NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 10

- 2002

____________ MICHAEL BECKINGER; ADAM BLAKE; DAVID KERESTES; PAUL SAXON; JUSTIN WARDMAN,

Appellants

v. TOWNSHIP OF ELIZABETH; DONALD R. SIMILO, Commissioner; JOANNE BECKOWITZ, Commissioner; ROBERT THOMAS, Commissioner; HELEN KOCHAN, Commissioner; EDWARD GRONLUND, Commissioner; ROBERT H. KEEFER, Commissioner; LARRY VOTA, Commissioner; CHIEF OF POLICE ROBERT W. MCNEILLY; ADMIN. SERGEANT WILLIAM K. BLACK, individually and in their capacity

___________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 2

- 08

- cv - 00432 ) District Judge: Honorable Joy Flowers Conti

___________ Submitted Under Third Circuit LAR 34.1(a)

May 1 3 , 2011 Before: SMITH, CHAGARES , and VANASKIE , Circuit Judge s2 (Filed : June 29, 2011 )

___________ OPINION OF THE COURT

___________ VANASKIE, Circuit Judge

. At issue on this appeal is whether the District Court erred in sustaining the defense of qualified immunity to Appellants‟ First Amendment claims and in declining to exercise supplemental jurisdiction over Appellants‟ state law claims. Discerning no error, we will affirm the District Court‟s judgment.
I. As we write only for the parties, who are familiar with th e facts and procedural history of the case, we relate the background of this case only to the extent that it is essential to our own analysis. Appellants Michael Beckinger, Adam Blake, David Kerestes, Paul Saxon, and Justin Wardman are police officers em ployed by Appellee Elizabeth Township. In addition to Elizabeth Township, Appellants named as defendants Appellees Chief of Police McN ei lly and Administrative Sergeant Black, township employees who had positions of authority within the police department. Elizabeth Township has an ordinance prohibit ing on - street parking in certain areas of residential districts when off

- street parking is available. To enforce this ordinance, the township police would issue parking citation tags to offenders. First, how ever, township policy directed officers, upon receipt of a complaint, to investigate by knocking on the door of the residence believed to be associated with an illegally parked vehicle. The3

officer would then attempt to ascertain the owner‟s identity and the reason that the vehicle was parked on the street. At that point, the officer would direct the owner to move the vehicle, rather than immediately issuing a citation. Apparently, if the owner did not cooperate or could not be located, a citation would be issued. In 2005, the township issued nineteen parking citations, and issued only seven in 2006. In early 2007, McNeilly and Black recognized that the township citation forms

were out

- of

- date, containing incorrect addresses and payment directions

. Acco rdingly, on January 16, 2007, Black issued Administrative Sergeant Memorandum No. 07

- 06, direct ing all township officers not to use the township citation forms for parking offenses, and instead to use state traffic citation form s. This memorandum also out lined detailed procedures for implementing the parking ordinance: In order to be fair to all concerned, state tags will be issued and any person who wishes to contest the situation will be directed to do so by requesting a hearing in front of the magistrat e. Officers are reminded that it may be necessary, in some circumstances, to knock on a residents [sic] door to clarify that a vehicle or vehicles in violation are actually connected with that resident, prior to issuing a citation. (A. 51 .) Within a wee k of this memorandum, six township police officers, claiming a need to clear the roads following a heavy snowfall, issued approximately 75 parking citations to township residents. The issue quickly outraged the public. Township residents began to complai n about the incident at public supervisors‟ meetings, and it ultimately came to the attention of two major area newspapers.
In an effort to quell the public outrage, McNeilly issued a memorandum to the six officers. McNeilly indicated his concern about the spike in ticket

- writing, and direct ed4

offers to write a memorandum answering a list of specific questions intended to help him understand whether a drastic change in local conditions prompted the surge in parking tickets. In response, several officer s wrote memoranda indicating that they did not attempt to contact the vehicle owners prior to writing citations. On January 30, 2007, Black, at McNeilly‟s direction, issued yet another
memorandum , No. 07

- 17, to the officers: Any officer that receives a n otice from the magistrates [sic] office, regarding hearing s set for “Township Ordinance

– Parking Violations” or “Any State Parking Violations”, [sic] shall not attend those hearings. No overtime will be authorized for officers to attend these type [of] h earings. (A. 56 .) On or about January 31, 2007, a magisterial district judge issued “Notice of Trial / Summary Case” to the individuals who received parking tickets, with copies to the officers who issued the citations. Appellant Saxon attended a parkin g citation hearing and submitted a request for overtime pay in connection with his attendance. He was subsequently disciplined for his action with a three

- day suspension, which was upheld by the board of commissioners and a neutral arbitrator after a grie vance hearing. Although receiving similar notices, Appellants Beckinger and Wardman did not attend any parking citation hearings connected with the citations that they issued

