Robert Reilly v. City of Atlantic City

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2591
ROBERT REILLY
v.
CITY OF ATLANTIC CITY; ROBERT FLIPPING;
JOSEPH B. MCCULLOUGH; ARTHUR SNELLBAKER
Robert Flipping,
Appellant
No. 06-2734
ROBERT REILLY
v.
CITY OF ATLANTIC CITY; ROBERT FLIPPING;
JOSEPH B. MCCULLOUGH; ARTHUR SNELLBAKER
Arthur Snellbaker,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 03-cv-05975)
District Judge: Hon. Joseph E. Irenas

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Hon. Arthur L. Alarcón, Senior Judge, United States Court*
of Appeals for the Ninth Circuit, sitting by designation.
2
Argued April 15, 2008
Before: SLOVITER, JORDAN and ALARCÓN ,*
Circuit Judges
(Filed: July 1, 2008 )
A. Michael Barker
Joseph M. Scott (Argued)
Barker, Scott & Gelfand
Linwood, NJ 08221
Eric J. Riso (Argued)
Marrazzo & Platt
Stratford, NJ 08084
Attorneys for Appellants
Frank L. Corrado (Argued)
Barry, Corrado, Grassi & Gibson
Wildwood, NJ 08260
Attorney for Appellee
____
OPINION OF THE COURT
SLOVITER, Circuit Judge.
The issue before us is whether we have jurisdiction from the
order of the District Court denying Defendants’/Appellants’ claim
of qualified immunity.

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I.
Appellee Robert Reilly, a former Atlantic City police
officer, filed suit against Robert Flipping, the Director of Public
Safety, and Arthur Snellbaker, the Chief of Police, claiming that
they retaliated against him for his participation, including trial
testimony, in an investigation conducted jointly by state and local
police a decade earlier. The claimed retaliation consisted of the
formal recommendation by Flipping and Snellbaker that Reilly be
demoted from his position as sergeant and be suspended for ninety
days notwithstanding the recommendation of an independent
hearing officer, following an extensive investigation, that Reilly
serve a four-day suspension for violating police department
regulations. Reilly, who accepted Flipping’s offer that he retire as
a sergeant instead of being disciplined, then filed this suit claiming
that Appellants’ actions violated his First Amendment free speech
rights and his Fourteenth Amendment right to procedural due
process.
The District Court partially denied Appellants’ motions for
summary judgment. In the procedural posture of this appeal, we
cannot decide the merits of Reilly’s retaliation claim or of the
various defenses thereto put forward by Appellants because we are
limited to issues of law underlying the qualified immunity claims.
Nonetheless, in deciding the jurisdiction issue, we must necessarily
consider Appellants’ contention that the District Court erred in
holding Reilly’s trial testimony was protected by the First
Amendment and erred in holding Reilly’s allegedly forced
retirement gives rise to a claim for the violation of his Fourteenth
Amendment right to procedural due process, because these are
issues of law underlying Appellants’ qualified immunity claims.
II.
Reilly was an Atlantic City police officer from 1978 until
his resignation on June 1, 2003. Flipping, an Atlantic City police
officer, was the Director of Public Safety for Atlantic City at the
time of Reilly’s resignation. Snellbaker, also an Atlantic City
police officer, was the Chief of the Atlantic City Police Department
at the time that Reilly resigned.

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Reilly was involved in an investigation of allegations of1
drug dealing and the theft of utility services at a funeral home
owned by Flipping’s father, and allegedly investigated Flipping for
failing to report to work and altering his time cards. There is no
evidence that Flipping was aware of these particular investigations
or Reilly’s role in any such investigations.
4
In the late 1980s and early 1990s, while Reilly was a
member of the vice and intelligence units, he had a role in several
investigations that targeted Flipping or individuals close to him.1
The highly publicized investigation of corruption in the Atlantic
City Police Department focused on Dennis Munoz, Flipping’s
friend and colleague. The Munoz investigation was conducted by
the state police with the assistance of personnel in the Atlantic City
Police Department. One of Reilly’s informants, a prostitute named
Lori Ann Jones who alleged that Munoz acted as her pimp,
provided the basis of the state’s case against Munoz. Reilly was
called to testify as a witness for the prosecution in the resulting
trial. Flipping, who was one of Munoz’s supervisors in the vice
section, was also a suspect in the investigation but was never
charged. Flipping assisted Munoz’s defense by providing Munoz’s
lawyer with information about witnesses against Munoz; he also
testified for Munoz at the trial. Flipping was aware that Reilly was
involved in the Munoz case and may have heard Reilly’s testimony
at the trial.
Reilly alleges Snellbaker’s animus toward him stems from
Snellbaker’s dislike of James DiNoto, a former Chief of the
Atlantic City Police Department, who was Reilly’s mentor in the
department. There is some evidence that DiNoto was also involved
in the Munoz investigation. Flipping and Snellbaker had
contentious relationships with DiNoto. In 1998, they were
plaintiffs in a lawsuit alleging retaliation and due process claims
against DiNoto, in part based on Flipping’s testimony at the Munoz
trial. See McCullough v. City of Atlantic City, 137 F. Supp. 2d
557, 561, 563 (D.N.J. 2001). Reilly asserts that after DiNoto was
named Chief of Police, Snellbaker, who had authority over Reilly,
began demeaning him in front of other officers. In their
depositions, other Atlantic City police officers testified that both

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Snellbaker and Flipping harbored animosity toward Reilly and
refused to promote him. One officer asserted that Flipping was
angry with Reilly about his role in the Munoz matter and that
Flipping’s promotion to Director of Public Safety gave him “his
first true opportunity to get even” with Reilly. Flipping App. at
281.
In November 2000, Reilly was charged with engaging in
inappropriate conduct toward a subordinate, Officer Kelly Buzby,
creating a hostile work environment, making untruthful statements
to Internal Affairs, and improperly contacting witnesses. The
matter was referred to an independent hearing officer, Willis
Flower, a local attorney. Flower held a hearing at which at least
twelve persons testified. In a twenty-eight page opinion dated
February 14, 2003, Flower made numerous findings of fact and
conclusions of law. He dismissed the charges that Reilly had made
untruthful statements and improperly contacted witnesses, but
found that Reilly had “engaged in conduct which derided and
belittled [Buzby] and made offensive, derogatory and sexually
explicit comments toward women while in the presence of [Buzby]
and other subordinate officers” in violation of the police
department’s rules and regulations. Flipping App. at 215.
Nonetheless, Flower found that “the objective facts of th[e] case,
taken in a vacuum, do not present a fair picture of what actually
occurred. In short, the surrounding circumstances go a long way
to explain and mitigate the literal violations.” Flipping App. at
241. Thus, he concluded that “dismissal, reduction in rank or
lengthy suspension is not called for here.” Flipping App. at 241.
Instead, he recommended “a four day suspension without pay” as
discipline. Flipping App. at 241.
There is evidence that Snellbaker was displeased that
Flower had made a disciplinary recommendation, apparently
because he believed that exceeded Flower’s role. In a letter to
Flipping dated February 24, 2003, Snellbaker emphasized the
violations of which Reilly had been found guilty. Significantly, he
did not discuss the charges that Flower had dismissed, Flower’s
disciplinary recommendation, or Flower’s explanation of the
mitigating circumstances and context of Reilly’s behavior. He also
did not view Reilly’s disciplinary history before making his

