David Eichenlaub; Ike Construction; Daniel Eichenlaub; Barbara Eichenlaub v. Township of Indiana

1
PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2707
DAVID EICHENLAUB;
IKE CONSTRUCTION;
DANIEL EICHENLAUB;
BARBARA EICHENLAUB,
Appellants
v.
TOWNSHIP OF INDIANA;
TOWNSHIP OF INDIANA BOARD
OF SUPERVISORS;
DOROTHY T. CLAUS; GEORGE E.
DULL, JR.; CHARLES R. FEDEROFF;
JEFFREY D. PECK; DANIEL L.
TAYLOR, in their official capacities;
TOWNSHIP OF INDIANA CODE
ENFORCEMENT OFFICER,
JEFFREY S. CURTI, in his official
capacity; DAN ANDERSON, in his
official capacity; MILDRED BROZEK,
Administratix of the Estate of
Kevin Brozek; TOWNSHIP OF
INDIANA ENGINEER, DANIEL B.
SLAGLE, in his individual and official
capacity
On Appeal from the
United States District Court
for the Western District of Pennsylvania
(Dist. Ct. Nos. 99-cv-01607 and
99-cv-01667)
District Judge:
Honorable Arthur J. Schwab
Argued March 26, 2004
Before: AMBRO, CHERTOFF, and
BECKER, Circuit Judges.
(Filed: September 21, 2004)
BLAINE A. LUCAS (Argued)
GERRI L. SPERLING
Springer Bush & Perry P.C.
Two Gateway Center, 15th Floor
Pittsburgh, PA 15222-1402
Counsel for Appellants
SCOTT G. DUNLOP (Argued)
STEPHEN J. POLJAK
Marshall, Dennehey, Warner, Coleman
& Goggin, P.C.
2900 U.S. Steel Tower
600 Grant Street
Pittsburgh, PA 15219
Counsel for Appellees, except for
Dorothy T. Claus
JEFFREY COHEN (Argued)
MARK A. ECK

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Meyer, Darragh, Buckler, Bebeneck &
Eck
U.S. Steel Tower, Suite 4850
600 Grant Street
Pittsburgh, PA 15219
Counsel for Appellee, Dorothy T. Claus
OPINION OF THE COURT
CHERTOFF, Circuit Judge.
Appellants, members of the
Eichenlaub family and their family-owned
business, have been embroiled in a
contentious zoning d ispute with
Appellees, the Township of Indiana,
Pennsylvania, and several of its officials.
The controversy arises from the
Eichenlaubs’ desire to develop certain
pieces of property, and from the
Township’s insistence that the
development comply with a number of
regulations. The disagreement has
engendered claims that Township officials
violated the Eichenlaubs’ substantive due
process and equal protection rights by
denying or delaying authorization to
develop the properties; that officials
violated David Eichenlaub’s First
Amendment petition and free speech
rights by curtailing his speech during a
public meeting and removing him from
the meeting; that officials retaliated
against David Eichenlaub for exercising
his First Amendment rights; and that
officials are also liable under Pennsylvania
state law for damages.
The District Court granted
summary judgment on the substantive due
process, equal protection, and First
Amendment charges but denied the
Eichenlaubs’ mandamus claim as moot.
We affirm the District Court’s judgment
with respect to the substantive due process
and free speech and petition claims.
However, we will reverse as to the First
Amendment retaliation, equal protection,
and writ of mandamus claims.
I.
David, Daniel, and Barbara
Eichenlaub own two parcels of property in
Indiana Township: seven lots in the
Fairview Gardens Plan and a separate tract
of land located along Saxonburg
Boulevard. In the mid-1990s, the
Eichenlaubs commenced plans to develop
their Fairview Gardens property, which
was part of a twenty-seven lot subdivision
of single family residences approved by
the Allegheny County Planning
Commission and the Board of Supervisors
of the Township in 1940 (the “Plan”). In
April of 1999, the Eichenlaubs submitted
an application to the Township for
approval of a revised Plan related to the
seven lots (the “Revised Plan”). After
several rejections and subsequent
revisions, the Township approved the
Eichenlaubs’ amended subdivision plan
on June 22, 1999, conditioned upon an
execution of a satisfactory developer’s
agreement. However, several weeks later,
the Eichenlaubs withdrew their Revised
Plan, claiming that they had been subject
to “unnecessary and onerous obligations”
by the Township. Appellant Br. 12.

