McClintock v. Eichelberger

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit

3-24-1999

McClintock v. Eichelberger
Precedential or Non-Precedential:

Docket 98-3443

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Filed March 24, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-3443

JON MCCLINTOCK;
CHERRYHILL ASSOC. INC.,

Appellants

v.

JOHN EICHELBERGER; BRAD COBER;
ALEXA FULTZ; ROBERT WILL; JOHN EBERSOLE;
SOUTHERN ALLEGHENIES PLANNING AND
DEVELOPMENT COMMISSION

On Appeal from the United States District Court
for the Western District of Pennsylvania
District Judge: Honorable D. Brooks Smith
(D.C. Civ. No. 97-00297)

Argued February 17, 1999

BEFORE: GREENBERG, ROTH, and LOURIE,*
Circuit Judges

(Filed: March 24, 1999)

_________________________________________________________________

*Honorable Alan D. Lourie, Circuit Judge of the United States Court of
Appeals for the Federal Circuit, sitting by designation.
 Daniel M. Berger
Paul A. Lagnese (argued)
Berger Law Firm
The Frick Building
Suite 912
Pittsburgh, PA 15219

Attorneys for Appellants

Robert L. McTiernan (argued)
Tucker Arensberg, P.C.
1500 One PPG Place
Pittsburgh, PA 15222

Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter is before this court on an appeal from an
order entered in the district court on July 28, 1998,
granting the appellees' motion pursuant to Fed. R. Civ. P.
12(b)(6) to dismiss the first amended complaint in this case
for failure to state a claim on which relief may be granted.
The case arises principally under the First Amendment to
the United States Constitution, applicable to the states
through incorporation under the Fourteenth Amendment.
See Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625,
629 (1925). In addition, appellants have set forth a
supplemental state-law claim. We are concerned here with
the First Amendment's impact on the awarding of a
governmental contract. In view of the procedural posture of
this case we accept the appellants' factual allegations as
true and view them in the light most favorable to
appellants. See Smith v. National Collegiate Athletic Ass'n,
139 F.3d 180, 183 (3d Cir. 1998), rev'd on other grounds,
119 S.Ct. 924 (1999).

2
Appellants, Jon McClintock and Cherryhill Associates,
Inc., brought this action against appellees John
Eichelberger, Jr., Brad Cober, Alexa Fultz, Robert Will,
John Ebersole, and Southern Alleghenies Planning and
Development Commission. Appellants assert that
McClintock at all times relevant to this action was engaged
in the business of marketing and advertising through
Cherryhill, a Pennsylvania corporation, in which he is the
principal shareholder. The individual appellees are
commissioners of Blair, Somerset, and Huntington
Counties, Pennsylvania, and as such are members of the
Executive Board of the appellee, Southern Alleghenies
Planning and Development Commission which, according to
the appellants, "is a corporation or other entity existing
under the laws of the Commonwealth of Pennsylvania."
Notwithstanding that imprecise characterization, it is
undisputed that Southern Alleghenies is a public entity.
Appellants allege that Southern Alleghenies at all times
relevant "was engaged in developing the business and
industries of the Counties of Bedford, Blair, Cambria,
Somerset, Huntingdon and Fulton."

The complaint alleges that beginning in 1985 appellants
and Southern Alleghenies "developed an ongoing business
relationship . . . as independent contractors," meaning that
appellants have been independent contractors engaged by
Southern Alleghenies to perform services. In particular, the
complaint alleges that in 1985 Southern Alleghenies
retained McClintock to coordinate the promotion of its
"Seatbelt Safety Demonstration Project" and in 1992
Southern Alleghenies retained Cherryhill "to coordinate
providing promotional materials and advertising for the
1992 United States Olympic Cycle Trials which was
coordinated by" Southern Alleghenies. Appellants allege
that they performed their services to the satisfaction of
Southern Alleghenies.