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recommendation. Snellbaker concluded that he could “not
overlook the egregious and reprehensible conduct of a superior
towards the most impressionable of his subordinates,” Flipping
App. at 243, and thus he recommended a reduction in rank.
Flipping asserts that he waited for Snellbaker’s
recommendation before reading the recommendation in the Flower
report. After receiving Snellbaker’s recommendation, Flipping had
the assistant personnel director obtain a copy of what purported to
be Reilly’s disciplinary history from the City personnel office on
February 26, 2003. The City’s personnel director testified that the
document Flipping relied upon did not look like something
prepared by her office. The document Flipping obtained contained
substantial inaccuracies, such as the inclusion of a thirty-day
suspension which had been rescinded and which nearly tripled the
number of days Reilly had actually been suspended. Flipping
asserts that he did not know the document was inaccurate at the
time he prepared his recommendation.
On March 7, 2003, Flipping sent two letters to the City’s
Business Administrator. One recommended that Reilly be
removed from the promotion list; the other recommended that he
be suspended for ninety days and demoted from sergeant to
patrolman. In his letters, Flipping referred to the violations which
Flower found Reilly had committed but Flipping omitted mention
of the charges against Reilly that Flower had dismissed. One letter
stated that Reilly had “exhibited behavior throughout his career that
indicates racism, bigotry, sexism, lack of impartiality toward the
public, irresponsibility, bringing the department into disrepute,
failures to perform lawful duties from competent authority as
directed and failures to treat others with respect.” Flipping App. at
248. Many of these characterizations appear to have been
exaggerated. The only evidence of racism in Reilly’s record
(which consists of Reilly’s unarguably inaccurate disciplinary
history) was an allegation from 1979 that Reilly had made remarks
of a racial nature.
Although Reilly had not been disciplined or charged with
any violations from 1985 until the Buzby incident in 2000,
Flipping’s letter asserted that this “seeming ‘hiatus’ during the

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Of course, one of the “previous administrations” referred2
to in Flipping’s letter was DiNoto’s, with whom Flipping and
Snellbaker shared an openly antagonistic relationship. See
generally McCullough, 137 F. Supp. 2d 557.
McCullough was a co-plaintiff with Flipping and3
Snellbaker in their 1998 lawsuit against DiNoto. See generally
McCullough, 137 F. Supp. 2d 557.
7
middle of his career should not mislead anyone into believing that
this is a history of unrelated or isolated incidents or that Reilly’s
behavior has changed or improved. . . . For reasons unknown
(perhaps related to previous administrations’ lapse or malaise) no
appropriate action was taken against Reilly’s insidious behavior.”2
Flipping App. at 248. Flipping did not mention that Reilly’s most
recent performance evaluation (August 2002) contained his
supervisor’s highest possible evaluation for his performance and
the supervisor’s statements that Reilly was first on the list for
promotion to captain and that “[t]he only way Sgt. Reilly’s job
performance could be improved is promotion.” Flipping App. at
296.
Some time after sending his letters to the City’s Business
Administrator, Flipping informed Reilly’s attorney of his
disciplinary recommendation. The attorney told Reilly that
Flipping would allow him to retire as a sergeant if he retired
immediately. After a period of negotiation, on May 30, 2003,
Reilly signed a consent agreement providing for his retirement. In
his deposition, Reilly explained, “I felt compelled to sign [the
agreement] because I just gave up. I threw my arms up, I said I had
enough. After being beat down for all those years . . . I gave up.”
Flipping App. at 115. As part of that agreement, Reilly received
his pension and a lump sum payment due him.
Shortly thereafter, Reilly filed a lawsuit against the City of
Atlantic City, Flipping, Snellbaker, and another police officer,
Joseph McCullough. The complaint, filed in part pursuant to 423
U.S.C. § 1983, alleged violation of Reilly’s First Amendment right
to speak about matters of public concern, his Fourteenth
Amendment rights to substantive and procedural due process,

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conspiracy under 42 U.S.C. § 1985, violation of New Jersey’s
Conscientious Employee Protection Act (“CEPA”), civil
conspiracy, and arbitrary and illegal discipline. The District Court
dismissed Reilly’s substantive due process claim and his civil
conspiracy claim in June 2004, and Reilly settled with McCullough
in October 2005.
On April 5, 2006, the District Court granted Appellants’
motions for summary judgment on the § 1985 claim. Reilly v. City
of Atlantic City, 427 F. Supp. 2d 507, 526 (D.N.J. 2006). The
District Court also held that Flipping and Snellbaker were entitled
to qualified immunity on the procedural due process claim “to the
extent the claim [was] based on the theory that the disciplinary
decision was based upon evidence not considered by . . . Flower.”
Id. However, the District Court declined to grant Flipping and
Snellbaker qualified immunity on the procedural due process claim
to the extent it was “based upon the theory that someone other than
the authorized decision maker made the final determination of
discipline in Plaintiff’s case,” and denied the motions for summary
judgment in all other respects. Id. The District Court denied
Snellbaker’s motion for reconsideration on May 3, 2006.
Snellbaker and Flipping filed timely notices of appeal.
III.
The District Court had jurisdiction over Reilly’s federal civil
rights claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and
over the pendent state law claims pursuant to 28 U.S.C. § 1367.
Our jurisdiction is contested, and will be addressed presently. To
the extent that we have jurisdiction, we exercise plenary review
over a denial of summary judgment based on a lack of qualified
immunity. Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 208
(3d Cir. 2001). We necessarily exercise de novo review over an
argument alleging a lack of appellate jurisdiction.
IV.
Shortly after these appeals were filed, Reilly filed motions
to dismiss them for lack of appellate jurisdiction. A motion panel
of this court denied those motions. In his appeal briefs, Reilly

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renews his argument that the appeals should be dismissed for want
of jurisdiction.
As an initial matter, we consider briefly Snellbaker’s
contention that Reilly’s jurisdictional argument is barred by the law
of the case doctrine because the motion panel denied Reilly’s
earlier motions to dismiss asserting the same jurisdictional
argument. Snellbaker relies on our decisions applying the law of
the case doctrine to merits issues decided in the course of disposing
of prior appeals. See Africa v. City of Philadelphia (In re City of
Philadelphia Litig.), 158 F.3d 711, 717-18 (3d Cir. 1998); Bolden
v. Se. Pa. Transp. Auth., 21 F.3d 29, 31-32 (3d Cir. 1994). Here,
there was no determination of the merits of the motions, merely
orders by the motion panel denying Reilly’s motions to dismiss
which, under our internal operating procedures, must be referred
“without decision and without prejudice, to the merits panel.”
Third Circuit I.O.P. 10.3.5; cf. Feidt v. Owens Corning Fiberglas
Corp., 153 F.3d 124, 130 (3d Cir. 1998) (relying on I.O.P. 10.3.5
for analogous proposition that a motion panel granting leave to
appeal does not bar a merits panel from examining the court’s
jurisdiction and subsequently declining to permit the appeal).
Although the motion panel did not explicitly refer Reilly’s motions
to dismiss to the merits panel, its denials of those motions
effectively constituted such referrals and do not preclude Reilly
from renewing his jurisdictional argument at this time. Therefore,
we turn to the merits of that argument.
The determination whether a public official is entitled to
qualified immunity involves a two-step analysis. First, the court
must “decide ‘whether a constitutional right would have been
violated on the facts alleged . . . .’” Doe v. Groody, 361 F.3d 232,
237 (3d Cir. 2004) (quoting Saucier v. Katz, 533 U.S. 194, 200
(2001)). “If the answer to that question is ‘yes,’ we must then
‘consider whether the right was “clearly established.”’” McKee v.
Hart, 436 F.3d 165, 169 (3d Cir. 2006) (quoting Groody, 361 F.3d
at 238). If the answer to that second question is also “yes,” then
the defendant is not entitled to qualified immunity. Id.
Ordinarily, denial of summary judgment would not be a
final appealable order, but the Supreme Court has held that “a