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Following the withdrawal of their
revised plan application, the Eichenlaubs
continued their development efforts for
their Fairview Gardens lots. On August
19, 1999, Daniel and Barbara Eichenlaub
executed deeds granting two of the
Fairview Gardens lots to family members,
David and Carl Eichenlaub. One week
later, David Eichenlaub submitted a
building permit application for a single
family residence on Lot 7 of the Plan. The
Township rejected that application, as well
as a subsequent application filed on
August 3, 2000, claiming that the family
was trying to develop the seven residential
lots in a serial fashion so as to claim
colorable exemption from th e
requirements of the Township Subdivision
and Land Development Ordinance.
The Eichenlaubs maintained that
they were not required to obtain the
Township’s approval of their subdivision
plans under the then-current land
development regulations. They claimed
that because the Fairview Gardens
subdivision development was part of the
twenty-seven lot plan approved in 1940,
subsequent revisions to the development
codes did not apply to them. The
Township argued otherwise and
maintained that the Eichenlaubs were
obliged to comply with development
regulations enacted following the original
subdivision approval granted in 1940.1
The Eichenlaubs also sparred with
Township officials over the development
of their Saxonburg Boulevard property. In
1998, the Eichenlaubs filed a permit
application to grade the property to plant
nursery stock for their landscaping
business. The following year, the
Eichenlaubs fulfilled a Township request
to file a site plan for the project. In June
of 2000, the Board approved the
Eichenlaubs’ plan. However, the
Township had not executed the
Developer’s Agreement because, as the
Magistrate Judge found, the Eichenlaubs
have refused to pay the engineering fees
for the project. App. A37.
In September of 1999, the
Eichenlaubs filed two separate civil
actions in federal court. In the first case,
docket 99-cv-01607, the Township, the
Township Board of Supervisors, the
Township Board Code Enforcement
Officer, the Township Manager, and the
Townsh ip Engineer were named
defendants. David Eichenlaub alleged that
the Township violated his First
Amendment rights to petition government
for redress of grievances when he was
limited in his right to speak at a public
meeting on September 14, 1999, and was
removed from the same meeting2 (Count I)
1 The Township’s position has been
that the Eichenlaubs were required to
comply with the requirements of the
current Subdivision Ordinance (enacted in
1980), the Township Grading Ordinance
(enacted in 1987), and the Stormwater
Management Ordinance (enacted in 1988).
2 David Eichenlaub contends that at
the September 14, 1999 meeting, board
chairman Peck also “repeatedly

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and was subject to various alleged
retaliatory actions taken by the Defendants
(Count II). David Eichenlaub and his
business, Ike Construction, also asserted
defamation claims regarding Defendants’
involvement in a newspaper article
recounting that David Eichenlaub had
violated an Indiana Township Ordinance
(Count II).
In the second case, docket 99-cv-
01667, David, Daniel, and Barbara
Eichenlaub raised conspiracy claims under
42 U.S.C. § 1983 asserting: (1) violation
of their Fourteenth Amendment rights to
substantive due process (Count I) arising
out of delays and disputes in securing
authorization to develop the Fairview
Gardens and Saxonburg Boulevard
properties; and (2) denial of equal
protection under the Fourteenth
Amendment by being denied the
opportunity to proceed with their projects
(Count II); and (3) arbitrary action,
selective enforcement and retaliation
regarding both the Fairview Gardens and
Saxonburg Boulevard properties (Count
III). The Eichenlaubs also alleged that the
Defendants’ failure to act on their
development applications in the time and
manner required under the Pennsylvania
Municipalities Planning Code (“MPC”)
entitled them to a writ of mandamus
compelling approval of those projects
(Count IV).
The two complaints were
consolidated at 99-cv-01667. The
Defendants moved for summary judgment
on all counts, and the Eichenlaubs moved
for partial summary judgment on the
counts initially listed in 99-cv-01667.
On August 27, 2002, the Magistrate
Judge issued his Report and
Recommendation. The report
recommended that the District Court: (1)
Grant summary judgment for Defendants
on David Eichenlaub’s First Amendment
free speech and petition claim as well his
state defamation claim; the Eichenlaubs’
equal protection, conspiracy, and official
capacity claims alleged against the
individual Defendants; (2) deny
Defendants’ motions for summary
judgment on the David Eichenlaub’s First
Amendment retaliation claims; (3) deny
motions by the Eichenlaubs and
Defendants for summary judgment on the
Eichenlaubs’ substantive due process
claim; and (4) grant the Eichenlaubs’
request for a writ of mandamus based on
(a) Defendants’ failure to notify the
Eichenlaubs of its April 1999 decision to
deny approval of the subdivision plan for
Fairview Gardens and (b) Defendant’s
failure to act on the Eichenlaubs’ grading
permit and site plan applications for the
Saxonburg Boulevard property.
interrupted him and did not let him finish
his comments.” Appellant Br. 22. He also
claims that Peck had called him earlier on
August 25, 1999, and suggested that he
“not come back and speak at the
Township meetings, at the citizens
forum.” Id. Finally, David Eichenlaub’s
complaint, 99-1607, asserts without any
specificity that the Township hindered him
from speaking at meetings.

