the Office; the County understood that the brief was intended to promote state-wide reform of bail practices. The filing of the brief was an act of advocacy and speech on a matter of public importance.
45. On February 10, 2020, Judge Del Ricci came to the Office to speak with Beer. Beer was in miscellaneous court handling client matters at the time. And so Del Ricci returned to the courthouse and asked Beer to step out of court to speak with him in the hallway.
46. In the hallway of the courthouse, Del Ricci asked Beer if he had decided whether to withdraw the brief.
47. Beer responded that he was waiting to hear from the County.

48. Del Ricci told Beer that he would be filing a complaint with the Pennsylvania Attorney Disciplinary Board against Beer if he did not withdraw the brief.
49. “Look at this face,” Del Ricci told Beer. “This face does not bluff.” The County Orders Beer to Withdraw the Brief, and He Does
50. Immediately following his conversation with Del Ricci, Beer emailed Stein and Soltysiak about Del Ricci’s threats.
51. In response, Soltysiak wrote: “I believe the best course of action regarding the brief is to withdraw it. I believe the lack of communication both with our office and with courts beforehand was a fatal flaw in strategy and leaves us with very limited options. I do believe there was a way we could have had a different outcome on this issue had the matter been handled differently starting in December and not after the fact in February. I understand a significant amount of work went into drafting the brief, and I commend your office’s commitment to our constituents. However, the lack of strategy and internal communication has undermined that work and is what led me to this decision. Please withdraw the brief immediately.”
52. The following day, Beer approached Del Ricci and said he was going to withdraw the brief.
53. Del Ricci was not satisfied. He said the amicus brief was now public and widely disseminated, and asked Beer what he planned to do about that.
54. Del Ricci said that he was pulling his support for the pretrial program and would no longer consult with Beer or anyone in the Office about criminal-justice issues. He said that he had been considering filing a disciplinary board complaint, but now he would definitely file it.
55. Throughout this conversation, Del Ricci repeated that “a lot of people want you fired.”
56. Beer filed a motion to withdraw the amicus brief on February 11, 2020.

The County’s Stated Reasons for its Actions with Respect to Beer 57. On February 13, 2020, Beer sent a letter to Soltysiak requesting clarification regarding his independence in his role as Chief Public Defender. In the letter, Beer summarized his interactions with Soltysiak, Stein, and Del Ricci regarding the amicus brief. 58. On February 20, 2020, Soltysiak wrote in response that although “[t]here is no question that your intentions in regards to providing quality representation to clients are genuine,” Soltysiak had “been very disappointed in the manner in which [Beer] ha[d] sought to advance [criminal-justice reform] on a number of occasions.” 59. This response makes clear that the County viewed criminal-justice reform activities as outside of the ordinary duties of the Chief Public Defender and Deputy Chief Public Defender. 60. Soltysiak offered three reasons for his “disappointment.” He wrote that Beer had violated the employment policies by (a) directing summer interns in 2019 to search for prejudiced Facebook posts by police officers, (b) filing the amicus brief without first consulting with the County, and (c) filing records requests regarding telephone rates at the County’s youth detention center. 61. Soltysiak contended that the project of exposing police-officer racism was “outside the scope of what you and those in your office are tasked to do” and, therefore, that directing summer interns to work on the project violated County policy. 62. Soltysiak’s letter characterized Beer’s efforts (including the amicus brief) as “acting on desired reforms in a manner that is outside the intended scope of [his] position.” 63. Soltysiak concluded by writing: “As the Public Defender of Montgomery County, you are appointed by the County Commissioners and tasked under the Pennsylvania Public Defender Act with furnishing legal counsel to any person who, for lack of sufficient funds, is

unable to obtain it. . . . You, and your staff, are zealous advocates for those you are tasked with defending, and your work in that regard is appreciated beyond measure.”
64. Soltysiak did not directly allege that Hudson violated any County policy. 65. The letter mentions Hudson only to note that she, alongside Beer, directed summer interns to search for prejudiced Facebook posts and that she and Beer publicized them.
The County Fires Beer and Hudson for Filing the Amicus Brief 66. On February 26, 2020, Soltysiak asked Beer to come to his office to meet with him and Stein. 67. Soltysiak informed Beer that he had been fired as Chief Public Defender, effective immediately. 68. Beer returned to his office, where he was immediately walked out of the office by security guards. 69. Hudson began to prepare to deal with Beer’s departure. 70. While she was doing so, she received a phone call directing her to meet with Soltysiak and Stein. 71. At that meeting, Soltysiak informed Hudson that the County was requesting her resignation. 72. If she agreed to resign and to sign a separation agreement requiring that she not discuss the circumstances of her departure from the Office, the County would pay her salary through March. 73. Hudson refused to sign the separation agreement. 74. Soltysiak fired her immediately. 75. Hudson was walked out of the building by security guards as soon as she returned to her office.

