2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-20-2010

Thomas Eddy v. Thomas Corbett, Jr.

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4009

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Recommended Citation

"Thomas Eddy v. Thomas Corbett, Jr." (2010). 2010 Decisions. Paper 1297.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1297
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-4009

____________

THOMAS G. EDDY, 

 Appellant

v.

THOMAS W. CORBETT, JR., 

Attorney General of the Commonwealth of PA.; 

SUSAN H. MALONE, 

Chief Deputy Attorney General of the Commonwealth of Pennsylvania

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 07-cv-00575)

District Judge: Honorable David Stewart Cercone

____________

Submitted Under Third Circuit LAR 34.1(a)

May 19, 2010

Before: FUENTES, HARDIMAN and NYGAARD, Circuit Judges.

(Filed: May 20, 2010)

____________

OPINION OF THE COURT

____________
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HARDIMAN, Circuit Judge.

Thomas Eddy appeals the District Court’s grant of summary judgment in favor of

Thomas Corbett and Susan Malone. We will affirm.

I.

Because we write for the parties, we recount only the essential facts.

Thomas Eddy was a Deputy Attorney General (DAG) in the Pittsburgh office of

the civil litigation section of the Pennsylvania Office of Attorney General. In October

2003, he was promoted to DAG IV, the highest classification for a staff attorney. In that

capacity, Eddy handled complex and important legal issues with limited supervision. He

reported to Rodney Torbic, the Chief of Civil Litigation, who in turn reported to Susan

Malone, Chief DAG, who reported to Louis Rovelli, the Executive DAG, who in turn

reported directly to Attorney General Thomas Corbett.

After becoming Attorney General in January 2005, Corbett expressed an interest in

improving the Pittsburgh office, with specific reference to improving compliance with

office policies and procedures. Consequently, Malone and Rovelli held meetings with

staff attorneys to communicate Corbett’s message. At a meeting on April 29, 2005, Eddy

claims he expressed concern that Corbett was improperly making employment decisions

based on age and politics.

On May 5, Eddy drafted a letter to Rovelli in which he reiterated his complaints. 

The next day, Malone called Eddy into her office and terminated him. Eddy then handed
 The District Court had jurisdiction under 28 U.S.C. § 1331 and we have appellate 1

jurisdiction under 28 U.S.C. § 1291.

3

Malone the letter and, viewing the facts in a light most favorable to Eddy, exited the room

while Malone read it to Corbett over the phone. Eddy was then allowed to gather his

belongings before he was escorted out of the building.

Eddy brought this suit against Corbett and Malone under 42 U.S.C. § 1983,

claiming they violated his First Amendment rights by terminating him in retaliation for

speaking out against co-worker terminations that Eddy believed were improperly

motivated by age or political considerations. Corbett and Malone moved for summary

judgment, claiming Eddy was a policymaker and, as such, could not satisfy the balancing

test established in Pickering v. Board of Education, 391 U.S. 563 (1968). The District

Court agreed and granted summary judgment for Corbett and Malone. Eddy timely

appealed.1

II.

On appeal, Eddy claims in the most cursory fashion that the District Court erred by (1)

ruling that he was a policymaker under Elrod v. Burns, 427 U.S. 347 (1976) and Ferrante

v. Finkel, 445 U.S. 507 (1980) and (2) finding no genuine issue of material fact regarding

whether he could satisfy the Pickering/Connick balancing test.

Under the Federal Rules of Appellate Procedure, appellant’s opening brief must include

arguments in support of the issues raised on appeal. The argument must contain
4

“appellant’s contentions and the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A); see also

Simmons v. City of Phila., 947 F.2d 1042, 1065 (3d Cir. 1991) (“[A]bsent extraordinary

circumstances, briefs must contain statements of all issues presented for appeal, together

with supporting arguments and citations.”). Cursory treatment of an issue does not

suffice. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (“It is also well-settled .

. . that casual mention of an issue in a brief is cursory treatment insufficient to preserve

the issue on appeal.”). Eddy’s brief falls well short of Rule 28’s low bar.

The argument section of his brief is three paragraphs long, comprising less than two

pages. The second paragraph is the closest thing to an argument, claiming the District

Court erred in finding Eddy was a policymaker under Tomalis v. Fisher, 45 F. App’x 139,

145 (3d Cir. 2002). Significantly, however, Eddy neither provides any factual basis to

support this proposition nor attempts to explain why his case differs from Tomalis.

The remainder of Eddy’s brief consists of conclusory statements and an attempt to

incorporate by reference arguments made in the District Court, neither of which satisfies

Rule 28. Reynolds v. Wagner, 128 F.3d 166, 178 (3d Cir. 1997) (“[A]n argument

consisting of no more than a conclusory assertion . . . (without even a citation to the

record) will be deemed waived.”); Southwestern Pa. Growth Alliance v. Browner, 121

F.3d 106, 122 (3d Cir. 1997) (explaining that incorporation by reference is only allowed

when the argument is fully developed in an intervenor’s brief, not with reference to
 Even if this issue were properly presented, the District Court did not err in 2

finding that Eddy was a policymaker. His position is specifically excluded from the civil

service laws, 71 Pa. Stat. Ann. § 741.3(c)(5), and his job description includes “rendering

legal services of great complexity and importance” while working independently and

supervising others. Because we would find that Eddy was a policymaker, we would also

find that he could not satisfy the Pickering balancing test. See Curinga v. City of

Clairton, 357 F.3d 305, 312 n.5 (3d Cir. 2004). Therefore, we would affirm the District

Court on the merits even had Eddy complied with Rule 28.

5

arguments raised below). For example, the final paragraph argues that there was a

genuine issue of material fact in the Pickering/Connick balancing test because Eddy was

not a policymaker. But it makes no effort to explain why Eddy was not a policymaker

and fails to cite Pickering, Connick, or the record.2

Given the patent inadequacy of his appellate brief, we hold that Eddy waived his

right to challenge the District Court judgment on appeal. Accordingly, we will dismiss

Eddy’s appeal.