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While the case was pending in
District Court, the parties entered into two
partial settlement agreements, dated
February 12, 2003, and February 24, 2003,
under which the Township agreed to grant
building permits at Fairview Gardens and
approve the subdivision plan and grading
permits for the Saxonburg property.
On May 29, 2003, the District
Court entered an order granting
Defendants’ motion for summary
judgment on all counts. The Court also
dismissed the Eichenlaubs’ mandamus
requests as moot in light of the partial
settlement agreements.
The Eichenlaubs appeal from that
order as it relates to the § 1983 claims for
substantive due process, equal protection,
free speech, and retaliation as well as the
denials of mandamus. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
Our review over a District Court’s grant of
summary judgment is plenary. See Fed.
Home Loan Mortgage Corp. v. Scottsdale
Ins. Co., 316 F.3d 431, 443 (3d Cir.
2003). We assess the record using the
same summary judgment standard that
guides district courts. See Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 278
(3d Cir. 2000). To prevail on a motion for
summary judgment, the moving party must
demonstrate “that there is no genuine issue
as to any material fact and that the moving
party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c).
II.
David Eichenlaub’s Fir st
Amendment claims present two distinct
issues. He complains that the Township
restricted his ability to speak at various
Township Board of Supervisors Meetings
and that he was removed from one such
meeting on September 14, 1999. In effect,
David Eichenlaub alleges a direct restraint
on speech in a particular public forum, as
well as a restraint on his ability to petition
under the Petition Clause of the First
Amendment. Second, David Eichenlaub
urges that Township officials took adverse
action against his family in retaliation for
his statements. We examine each claim in
turn.
A.
The government’s power to prevent
or limit speech on public property is
carefully circumscribed by the First
Amendment. Not all public property is
open to unfettered public speech, for the
“First Amendment does not guarantee
access to property simply because it is
owned or controlled by the government.”
United States Postal Serv. v. Council of
Greenburgh Civic Ass’ns, 453 U.S. 114,
129 (1981). Government facilities that are
not committed to public communicative
activity may regulate speech by the
general public so long as that regulation is
reasonable and not based on opposition to
a particular viewpoint. Id. at 131 n.7.
That is because the government “may
legally preserve the property under its
control for the use to which it is
dedicated.” Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S.
384, 390 (1993).
On the other hand, public areas that

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are open to general “assembly and debate”
as a matter of tradition or by specific
government designation are characterized
as a public forum, within which speech
can be limited only narrowly. Ark. Educ.
Television Comm’n v. Forbes, 523 U.S.
666, 677 (1998), quoting Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 45 (1983)); see also
Whiteland Woods, L.P. v. Township of
West Whiteland, 193 F.3d 177, 182 n.2
(3d Cir. 1999). Streets and parks are
examples of traditional public forums.
See, e.g., Hague v. CIO, 307 U.S. 496,
515 (1939). Public forums are also
established when the government opens
property for general “expressive activity,”
Perry Educ. Ass’n, 460 U.S. at 45, as in
the case of theaters, Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546,
555 (1975). Absent a compelling interest,
speech in a public forum may not be
regulated based upon content.
Furthermore, in a public forum any
restrictions as to time, place, and manner
of speech (1) must be unrelated to content;
(2) must be “‘narrowly tailored to serve a
significant governmental interest’”; and
(3) must allow alternative ways of
communicating the same information.
Whiteland Woods, 193 F.3d at 182 n.2
(quoting Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989)).
There is a third type of public
setting that the courts have recognized—a
forum created by the government that is
limited to certain groups or to discussion
of certain topics. See Rosenberger v.
Rector & Visitors of the Univ. of Va., 515
U.S. 819, 829 (1995); Lamb’s Chapel, 508
U.S. at 392-93. An example of this kind
of limited public forum is a university
facility open for meetings of student
groups, but not for the general public.
See, e.g., Widmar v. Vincent, 454 U.S.
263, 268 (1981). The Supreme Court has
not precisely instructed where the limited
public forum is located on the First
Amendment spectrum between the strict
test for public forum regulation and the
more relaxed test for nonpublic regulation.
See Whiteland Woods, 193 F.3d at 182
n.2. Earlier decisions, such as Widmar
itself, 454 U.S. at 269-70, and Perry Educ.
Ass’n, 460 U.S. at 45-46 & n.7, suggest
that content-based restraints on limited
public forums must be subject to strict
scrutiny, and can survive only if they are
supported by a compelling interest.
Recently, however, the Court has
apparently moved to the position that
regulation of a limited forum may survive
under a test that is less strict than that
applied in the case of a general open
forum. Good News Club v. Milford Cent.
Sch., 533 U.S. 98, 106 (2001). Under this
refined test for reviewing limited forum
restrictions, content-based restraints are
permitted, so long as they are designed to
confine the “forum to the limited and
legitimate purposes for which it was
created.” Rosenberger, 515 U.S. at 829;
see also Brody v. Spang, 957 F.2d 1108,
1118 (3d Cir. 1992). Two limitations
remain. Any restrictions on speech must
be viewpoint neutral and must be
“‘reasonable in light of the purpose served
by the forum.’” Good News Club, 533
U.S. at 106-07 (quoting Cornelius v.