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district court’s denial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding
the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S.
511, 530 (1985) (emphasis added); see also Blaylock v. City of
Philadelphia, 504 F.3d 405, 408-09 (3d Cir. 2007).
Because the collateral order doctrine which was the basis for
the Forsyth opinion provides only limited appellate jurisdiction,
courts of appeals must determine whether an appeal pursuant to
that doctrine presents an issue of law or challenges a district court’s
conclusion that “there is sufficient record evidence to support a set
of facts under which there would be no immunity.” Schieber v.
City of Philadelphia, 320 F.3d 409, 415 (3d Cir. 2003) (citing
Johnson v. Jones, 515 U.S. 304, 313 (1995)). We do not have
jurisdiction to review the latter determination. In other words, “for
each of [plaintiff’s] claims, our jurisdiction to review the District
Court’s order denying summary judgment depends on whether the
defendants’ appeal raises pure questions of law or whether it
challenges the District Court’s determination of which facts were
sufficiently supported by evidence.” Blaylock, 504 F.3d at 409.
With respect to facts, “we may review whether the set of facts
identified by the district court is sufficient to establish a violation
of a clearly established constitutional right, but we may not
consider whether the district court correctly identified the set of
facts that the summary judgment record is sufficient to prove.”
Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir. 2002)
(citation and internal quotation marks omitted).
V.
Reilly alleges that Flipping and Snellbaker retaliated against
him for exercising his First Amendment rights in the context of the
Munoz investigation and trial. As the District Court succinctly
stated, Reilly claims Appellants “severely increased the discipline
he was to receive for the sexual harassment incident, which
effectively forced his retirement, in retaliation for his participation
in the Munoz investigation and trial.” Reilly, 427 F. Supp. 2d at
514. Appellants deny that Reilly had the claimed First Amendment
right, an issue of law appropriate for us to consider.

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The District Court evaluated Reilly’s First Amendment
retaliation claim under the following three-step framework: (1) the
employee must demonstrate that his/her speech is protected, that is,
it addresses a matter of public concern and the “employee’s interest
in the speech outweighs” the employer’s countervailing interest “in
promoting workplace efficiency and avoiding workplace
disruption” (i.e., the balancing test established in Pickering v. Bd.
of Educ., 391 U.S. 563 (1968)); (2) the employee must prove that
his/her speech was “a substantial or motivating factor” in the
retaliatory action against him/her, which, if proven; (3) shifts the
burden to the employer to prove that the “allegedly retaliatory
action would have been taken absent the protected [speech].” Id.
at 514-15 (quoting Springer v. Henry, 435 F.3d 268, 275 (3d Cir.
2006)).
In undertaking the requisite analysis, the District Court
relied on Baldassare v. New Jersey, 250 F.3d 188, 195-97 (3d Cir.
2001), in which we held that plaintiff’s conduct and expression in
an internal investigation of other officers at the Bergen County
Prosecutors’ Office was a matter of public concern, and Pro v.
Donatucci, 81 F.3d 1283, 1291 n.4 (3d Cir. 1996), in which we
held that “the context of [courtroom testimony] raises the speech
to a level of public concern regardless of its content . . . .” The
District Court concluded that “Reilly’s participation in the internal
investigation of alleged criminal wrongdoing within the Atlantic
City Police Department is protected by the First Amendment”
because he conducted “an official internal investigation” into other
officers’ alleged criminal wrongdoing and then “testified at the
Munoz trial.” Reilly, 427 F. Supp. 2d at 515. The Court held that
the Pickering balancing favored Reilly because the public’s interest
in uncovering police corruption outweighed the police
department’s interest in avoiding disruption in the workplace. Id.
at 515-16.
Next, the District Court pointed to record evidence
suggesting that Flipping sought to prevent Reilly’s promotion
because of his role in the Munoz case and drew an inference from
the facts in the record, including Snellbaker’s knowledge of the
Munoz case and his dissatisfaction with Flower’s recommendation,
that Snellbaker conspired with Flipping to retaliate against Reilly

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for the same reason. Id. at 516. Therefore, the Court concluded
that Reilly had established a prima facie case of retaliation. The
Court further stated that there were material issues of disputed fact
about “(a) whether Reilly’s increased punishment was substantially
motivated by his participation in the Munoz case and (b) whether
his increased punishment would have occurred in the absence of
his participation.” Id. (citing Baldassare, 250 F.3d at 195 (stating
that determinations under the first step of the retaliation analysis
present questions of law for the court, whereas the latter two
determinations present questions for the fact finder)).
Having concluded that there was sufficient evidence of a
violation of a constitutional right, the Court analyzed whether that
right was clearly established. The Court held that Reilly’s right to
be free from retaliation for speech protected by the First
Amendment was clearly established because the situation in
Baldassare was factually similar to that presented in Reilly’s case
and Baldassare had been decided prior to the retaliatory actions
alleged here; thus the Court reasoned that “a reasonable official in
Flipping’s or Snellbaker’s position in 2003 would have understood
that increasing Reilly’s punishment in retaliation for his
participation in the Munoz investigation and trial violated Reilly’s
First Amendment rights.” Id.
Approximately two months after the District Court entered
the order on appeal here, the Supreme Court issued its decision in
Garcetti v. Ceballos, 547 U.S. 410, 413 (2006), considering
“whether the First Amendment protects a government employee
from discipline based on speech made pursuant to the employee’s
official duties.” Ceballos, a calendar deputy for a branch of the
Los Angeles District Attorney’s Office, filed suit against the
District Attorney and two supervisors, claiming he suffered
retaliation for writing a memorandum to his supervisors raising
concerns about the accuracy of an affidavit used to support a search
warrant. He had also attended a meeting with his supervisors and
the warrant affiant regarding the affidavit, and testified at a hearing
after being called by the defense. Id. at 413-15. Asserting that he
was subjected to a series of retaliatory employment actions,
Ceballos filed a claim under 42 U.S.C. § 1983, alleging that his
employer “violated the First and Fourteenth Amendments by