The final particularized allegation constituting this
"ongoing business relationship" is that "[i]n the years of
1995, 1996 and 1997, . . . Southern Alleghenies purchased
various promotional materials from . . . Cherryhill such as
magnets, vinyl banner and bags and specially imprinted
`Slinkies.' " It thus appears that the"ongoing business

3
relationship" between appellants and Southern Alleghenies
consisted of one contract in 1985 performed by McClintock
as an independent contractor, one contract in 1992
performed by Cherryhill as an independent contractor, and
a vendor-vendee relationship between Cherryhill and
Southern Alleghenies from 1995 through 1997 involving the
sale of promotional materials.

The appellants next alleged that because of their "ongoing
relationship" Southern Alleghenies requested Cherryhill "to
submit a proposal . . . to perform marketing services in
connection with [its] TEAM PA Initiative. The marketing
campaign proposed by . . . Cherryhill was designed to make
companies in the six county area aware of a survey process
being conducted prior to interviewers contacting businesses
to set up interview dates." Of course, appellants allege that
Cherryhill's proposal provided for Southern Alleghenies to
pay Cherryhill "for the services to be performed under the
marketing contract."

Appellants allege that the TEAM PA Initiative was a
"coordinated effort" between Southern Alleghenies and
certain otherwise unidentified "Industrial Development
Corporations." The Industrial Development Corporations
reviewed Cherryhill's proposal as well as those from other
firms and "unanimously agreed to award the marketing
contract to . . . Cherryhill." Appellants allege that on May
21, 1997, the Finance Committee of Southern Alleghenies
approved awarding the contract to Cherryhill following
which the contract was presented to the Southern
Alleghenies Executive Board for final approval.

Appellants allege that appellee "Eichelberger stated his
opposition to awarding the contract to . . . Cherryhill
because [appellants] had supported and performed services
for public officials and political candidates who
[Eichelberger] opposed." The other individual appellees
agreed with Eichelberger. As a result of the vote of the five
individual appellees "constituting a majority of the
Executive Board" it defeated a motion to award the contract
to Cherryhill. The Executive Board by the same vote then
awarded the contract to another concern. While the
complaint is unclear on this point, we infer that the
Executive Board must have more than five members and

4
that some of the members favored awarding the contract to
Cherryhill.

Appellants alleged that appellees did not award the
contract to Cherryhill because appellants:

in the exercise of their rights under the First and
Fourteenth Amendments, had supported and
performed services for various public officials and
political candidates who were opposed by Defendant
Eichelberger and some or all of the other individual
Defendants, or, in the alternative, Defendant
Eichelberger opposed said public officials and political
candidates and the other individual Defendants
supported Defendant Eichelberger in denying the
marketing contract to Plaintiff Cherryhill, with said
other individual Defendants knowing that Defendant
Eichelberger's oppositions was based upon Plaintiffs'
support of said public officials and political candidates.

Appellants alleged that by reason of their "long, ongoing
and satisfactory business relationship" with Southern
Alleghenies and the approval of their proposal by the
Industrial Development Corporations "acting as the TEAM
PA Advisory Committee" as well as by Southern Alleghenies'
Finance Committee, they "had the expectation that the
marketing contract would be awarded to . . . Cherryhill."
Thus, they alleged that the appellees acting under color of
state law in violation of 42 U.S.C. S 1983 penalized them
from exercising "their rights of free speech and assembly,
as guaranteed by the First and Fourteenth Amendments
. . . by supporting and working for public officials and
political candidates of their choice." Appellants also
asserted that the facts they alleged constituted the state-
law tort of interference with "the advantageous relationship
between . . . Cherryhill and . . . Southern Alleghenies."
Appellants sought compensatory and punitive damages.
The district court had jurisdiction over appellant's
complaint under 28 U.S.C. S S 1331, 1343(a), and 1367.