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NAACP Legal Def. & Ed. Fund, Inc., 473
U.S. 788, 806 (1985)).
Put another way, we may say that
under contemporary public forum
jurisprudence, a designated (as opposed to
traditional) forum is reviewed under a
sliding standard that allows for content-
related regulation so long as the content is
tied to the limitations that frame the scope
of the designation, and so long as the
regulation is neutral as to viewpoint within
the subject matter of that content.
In this case, the primary restrictions
placed on David Eichenlaub’s speech
occurred during his appearance at the
citizen’s forum portion of the Township
Board of Supervisors meeting on
September 14, 1999, during which he was
eventually removed. Whether the citizen’s
forum was a general public forum or a
limited public forum is a close question.
Certainly, the citizen’s forum is not
limited to a particular class of speakers, as
was the case in Cornelius (charities),
Rosenberger (student groups), or Forbes
(political candidates). Indeed, the record
discloses that the citizen’s forum—as its
name suggests—is open to all citizens
who wish to address the Township
government. At the same time, a review
of the transcript of the forum confirms that
even the public discussion session of the
Township meeting was designed to be
limited to matters pertaining to town
government. The meeting was not the
equivalent of a municipal theater, as in
Southeastern Promotions, or a public park
or street. One would certainly not expect
the forum of a Township meeting to
include such expressive activities as
performance art, lectures on medieval
history, or arguments about private
disputes involving town citizens. “Plainly,
public bodies may confine their meetings
to specified subject matter . . . .” City of
Madison Joint Sch. Dist. v. Wis.
Employment Relations Comm’n, 429 U.S.
167, 175 n.8 (1976); see White v. City of
Norwalk, 900 F.2d 1421, 1425 (9th Cir.
1990). Thus, matters presented at a
citizen’s forum may be limited to issues
germane to town government.
With this framework, we agree with
the District Court that summary judgment
against David Eichenlaub on his restraint
of speech and petition claims was
appropriate. The record of the September
14, 1999 meeting discloses that he was
repetitive and truculent, and that he
repeatedly interrupted the chairman of the
meeting. Restricting such behavior is the
sort of time, place, and manner regulation
that passes muster under the most stringent
scrutiny for a public forum. Indeed, for
the presiding officer of a public meeting to
allow a speaker to try to hijack the
proceedings, or to filibuster them, would
impinge on the First Amendment rights of
other would-be participants. We have no
difficulty sustaining the decision to
remove David Eichenlaub on that basis.
To be sure, the chairman of the
meeting sought to restrict the discussion to
topics of public interest and requested that
David Eichenlaub not discuss matters of
private concern. To the extent those
restrictions were not strictly content-
neutral, the chairman’s actions served the