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retaliating against him based on his memo . . . .” Id. at 415.
In its opinion, the Supreme Court distinguished between
employee speech and citizen speech. The Court recognized that
“the First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public
concern.” Id. at 417. On the other hand, the Court stated that it
was necessary to limit government employees’ freedom because
employers “need a significant degree of control over their
employees’ words and actions,” id. at 418, and government
employees, “[w]hen they speak out, . . . can express views that
contravene governmental policies or impair the proper performance
of governmental functions,” id. at 419. Emphasizing the
distinction, the Court explained that “[s]o long as employees are
speaking as citizens about matters of public concern, they must
face only those speech restrictions that are necessary for their
employers to operate efficiently and effectively.” Id. (citing
Connick v. Myers, 461 U.S. 138, 147 (1983)). The Court also
recognized that “the First Amendment interests at stake extend
beyond the individual speaker. The Court has acknowledged the
importance of promoting the public’s interest in receiving the well-
informed views of government employees engaging in civic
discussion.” Id. Therefore, the Court explained that its decisions
“have sought both to promote the individual and societal interests
that are served when employees speak as citizens on matters of
public concern and to respect the needs of government employers
attempting to perform their important public functions.” Id. at 420
(citing Rankin v. McPherson, 483 U.S. 378, 384 (1987)).
Applying these principles to the case before it, the Court
stated that the “controlling factor” was that Ceballos prepared the
memo “pursuant to his duties as a calendar deputy.” Id. at 421.
The Court emphasized the importance of this fact, because by
writing the memo “Ceballos spoke as a prosecutor fulfilling a
responsibility to advise his supervisor about how best to proceed
with a pending case . . . .” Id. The Court held that under these
circumstances, restricting the speech contained in Ceballos’ memo
“does not infringe any liberties the employee might have enjoyed
as a private citizen. It simply reflects the exercise of employer
control over what the employer itself has commissioned or

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created.” Id. at 421-22 (citing Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 833 (1995)). It also noted that in
appropriate circumstances, the supervisor could take “corrective
action.” Id. at 423. The Court compared the preparation of the
memo to Ceballos’ other “daily professional activities, such as
supervising attorneys, investigating charges, and preparing filings,”
each of which Ceballos performed as a government employee. Id.
at 422. It distinguished such tasks from “contributions to the civic
discourse,” which “retain the prospect of constitutional protection”
for the speaker. Id. The Court concluded, “the First Amendment
does not prohibit managerial discipline based on an employee’s
expressions made pursuant to official responsibilities. Because
Ceballos’ memo falls into this category, his allegation of
unconstitutional relation must fail.” Id. at 424.
Flipping and Snellbaker argue that under Garcetti they are
entitled to qualified immunity on Reilly’s First Amendment claim
as a matter of law because Reilly’s speech in the Munoz case was
made pursuant to his official duties, and thus that speech was not
protected by the First Amendment. In Garcetti, the Supreme Court
described the inquiry into whether the plaintiff spoke pursuant to
his official duties as “a practical one,” noting that “[f]ormal job
descriptions often bear little resemblance to the duties an employee
actually is expected to perform, and the listing of a given task in an
employee’s written job description is neither necessary nor
sufficient to demonstrate that conducting the task is within the
scope of the employee’s professional duties for First Amendment
purposes.” Id. at 424-25. In that case, however, the parties “d[id]
not dispute that Ceballos wrote his disposition memo pursuant to
his employment duties.” Id. at 424.
Consistent with Garcetti, we thereafter held that “whether
a particular incident of speech is made within a particular
plaintiff’s job duties is a mixed question of fact and law.” Foraker
v. Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007). In Foraker, we
agreed with the district court’s decision that Delaware state
policemen who were disciplined for complaining to the State
Auditor about hazardous conditions at a firing range spoke
pursuant to their duties as government employees; we therefore
applied Garcetti to foreclose their First Amendment claims. We

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Flipping’s argument is premised on a single exchange from4
Reilly’s deposition during the District Court proceedings:
[Q.] Did you tell Flipping, in that conversation in the
Detective Bureau, I did what I did because it was my job, I was
ordered to do it, I’m doing my job -- I did my job?
A. That was the -- you know, that was the context of the
conversation.
Q. That is a fair summation of what thought you transmitted
to Mr. Flipping, correct?
A. Yeah.
And what I received back from him was -- the only thing he
was concerned about was it wasn’t our job to do it, you
shouldn’t have been involved, you know.
Flipping App. at 133. Because the page immediately preceding the
passage reproduced here has not been included in the appendix, it
is not entirely clear which aspects of Reilly’s speech he agreed
were part of his job. Moreover, this passage suggests that Flipping
disagreed with Reilly as to whether Reilly’s actions were in fact
part of his official responsibilities. Finally, Reilly was speaking as
to what he told Flipping, rather than what he believed.
15
noted that the district court had already considered whether the
plaintiffs’ speech was pursuant to their official duties, and we
commented that “the proper resolution of challenges to the
designation of such speech is to defer to the district court, because
‘having presided over this and related litigation for several years,
[the district court] may be in a better position to make the relevant
factual determinations . . . .’” Id. at 240-41 (quoting Freitag v.
Ayers, 468 F.3d 528, 546 (9th Cir. 2006), cert. denied, --- U.S. ----,
127 S. Ct. 1918 (2007)).
In the case before us, there was no argument, let alone fact
finding, by the District Court as to whether Reilly’s speech was
made pursuant to his official duties. Although Flipping argues that
Reilly has conceded that he was acting pursuant to his official
duties, Reilly disputes this characterization, particularly with4
respect to his trial testimony. Therefore, Reilly argues that the

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question whether he engaged in speech pursuant to his official
duties presents a factual issue that is not cognizable under the
collateral order doctrine. We agree that some aspects of Reilly’s
speech in the context of the Munoz investigation require further
factual development by the District Court. On the other hand, the
fact of Reilly’s sworn testimony at the Munoz trial is sufficiently
developed on this appeal for us to consider as a matter of law
whether that speech was made “pursuant to [his] official duties,”
Garcetti, 547 U.S. at 421, so as to foreclose his retaliation claim, or
whether that speech entitled Reilly to the protections of the First
Amendment.
In analyzing Reilly’s retaliation claim, the District Court
asked whether Reilly’s speech involved a matter of public concern
and whether the Pickering balancing weighed in favor of Reilly.
See Reilly, 427 F. Supp. 2d at 514-15 (citing Springer, 435 F.3d at
275). We have stated that following Garcetti,
[a] public employee’s statement is protected activity 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 [i.e., the Pickering balancing test].
Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006)
(quoting Garcetti, 547 U.S. at 418). Garcetti simply “narrowed the
Court’s jurisprudence in the area of employee speech” by further
restricting the speech activity that is protected. Foraker, 501 F.3d
at 241. Here, the District Court concluded that Reilly’s speech was
a matter of public concern and that the Pickering balancing favored
Reilly. See Reilly, 427 F. Supp. 2d at 515. Therefore, the effect of
Garcetti in the context of this appeal is limited to the question
whether Reilly spoke as a citizen when he testified at the Munoz
trial.
It is axiomatic that “[e]very citizen . . . owes to his society
the duty of giving testimony to aid in the enforcement of the law.”
Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961); accord