As we have indicated, the appellees moved to dismiss
under Fed. R. Civ. P. 12(b)(6). The district court granted the
motion in its memorandum and order of July 28, 1998. In
its memorandum the district court set forth the

5
background of the case and then indicated that in Elrod v.
Burns, 427 U.S. 347, 96 S.Ct. 2673 (1976), "the Supreme
Court recognized that a public employee who alleges that
he was discharged or threatened with discharge solely
because of his partisan political affiliation or nonaffiliation
states a viable claim under [42 U.S.C.] S 1983 that his First
Amendment rights have been violated." The district court
then indicated that in Branti v. Finkel, 445 U.S. 507, 100
S.Ct. 1287 (1987), the Supreme Court confirmed the Elrod
holding that patronage dismissals are unconstitutional
unless political affiliation is an appropriate requirement for
the effective performance of the public office involved. The
district court next said that in Rutan v. Republican Party of
Illinois, 497 U.S. 62, 110 S.Ct. 2729 (1990), the Supreme
Court extended Elrod and Branti by holding that those
cases applied "to promotion, transfer, recall, and hiring
decisions based on party affiliation and support." Id. at 79,
110 S.Ct. at 2739.

The district court then addressed two Supreme Court
cases which, like this one, involved not employees, but
independent contractors, Board of County Comm'rs v.
Umbehr, 518 U.S. 668, 116 S.Ct. 2342 (1996), and O'Hare
Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 116
S.Ct. 2353 (1996). The district court pointed out that in
Umbehr and O'Hare the Court held that a government may
not terminate an independent contractor's relationship to
retaliate against the contractor for the exercise of his rights
to political allegiance or political association. The district
court noted, however, that Umbehr and O'Hare involved
situations in which there had been ongoing commercial
relationships between the public entity and the
independent contractor. In fact, Umbehr and O'Hare
respectively involved trash hauling and motor vehicle
towing, municipal services of an ongoing character.

The district court indicated that appellants were not in
the same position as the plaintiffs in Umbehr and O'Hare as
Cherryhill "was no more than a bidder or applicant for a
new government contract." Moreover, the district court, in
declining to find a sufficient allegation of a First
Amendment violation in the complaint, made reference to
the Supreme Court's caveat at the end of Umbehr :

6
 Finally, we emphasize the limited nature of our
decision today. Because Umbehr's suit concerns the
termination of a pre-existing commercial relationship
with the government, we need not address the
possibility of suits by bidders or applicants for new
government contracts who cannot rely on such a
relationship.

Umbehr, 518 U.S. at 685, 116 S.Ct. at 2352. The district
court indicated that while the Supreme Court might extend
the Elrod, Branti, and Rutan "jurisprudence to the claims of
disappointed bidders and applicants," it would not do so.

The district court ended its opinion by dismissing
appellants' state law claims. In this regard it pointed out
that in Pennsylvania there cannot be a tortious interference
with a contract unless three parties are involved, a
tortfeaser, a plaintiff and a third party with whom the
plaintiff is contracting. See Maier v. Maretti, 671 A.2d 701,
707 (Pa. Super. 1995). Thus, the appellees could not be
liable as the germane contract was with them.
Furthermore, the result was not affected by reason of the
fact that the individual appellees were officers or agents of
Southern Alleghenies. See Daniel Adams Assocs., Inc. v.
Rimbach Publ'g Co., 519 A.2d 997, 1000-02 (Pa. Super.
1987). The district court then entered the order of July 28,
1998.

Appellants appeal from the order of July 28, 1998. We
have jurisdiction under 28 U.S.C. S 1291 and exercise
plenary review on this appeal. Thus, we can affirm only if
we are certain that the appellants cannot prove any set of
facts under the first amended complaint which would be
the basis for relief. See Smith, 139 F.3d at 183.

II. DISCUSSION

Initially we identify the precise issue before this court. As
we have indicated, the Supreme Court in Umbehr carefully
limited its opinion to holding that there was a First
Amendment protection of pre-existing commercial
relationships while reserving decision on whether there is
similar protection for bidders or applicants for new
government contracts who cannot rely on such a

7
relationship. Appellants pleaded their case within the
Umbehr framework and thus the district court principally
adjudicated the case on that basis. Accordingly, the
gravamen of the district court's opinion is that this case is
distinguishable from Umbehr and O'Hare because
appellants cannot claim the "status" of being in a "pre-
existing commercial relationship with Southern
Alleghenies."