76. Hudson never received findings of fact, an opportunity to appeal, or a written determination that the Commission found that she had violated County policy.
77. There has never been a public vote of the Commission regarding the firing of Hudson.
The County’s Stated Reason Regarding Hudson and Beer’s Work to Expose Police Racism is Pretext
78. Beginning of the summer of 2019, Hudson decided that the Office should collect publicly available social media posts by Montgomery County police officers that reflected prejudiced attitudes.
79. Hudson instituted this project because she believes that racism and other forms of prejudice afflict police departments across Montgomery County, to the detriment of her office’s clients and others.
80. Beer approved of this project. 81. Hudson asked five summer interns at the Office to assist her by searching the internet for Facebook posts by police officers that reflected prejudiced attitudes. 82. At the end of the summer, Hudson reviewed the interns’ work and removed posts that, in her view, were subject to any interpretation that did not reflect a prejudiced attitude. 83. Ultimately, Hudson collected posts from 32 officers. 84. Because publicizing the extent of prejudiced attitudes among police officers might result in those people being removed from duty—as it had recently in neighboring Philadelphia under similar circumstances— Hudson sent the evidence to a local reporter at The Philly Voice. 85. Shortly after giving the information to the Voice, Hudson told Beer that she had done so.

86. Beer told Hudson that, although he wished he had seen the evidence first, he supported the project and understood Hudson’s decision to share the evidence with the press.
87. On August 7, 2019, the Voice ran a story about the evidence. 88. According to the Voice, the posts included one law enforcement officer pictured in blackface; another criticizing the government for “flood[ing] our nation with Muslims [and] giv[ing] them welfare for life (with multiple wives)”; and another claiming, before he joined a municipal police department, that a family services agency would be more effective if it just “shot and killed all the unfit parents.” 89. At no point did Beer suggest that Hudson had violated any rule or policy of the Office, and at no point did Beer suggest that Hudson had violated his instructions. 90. On August 20, 2019, Soltysiak emailed Beer to request a meeting regarding the Voice story. 91. On August 22, 2019, Beer met with Soltysiak and Stein. 92. Beer told Soltysiak and Stein that Hudson had provided the evidence of racist Facebook posts to the Voice. 93. Beer said that, although he wished he had seen the evidence first, he supported Hudson’s project. 94. At no point did Beer suggest that Hudson had violated any Office policy, nor did he at any point suggest that she should be subject to discipline for violating any County policy. 95. Soltysiak was upset that the Voice story came out without his approval and said he planned to send Beer a written notice of discipline as required by the employment policies. 96. No one ever provided Beer a written notice of discipline as required by the employment policies.

97. No one has ever provided Hudson with a written notice of discipline, concerning this or any other matter, as required by the employment policies.
98. No County official ever told Hudson in person or in writing that she had violated County policy.
99. Neither Hudson nor Beer has ever received any written notice of disciplinary action against them regarding these issues or any others, as the employment policies require whenever a County employee is disciplined for violating County policy.
100. The County did not terminate or discipline Hudson or Beer in any way between August 7, 2019, when the Voice story ran, and February 26, 2020, when the County fired Hudson and Beer for filing the amicus brief.
The Harm to Hudson 101. Prior to her termination by the County, Hudson had never been fired from any position before. 102. As a result of her termination, Hudson was unemployed for fourteen days. 103. On March 11, 2020, Hudson was hired by the Justice Collaborative, a non-profit dedicated to shrinking and reforming the criminal legal system, on a temporary full-time basis. 104. Hudson searched for a new job each day during those fourteen days. 105. Hudson’s job with the Justice Collaborative is scheduled to continue for approximately 90 days. 106. During her period of unemployment, she would have been paid an additional $2,080.58 after taxes by the County. 107. Her County health insurance expired on February 29, 2020. 108. Because her current employment is temporary, to extend health insurance for herself and her family Hudson must pay $1,800 per month.

109. As a result of her firing, Hudson lost the opportunity to recover a vested pension, which would have been available after five years of employment.
110. And as a result of her firing, Hudson lost the County’s contribution to her 401K retirement-savings plan.
111. Hudson accepted her position at the Office because she wanted to commit her career to improving the quality of representation its clients receive.
112. Her plans to further improve the Office have been derailed by her firing. 113. As a result of her termination, Hudson missed out on opportunities for professional development. 114. As a result of her termination from the Office, she suffered humiliation, loss of reputation, and emotional distress.
Claims for Relief A. Count One: Damages Under 42 U.S.C. § 1983 for Retaliation in Violation of
Hudson’s First Amendment Rights 115. Hudson incorporates by reference paragraphs 1–114 of this Complaint. 116. Hudson directed that her office file an amicus brief aimed at reforming statewide practices that jail thousands of legally innocent people because of their poverty. 117. Filing this brief was not part of Hudson’s ordinary duties at the Office. 118. In retaliation for filing the brief, the County fired Hudson. 119. As a result, Hudson lost money and the opportunity to advance her career objectives, and suffered emotional distress. B. Count Two: Injunctive Relief Under 42 U.S.C. § 1983 for Retaliation in
Violation of Hudson’s First Amendment Rights 120. Hudson incorporates by reference paragraphs 1–114 of this Complaint.