NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-3975
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HAROLD WERKHEISER,
Appellant
v.
POCONO TOWNSHIP BOARD OF SUPERVISORS;
FRANK HESS, Supervisor; HENRY BENGEL, Supervisor
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 3-13-cv-01001)
District Judge: Honorable A. Richard Caputo
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Argued July 11, 2017
Before: MCKEE, AMBRO, and ROTH, Circuit Judges
(Opinion filed: August 10, 2017)
Michael S. Fettner
Cletus P. Lyman [Argued]
Michael T. Sweeney
Lyman & Ash
1612 Latimer Street
Philadelphia, PA 19103
Counsel for Appellant
Steven E. Hoffman [Argued]
Norris McLaughlin & Marcus
515 West Hamilton Street, Suite 502
Allentown, PA 18101
Counsel for Appellees
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OPINION*
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AMBRO, Circuit Judge
I. BACKGROUND
From 2008 through 2013 Harold Werkheiser served as one of three members of
the Pocono Township’s Board of Supervisors, a publicly elected body that acts as the
Township’s municipal government. As part of his service, Werkheiser was appointed
annually by his colleagues to act as the Township’s “Roadmaster,” an office that oversees
the municipality’s infrastructure. “Pennsylvania law expressly allows for a member of
the Board to serve as a superintendent or roadmaster.” Squires v. Bonser, 54 F.3d 168,
170 (3d Cir. 1995), as amended on reh’g (May 8, 1995), as amended on reh’g (June 22,
1995); accord 53 Pa. Stat. § 65602(a). Werkheiser notes that his two immediate
predecessors as Roadmaster were members of the Board of the Supervisors, as was his
successor. (Indeed, the Township submits that, during the 30 years for which it has
records, every one of its Roadmasters had been concurrently a member of the Board of
Supervisors.)
The Roadmaster appointment came to an end before the conclusion of
Werkheiser’s service as a Supervisor. In 2012, when another member of the Board,
Frank Hess, became sick, the Township hired an interim town manager to perform
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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administrative duties that Hess had previously handled. When Hess recovered, and the
Board hired the interim town manager on a permanent basis, Werkheiser broke ranks
with the other members of the Board. He believed Hess should have taken back the
duties left to the town manager in Hess’s absence. So Werkheiser publicly criticized
Hess and the town manager on a number of occasions, objecting that, now that Hess had
recovered, the Township was paying two people to do one job.
In response to Werkheiser’s public criticism, a majority of the Board of
Supervisors declined to reappoint him as Roadmaster at a public meeting in January
2013. Instead the Board appointed its third member, Henry Bengel, for the position.
Despite the loss of his Roadmaster job, Werkheiser remained an active member of the
Board throughout 2013.
Werkheiser filed a complaint alleging that the Township and his fellow
Supervisors violated the First Amendment by retaliating against him for his public
criticism and that Hess and Bengel violated Pennsylvania’s Sunshine Act, 65 Pa. Stat.
§ 701 et seq., by discussing Township business without him. The District Court initially
rejected Hess and Bengel’s qualified-immunity defense, but a panel of our Court reversed
on appeal. Werkheiser v. Pocono Twp., 780 F.3d 172, 181 (3d Cir. 2015).
Before us now are the District Court’s grant of summary judgment to the
Township on Werkheiser’s First Amendment claim and the Court’s dismissal without
prejudice of his claim under the Sunshine Act. Because we agree with the Court that the
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type of retaliation Werkheiser cites is not actionable under the First Amendment1 and
dismissal without prejudice of his remaining state-law claim was appropriate under 28
U.S.C. § 1367, we affirm.
II. ANALYSIS
A. First Amendment Retaliation
As an elected member of the Board of Supervisors, Werkheiser sought and
obtained a job directly accountable to his fellow Supervisors. In order to continue his
work as Roadmaster, he had to stay in the good favor of the Board. Moreover, he served
at its pleasure. Although the parties agree the Board could have elected a non-member as
Roadmaster, all of Werkheiser’s known predecessors and his immediate successor were
elected Supervisors like him. In short, Werkheiser’s Roadmaster job was a political one
and depended on maintaining favor with a majority of his colleagues on the Board.
By publicly criticizing his colleagues’ positions on an issue of Township policy,
Werkheiser lost favor, and without it also lost his position as Roadmaster. Thus he
“essentially asks this court to declare that a politically motivated act, undertaken by a
majority of his fellow elected Board of Supervisors, pursuant to their proper authority,
nonetheless violates the First Amendment if it is taken in retaliation for speech made in
1
In Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), the Supreme Court explored the
limits on freedom of speech that citizens must accept when they choose to enter
government service as employees. While the previous panel in this case cast doubt on
Garcetti’s applicability to elected officials, Werkheiser, 780 F.3d at 178 (“Many of the
reasons for restrictions on employee speech appear to apply with much less force in the
context of elected officials.”), it declined to settle the issue. We do the same. Because
we hold that the retaliation Werkheiser alleges is not actionable under the First
Amendment, we need not decide whether his service as an elected official curtailed his
right to freedom of speech.
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his capacity as an elected official.” Werkheiser, 780 F.3d at 181. But as the previous
panel to hear this case noted, “not all retaliation violates the First Amendment” because
the right to free speech does not “guard against every form of political backlash that
might arise out of the everyday squabbles of hardball politics.” Id.
