JORDAN, Circuit Judge.
Appellant, Albert Flora, Jr., the former Chief Public Defender for Luzerne County, Pennsylvania, challenges the order of the United States District Court for the Middle District of Pennsylvania dismissing his First Amendment retaliation claims against the County and its manager, Roger Lawton. Because the District Court applied an incorrect standard in determining whether the facts alleged in the complaint set forth a claim for relief, and because, under the Supreme Court's recent decision in Lane v. Franks, ___ U.S. ___, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014), Flora pled facts sufficient to allege that he spoke as a citizen, we will vacate the District Court's order and remand for further proceedings.
Flora worked for the Luzerne County Office of the Public Defender from 1980 until 2013. He became the First Assistant Defender in 1990 and the Acting Chief Public Defender in March 2010. Three months later, the Luzerne County Board
The Public Defender's Office is charged with providing representation to indigent criminal defendants in 17 magisterial districts, the Luzerne County Court of Common Pleas, and the appellate courts of Pennsylvania. It also provides representation in state and county parole, probation, and civil commitment proceedings. When Flora became the Chief Public Defender, the office was "plagued with problems as a result of years of insufficient funding." (Appellant's Br. at 3; see also App. at 11.) His predecessor had tried to secure additional funding from Luzerne County by submitting weekly reports to the Commissioners that detailed the excessive caseloads and staffing deficiencies. To improve the quality of representation for juveniles, Flora sought and obtained grant funding from the Pennsylvania Commission on Crime and Delinquency and the Luzerne-Wyoming Counties Mental Health Program. He was not, however, able to obtain additional money to address the funding crisis as it pertained to adult offenders. Flora provided the County, the Commissioners, and Lawton with a report in June 2010 that detailed funding inadequacies and stated that the current level of resources did not allow the Public Defender's Office to provide constitutionally adequate representation to its clients. The County was unresponsive to Flora's concerns, so he restricted the types of clients that the Office would represent, refusing representation to those who were not faced with a period of incarceration if convicted.
Flora continued battling the County on funding, submitting his 2012 budget "under protest" and stating that "[c]urrent staffing levels and existing caseloads[] prevent this office from providing the level of representation required by ethical standards and by Federal and State Constitutions.... [T]he office is ethically required to withdraw from existing cases or refuse new cases." (App. at 47.) By April 2012, insufficient funding coupled with a hiring freeze and several attorney resignations meant that the resource issue had reached a critical stage.
On June 15, 2012, the state court granted Flora's petition for mandamus. It ordered the County to provide adequate funding and staffing to the Public Defender's Office,
Meanwhile, the funding litigation Flora had instituted in state court was unfolding amidst the fallout from the "Kids for Cash" scandal. Between 2003 and 2008, approximately 50% of juvenile offenders in Luzerne County appeared in court without the benefit of counsel — about ten times the state average. Virtually all were adjudicated delinquent. Eventually, federal investigators uncovered a scheme in which two Luzerne County Common Pleas judges had been accepting kickbacks from for-profit juvenile detention facilities in exchange for sending unrepresented juvenile defendants to those facilities. The Pennsylvania Supreme Court responded to these revelations by appointing a Special Master — Senior Judge Arthur Grim of the Bucks County Court of Common Pleas — to recommend ameliorative measures. Based on Judge Grim's report and recommendation, the Supreme Court in 2009 ordered the vacatur and expungement of thousands of delinquency adjudications and consent decrees. Notwithstanding the Supreme Court's order, Flora alleges that, in early 2013, during a routine meeting with court administrative staff, he learned that over 3,000 of the adjudications and decrees had not yet been expunged. He then brought that failure to the attention of the County, the District Attorney for the County, the Administrator of the Court of Common Pleas, the public interest law firm that represented the juveniles in the expungement proceedings, and Judge Grim. Lawton, who, as previously noted, was the County Manager, was angry that Flora had reported the expungement issue to Judge Grim, even though Flora explained that, "as an officer of the Court," he felt compelled to do so.
Lawton interviewed Flora for the Chief Public Defender position in March 2013, but ultimately recommended — and the Commissioners approved — a different attorney, Steven Greenwald. As the County hired Greenwald, one Commissioner informed the media that Flora was a "controversial" candidate because of the funding lawsuit. Flora had been scheduled to stay in office until April 29, 2013, but on April 17, 2013, Lawton informed him that he was relieved of all duties as Chief Public Defender.
