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. e du/thir dc ir c uit_1999/88Filed 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 Stat es 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") a ppeals from an order of the District Court denying its mot ion for summary judgment. The University premised its summa ry judgment motion on a claimed immunity from liabilit y under the Noerr-Pennington doctrine. See United Min e 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 Distr ict Court's decision, we must determine whether a denia l 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 concl ude that such an order is not appealable under the narr ow collateral order doctrine, we will dismiss for lack of jurisdiction.

I.

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

2arises out of a Cease Operations Order that was iss ued to

appellee by the City of Philadelphia after the Univ ersity lodged numerous complaints with the City. The Unive rsity alleges that, prior to the Order's issuance, appell ee's businesses were a nuisance and a threat to public s afety because they were the locus of a variety of disorde rly and unlawful activities, including assaults, batteries, and curfew and truancy violations. Pursuant to this con cern, the University repeatedly contacted the City of Phi ladelphia and urged action by the City to address what it per ceived to be unlawful activity associated with the busines ses. The University met with City representatives regarding its concern on several occasions and provided data gath ered by the University Police to support its allegations

.

Without first providing notice or an opportunity fo r a hearing, the City issued a Cease Operations order t o the businesses and posted it on the premises in the pre sence of University police officers. Following the order's p osting, We, Inc., filed suit against the City and the Universit y under 42 U.S.C. SS 1983 and 1985, alleging a deprivation of its property without due process. The City of Philadelp hia settled the claims against them and the University moved for summary judgment, claiming immunity for at leas t some of its actions under the Noerr-Pennington doct rine. The District Court denied the University's motion a fter finding that, by participating in the posting and e xecution of the Cease Operations Order, the University defen dants' conduct arguably went beyond the mere "petitioning" of government that the Noerr-Pennington doctrine is de signed 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 lim ited to

"final decisions of the district courts." 1 The den ial of a

___________________________________________________ ______________

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

the

United States...."

3motion for summary judgment ordinarily is not afina l order

and, accordingly, is not normally appealable. Sacre d Heart Medical Center v. Sullivan, 958 F.2d 537, 543 (3d C ir. 1992). Under the "collateral order" doctrine, howev er, a decision of a district court may be appealable as a "final decision" under 28 U.S.C. S 1291 if it (1)"conclusi vely determine[s]" the disputed question; (2)"resolve[s] an important issue completely separate" from the merit s of the action; and (3) is "effectively unreviewable" on ap peal 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 doctrin e as "narrow," described the conditions for its applicat ions 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 admonit ion and consistently construed the collateral order exc eption narrowly "lest the exception swallow up the salutar y general rule that only final orders be appealed." Y akowicz v. Pennsylvania, 683 F.2d 778, 783 n.10 (3d Cir. 19 82); see also Transtech Indus., Inc. v. A & Z Septic Clean, 5 F.3d 51 (3d Cir. 1993). Moreover, strict construction of th e collateral order doctrine is consistent with the lo ngstanding congressional policy against piecemeal appeals that underlies the final judgment rule. See Lusardi v. X erox Corp., 747 F.2d 174, 177 (3d Cir. 1984).

To guard against the temptation to expand the doctr ine's reach, the Supreme Court has instructed that "the i ssue 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. Th is approach reflects the Court's insistence that thefi nality requirement of S 1291 must not be reduced to a case -bycase determination, see Richardson-Merrill Inc. v. Koller,

4472 U.S. 424, 439 (1985), and that courts consider

appealability "without regard to the chance that th e litigation at hand might be speeded, or a particula r injustice averted, by a prompt appellate court deci sion." Desktop Direct, 511 U.S. at 868 (citation omitted). Thus, in this case, we consider whether an order denying a c laim of immunity under the Noerr-Pennington doctrine is an immediately appealable collateral order.

B.

The University contends that the denial of its clai m of immunity under the Noerr-Pennington doctrine is immediately appealable under the collateral order d octrine. 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); Nix on v. Fitzgerald, 457 U.S. 731, 743 (1982). It is true, a s the University stresses, that a denial of a motion for summary judgment based on Noerr-Pennington immunity, like t he denial of a summary judgment based on official immu nity, ordinarily will conclusively determine an important issue

unrelated to the merits of the case. We therefore f ocus our attention on the third requirement of the collatera l order

doctrine -- that the District Court's decision be e ffectively unreviewable on appeal from the final judgment.