The district court surely was correct in reaching this
conclusion. In O'Hare the municipality had a list of tow
truck operators which had included the plaintiff for many
years. During a political campaign he declined to make a
contribution to the incumbent mayor following which,
allegedly in retaliation for that refusal, the municipality
removed him from the list, thereby terminating a long term
relationship. In Umbehr the plaintiff was a trash hauler who
frequently criticized the county government which engaged
him. Umbehr brought suit charging that the county
terminated his contract in retaliation for his speech. In
Umbehr, as in O'Hare, the retaliation terminated an active
ongoing independent contractor relationship for the
supplying of governmental services.

This case, however, is very different from Umbehr and
O'Hare. Notwithstanding the appellants' pleading that they
have had "an ongoing business relationship" with Southern
Alleghenies since 1985, the facts which they have pled
make it clear that the relationship is distinguishable from
those in Umbehr and O'Hare. Here appellants had two prior
contracts with Southern Alleghenies for discrete services,
the 1985 seatbelt project and the 1992 project coordinating
the provision of promotional materials and advertising for
the Olympic cycle trials. In addition, Cherryhill as a vendor
supplied promotional materials to Southern Alleghenies.

Appellants do not allege that the contract for marketing
services in connection with the TEAM PA Initiative involved
here is related in any way to their prior contracts with
Southern Alleghenies. Thus, their status differs from that of
the plaintiffs in Umbehr and O'Hare who were providing
ongoing services when the public entities terminated their
relationship in retaliation for their political activities. We
therefore conclude that with respect to the TEAM PA

8
Initiative, this action does not "concern[ ] the termination of
a pre-existing commercial relationship with the
government." Umbehr, 518 U.S. at 685, 116 S.Ct. at 2352.
Rather, this case involves a "suit[ ] by[a] bidder[ ] or
applicant[ ] for [a] new government contract[ ] who cannot
rely on such a relationship." Id.

Our analysis leads us to affirm the order of the district
court for each of two independent reasons, one procedural
and one substantive, either of which alone requires our
result. The procedural reason is that appellants pled this
case in the district court relying on their ongoing
relationship with Southern Alleghenies and thus the
viability of their claim depends on their ability to
demonstrate that they had such a relationship. While we
recognize that the appellants in their district court brief in
opposition to appellees' motion to dismiss stated that if the
court found that they did not have the same status as the
plaintiffs in Umbehr and O'Hare, they nevertheless were
entitled to First Amendment protection from retaliation, this
argument went beyond the pleadings.

On this appeal appellants continue to focus on their
previous relationship with Southern Alleghenies. Thus, they
summarize their First Amendment argument as follows:

Cherryhill and McClintock were regular providers of
services to Southern Alleghenies and had an existing
commercial relationship with Southern Alleghenies. As
such Cherryhill and McClintock were entitled to
protection from retaliation for exercise of their right to
political expression. Thus, Southern Alleghenies' failure
to award a contract to Cherryhill solely because
Cherryhill and McClintock had worked for supported
and worked for political opponents of Eichelberger
states a claim for which relief can be granted.
Accordingly, the district court erred in granting
Southern Alleghenies' Motion to Dismiss the First
Count of the First Amended Complaint.

Br. at 9.

In their brief in this court appellants once again contend
that "[e]ven assuming that this Court finds that [they] do
not have the same status as the plaintiffs in Umbehr and

9
O'Hare, [they] are nonetheless entitled to protection, from
government retaliation for exercise of their First
Amendment rights." Br. at 15. We, however, will not
entertain this argument as appellants did not plead it as
the basis for relief in their complaint. See Krouse v.
American Sterilizer Co., 126 F.3d 494, 499 n.1 (3d Cir.
1997). Accordingly, we will affirm the order of the district
court for, as we already have indicated, the appellants do
not have an ongoing relationship with Southern Alleghenies
entitled to First Amendment protection under Umbehr and
O'Hare.

In any event, even if we entertained appellants' argument
that without regard for their status under Umbehr and
O'Hare they are entitled to relief, we would affirm. In
reaching this result we understand that under Rutan
certain applicants for public employment are entitled to
First Amendment protection and that Umbehr indicated
that "[i]ndependent government contractors are similar in
most relevant respects to government employees." 518 U.S.
at 684, 116 S.Ct. at 2352. Nevertheless, the Court in
Umbehr "emphasize[d] the limited nature of [its] decision"
and thus did "not address the possibility of suits by bidders
or applicants for new government contracts who cannot rely
on such a relationship." Id. at 685, 116 S.Ct. at 2352. The
Court therefore carefully cabined its decision.