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function of confining the discussion to the
purpose of the meeting. As we have
observed, speech at a citizen’s forum may
be limited according to its germaneness to
the purpose of the meeting.3 At any rate,
the overwhelming, and wholly sufficient,
motive to eject David Eichenlaub from the
meeting was the perfectly sustainable and
content-neutral desire to prevent his
badgering, constant interruptions, and
disregard for the rules of decorum.
We will affirm summary judgment
for the defendants on this claim.
B.
The Eichenlaubs’ retaliation claims
stand on different footing, however. The
Magistrate Judge determined that there
were material issues of fact as to whether
the defendants took steps to retaliate
against the Eichenlaubs for David
Eichenlaub’s various statements and
complaints, including his speech at the
September 14, 1999 meeting. The District
Court entered summary judgment against
the Eichenlaubs, however, on the ground
that, even if there was retaliation, the
speech in question related to private
matters, rather than matters of public
concern, and, therefore, was unprotected
by the First Amendment.4
The District Court’s opinion
misconceives the scope of protection for
speech under the First Amendment.
The issue of government retaliation
for unwelcome communication arises in
various contexts. Sometimes, public
employees claim adverse employment
action resulted because of their speech.
Prisoners not infrequently allege that
punishment was spurred by their
complaints. And, as is the case here,
citizens may charge that the government
hurt them in retaliation for some criticism
against the authorities. See Bd. of County
Comm’rs v. Umbehr, 518 U.S. 668, 671-
72 (1996).
In general, constitutional retaliation
claims are analyzed under a three-part test.
Plaintiff must prove (1) that he engaged in
constitutionally-protected activity; (2) that
the government responded with
retaliation; and (3) that the protected
activity caused the retaliation. Anderson
v. Davila, 125 F.3d 148, 161 (3d Cir.
1997) (public employee retaliation);
Rauser v. Horn, 241 F.3d 330, 333 (3d
Cir. 2001). The threshold requirement is
that the plaintiff identify the protected
activity that allegedly spurred the
3 Of course, viewpoint-based
regulation is not proper. We do not read
the record of the proceedings to indicate
that the presiding officer attempted to
muzzle David Eichenlaub because he
disagreed with Eichenlaub’s viewpoint.
App. A1225-35.
4Appellants challenge the District
Court’s determination that David
Eichenlaub’s speech was not about matters
of public concern. Since we determine
that the public concern test is not
applicable, we need not address this
challenge.

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retaliation. In this case, David Eichenlaub
argues that his exercise of his freedom of
speech and ability to petition the
government under the First Amendment
are the protected activities in question.
The District Court relied in part on
our opinion in Anderson to hold that
“plaintiff must show that speech is a
matter of public concern in order to
receive First Amendment protection.”
App. A17 (quoting Anderson, 125 F.3d at
162). This reading of our case law,
however, is overbroad. Our decision in
Anderson—and all the other decisions
relied upon in the District Court or by the
parties—provide only that a “public
concern” requirement applies when a
claim of First Amendment retaliation is
brought by a public employee against his
or her government employer. Anderson,
125 F.3d at 162. The speech on public
concerns requirement embodied in these
decisions has not been applied, however,
when non-employees complain that
government has retaliated against them as
citizens for their speech. To expand this
public concern limitation into the broader
context of all citizen speech would wrench
it from its original rationale and curtail a
significant body of free expression that
has traditionally been fully protected
under the First Amendment.
We begin with the proposition that,
except for certain narrow categories
deemed unworthy of full First Amendment
protection—such as obscenity, “fighting
words” and libel—all speech is protected
by the First Amendment. R.A.V. v. St.
Paul, 505 U.S. 377, 382-90 (1992). That
protection includes private expression not
related to matters of public concern. See
Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 760 (1995);
Connick v. Myers, 461 U.S. 138, 147
(1983); United Mine Workers of Am.
Dist. 12 v. Ill. State Bar Ass'n, 389 U.S.
217, 223 (1967).
The “public concern” test was
formulated by the Supreme Court in
addressing speech restrictions placed by
governmental entities on their own public
employees. Regulation of public
employee speech presented two features
not present in other forms of speech
control. First, acting as an employer, the
government has some authority to impose
conditions upon those who seek jobs,
including conditions that limit the exercise
of otherwise available constitutional
rights. See, e.g., Broadrick v. Oklahoma,
413 U.S. 601 (1973). Second, “[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 must
have some power to restrain her.” Waters
v. Churchill, 511 U.S. 661, 675 (1994)
(plurality opinion).
The Supreme Court approached
public employee speech, therefore, as a
balance between the rights those
employees enjoy as citizens and the
obligations they bear as loyal employees.
In Connick v. Myers, 461 U.S. 138
(1983), the Court held that while
government employers, like their private
counterparts, have authority to manage