In holding that an order denying qualified immunity to a public official is "effectively unreviewable on app eal from final judgment," the Supreme Court reasoned in Mitc hell 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 li ability." Mitchell, 472 U.S. at 526, 530 (emphasis in origina l). As with absolute immunity, this entitlement "is effect ively lost if a case is erroneously permitted to go to trial." Id. at 526. Since Mitchell, denials of a state's Eleventh Amend ment immunity from suit in a federal court similarly hav e 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 th e 11th

5Amendment [are] to prevent the indignity of subject ing 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 tha t warrant a pretrial dismissal entail a right not to stand tr ial. As the Supreme Court has explained, there is "a crucial di stinction between a right not to be tried and a right whose r emedy 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 intere sts furthered by the final-judgment rule and the ease w ith which certain pretrial claims for dismissal may be alleged to entail the right not to stand trial, we should exam ine the nature of the right asserted with special care to d etermine whether an essential aspect of the claim is the rig ht 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 ju dgment rule by claiming an immunity from suit should be critica lly assessed. "We have, after all, acknowledged that vi rtually 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 c andor 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 clai ms of a `right not to be tried' with skepticism, if not a j aundiced eye." Desktop Direct, 511 U.S. at 873.

Thus, as the Supreme Court has framed it, "[t]he cr itical question, following Mitchell, is whether `the essen ce' of the claimed right is a right not to stand trial." Van Cauwenberghe, 486 U.S. at 524. This Court has not y et 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 afford ed by Noerr-Pennington immunity and the Supreme Court's general admonition that claims to immunity from sui t be critically assessed. Because we conclude that the N oerr-

6Pennington doctrine does not provide an "immunity f rom

suit" but rather only a defense against liability, we hold that a denial of a summary judgment motion predicat ed on Noerr-Pennington "immunity" is not effectively unre viewable on appeal from a final judgment.

III.

The Noerr-Pennington doctrine originated in the ant i-trust context as the proposition that "joint efforts to i nfluence 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 broa der scheme

itself violative of the Sherman Act." See United Mi ne Workers v. Pennington, 381 U.S. 657, 670 (1965); Ea stern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). The Supreme Court has predicated t his antitrust "immunity" on two principles: first, the First Amendment right of citizens to petition the governm ent and participate in the legitimate processes of governme nt, and second, a statutory interpretation of the Sherman A ct 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 thi s representative capacity and yet hold, at the same t ime, that the people cannot freely inform the government of t heir wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political acti vity, a purpose which would have no basis whatever in the legislative history of that Act. Secondly, and of a t least equal significance, such a construction of the Sher man Act would raise important constitutional questions. The right of petition is one of the freedoms protected by the Bi ll 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 (19 91) ("The [Noerr-Pennington] doctrine .. . rests ultima tely 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 No err, 365 U.S. at 141).

7This court, along with other courts, has by analogy

extended the Noerr-Pennington doctrine to offer pro tection to citizens' petitioning activities in contexts outsid e the antitrust area as well. For example, in Brownsville Gol den Age Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d Cir. 1988), we found that the Noerr-Pennington doctrine protect ed individuals from tort liability for their actions i n petitioning the government to shut down a nursing home that was operating in violation of applicable regulations. C iting to the Noerr-Pennington doctrine in Brownsville, we affirm ed an order granting summary judgment for the defendants, noting that:

"The rule that liability cannot be imposed f or damage caused by inducing legislative, administrati ve, or judicial action is applicable here. The cond uct on which this suit is based is protected by the firmly rooted principle, endemic to a democratic go vernment,

that enactment of and adherence to law is th e responsibility of all. The problem is not to o much citizen involvement but too little. Thus, we hold that as a matter of law, defendants' actions in call ing

Brownsville's violations to the attention of state and federal authorities and eliciting public int erest 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 th e right to petition. Immunity from liability is necessary so a s not to chill the exercise of that right. The question pres ented by this case is whether immunity from the burden of su it is also necessary to avoid an unconstitutional chill o f the right to petition.