In Horn v. Kean, 796 F.2d 668, 678 (3d Cir. 1986) (in
banc), we cautioned against extending First Amendment
holdings if they would cause the judiciary to "intrude itself
into such traditional practices as contract awards by the
government's executive, be it on a federal, state or local
level." Thus, we suggested that if expansion in the area is
to come the source should be the Supreme Court. Id. While
the substantive holding in Horn does not survive the later
Supreme Court cases we have cited, still Horn's admonition
remains true. Certainly it is difficult for a court to predict
what the consequences would be on political activity if the
First Amendment protections are extended beyond the
Umbehr and O'Hare boundaries. Perhaps the extension
even would discourage political activity.

On the other hand, retaliation in a situation involving
ongoing contracts obviously presents a clear set of

10
dynamics. Protection of an independent contractor with a
pre-existing commercial relationship with the public entity
from retaliation by reason of his political activity plainly
protects his First Amendment rights. Accordingly, there is
a principled reason to limit Umbehr and O'Hare to
situations in which, unlike the one here, the retaliatory act
is the termination of an ongoing commercial relationship.

The final issue before us involves appellants' state law
supplemental claim. We see no reason to discuss this claim
on the merits as we agree with the district court's dismissal
of it and have nothing to add to its analysis. We, however,
point out that the appellants do not contend that the
district court abused its discretion in exercising jurisdiction
over this claim. See 28 U.S.C. S 1367(c).

III. CONCLUSION

For the foregoing reasons, we will affirm the order of July
28, 1998.

11
ROTH, Circuit Judge, Dissenting:

The majority's decision to affirm the dismissal of the
appellants' statutory claim turns on two assumptions, both
of which relate to McClintock's and Cherryhill's status as
independent contractors. The first assumption critical to
the outcome reached by the majority is its factual
determination that McClintock and Cherryhill did not have
a "pre-existing commercial relationship" with Southern
Alleghenies. Majority Op. at 7, [typescript at 9-10] The
second is the majority's conclusion that, without such a
pre-existing commercial relationship, the appellants cannot
assert a claim under 42 U.S.C. S 1983 based on the
appellees' failure to grant them a public contract for
allegedly partisan reasons. Majority Op. at 7-8,[typescript
at 9]. For the reasons set forth below, I find that the
Supreme Court's First Amendment jurisprudence does not
support the kind of status-based limitation on individuals'
rights of political expression and association that the
majority's decision endorses.1 Therefore, I respectfully
dissent from the majority's decision to affirm the District
Court's dismissal of the appellants' S 1983 claim.

The majority's understanding of the constitutional
significance of the appellants' status as independent
contractors rests primarily on language from Board of
County Comm'rs v. Umbehr, 518 U.S. 668 (1996). This
understanding arises from two sentences that appear in the
penultimate paragraph of the opinion. The Supreme Court
writes: "Finally we emphasize the limited nature of our
decision today. Because Umbehr's suit concerns the
termination of a pre-existing commercial relationship with
the government, we need not address the possibility of suits
by bidders or applicants for new government contracts who
cannot rely on such a relationship." Id. at 685. The majority
reads this language as categorically restricting claims by
_________________________________________________________________

1. The majority also concludes that, before the District Court, appellants
relied solely on the theory that they had an on-going relationship with
Southern Alleghenies. Because, however, the District Court found that
appellants were not regular providers of services and, therefore, not
entitled to Elrod and Branti protection, I conclude that the issue, as I
set
it out above, is fairly before this Court.

12
independent contractors, who allege that partisanship
improperly influenced the awarding of a public contract, to
those independent contractors who can demonstrate a
business relationship with the government prior to the
alleged unconstitutional incident.