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their workers—including the authority to
restrict various kinds of expression—the
First Amendment imposes limits on that
authority when the employees are
speaking about matters of public concern.
To strike the balance, the Court carved out
speech on matters of public concern as a
species of expression that would remain
protected even for government employees.
The Court reasoned that speech on public
issues “occupies the ‘highest rung of the
hierarchy of First Amendment values,’ and
is entitled to special protection.” Id. at
145 (quoting Carey v. Brown, 447 U.S.
455, 467 (1980)).5
Nothing about the reasoning of
Connick suggests that this public/private
concern distinction has any role to play
regarding speech outside the public
employment setting.
To the contrary. In singling out
speech on matters of public concern for
the highest protection in the government
workplace, the Supreme Court took pains
to avoid any implication that speech on
private matters is not entitled to
constitutional protection:
We do not suggest,
however, that Myers’
speech, even if not touching
upon a matter of public
concern, is totally beyond
the protection of the First
Amendment. “[The] First
Amendment does not
protect speech and assembly
only to the extent it can be
characterized as political . .
. .
Id. at 147 (quoting United Mine Workers
of Am. Dist. 12, 389 U.S. at 223). Thus,
the Court distinguished between types of
speech only in order to accommodate the
strong countervailing need for
governments to discipline their own
personnel.
This Court has also observed, albeit
in dictum, that “[s]peech unrelated to a
matter of public concern is not, like
obscenity, entirely outside the protection
of the First Amendment. While the
government as employer may discharge a
public employee for such speech, the
government as sovereign may not sanction
the same individual when she engages in
such speech as a citizen, outside the
employment context.” Azzaro v. County
of Allegheny, 110 F.3d 968, 976 n.3 (3d
Cir. 1997).
To be sure, numerous cases,
including those cited by the District Court
and by the parties, have reiterated the
5 That special status for speech
about matters of public interest drew
support from other lines of First
Amendment case law that gives
extraordinary protection to even
defamatory speech and invasions of
privacy when they concern public figures
or matters of public interest. See Dun &
Bradstreet v. Greenmoss Builders, 472
U.S. 749, 758-59 (1985); New York
Times v. Sullivan, 376 U.S. 254, 279-80
(1984); Time, Inc. v. Hill, 385 U.S. 374,
387-88 (1967).

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public/private matters distinction in the
context of retaliation claims brought by
public employees. Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1997); Anderson, 125 F.3d at 160-61 (3d
Cir. 1997); Kokkinis v. Ivkovich and Vill.
of Bridgeview, 183 F.3d 840 (7th Cir.
1999); Russolini v. Salisbury Township,
126 F. Supp. 2d. 821 (E.D. Pa. 1999);
Alvarez v. City of New York, 31 F. Supp.
2d 334 (S.D.N.Y. 1998). What is pivotal,
though, is that these cases do not involve
retaliation by government bodies against
citizens who are not employed by the
government (and who, incidentally, cannot
be viewed as having limited their speech
as a condition of voluntary employment).6
Indeed, many other cases point to the
principle that outside the employment
context the First Amendment forbids
retaliation for speech even about private
matters. For example, we have held that
First Amendment claims may be based on
allegations that a prisoner’s complaint
against a guard caused retaliation.
Mitchell v. Horn, 318 F.3d 523 (3d Cir.
2003). Realistically, these kinds of
complaints are often highly particularized
objections to alleged individual
mistreatment. We do not, however,
impose a “public concern” threshold.
In short, while speech on topics of
public concern may stand on the “highest
rung” on the ladder of the First
Amendment, private speech (unless
obscene or fighting words or the like) is
still protected on the First Amendment
ladder. See Capitol Square Review, 515
U.S. at 760. The rationale for a
public/private concern distinction that
applies to public employees simply does
not apply to citizens outside the
employment context. By the same token,
the decisions of the Supreme Court and of
our court have not established a public
concern threshold to the protection of
citizen private speech. We decline to
fashion one now. “[C]onstitutional review
of government employment decisions
must rest on different principles that
review of speech restraints imposed by the
government as sovereign.” Waters, 511
U.S. at 674.
Accordingly, David Eichenlaub’s
speech, even if concerned with private
grievances, is entitled to First Amendment
protection.7
6 The District Court did rely upon
Grimm v. Borough of Norristown, 226
F.Supp. 2d 606, 636 n.19 (E.D.Pa. 2002),
in which another District Court translated
the public concern requirement from the
public employee setting to the zoning
setting. That opinion is, of course, not
binding on us, and for the reasons stated
here, we disagree.
7 The District Court opinion also
overlooked the fact that the Eichenlaubs
raised claims of retaliation for the exercise
of rights under the Petition Clause of the
First Amendment. We held in San Filippo
v. Bongiovanni, 30 F.3d 424 (1994), that
under the Petition Clause, the filing of a
“non-sham” petition was protected activity
in the public employee context—without