Courts have been reluctant to interfere with intra-legislative political retaliation
that falls short of impeding a legislator’s ability to carry out his basic duties. Zilich v.
Longo, 34 F.3d 359, 363 (6th Cir. 1994) (“The First Amendment is not an instrument
designed to outlaw partisan voting or petty political bickering through the adoption of
legislative resolutions.”). For example, the Second Circuit has held the First Amendment
did not protect a legislative aide fired in retaliation for the political affiliations and votes
of his boss, a city councilor. Camacho v. Brandon, 317 F.3d 153, 162 (2d Cir. 2003).
The Court noted that the dismissal of an opponent’s key staffers is a time-honored means
of exacting political retribution consistent with the Constitution’s constraints; it reasoned
that “to hold otherwise would subject to litigation all manners and degrees of politically
motivated, retaliatory conduct directed at public officials.” Id. at 162 & n.8 (citing
Robert A. Caro, The Years of Lyndon Johnson: Master of the Senate 565–66 (2002)).
Other courts have reacted similarly when asked to second-guess an official’s
removal from a political post in response to public policy disagreements. See e.g., Blair
v. Bethel Sch. Dist., 608 F.3d 540, 544 (9th Cir. 2010) (no action under First Amendment
after school board declined to reelect board member to position of vice president because
majority of members desired “a vice president who shared their views”); Rash–Aldridge
v. Ramirez, 96 F.3d 117, 118 (5th Cir. 1996) (per curiam) (city councilor could not
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pursue First Amendment claims when removed from appointment to metropolitan
planning board for taking position at odds with council majority); Kinsey v. Salado Indep.
Sch. Dist., 950 F.2d 988, 996 (5th Cir. 1992) (First Amendment did not protect school
superintendent from relief from duties because of his public opposition to winning school
board candidates). “Disagreement is endemic to politics, and naturally plays out in how
votes are cast.” Blair, 608 F.3d at 546. Indeed, “we expect political officials to cast votes
in internal elections in a manner that is, technically speaking, retaliatory, i.e., to vote
against candidates whose views differ from their own.” Id. at 544 (emphasis in original).
Put simply, a job like Werkheiser’s gained through politics may be lost the same way.
None of this is to say, of course, that absolutely anything goes in the political
arena. Because “[t]he manifest function of the First Amendment in a representative
government requires that legislators be given the widest latitude to express their views on
issues of policy[,]” an elected legislator may not be refused his seat in the legislature
because of his public statements. Bond v. Floyd, 385 U.S. 116, 135–36 (1966). Courts
have interpreted Bond to “prohibit retaliation against elected officials for speech pursuant
to their official duties [] when the retaliation interferes with their ability to adequately
perform their elected duties.” Werkheiser, 780 F.3d at 181; Rash-Aldridge, 96 F.3d at
119 (city councilor’s removal from metropolitan planning board did not implicate Bond,
as her “capacity as an elected official was not compromised because the council did not
try to remove her from her seat on the council nor take away any privileges of that office
because of what she said or did”).
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But Werkheiser does not claim the Board’s failure to reelect him as Roadmaster
interfered with his duties as an elected Supervisor. Indeed, he explicitly disclaimed any
such interference at oral argument.2 Accordingly, we affirm the District Court’s grant of
summary judgment on Werkheiser’s First Amendment claim.
B. Sunshine Act
Having decided to grant summary judgment to the Pocono Township on
Werkheiser’s First Amendment claim, the District Court dismissed without prejudice his
remaining claim brought under Pennsylvania’s Sunshine Act. Werkheiser contends the
District Court instead should have remanded the claim to state court.
He cites 28 U.S.C. § 1447(c), which states, “If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” But § 1447(c) does not bear on this case. The District Court did not lack
subject matter jurisdiction: 28 U.S.C. § 1367 provides “supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III[.]” The Court
simply declined to exercise jurisdiction as permitted by § 1367(c)(3) and did not err by
dismissing the claim without prejudice. See Kach v. Hose, 589 F.3d 626, 650 (3d Cir.
2009) (“If a district court decides not to exercise supplemental jurisdiction and therefore
2
See also Werkheiser, 780 F.3d at 183 (“There is no allegation here that the failure to
reappoint Werkheiser as Roadmaster in any way excluded him from Town Supervisors’
meetings, interfered with his rights, privileges, or responsibilities as an elected official, or
hindered his ability to fulfill his elected duties. Indeed, the complaint indicates that[,]
although he was not reappointed as Roadmaster in January of 2013, his term as [a]
Township Supervisor did not expire until the end of that year and there is no indication
that he did not fully and ably serve until the completion of his term.”).
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dismisses state-law claims, it should do so without prejudice, as there has been no
adjudication on the merits.”).
III. CONCLUSION
By convincing his colleagues on the Board of Supervisors to support his patronage
appointment as Roadmaster, Werkheiser held that position from 2008 to early 2013. He
lost that support, and position as Roadmaster, because of political disagreements with his
colleagues. Yet he remained an active member of the Board without any undue
restrictions on his ability to perform his duties as a Supervisor. In these circumstances,
the First Amendment offers Werkheiser no relief. Because his lone federal claim was not
actionable, the District Court acted within its discretion by dismissing without prejudice
the remaining state-law claim. Accordingly, we affirm.
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