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17
United States v. Mandujano, 425 U.S. 564, 576 (1976)
(recognizing that “the duty to give testimony” is an “obligation
imposed upon all citizens”); United States v. Calandra, 414 U.S.
338, 345 (1974) (“The duty to testify has long been recognized as
a basic obligation that every citizen owes his Government.”); New
York v. O’Neill, 359 U.S. 1, 11 (1959) (“A citizen cannot shirk his
duty, no matter how inconvenienced thereby, to testify in criminal
proceedings and grand jury investigations in a State where he is
found.”); Blackmer v. United States, 284 U.S. 421, 438 (1932) (“It
is . . . beyond controversy that one of the duties which the citizen
owes to his government is to support the administration of justice
by attending its courts and giving his testimony whenever he is
properly summoned.”); Blair v. United States, 250 U.S. 273, 281
(1919) (“[I]t is clearly recognized that the giving of testimony and
the attendance upon court or grand jury in order to testify are public
duties which every person within the jurisdiction of the
Government is bound to perform upon being properly summoned
. . . .”).
The Supreme Court has relied on this principle in rejecting
attempts by citizens, regardless of their role in our society, to
circumvent their obligation to comply with judicial process. For
instance, in Branzburg v. Hayes, 408 U.S. 665, 686 (1972), the
Court noted that the great weight of authority held that the so-
called newsman’s privilege “was outweighed by the general
obligation of a citizen to appear before a grand jury or at trial . . .
and give what information he possesses.” Therefore, the Court
concluded:
we perceive no basis for holding that the public interest in
law enforcement and in ensuring effective grand jury
proceedings is insufficient to override the consequential, but
uncertain, burden on news gathering that is said to result
from insisting that reporters, like other citizens, respond to
relevant questions put to them in the course of a valid grand
jury investigation or criminal trial.
Id. at 690-91 (emphasis added). Similarly, in United States v.
Nixon, 418 U.S. 683, 708 (1974), the Court decided that the
“presumptive privilege for Presidential communications” is not

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18
unyielding because every citizen has a duty to comply with the rule
of law. The Court explained:
The need to develop all relevant facts in the adversary
system is both fundamental and comprehensive. . . . The
very integrity of the judicial system and public confidence
in the system depend on full disclosure of all the facts,
within the framework of the rules of evidence. To ensure
that justice is done, it is imperative to the function of courts
that compulsory process be available for the production of
evidence needed either by the prosecution or by the defense.
Id. at 709. The notion that all citizens owe an independent duty to
society to testify in court proceedings is thus well-grounded in
Supreme Court precedent.
We have acknowledged the importance of this same
principle when evaluating First Amendment retaliation claims. In
Pro v. Donatucci, we considered whether Pro, an employee in the
office of the Clerk of the Orphans’ Court, could state a claim
against Donatucci, the Register of Wills of Philadelphia County, on
the basis that Pro’s employment was terminated shortly after she
appeared in court pursuant to a subpoena to testify for Donatucci’s
wife in a divorce action against Donatucci. 81 F.3d at 1285. In
accord with a line of cases from the Court of Appeals for the Fifth
Circuit, we concluded that “Pro had a First Amendment right to
respond to Mrs. Donatucci’s subpoena to appear at the divorce
proceeding.” Id. at 1290.
We found persuasive the reasoning of our sister court that
“it is the duty of every person to testify truthfully before a duly
constituted tribunal” and that “these values, along with the first
amendment values, would not be served if the fear of retaliation
and reprisal effectively muzzled witnesses testifying in open
court.” Id. (quoting Reeves v. Claiborne County Bd. of Educ., 828
F.2d 1096, 1100 (5th Cir. 1987) (internal quotation marks and
alterations omitted)). We also found persuasive that court’s
reasoning that testimony is offered “in a context that is inherently
of public concern . . . . Employees either could testify truthfully
and lose their jobs or could lie to the tribunal and protect their job

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19
security.” Id. (quoting Johnston v. Harris County Flood Control
Dist., 869 F.2d 1565, 1578 (5th Cir. 1989)). We reserved the
question whether Pro’s speech would have been protected “if she
had appeared voluntarily” in court. Id. at 1291 n.3.
A year later, we answered the question reserved in Pro. See
Green v. Philadelphia Housing Auth., 105 F.3d 882, 887 (3d Cir.
1997). In that case, Green, a police officer for the Philadelphia
Housing Authority Police Department, was transferred from a
special unit within the department to regular patrol duty after he
voluntarily appeared as a witness at the bail hearing of a longtime
friend’s son. Id. at 884. Although Green refused to testify at the
hearing after learning that the charges against his friend’s son
included organized crime activity, he was nonetheless transferred
from the special unit after an unidentified officer notified the
special unit’s captain that Green had appeared as a character
witness for a member of a crime organization. Id. We concluded
that “there is a compelling reason to find Green’s appearance to be
a matter of public concern regardless of its voluntary nature. That
reason, of course, is the integrity of the truth seeking process.” Id.
at 886. We elaborated, “[t]he utility of uninhibited testimony and
the integrity of the judicial process would be damaged if we were
to permit unchecked retaliation for appearance and truthful
testimony at such proceedings.” Id. at 887.
Many courts of appeals have joined this court and the Court
of Appeals for the Fifth Circuit in recognizing the fundamental role
in-court testimony plays in our society and its importance to the
question whether a public employee’s speech is protected by the
First Amendment. See, e.g., Herts v. Smith, 345 F.3d 581, 586 (8th
Cir. 2003) (“Subpoenaed testimony on a matter of public concern
in ongoing litigation . . . can hardly be characterized as defeating
the interests of the state . . . . Dr. Herts’s speech therefore qualifies
as protected speech.”); Catletti ex rel. Estate of Catletti v. Rampe,
334 F.3d 225, 229-30 (2d Cir. 2003) (“In this case the context of
Catletti’s speech–testimony offered at a trial–is significant. . . .
The paramount importance of judicial truth-seeking means that
truthful trial testimony is almost always of public concern.”);
Worrell v. Henry, 219 F.3d 1197, 1204-05 (10th Cir. 2000)
(“[T]ruthful testimony is protected by the First Amendment and .

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The Court of Appeals for the Seventh Circuit recently held5
that a plaintiff’s testimony at a legislative hearing was not
protected because it “was given as an employee and not as a citizen
. . . .” Tamayo v. Blagojevich, - - - F.3d - - - - , 2008 WL 2168638,
at *15 (7th Cir. May 27, 2008). That issue is distinct from the one
before us on appeal.
20
. . a government employee may not be fired or subjected to other
adverse action as a result of such testimony.”); Wright v. Ill. Dep’t
of Children & Family Servs., 40 F.3d 1492, 1505 (7th Cir. 1994)
(holding that “an employee summoned to give sworn testimony . .
. has a compelling interest in testifying truthfully and the
government employer can have an offsetting interest in preventing
her from doing so only in the rarest of cases”); cf. Robinson v.
Balog, 160 F.3d 183, 189 (4th Cir. 1998) (“By responding to the
Board’s invitation to testify at a public hearing and by cooperating
with law enforcement investigators, Robinson and Marc spoke not
in their capacity as . . . public employee[s], but as citizen[s] upon
matters of public concern.”) (citations and internal quotation marks
omitted).
Despite the overwhelming weight of authority concluding
that an employee’s truthful testimony in court is protected by the
First Amendment, we are aware of no precedential appellate
decision after Garcetti answering the question whether truthful trial
testimony arising out of the employee’s official responsibilities
constitutes protected speech. Only one federal appellate court has5
issued a precedential opinion even touching upon this issue.
Specifically, the Court of Appeals for the Seventh Circuit
concluded that a police officer’s subpoenaed civil deposition
testimony “was unquestionably not . . . part of what he was
employed to do,” and thus it was protected even though the officer
testified about speech that was made pursuant to his official duties.
Morales v. Jones, 494 F.3d 590, 598 (7th Cir. 2007); see also
Fairley v. Fermaint, 482 F.3d 897, 902 (7th Cir. 2007) (noting that
Garcetti did not apply to testimony given by county jail guards in
inmate lawsuits because assisting prisoners in their litigation did
not fall within the guards’ official duties).