A few days later, Flora filed the present action, alleging that he had been terminated from his position as Chief Public Defender in retaliation for his efforts to secure funding for the Office of the Public Defender and for reporting the County's noncompliance with the Pennsylvania Supreme Court's expungement order. He asserted claims under 42 U.S.C. § 1983 based on a theory of First Amendment retaliation,
The District Court dismissed Flora's complaint, concluding that he had failed to state a First Amendment claim because the filing of the state court action and the reporting of unfinished expungements "related to" his official duties as Chief Public Defender and thus, under Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), were not protected by the First Amendment. (App. at 3-31.) After dismissing Flora's only federal claim, the District Court declined to exercise supplemental jurisdiction over his state law claims. This appeal followed.
Public employees do not renounce their First Amendment rights upon employment; however, "the government's countervailing interest in controlling the operation of its workplaces" limits the First Amendment's ordinarily broad protections. Lane, 134 S.Ct. at 2377 (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).
To establish a First Amendment retaliation claim, a public employee must show that his speech is protected by the First Amendment and that the speech was a substantial or motivating factor in what is alleged to be the employer's retaliatory action. See Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir.2009). If the employee establishes both of those predicates, the burden shifts to the employer to show that it would have taken the same action even if the speech had not occurred. Id. In this case, the second predicate was in effect conceded for purposes of the motion to dismiss,
A public employee's statement is protected by the First Amendment when: "(1) in making it, 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, 547 U.S. at 418, 126 S.Ct. 1951). At present, the parties dispute only whether Flora was speaking as a citizen or as an employee of the Public Defender's Office when he spoke out through the funding lawsuit and through his report about incomplete expungements. In other words, the survival of the case comes down to whether that speech was within Flora's job duties. See Lane, 134 S.Ct. at 2379 (noting that the key question in the citizen speech analysis is "whether the speech at issue is itself ordinarily within the scope of an employee's duties.").
"`Whether a particular incident of speech is made within a particular plaintiff's job duties is a mixed question of fact and law.'" Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 988 (3d Cir.2014) (brackets omitted) (quoting Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir.2007), abrogated on other grounds by Borough of Duryea, Pa. v. Guarnieri, ___ U.S. ___, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011)). Specifically, the scope and content of a plaintiff's job responsibilities is a question of fact, but the ultimate constitutional significance of those facts is a question of law. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1058 (9th Cir.2013).
When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a district court must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). The district court may not make findings of fact and, insofar as there is a factual dispute, the court may not resolve it. See Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n. 9 (3d Cir.2011), as amended (Oct. 7, 2011) (district court is not permitted to make independent findings of fact when deciding a Rule 12(b)(6) motion). Here, there was a factual dispute as to whether Flora's job duties encompassed making the statements at issue.
That error was compounded by the District Court's application of an incorrect legal standard to the facts it had improperly found. In determining whether Flora's job duties encompassed the statements at issue, the District Court identified the relevant legal question as whether Flora's filing the state court lawsuit and reporting the inadequate progress on expungements "related to" his job duties. (App. at 25.) That approach misapprehends the question posed by Garcetti.
The Supreme Court's opinion in Garcetti sets forth the controlling test for determining whether a public employee's speech was made incident to his employment duties: "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate
We, too, have forgone any attempt to create a comprehensive framework for determining whether speech is made pursuant to an employee's official job duties. Dougherty, 772 F.3d at 987-88. We have, rather, attempted to "give[] contours to Garcetti's practical inquiry." Id. (internal citations omitted). For example, in Foraker v. Chaffinch, we declined to extend First Amendment protection when the speech in question was directed "up the chain of command." 501 F.3d at 241-43 (holding that police officers' statements concerning hazardous conditions at a firing range were made pursuant to their official duties since they were obligated to report that type of information up the chain of command), abrogated on other grounds by Guarnieri, 131 S.Ct. at 2488. In Gorum v. Sessoms, we held that a professor who spoke on behalf of a student at a disciplinary hearing was speaking pursuant to his official duties when he was a "de facto" advisor to students on disciplinary matters. 561 F.3d at 186.
The County and Lawton rely on our statement that a "claimant's speech might be considered part of his official duties if it relates to `special knowledge' or `experience' acquired through his job," Foraker, 501 F.3d at 240; accord Gorum, 561 F.3d at 185. They contend that because the speech here relates to special knowledge Flora obtained as Chief Public Defender — in essence that it owes its existence to Flora's job duties — it was not citizen speech. (Appellees' Br. at 15-16, 19.) Foraker and Gorum, however, considered how the employee learned of the information as only one non-dispositive factor among many. Indeed,
Dougherty, 772 F.3d at 988-89.