. Appellants Kerestes and Blake did not issue any parking citations during the r elevant time period, and consequently were not called to, nor did they attend, any hearings. Appellants commenced this action in the Court of Common Pleas of Allegheny County, Pen nsylvania, on February 12, 2008, and it was removed to the United States5

Dis trict Court for the Western District of Pennsylvania on March 31, 2008. Appellants brought seven claims against the township, its commissioners, McNeilly , and Black . B y the time of the motion for summary judgment at issue here, the Appellants‟ claims had
been reduced to only three against the township, McNeilly and Black : retaliation and prior restraint in violation of the First Amendment ; slander per se; and intentional infliction of emotional distress. On March 17, 2010, the Dis trict Court found that the township, McNeilly and Black were entitled to qualified immunity with respect to the retaliation and prior restraint claims brought under 42 U.S.C. § 1983, and remanded the state law claims to the Court of Common Pleas of Allegheny County, Pennsylvania

. This appeal followed.
II. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §
1367 . We have jurisdiction pursuant to 28 U.S.C. § 1291

. A. We exercise plenary review over an appeal from a grant of summary judgment. Jacobs Constructors, Inc. v. NPS Energy Servs., Inc. , 264 F.3d 365 , 369 (3d Cir. 2001). Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P . 56(a)

. Appellants argue that, by issuing Memorandum No. 07

- 17, the township, Chief McNeilly and Administrative Sergeant Black violated their First Amendment right, as public employees, to attend court hearings and offer testimony

. In Reilly v. Atlant ic City , 532 F.3d 216 (3d Cir. 2008) , we recognized the right of a public employee to testify in a6

criminal matter without fear of retaliation when compelled to do so by subpoena

. Previously, i n Garcetti v. Ceballos , 547 U.S. 410 (2006) , the Court had hel d that , while

“ the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addre ssing matters of public concern, ” id. at 417 , “ the First Amendment does not prohibit managerial discipline based on an employee's ex pressions made pursuant to official responsibilities ,” id. at 424

. It was unclear from Garcetti whether a public employee‟s right to testify was speech protected by the First Amendment, or whether it was permissibly subject to “managerial discipline.” I n Reilly , a police officer filed suit against his superiors, claiming that they retaliated against him because of his participation, including trial testimony, in investigations launched against a superior and his associates. His superiors asserted qualif ied immunity based on
Garcetti

. Noting that “ Garcetti offers no express instruction on the application of the First Amendment to the trial testimony of a public employee ,” Reilly , 532 F.3d at 231 , we reached the question of “ whether truthful trial testim ony arising out of the employee's official responsibilities constitutes protected speech .” Id. at 230 . Finding that “[i]t is
axiomatic that e very citizen owes to his society the duty of giving testimony to ai d in the enforcement of the law, ” id. at 228 (internal quotation marks omitted) , we concluded : W hen a government employee testifies truthfully, s/he is not simply p erforming his or her job duties ; rather, the employee is acting as a citizen and is bound by the dictates of the court and the rules of evidence. Ensuring that truthful testimony is protected b y the First Amendment promotes the in dividual and societal interests served when citizens play their vital role in the judicial process. Thus, the principles discussed in Garcetti support the need to protect truthful testimony in court.7

Id. at 231 (internal quotation marks and citations omitted). Appellees argued in the District Court, and renew their argument here, that they

are entitled to qualified immunity even if their conduct infringed First Amendment rights. The doctrine of qualified immunity exists because “permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation wil l unduly inhibit officials in the discharge of their duties.” Anderson v. Creighton , 483 U.S. 635 , 638 (1987). Qualified immunity applies to “government officials performing discretionary functions . . . shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Id. It affords “protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs , 475 U.S. 335 , 34 1 (1986). Once an official has asserted qualified immunity, we must determine whether there is an actionable violation of a federally protected right that is “clearly established” at the time of its violation. See Saucier v. Katz , 533 U.S. 194 , 201 (2001 ) (setting forth general framework). 1 Appellants argue that their right to present testimony was clearly established at the time of the violations. “ A plaintiff need not show that the very action in question has previously been held unlawful, but needs to show that in light of preexisting law the unlawfulness was apparent.” McLaughlin v. Watson , 271 F.3d 566 , 571 (3d Cir. 2001).

1 Saucier was overruled in part by Pearson v. Callahan , 555 U.S. 223 (2009), which granted more flexibility to courts in determining the order in which the Saucier test should be applied.8