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21
Here, however, Reilly, as an Atlantic City police officer,
assisted a state investigation of a fellow officer and testified for the
prosecution at the subsequent trial. Thus, the speech at issue on
this appeal, Reilly’s trial testimony, appears to have stemmed from
his official duties in the investigation. The Garcetti opinion
focused solely on the speech contained in Ceballos’ internal memo,
leaving to the court of appeals on remand the opportunity to
consider whether Ceballos’ conduct at the meeting and his
testimony in court were entitled to First Amendment protection.
547 U.S. at 443-44 (Souter, J., dissenting). In his dissent, Justice
Souter recognized that these issues were not decided by the
Garcetti majority, and cautioned that “the claim relating to truthful
testimony in court must surely be analyzed independently to protect
the integrity of the judicial process.” Id. at 444 (Souter, J.,
dissenting).
Because Garcetti offers no express instruction on the
application of the First Amendment to the trial testimony of a
public employee, we turn to the settled principles discussed above:
“[t]he duty to testify has long been recognized as a basic obligation
that every citizen owes his Government.” Calandra, 414 U.S. at
345 (emphasis added). The citizen’s obligation to offer truthful
testimony in court is necessary to protect the integrity of the
judicial process and to insulate that process from outside pressure.
See Green, 105 F.3d at 887 (“The utility of uninhibited testimony
and the integrity of the judicial process would be damaged if we
were to permit unchecked retaliation for . . . truthful testimony at
such proceedings.”); cf. Nixon, 418 U.S. at 709 (“The ends of
criminal justice would be defeated if judgments were to be founded
on a partial or speculative presentation of the facts.”). Much as the
duty to testify is not vitiated by one’s role as a newsman, see
Branzburg, 408 U.S. at 690-91, or as the President of the United
States, see Nixon, 418 U.S. at 709, the citizen’s obligation to testify
truthfully is no weaker when one is employed by the government
in any other capacity. Thus, the act of offering truthful testimony
is the responsibility of every citizen, and the First Amendment
protection associated with fulfilling that duty of citizenship is not
vitiated by one's status as a public employee. That an employee’s
official responsibilities provided the initial impetus to appear in
court is immaterial to his/her independent obligation as a citizen to

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As discussed in Pro, “[w]e have not held that courtroom6
testimony should receive ‘absolute’ First Amendment protection.”
81 F.3d at 1291 n.4. Rather, courtroom testimony meets the
threshold inquiry that speech be on a matter of public concern and,
as we now hold, be offered in one’s capacity as a citizen.
Nonetheless, that conclusion does not end our analysis; rather,
“[t]he interests of the employee in speaking and the employer in
regulating the speech must then be balanced against one another,
as in any First Amendment balancing context . . . .” Id. Therefore,
our holding today does not obviate the need to engage in Pickering
balancing. We address that balancing here to the extent that
Appellants properly challenge the District Court’s analysis of that
issue.
22
testify truthfully.
When a government employee testifies truthfully, s/he is not
“simply performing his or her job duties,” Garcetti, 547 U.S. at
423; 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 by the First Amendment promotes
“the individual and societal interests” served when citizens play
their vital role in the judicial process. Id. at 420. Thus, the
principles discussed in Garcetti support the need to protect truthful
testimony in court.
Having concluded that Reilly’s truthful testimony in court
constituted citizen speech and that his claim is not foreclosed by
the “official duties” doctrine enunciated in Garcetti, we briefly6
address Appellants’ three remaining challenges to the District
Court’s order denying them qualified immunity on Reilly’s First
Amendment retaliation claim.
First, Appellants argue that even if Reilly’s speech may be
protected by the First Amendment, that fact was not clearly
established until the Supreme Court’s decision in Garcetti, and
therefore they are entitled to qualified immunity as a matter of law.
This contention is without merit. The protected status of courtroom

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In fact, when Flipping and Snellbaker sued DiNoto in7
1998, the district court relied on Pro and Green for the proposition
that “the testimonies” they provided in the Munoz trial and other
“judicial proceeding[s] are automatically of a public concern
because, as in Green, they implicate the judicial and public interest
in the integrity of the truth seeking process and the effective
administration of justice.” McCullough, 137 F. Supp. 2d at 568.
This further undermines their contention that the protected status
of Reilly’s speech in that same trial was not clearly established
when they allegedly retaliated against him in 2003.
23
testimony was clearly established even at the time we decided Pro.7
81 F.3d at 1291-92. As we have explained in this opinion, Garcetti
does not alter that conclusion. Cf. Foraker, 501 F.3d at 241
(commenting that Garcetti simply “narrowed the Court’s
jurisprudence in the area of employee speech”).
Second, Snellbaker argues that Reilly is not entitled to First
Amendment protection for his speech in the Munoz matter because
his right to speak was outweighed by the police department’s
interest in disciplining Reilly for creating a hostile work
environment. Because the Pickering balancing analysis presents a
question of law, see Baldassare, 250 F.3d at 195, we have
jurisdiction over this issue pursuant to the collateral order doctrine
to the extent that it challenges the District Court’s legal
conclusions.
Reilly does not dispute that he was subject to discipline for
the findings in the Flower report; rather, he argues that Flipping
and Snellbaker used that occasion to punish him more severely than
warranted (i.e., by increasing the recommended four-day
suspension to a ninety-day suspension and demotion) in retaliation
for his speech in the Munoz matter, including his testimony at trial.
Where a plaintiff claims that the stated grounds for his/her
discipline were a pretext for the discipline imposed, the court does
not apply the Pickering balancing test solely to the speech that
defendants claim motivated the disciplinary action, see Versarge v.
Twp. of Clinton, 984 F.2d 1359, 1367-68 (3d Cir. 1993), such as
Reilly’s violation of department regulations here. Rather, the court