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Because the District Court did not
consider the Magistrate’s Report that
found material issues of fact with regard to
the other elements of the retaliation claim,
we will vacate the judgment on the First
Amendment retaliation claim and remand
for further proceedings.
III.
A.
The District Court properly held,
and the Eichenlaubs do not dispute, that
whether a zoning official’s actions or
inactions violate due process is determined
by utilizing a “shocks the conscience” test.
United Artists Theatre Circuit, Inc. v.
Township of Warrington, 316 F.3d 392,
399 (3d Cir. 2003). That test, of course, is
not precise, see County of Sacramento v.
Lewis, 523 U.S. 833, 847 (1998), and it
also “varies depending on the factual
context,” United Artists, 316 F.3d at 400.
What is clear is that this test is designed to
avoid converting federal courts into super
zoning tribunals. What “shocks the
conscience” is “‘only the most egregious
official conduct.’” Id. (quoting Lewis, 523
U.S. at 846).
Cases cited by the Eichenlaubs in
support of their argument illustrate the
kinds of gross misconduct that have
shocked the judicial conscience. In
Conroe Creosoting Co. v. Montgomery
County, 249 F.3d 337 (5th Cir. 2001), the
Court of Appeals determined that whether
a plaintiff’s substantive due process had
been violated by local officials was a
triable allegation. But that was not a
zoning dispute. Rather, plaintiffs charged
that the officials fraudulently converted a
tax levy for a $75,000 deficiency into an
unauthorized seizure and forced sale and
destruction of an $800,000 ongoing
business. The principal defendant
conceded that the sale was unauthorized.
The facts carried a whiff of self-dealing,
since the principal defendant’s friends
were alleged to have been engaged to
perform auction services. In effect, the
court found that the facts asserted
amounted to a claim of an unconstitutional
“taking” without just compensation, in
violation of the Fifth Amendment, or an
improper seizure, in violation of the
Fourth Amendment. Id. at 340 n. 9.
Associates in Obstetrics &
Gynecology v. Upper Merion Township,
270 F. Supp. 2d 633 (E.D.Pa. 2003), is
also a case that implicates more than just
disagreement about conventional zoning
or planning rules. In Obstetrics, the
District Court denied a motion to dismiss
a claim that municipal defendants denied
substantive due process when they
selectively closed plaintiff’s medical
office for the purpose of blocking the
provision of abortion services. Because
the municipal action there implicated
abortion rights, the District Court’s
regard to the “public concern” test. In
view of our disposition, we need not
address whether the Petition Clause
creates broader rights than the Free
Speech Clause in the non-employee
context. See id. at 449 (Becker, J.,
dissenting).

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analysis of the “shocks the conscience”
standard proceeded largely under those
judicial decisions that address protection
of abortion services under the Fourteenth
Amendment. That analysis is inapplicable
to a zoning controversy that does not
involve allegations of hostility to
constitutionally-protected activity on the
premises.8
By way of contrast, as the District
Court found, the misconduct alleged here
does not rise sufficiently above that at
issue in a normal zoning dispute to pass
the “shocks the conscience test.”9
Basically, the Eichenlaubs assert that
zoning officials applied subdivision
requirements to their property that were
not applied to other parcels; that they
pursued unannounced and unnecessary
inspection and enforcement actions; that
they delayed certain permits and
approvals; that they improperly increased
tax assessments; and that they maligned
and muzzled the Eichenlaubs. With the
exception of the previously discussed First
Amendment retaliation claims, these
complaints are examples of the kind of
disagreement that is frequent in planning
disputes. As counsel for appellants
acknowledged during argument, there is
no allegation of corruption or self-dealing
here. The local officials are not accused
of seeking to hamper development in
order to interfere with otherwise
constitutionally protected activity at the
project site, or because of some bias
against an ethnic group. There is no
virtual “taking” as in Conroe. And as we
have previously observed,
[E]very appeal by a
disappointed developer
from an adverse ruling of
the local planning board
involves some claim of
abuse of legal authority, but
“it is not enough simply to
give these state law claims
constitutional labels such as
‘due process’ or ‘equal
protection’ in order to raise
a substantial federal
question under section
1983.”
United Artists, 316 F.3d at 402 (quoting
Creative Env’ts, Inc. v. Estabrook, 680
8 Two other decisions relied upon
by the Eichenlaubs are just inapposite.
Brady v. Town of Colchester, 863 F.2d
205 (2d Cir. 1988), which involved
allegations that defendants were making
zoning decisions to harm members of an
opposing political party, was decided
before Lewis and under a different legal
standard than the “shocks the conscience”
test. Rubinovitz v. Rogato, 60 F.3d 906
(1st Cir. 1995), is an equal protection case,
not a substantive due process case.
9 The Magistrate Judge initially
analyzed the substantive due process claim
under the “improper motive” test of Bello
v. Walker, 840 F.2d 1124 (3d Cir.), cert.
denied, 488 U.S. 851 (1988), 488 U.S.
868 (1988). The District Court had the
benefit of our intervening decision in
United Artists, which made clear that
“shocks the conscience” applies.