The majority's reliance on this language regarding a "pre-
existing commercial relationship" is misplaced. This
language is dictum. More importantly, the majority's
emphasis upon it diminishes the central proposition for
which Umbehr stands: namely, the Court's "recogni[tion]
[of ] the right of independent contractors not to be
terminated for exercising their First Amendment rights." Id.
at 685; see also O'Hare Truck Serv. v. City of Northlake, 518
U.S. at 723-26.

Moreover, the majority's emphasis on this language
obscures the relevance of the many cases in which the
Court has considered the First Amendment rights of
government employees. E.g. Rutan v. Republican Party of
Illinois, 497 U.S. 62 (1990); Branti v. Finkel, 445 U.S. 507
(1987); Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S.
274 (1977); Elrod v. Burns, 427 U.S. 347 (1976); Perry v.
Sindermann, 408 U.S. 593 (1972); Pickering v. Board of
Educ., 391 U.S. 563 (1968); Keyishian v. Board of Regents,
385 U.S. 589 (1967). In these cases, the Court made clear
that the "unconstitutional conditions" doctrine extends to
government employees. See Perry, 408 U.S. at 597 ("[The
government] may not deny a benefit to a person on a basis
that infringes his constitutionally protected interests--
especially his ... freedom of speech."); Rutan, 497 U.S. at
72-75 (holding that hiring, promotions, transfers, and
recalls of low-level public employees based on partisan
affiliation or association violate the First Amendment);
Branti, 445 U.S. at 518 (holding that public defender could
not discharge assistants because of their political affiliation
without violating the First Amendment); Elrod, 427 U.S. at
351 (holding that sheriff 's discharge of non-civil service
office staff because of their political affiliation violated the
First Amendment). The only exception to this rule is when
political affiliation is a reasonably appropriate requirement
for the job in question. See e.g. Pickering, 391 U.S. at 568-
74 (establishing fact-sensitive and deferentially

13
administered balancing test for determining if government's
interests are sufficiently compelling to overcome public
employees' First Amendment rights).

None of these cases state, or reasonably should be taken
to imply, that the ability of independent contractors to
bring suit against governmental employers for violation of
their First Amendment rights is categorically distinct from
that of government employees. Rather, this precedent leads
logically to the conclusion that independent contractors,
like government employees, may not be disfavored by state
actors in the employment process on grounds that offend
the First Amendment. As best understood under the
present state of the law, independent contractors enjoy
essentially the same right to sue as do employees of the
government who claim to have been denied employment for
partisan reasons. Established in O'Hare, 518 U.S. at 723-
26, and Umbehr, 518 U.S. at 674-76, the rule that
independent contractors may not be discharged by
government employers for exercising their First Amendment
Rights evolved directly from the line of cases, cited supra,
in which the Court considered the First Amendment rights
of government employees. See e.g. Umbehr, 518 U.S. at
674-77 (discussing government employee cases); O'Hare,
518 U.S. at 718-21 (same).

In O'Hare and Umbehr the Court explained that it was
extending the rule established in the government employee
cases to actions involving independent contractors because
it found no difference of "constitutional magnitude" between
these two categories of workers. See Umbehr, 518 U.S. at
679 (quoting Leftkowitz v. Hurley, 414 U.S. 70, 83 (1973);
O'Hare, 518 U.S. at 722 (same). For the purpose of
determining if the First Amendment restricts the freedom of
governments to terminate their relationships with
independent contractors, the Court found the similarities
between government employees and government
contractors "obvious"; moreover, it found the"threat of
loss" the same to each in the event of governmental
retaliation on grounds that violate their right to free
expression. Umbehr, 518 U.S. at 674; accord O'Hare, 518
U.S. at 721-23. "Because of these similarities," the Court
looked to the government employee precedents "for

14
guidance," Umbehr, 518 U.S. at 674, and "appl[ied] ... the
existing framework for government employees cases to
independent contractors." Id. at 677.