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24
considers all of the speech that the plaintiff alleges is protected, id.,
such as Reilly’s testimony at the Munoz trial. With respect to the
speech that is the basis of Reilly’s retaliation claim, the District
Court properly held that the public’s interest in hearing testimony
about police corruption outweighed Appellants’ interest in
maintaining order by disciplining Reilly for that speech.
To the extent that Snellbaker attempts to argue that his
disciplinary recommendation was justified by Reilly’s violations
and was in no way connected to Reilly’s speech in the Munoz
matter, his argument is more properly viewed as a challenge to the
factual issues of motivation and rebuttal. See Monteiro v. City of
Elizabeth, 436 F.3d 397, 404-05 (3d Cir. 2006) (whether “conduct
violated clearly established law depended upon [defendant’s]
motivation” for alleged retaliation and there was sufficient
evidence of motive to go to a jury). The District Court concluded
that there was sufficient evidence to present these issues to the jury,
and we do not have jurisdiction over that determination pursuant to
the collateral order doctrine.
Moreover, Snellbaker provides no compelling support for
his argument that the law was not clearly established in this area.
The Pickering balancing test was clearly established at the time of
the alleged retaliation, as was the notion of pretextual discipline in
the context of a First Amendment retaliation claim. See, e.g.,
Latessa v. N.J. Racing Comm’n, 113 F.3d 1313, 1320 (3d Cir.
1997) (considering whether employer’s stated justification for non-
renewal of plaintiff’s employment was “mere pretext”). Therefore,
we reject Snellbaker’s argument to the extent that it raises a legal
issue over which we may exercise jurisdiction on this appeal.
Third, Snellbaker argues that the District Court erred in
leaving for the jury the question whether there was a causal
connection between Reilly’s speech in the Munoz matter and any
alleged adverse employment action by Snellbaker. He argues that
this is a legal issue and that the length of time between Reilly’s
speech in the Munoz matter and the allegedly retaliatory actions
forecloses the possibility of a First Amendment violation here. But
the precedents upon which Snellbaker relies focus on whether
timing alone is sufficient to draw an inference of retaliation. See,

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25
e.g., Estate of Smith v. Marasco, 318 F.3d 497, 512-13 (3d Cir.
2003); Brennan v. Norton, 350 F.3d 399, 420 (3d Cir. 2003). Here,
the District Court relied on evidence in addition to timing;
specifically, it drew an inference from the evidence that Snellbaker
was aware of Reilly’s role in the Munoz investigation, that he was
frustrated by Flower’s disciplinary recommendation, and that he
conspired with Flipping to force Reilly into retirement. Reilly, 427
F. Supp. 2d at 516. The facts identified by the District Court were
sufficient to establish a prima facie case against Snellbaker. We
may not further “consider whether the district court correctly
identified the set of facts that the summary judgment record is
sufficient to prove.” Forbes, 313 F.3d at 147 (citation and internal
quotation marks omitted).
In summary, we conclude that the District Court
appropriately denied Appellants’ motions for summary judgment
on the basis of qualified immunity with respect to Reilly’s First
Amendment retaliation claim.
VI.
Flipping and Snellbaker also challenge the District Court’s
order denying them qualified immunity on Reilly’s procedural due
process claim. The District Court framed the issue presented by
that claim as “whether Reilly was afforded an appropriate level of
pre-deprivation procedural due process before the decision to
increase his punishment from a 4-day suspension to a 90-day
suspension, a reduction in rank, and removal from the promotion
list.” Reilly, 427 F. Supp. 2d at 517.
The District Court considered two separate theories of
liability: (1) that Flipping relied on Reilly’s disciplinary history
without giving Reilly notice and an opportunity to rebut that
evidence; and (2) that the final disciplinary decision in Reilly’s
case was made by an individual without authority to make that
decision. See id. at 518-20. The District Court concluded that
Flipping and Snellbaker were entitled to qualified immunity on the
first theory of liability because at the time of Flipping’s letters this
court had not decided that a government employee was entitled to
the opportunity to respond to a punishment decision, a

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26
determination we made in 2005. Id. at 520-21. That issue is not
before us on this appeal. Instead, we limit our discussion to the
process accorded by New Jersey’s regulatory scheme.
Under the procedure for “major discipline” of civil servants
set forth in the New Jersey Administrative Code, see N.J. Admin.
Code §§ 4A:2-2.1 to .12, “[a]n employee must be served with a
Preliminary Notice of Disciplinary Action setting forth the charges
and statement of facts supporting the charges (specifications), and
afforded the opportunity for a hearing prior to imposition of major
discipline,” id. § 4A:2-2.5(a). Such a hearing “shall be held before
the appointing authority or its designated representative.” Id. §
4A:2-2.6(a). “Within 20 days of the hearing, or such additional
time as agreed to by the parties, the appointing authority shall make
a decision on the charges and furnish the employee either by
personal service or certified mail with a Final Notice of
Disciplinary Action.” Id. § 4A:2-2.6(d). The employee may then
appeal the Final Notice of Disciplinary Action to the Merit System
Board, id. § 4A:2-2.8, and may request a hearing from that body,
id. § 4A:2-2.9.
Instead of reviewing the post-deprivation process that would
have been available to Reilly had he appealed the disciplinary
decision in his case, the District Court focused on “who ha[d]
authority to make the final disciplinary decision, and who actually
made the decision in Reilly’s case.” Reilly, 427 F. Supp. 2d at 519.
Because Flipping and Snellbaker had different theories as to who
had the final disciplinary authority, the District Court concluded:
questions of fact exist as to whether the person with legal
authority to make the final discipline decision was actually
the person to make the decision in Reilly’s case. If Reilly
is able to prove at trial that someone other than the person
vested with authority to make final discipline decisions
made the decision as to his discipline, he will have proven
a procedural due process violation.
Id. at 520 (citing Sarteschi v. Burlein, 508 F.2d 110, 115 n.7 (3d
Cir. 1975)).

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27
“A decision on qualified immunity . . . ‘will be premature
when there are unresolved disputes of historical fact relevant to the
immunity analysis.’” Wright v. City of Philadelphia, 409 F.3d 595,
599 (3d Cir. 2005) (quoting Curley v. Klem, 298 F.3d 271, 278 (3d
Cir. 2002)). Nonetheless, deciding the issue of qualified immunity
at the summary judgment stage may be appropriate and is
“reviewable on appeal where the dispute does not turn upon ‘which
facts the parties might be able to prove, but, rather, whether or not
certain given facts showed a violation of “clearly established”
law.’” Id. (quoting Johnson v. Jones, 515 U.S. 304, 311 (1995)).
In conducting this inquiry, courts are not confined to the allegations
of the complaint, but instead may “analyz[e] the evidence adduced
by plaintiff as to the conduct of the defendants.” Brown v.
Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990) (citing Anderson
v. Creighton, 483 U.S. 635 (1987)). Flipping and Snellbaker argue
that because Reilly resigned before the Mayor or his designee took
any action whatsoever, Reilly effectively abandoned the process
available to him, primarily the right to appeal any such action to the
Merit System Board, and cannot now claim that he was deprived
of legal process. Having reviewed the record before us and the
relevant precedents, we conclude that Appellants are correct on that
issue.
In Alvin v. Suzuki, 227 F.3d 107, 110 (3d Cir. 2000), Alvin,
a tenured professor at the University of Pittsburgh, brought a civil
rights action alleging that the university’s administrators denied
him the rights inhering in his tenure. We rejected Alvin’s
procedural due process claims on the ground that he failed to
follow the grievance procedures set forth in the faculty handbook.
Id. at 111. We explained, “[i]n order to state a claim for failure to
provide due process, a plaintiff must have taken advantage of the
processes that are available to him or her, unless those processes
are unavailable or patently inadequate.” Id. at 116. We carefully
distinguished this requirement from exhaustion, explaining that
taking advantage of available processes is not a procedural hurdle,
but is akin to an element of the claim because “a procedural due
process violation cannot have occurred when the governmental
actor provides apparently adequate procedural remedies and the
plaintiff has not availed himself of those remedies.” Id.