It is helpful at the outset to note that the Petiti on Clause of the First Amendment neither enjoys "special Firs t 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 assemb le. It follows that the protection afforded by Noerr-Penni ngton is no more absolute or extensive than that provided by other

8First Amendment guarantees. We find this helpful be cause

relevant jurisprudence concerning burdens of the ri ght 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 protec tion from defamation liability in order to prevent undue chil l 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., 41 8 U.S. 323 (1974) (liability to private individuals). The cour ts have never recognized, however, that an immunity from su it 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 lib eled in an article written by petitioners in Florida and pu blished in a national magazine with a large circulation in Cal ifornia

where she resided. Petitioners were served in Flori da with process issued by a California court, and the issue was whether that court could exercise personal jurisdic tion over petitioners. Although the intermediate appellate co urt in California concluded that petitioners' contacts wit h California would ordinarily be sufficient, it held that jurisdiction could not be exercised "because of the potential `chilling effect' on reporters and editors which wo uld result from requiring them to appear in remote jurisdictio ns 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, th e Court found that the burden of litigating in a distant fo rum was insufficient to constitute an unacceptable chill of the journalists' exercise of such rights. As Chief Just ice Rehnquist, writing for a unanimous court, put it:

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

9limitations 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 doub le counting. We have already declined in other contexts to grant special procedural protections to defe ndants in

libel and defamation actions in addition to the constitutional protections embodied in the s ubstantive laws. See, e.g., Herbert v. Lando, 441 U.S. 153 (1979) (no First Amendment privilege bars inquiry i nto editorial process). See also Hutchinson v. P roxmire, 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 liabil ity for petitioning also includes an across-the-board immun ity

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 s ummary judgment should enjoy a special status in defamatio n cases because "[t]he threat of being put to the defense o f a lawsuit . . . may be as chilling to the exercise of First

Amendment freedoms as fear of the outcome of the la wsuit 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 Suprem e 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 distr ict judge can reasonably be interpreted as expressing the view that, because of First Amendment concerns, summary judgment is more easily obtainable by a medi a

10defendant in a defamation case than by defen dants in

other cases. We reject that approach. A subs tantial dispute of material fact does not disappear merely because a media defendant is being sued, or because a public official is the plaintiff; and plai ntiff 's right to a jury trial is entitled to no less respect.

Accord Clark v. American Broadcasting Co., Inc. , 6 84 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 93 2, 939- 40 (2d Cir. 1980) (same); Anderson, 789 F.2d at 842 -43 (declining to apply a preference either for or agai nst summary judgment in defamation cases).

If, as McDonald requires, the right to petition enj oys no special status among First Amendment rights, these authorities suggest that Noerr-Pennington immunity provides only a defense to liability, not an immuni ty from suit. Under the collateral order doctrine, therefor e, 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 t o have

considered this issue reached a similar conclusion. In Segni v. Commercial Office of Spain, 816 F.2d 344 (7th Ci r. 1987), the defendants moved to dismiss a civil rights comp laint on the ground that "their conduct enjoy[ed] an `absolu te immunity' by virtue of the guarantee in the First Amendment of the right to petition government for r edress."

Id. at 345. The District Court denied the motion an d the defendants appealed. The Court of Appeals acknowled ged that "[w]here the right asserted by way of defense to a lawsuit is (or includes) a right not to bear the bu rden of suit itself, regardless of outcome, the denial of t hat right, as by denying a motion to dismiss the suit, is appeala ble immediately by virtue of the collateral order doctr ine." Id. at 345. It nevertheless dismissed the appeal for want of jurisdiction, observing:

It's quite a leap, though, to say that anyti me a motion to dismiss on First Amendment grounds is den ied, the defendant can appeal the denial, on the theo ry that the

failure to dismiss the suit at the earliest opportunity is

11itself an infringement of the defendant's Fi rst

Amendment rights.

Id.