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14
F.2d 822, 833 (1st Cir. 1982)).
The District Court applied the
correct legal standard and did not abuse its
discretion in dismissing the substantive
due process claim.
B.
In the District Court, the
Eichenlaubs also raised an equal
protection challenge to what they claimed
was selective or unequal enforcement of
local development rules. Indeed, they
argue here that other property owners have
not been held to the same rigorous
procedures that they claim were applied to
the Eichenlaubs’ parcels. They do not,
however, assert that any differences in
treatment stem from racial or other
invidious forms of discrimination, or from
an effort to burden fundamental rights
(again, except for their First Amendment
rights, which we treat above).
The Supreme Court has held that a
“‘class of one’” can attack intentionally
different treatment if it is “‘irrational and
who lly arbitrary.’” Village of
Willowbrook v. Olech, 528 U.S. 562, 564,
565 (2000) (internal citations omitted) (per
curiam). The Magistrate Judge briefly
addressed this issue in denying the motion
for summary judgment on this claim, but
the District Court reversed and granted
summary judgment without discussion.
The “irrational and wholly
arbitrary” standard is doubtless difficult
for a plaintiff to meet in a zoning dispute,
id. at 565-66 (Breyer, J., concurring), and
we do not view an equal protection claim
as a device to dilute the stringent
requirements needed to show a substantive
due process violation. It may be very
unlikely that a claim that fails the
substantive due process test will survive
under an equal protection approach.
Nevertheless, the District Court simply did
not address the equal protection claim at
all. Bearing in mind that we have
remanded the retaliation claims for further
consideration by the District Court, we
will remand this somewhat overlapping
claim as well so that the District Court
may consider whether it is appropriate for
summary judgment.
IV.
Finally, the Eichenlaubs appeal the
District Court’s decision to dismiss their
request for a writ of mandamus to obtain a
“deemed approval” of their proposed
subdivision and development plans. In his
Report and Recommendation of August
27, 2002, Magistrate Judge Caiazza
recommended that the Eichenlaubs’
request for a writ of mandamus be granted
with respect to (1) the failure to inform the
Eichenlaubs in writing of the Town
Board’s April 1999 vote denying the
revised Fairview Gardens subdivision plan
and (2) the Township’s failure to timely
review the Eichenlaubs’ Saxonburg
Boulevard grading permit and site plan
applications.
However, the District Court
determined that the Eichenlaubs’ request
for “deemed approval” of the Fairview
Gardens and Saxonburg property plans
was moot because the parties had executed

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two partial settlement agreements on
February 12, 2003, and February 24, 2003.
The Eichenlaubs allege here that this
decision was improper because the partial
settlement agreements left open the issue
of payment of damages. The District
Court never addressed whether damages
were appropriate.
Mandamus will issue to compel a
government agency’s performance of a
ministerial act when the plaintiff has a
clear legal right to the remedy, the
defendant has a duty, and there is no other
equitable or appropriate remedy. Malone
v. W. Marlborough Township Bd. of
Supervisors, 570 A.2d 147, 148-49 (Pa.
C o m mw . C t . 1 9 9 0 ) . U n d er
Commonwealth law, as the Township
itself noted, “[d]amages recoverable in
mandamus are those incidental to the
specific relief being sought.” Stoner v.
Township of Lower Merion, 587 A.2d
879, 885 (Pa. Commw. Ct. 1991). “[A]ny
damages available to the land owners as a
result of the township’s wrongful
withholding of approval must be confined
to those incidental to the specific relief
available in mandamus.” Id.
On appeal, we cannot determine
whether summary judgment for damages
incidental to mandamus was appropriate.
Neither the Magistrate Court nor the
District Court discussed the issue of
damages sustained by the Eichenlaubs
with respect to the delay in receiving the
permits. In addition, neither the
Eichenlaubs nor the Township has pointed
to evidence in the record on which this
Court could rely to sustain or reject a
claim for monetary relief. We remand this
issue to the District Court for a
determination whether summary judgment
is appropriate on the claim for damages
incidental to mandamus.
We will affirm the District Court’s
order granting summary judgment to the
Township of Indiana on the Eichenlaubs’
substantive due process and David
Eichenlaub’s free speech and petition
claim. With regard to David Eichenlaub’s
First Amendment retaliation claim and the
Eichenlaubs’ equal protection claim, we
will vacate the District Court’s judgment
and remand for further proceedings. We
will also remand the District Court’s order
denying the Eichenlaubs’ application for a
writ of mandamus for consideration of
damages incurred, if any.

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