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28
We also rejected Alvin’s argument that his use of formal
procedures would have been futile. We acknowledged that
“[w]hen access to procedure is absolutely blocked or there is
evidence that the procedures are a sham, the plaintiff need not
pursue them to state a due process claim.” Id. at 118. Applying
that standard to the facts presented, we stated, “since Alvin never
invoked the second part of the processes available to him, which
appear facially adequate, we will not hold that this step would have
been unavailing (in procedure, if not in substance), absent concrete
evidence supporting such a contention.” Id. We concluded that
Alvin could not “forego attempting to use [the bypassed] processes
simply because he thinks that they will be followed in a biased
manner.” Id. at 119. We further explained that an allegation of
biased pre-deprivation procedures is insufficient to prove futility in
“the presence of . . . apparently adequate post-termination remedies
. . . .” Id. (citing McDaniels v. Flick, 59 F.3d 446, 460-61 (3d Cir.
1995)).
McDaniels is equally instructive. McDaniels was a tenured
professor at Delaware County Community College. McDaniels, 59
F.3d at 448. The college’s board of trustees voted to terminate
McDaniels’ employment after an allegedly biased pre-termination
hearing, but McDaniels did not appeal to or ask for a hearing
before the board of trustees as required by the college’s regulations.
Id. at 451-53. We denied McDaniels’ procedural due process
claim, holding:
a discharged employee cannot claim in federal court that he
has been denied due process because his pretermination
hearing was held by a biased individual where he has not
taken advantage of his right to a post-deprivation hearing
before an impartial tribunal that can rectify any possible
wrong committed by the initial decisionmaker.
Id. at 460.
Here, the disputed issue of fact identified by the District
Court, “whether the person with legal authority to make the final
discipline decision was actually the person to make that decision in
Reilly’s case,” Reilly, 427 F. Supp. 2d at 520, is immaterial to

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29
whether Reilly may state a procedural due process claim where he
resigned from the police department instead of using the post-
deprivation procedures available to him. Those procedures entailed
invoking Reilly’s statutory right to appeal a Final Notice of
Disciplinary Action to the Merit System Board and to request a
hearing from that body. See N.J. Admin. Code §§ 4A:2-2.8 to .9.
Reilly does not allege, nor has he produced evidence, that
the Merit System Board was biased against him, unavailable, or
patently inadequate. He completely ignores the existence of
statutory post-deprivation procedures that serve as a counter-
balance to any discipline imposed on New Jersey civil servants,
such as that allegedly imposed by Flipping and Snellbaker. Reilly
does not provide any authority for the proposition that a civil
servant may state a valid due process claim where s/he has resigned
before taking advantage of any post-deprivation procedures
available. Nor do Sarteschi or Gilbert v. Homar, 520 U.S. 924
(1997), both of which were relied upon by the District Court,
support Reilly’s position.
Although Sarteschi asserts the uncontroversial proposition
that a procedural due process right arises to protect one’s
expectation of proper procedures before discharge, that decision
says nothing about a plaintiff’s obligations to follow post-
deprivation procedures before filing suit for an alleged violation of
his/her right to pre-deprivation procedures. 508 F.2d at 115 n.7.
Thus, Sarteschi does not conflict with Alvin. The constitutional
right to process does not permit one to forego post-deprivation
procedures that may remedy any defect in the initial procedures
without demonstrating that the post-deprivation procedures are
inadequate.
Gilbert is equally unavailing. In that decision, the Supreme
Court explained that pre-deprivation process is not invariably
required. 520 U.S. at 930 (“This Court has recognized, on many
occasions, that where a State must act quickly, or where it would
be impractical to provide pre-deprivation process, postdeprivation
process satisfies the requirements of the Due Process Clause.”).
Therefore, defendant, a university police officer who had been
charged with a felony, was not entitled to a hearing before being

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In light of our holding that Flipping and Snellbaker are8
entitled to summary judgment on the procedural due process claim,
we need not discuss Appellants’ remaining arguments for reversal
of the District Court’s decision on this count.
30
suspended, id. at 933, because “in the case of a suspension there
will be ample opportunity to invoke [the decision-maker’s]
discretion later,” id. at 934-35. The Court then addressed the
distinct question whether defendant “was provided an adequately
prompt post-suspension hearing . . . .” Id. at 935.
Rather than supporting the proposition that a pre-deprivation
procedure may be challenged without consideration of any
available post-deprivation procedures, Gilbert makes clear that the
availability and validity of any pre-deprivation process must be
analyzed with reference to the context of the alleged violation and
the adequacy of available post-deprivation procedures. Reilly did
not attempt to invoke any of the post-deprivation procedures
available to him, nor does he contest their adequacy. Therefore, he
cannot state a valid procedural due process claim as a matter of
law.
In summary, we will reverse the District Court’s order that
Appellants are not entitled to qualified immunity at the summary
judgment stage with respect to Reilly’s Fourteenth Amendment
procedural due process claim. Because Reilly cannot state a claim8
under the Fourteenth Amendment, defendants are entitled to
qualified immunity.
VII.
Finally, Appellants ask us to reverse the District Court’s
decision denying them summary judgment on Reilly’s CEPA claim
and his claim for punitive damages. The courts of appeals may
exercise pendent appellate jurisdiction “over issues that are not
independently appealable but that are intertwined with issues over
which the appellate court properly and independently exercises its
jurisdiction.” E.I. DuPont de Nemours & Co. v. Rhone Poulenc
Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 202-03 (3d Cir.

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Flipping made a similar argument regarding the CEPA9
claim in his principal appellate brief, but withdrew that argument
in his reply brief.
We do not decide that the CEPA claim is sufficiently10
intertwined with the First Amendment claim to exercise pendent
appellate jurisdiction over the former. We only decide that our
affirmance of the latter would require affirmance of the former if
those claims were in fact sufficiently intertwined to invoke our
jurisdiction.
31
2001) (citations omitted).
Snellbaker argues that Reilly’s CEPA claim is intertwined
with his First Amendment claim because the District Court denied
summary judgment on the CEPA claim for the same reasons that
it denied summary judgment on the First Amendment claim. We9
have concluded that the District Court properly denied Appellants
summary judgment on Reilly’s First Amendment claim. See supra
Part V. Therefore, to the extent that Reilly’s CEPA claim may be
intertwined with his First Amendment claim, we would affirm the
District Court’s denial of summary judgment.10
Flipping argues that Reilly’s punitive damages claim is
intertwined with his First and Fourteenth Amendment claims
because if the court finds that Appellants are entitled to qualified
immunity on those claims, there would be no outrageous conduct
on which to base punitive damages under 42 U.S.C. § 1983.
However, because we have concluded that the District Court’s
denial of summary judgment on the First Amendment claim should
be affirmed, Flipping’s argument would fail even if we exercised
pendent appellate jurisdiction over the punitive damages issue.
In summary, we decline to exercise pendent appellate
jurisdiction over the remaining arguments raised by Flipping and
Snellbaker on this appeal.
VIII.
For the reasons set forth, we will affirm the District Court’s

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32
denial of summary judgment with respect to the First Amendment
retaliation claim and reverse the denial of summary judgment with
respect to the Fourteenth Amendment due process claim.

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