In Lane, the Supreme Court clarified that "[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." 134 S.Ct. at 2379 (emphasis added). The Court held that a public employee could not be terminated for providing to a grand jury truthful, sworn testimony under subpoena, even though the testimony concerned matters related to the employee's job. Id. at 2378-79. According to the Court, the term "official responsibilities," means the responsibilities an employee undertook when he "went to work and performed the tasks he was paid to perform," which did not, in that case, encompass testifying in legal proceedings. Id. (internal quotation marks omitted). And, the Court cautioned, there is "considerable value" in "encouraging, rather than inhibiting, speech by public employees. For, [they] are often in the best position to know what ails the agencies for which they work." Id. at 2377 (internal quotation marks omitted). The Court therefore concluded that giving grand jury testimony was not part of that employee's "ordinary job responsibilities" even though the testimony "relate[d] to [the employee's] public employment or concern[ed] information learned during that employment." Id. at 2378 (emphasis added).
Further, in Dougherty v. School District of Philadelphia, we had occasion to consider the implications of Lane for a School District employee who was terminated after saying to The Philadelphia Inquirer that the District Superintendent had improperly skirted competitive bidding rules and steered a lucrative contract to a personal acquaintance. 772 F.3d at 982-83. We ruled that the employee spoke as a citizen rather than pursuant to his official duties, even though he oversaw the school district's procurement program and learned of the alleged misconduct in that role. Id. at 986-89. We further decided that, because the employee's "routine job responsibilities" did not include reporting misconduct to the press or to the school board, his speech was not within the scope of his employment "merely because the subject matter of the speech concern[ed] or relate[d] to those duties." Id. at 988, 990. While it was not necessary to our conclusion, we noted that "Lane may broaden Garcetti's holding by including `ordinary' as a modifier to the scope of an employee's job duties." Id. at 990.
Here, the District Court identified the relevant question as whether Flora's actions "related to" his job duties. (App. at 26.) It then held that, because Flora's statements did "relate[]" to his role as the Chief Public Defender, they were not citizen speech and were unprotected. (App. at 26-29.) In thus using the "related to" standard, the District Court did not apply the correct test under Garcetti, as Lane
Because the District Court's decision rests on an errant reading of Garcetti and is at odds with Lane and Dougherty, it cannot stand. We need not decide whether Lane modified or merely clarified Garcetti.
Against that legal backdrop, we consider the viability of Flora's complaint.
A straightforward application of Lane leads us to conclude that, given those allegations, Flora's speech with respect to both the funding litigation and the expungement problems was not part of his ordinary responsibilities — it was not part of the work he was paid to perform on an ordinary basis. 134 S.Ct. at 2378-79. As claimed in his complaint, and as described in the statute creating the Public Defender, Flora's ordinary job duties did not include the public reporting of lingering effects from government corruption or the filing of a class action suit to compel adequate funding for his office. Rather, he represented indigent clients in criminal court and in related proceedings. Lawton and the County contend that, because Flora alleges his speech was partially aimed at vindicating the rights of indigent criminal defendants, he has conceded that it was within the scope of his ordinary job duties. But, their argument sweeps too broadly. While certain statements in Flora's complaint do suggest that the speech at issue bore some relation to his job duties and may have, indirectly, benefitted his clients, that does not bring the speech within the realm of his ordinary job duties. Cf. Pickering, 391 U.S. at 568, 88 S.Ct. 1731 (teacher who reported funding deficiency was speaking as a citizen rather than as a teacher even though additional funding would have facilitated teacher's education of students); Dougherty, 772 F.3d at 988-89, 990-91 (procurement director reporting superintendent's failure to abide by procurement policies was speaking as citizen even though absence of wrongdoing would arguably facilitate procurement office operations). To view it otherwise would unduly restrict First Amendment rights, because reporting malfeasance or misfeasance will regularly benefit an employee in the execution of his job duties by, presumably, removing impediments to proper government functioning.
Accordingly, we conclude that Flora's complaint contains sufficient allegations that his ordinary job duties did not include filing the funding suit or reporting the expungement issue and the pleading should therefore have survived the motion
For the forgoing reasons, we will vacate the order of dismissal and remand for further proceedings.
