concurring and dissenting
I join in Parts II, III, IVB, and IVC of the majority opinion and the judgment of the court. I write separately because I disagree with the court's conclusion that Anderson has established a likelihood of success on the merits of his claim that the defendants retaliated against him for filing an employment discrimination lawsuit against them, in violation of his First Amendment right to petition.
I believe that this case is controlled by Laird v. Tatum, 408 U.S. 1, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972), and Philadelphia Yearly Meeting of Religions Society of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975). As the majority has explained, those cases stand for the proposition that Anderson must claim specific present or future harm in order to have a justiciable "case or controversy." In both Laird and Philadelphia Yearly, the plaintiffs' claims that their exercise of First Amendment rights was chilled by "the mere existence, *524without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose," Laird, 408 U.S. at 10, were held to be insufficient to establish the "real or immediate" harm required by Article III. It seems to me that, on the present record, Anderson too has not established sufficient specific present or future harm from the government surveillance to satisfy this requirement.
The court concludes that Anderson's case differs from those presented by Laird and Philadelphia Yearly because the government's surveillance operation against him and his attorney Lee Rohn was initiated in retaliation for his exercise of protected activity under the First Amendment. In so doing, the Court conflates the government's conduct with the nature of the harm to Anderson. More specifically, the opinion assumes that, because the defendants' surveillance activities were directly targeted at Anderson and Rohn in retaliation for the filing of a lawsuit, Anderson has alleged harm that is more specific than the harm to the plaintiffs in Laird and Philadelphia Yearly. I disagree.
Like the plaintiffs in Laird and Philadelphia Yearly, the basis of Anderson's retaliation claim is that the police engaged in surveillance of him in public places. That this surveillance was carried out for unlawful purposes does not change the nature of the harm to Anderson. And as I understand Anderson's case, he claims only that his exercise of his First Amendment right of petition has been chilled. That is not enough to establish a justiciable case.
The retaliation cases cited by the majority support my conclusion. In none of those cases was the harm to the plaintiffs merely speculative; rather, in each case, the government's act of retaliation caused the plaintiffs distinct and specific harm. For example, in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), the defendant failed to renew the plaintiff's teaching contract in retaliation for speaking with a local radio station about school policies. See also, e.g., Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 40-41 (1st Cir. 1992) (denial of permit in retaliation for political expression); Newsom v. Norris, 888 F.2d 371 (6th Cir. 1989) (failure to reappoint prisoners as inmate advisors in retaliation for complaints about the chairman of *525the disciplinary board). The majority attempts to fit Anderson's case within this line of cases by stating that "Mr. Anderson was denied the benefit of initiating litigation without the harassment of otherwise uncalled for surveillance, simply because he filed a potentially vexatious lawsuit against his former employers." Opinion at 24. Yet the district court never found that the government's surveillance actually rose to the level of harassment. Rather, the government's conduct, as found by the district court, amounted to no more than surveillance of Anderson and Rohn in public places, and is therefore indistinguishable from Laird and Philadelphia Yearly.
Perhaps on remand, Anderson can establish that he has suffered some specific harm from the surveillance. There was some evidence at the preliminary injunction hearing of the fear engendered in members of Anderson's family by the surveillance (though no finding on the issue). Evidence (and a finding) along these lines may be sufficient. But on the present record, I see no basis for a preliminary injunction barring the government's surveillance activities against Anderson and Rohn.