To the extent that salient differences between these
classes of workers exist in individual cases, the Umbehr
Court found "no reason to believe that proper application of
the Pickering balancing test cannot accommodate" them. Id.
at 678. As a result, the Court rejected a brightline rule
distinguishing the rights of independent contractors and
employees because "whether state law labels a government
service provider's contract as a contract of employment or
a contract for services" is "at best a very poor proxy for the
interests at stake." Umbehr, 518 U.S. at 679; see also
O'Hare, 518 U.S. at 722 ("We can see no reason ... why the
constitutional claim here should turn on the distinction
[between independent contractors and employees], which is,
in the main, a creature of the common law of agency and
torts."). Because "such formal distinctions ... can be
manipulated largely at the will of the government," the
Court rejected the idea of determining constitutional claims
on the basis of them. Umbehr, 518 U.S. at at 679 (citing
Logue v. United States, 412 U.S. 521, 532 (1973)).
"Independent contractors, as well as public employees, are
entitled to protest wrongful government interference with
their rights of speech and association," the O'Hare Court
stated. 518 U.S. at 723. Thus, contrary to the reasoning of
the majority and the result it reaches in this case, the
Court expressly has stated the view that independent
contractors should be treated the same as employees of the
government for purposes of First Amendment analysis.

Consequently, while it is true that the Court has not
explicitly addressed the nature of independent contractors'
right to sue on First Amendment grounds when they are
considered applicants for new contracts, rather than as
having pre-existing business relationships with the
government, the inference to be drawn from Umbehr and
O'Hare is clear. Given these holdings and the reasoning
that the Court employed in reaching them, it is logical to
conclude that all independent contractors fall within the
standard set forth in Umbehr, in O'Hare, and in the
government employee cases. The opposite inference, that

15
this precedent should be understood to bar suits by
contractors who are applicants for new contracts, is not
logical.

The propriety of the inference that I suggest is
inescapable in light of Rutan, 497 U.S. at 66-68, the case
in which the Court considered whether hiring, promotions,
transfers, and recalls based on government employees'
political affiliation or support could be considered
impermissible infringements on their First Amendment
rights. The Court answered this question in the affirmative,
id. at 74-77, thereby extending the rule established in
Branti, 445 U.S. at 518, and Elrod, 427 U.S. at 351,
relating to politically motivated terminations. In so doing,
the Court rejected the argument that hiring, promotions,
transfers, and recalls were "different in kind" from the
terminations involved in Elrod and Branti because, it
reiterated, the law is clear that entitlement to employment
is immaterial to a government employee's First Amendment
claim. Rutan, 497 U.S. at 71-72 ("For at least a quarter-
century, this Court has made clear that even though a
person has no `right' to a valuable governmental benefit and
even though the government may deny him the benefit for
any number of reasons, there are some reasons upon which
the government may not rely. It may not deny a benefit ...
on a basis that infringes his ... interest in freedom of
speech.") (citing Perry, 408 U.S. at 596-98). In this way, the
Court rejected the argument that an alleged impermissible
infringement upon an employee's First Amendment right
must occur in the form of a "substantial equivalent of
dismissal." Id. at 75. "[T]here are deprivations less harsh
than dismissal that nevertheless press state employees and
applicants to conform their beliefs ... to some state-selected
orthodoxy," the Court found. Id. (emphasis added). In my
judgment, the fact that the Court expressly held that the
same concerns that animated the rules in Elrod and Branti,
regarding terminations, were present with respect to hiring
in Rutan undermines the logic embraced by the majority.
Id. at 78 ("Under our sustained precedent, conditioning
hiring decisions on political belief and association plainly
constitutes an unconstitutional condition, unless the
government has a vital interest in doing so.").

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Ultimately, it may be difficult for independent contractors
like McClintock and Cherryhill to prove that the
government violated their First Amendment rights during
the employment process. This is so because a public
employee who makes such a claim bears the burden of
demonstrating that the alleged violation was a motivating
factor in his failure to attain a contract. See Mount Healthy,
429 U.S. at 283-87. This burden would appear more
difficult to discharge in cases where a contractor has not
had an on-going relationship with the government, prior to
applying for a contract. This matter is, however, one to be
resolved by the trial courts. The point here is that the
government is not entitled per se to a denial of liability
simply because an independent contractor, who makes
such a claim, is bidding on a new contract. See Umbehr,
518 U.S. at 678.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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