The Segni court distinguished Noerr-Pennington immu nity from "state action" doctrine under Parker v. Brown, 317 U.S. 341 (1943), on the ground that the latter doct rine "had been interpreted to create an immunity from suit an d 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 possibilit y that the "burdens of suit . . . might deter [public official s] from vigorous execution of their office [was] a consider ation missing in the case of the private defendant." Id.

We agree with the conclusion reached by the Segni c ourt 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 s uit 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 wo uld require the District Court to dismiss the claim aga inst the petitioner, Pfizer, Inc. The underlying suit was a nationwide class action by 30,000 school districts against Pfi zer and other former manufacturers of asbestos-containing b uilding products. The plaintiffs claimed that Pfizer, by as sociating with a trade association, Safe Building Alliance (" SBA"), had joined an ongoing civil conspiracy and had thus bec ome liable for all of the other defendants' prior torti ous 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 associ ation.

We first held that Pfizer had a "clear and indisput able" right to the issuance of the writ because the Distr ict Court's decision was "squarely inconsistent" with the Supre me Court's holding in Claiborne Hardware that conspira cy

12liability cannot, consistent with the First Amendme nt, be

imposed based upon mere association. Id. at 1289; N AACP v. Claiborne Hardware, 458 U.S. 886, 918-20 (1982). We then turned to the question of whether Pfizer had o ther adequate means to attain the desired relief, such a s by waiting to appeal from the final judgment. We did n ot, as the University suggests, establish a rule that anyo ne with First Amendment protection from liability was entit led to an immediate appeal from the denial of a motion for su mmary judgment based on that protection. To the contrary, we issued the writ only after making a specific findin g that waiting for an appeal from a final judgment would c ause Pfizer irreparable injury throughout the remainder of extensive proceedings before the trial court. We fo und that "[w]hile the district court's ruling did not direct ly prohibit Pfizer from associating with the SBA during the rem ainder 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: As bestos, 46 F.3d at 1295. Pfizer had a need "to engage, by mean s of the SBA, in a `public dialogue on the important issue o f safety of in-place asbestos containing building products,' and Pfizer would suffer irreparable harm if it were dep rived of the opportunity to engage in such constitutionally protected activity." Id. at 1294-95 (footnote omitted). The f act that we found it necessary to find a specific and continuin g chill on Pfizer supports the conclusion that the generalized chill of anticipated litigation on others who wish to petiti on is, alone, insufficient to overcome the strong policy a gainst piecemeal appeals. Unlike Pfizer, the University ha s pointed to no specific continuing chill on anticipated peti tioning, but rather only to the burden of defending the rema inder of this litigation.2

___________________________________________________ ______________

2. This court's decision in San Fillipo v. Bongiova nni, 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 havingfil ed suit against his employer on a matter of purely private concern. Alt hough the employee would have had no First Amendment immunity against employer discipline if his expressive conduct had constitute d speech, Connick v. Myers, 461 U.S. 138, 147 (1983), the court held tha t Connick's "public

13In sum, the Noerr-Pennington doctrine provides immu nity

from liability for certain types of constitutionall y 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 protect ed by Noerr-Pennington can be fully vindicated after tria l. Without diminishing the importance of the First Amendment r ight to petition that is protected by the Noerr-Pennington doctrine, we hold that a right not to be burdened with a tria l is simply not an aspect of this protection.

Because we conclude that the Noerr-Pennington doctr ine does not confer a right not to stand trial, but rat her provides only a defense against liability for certa in conduct, we find that an order denying Noerr-Pennington immu nity is effectively reviewable on appeal from a final judgm ent, and thus is not an appealable collateral order.

IV.

We will dismiss the defendant's appeal from the dis trict 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" limitatio n on the Free Speech Clause protection of public employees was found ina pplicable 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 Claus e provided broader protection than the right of free speech, both its holding and its reasoning were explicitly confined to the public em ployment/retaliatory discharge context. See id. at 438 ("the scope of th e petition right depends upon the context in which the right is exercised"); id. at 438 n.17 (rejecting as inapposite various cases arising outs ide the public employment/retaliatory discharge context); id. at 441-42 (finding that the government's adoption of a formal redress proce ss provides an "independent reason" for essentially "affording spe cial 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-Pe nnington immunity conveys an immunity from liability, but not from su it.

14A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

15