Reilly , which acknowledged First Amendment protection for a government employee‟s compelled attendance at a court proceeding to give truthful testimony, was decided on July 1, 2008. The events at issue here took place, as noted above, in January, 2007.
Garcetti , with its distinction between a public employee‟s right to speak in “certain
circumstances , ” Garcetti , 547 U.S. at 41 7, and p ermitted discipline with respect to “ an employee‟s expressions made pursuant to official responsibilities,” id. at 424 , left the state of the law unsettled in this area. Indeed, we recognized this in Reilly when we stated that “ Garcetti offers no express instruction on the application of the First Amendment to the trial testimony of a public employee.” Reilly , 532 F.3d at 231. As the District Court reasoned, after Garcetti and prior to our decision in Reilly on July 1, 2008, the status of First Amendment protection for government employee attendance at hearings as part of employment duties was uncertain. T o the extent that Reilly clarified the issue, it did so in the context of testimony presented under compulsion of a subpoena in a criminal tri al. Reilly , therefore, does not stand for the proposition that a law enforcement officer has a First Amendment right to attend voluntarily a parking ticket adjudication hearing in derogation of direct orders to the contrary. Thus, it cannot be said that the right asserted in this case was clearly established when Memorandum No. 07

- 17 was issued. Moreover, Reilly is also distinguishable on the ground that it involved discipline for the content of the employee‟s testimony. In this case, by way of contrast , the employer made a decision not to pursue parking violation charges against any alleged violators as part of an effort to correct what it felt was an overzealous enforcement of a9

township parking ordinance. Recently, the Court reiterated that courts mu st be reluctant to interfere in what is essentially “„a personnel decision taken by a public agency allegedly in reaction to the employee‟s behavior.‟” Borough of Duryea v. Guarnieri , No. 90

- 345, __ U.S. __ , slip op. at 5 (Jun. 20, 2011) (quoting Connick v. Myers , 461 U.S.
138 , 147 (1983)). The Court explained that “substantial government interests . . . justify a cautious and restrained approach to the protection of speech by public employees . . . .”
Id. at 8. Indeed, emphasizing the distinction made i n Garcetti , the Court in Guarnieri emphasized that “„[w]hen someone who is paid a salary so that she will contribute to an agency‟s effective operation begins to do or say things that detract from the agency‟s effective operation, the government employer m ust have some power to restrain her.‟”
Id. at 5

- 6 (quoting Waters v. Churchill , 511 U.S. 661, 675 (1994) (plurality opinion)). The instant case, rather than focusing on an employer‟s retaliation based on the substance of testimony, is far more akin to an employer‟s attempt to restrain the actions of employees which were considered to “detract from the agency‟s effective operation.” In this case, a decision was made to not devote public resources to pursuing parking citations issued under unique circumsta nces. Our holding in Reilly certainly did not address this particular context. Nor have the Appellants cited any authority that would preclude a municipality from instructing its law enforcement officers from appearing at hearings to enforce parking viol ations. Under this set of facts, it simply cannot be said that the Appellants‟ “right” to appear at hearings was “clearly established.” In summary, w e find that a government employee‟s right to attend a court proceeding to enforce parking violations was n ot clearly established at the time10

Memorandum No. 07

- 17 was issued

. 2 Thus, we will affirm the District Court‟s finding of qualified immunity for Appellants McNeilly and Black and its concomitant grant of summary judgment on this basis. 3
B. Appellants appa rently also seek to appeal the District Court‟s remand of the claims over which it exercised supplemental jurisdiction. 4 The issue of remand of state law claims is governed by 28 U.S.C. § 1367 (c)(3), which provides that “[t] he district courts may decline to exercise supplemental jurisdiction over a [state law] claim if . . . the district court has dismissed all claims over which it has original jurisdiction.” We review a District Court‟s decision to remand under § 1367 for abuse of discretion. Anderson v. Wachovia Mortgage Corp. , 621 F.3d 261 , 283 (3d Cir. 2010).

2 It bears emphasizing the point that the one instance of discipline imposed as a result of Memorandum No. 07

- 17 was the subject of a formal grievance that was denied by a neutral arbitrator. Thus, Appellants had the ability to contest the discipline within th e framework of established dispute resolution processes.

3 The District Court also granted summary judgment to the township, apparently also on the basis of qualified immunity. It is well

- established that no qualified immunity defense exists for municipal ities under 42 U.S.C. § 1983

. See Owen v. City of Independence, Mo. , 445 U.S. 622 , 638 n.18 (1980) (“[T] here is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify the qu alified immunity accorded [to the municipality].”) Because Appellants did not raise this issue in their appeal, however, it is waived. See Graden v. Conexant Systems, Inc. , 496 F.3d 291 , 296 n.7 (3d Cir. 2007) (“ Absent compelling circumstances not presen t here, failing to raise an argument in one ‟ s opening brief waives it. ”) 4 It is unclear whether Appellants actually seek to appeal this remand to the state court, as their argument on this issue is essentially limited to the issue of whether “high public official immunity” applies to the remanded state law claims. The District Court did not address this question and it is not properly before us.11

“[W] here the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations o f judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so. ” Borough of West Mifflin v. Lancaster , 45 F.3d 780 , 788 (3d Cir. 1995). Here, because the two remaining claims are state

- law claims, judicial economy, convenience and fairness to the parties counsel against retaining supplemental jurisdiction over them. Accordingly, we find that the District Court did not abuse its discretion in remanding these claims to the state court.
III. For the foregoing reasons, we will affirm the judgment of the District Court.