New opinions: First-Amendment retaliation and an admin appeal

Albert Flora was the part-time Chief Public Defender for Luzerne County, PA. His office was “plagued with problems as a result of years of insufficient funding.” When the county (his boss) refused to provide adequate funding, he brought a class-action lawsuit against it on behalf of his clients, which he won.

Meanwhile, Flora’s office also represented minors who were victims of the horrifying “Kids for Cash” scandal. The state supreme court had ordered those minors’ records expunged but Flora learned that they still had not been, 4 years later, so he notified the trial judge and others. This made the county manager angry– the notifying, not the failure to expunge.

The county decided to hire a full-time chief defender. They interviewed Flora but hired someone else, and Flora was relieved of his duties ahead of schedule. Flora sued under 1983, asserting the foregoing facts and alleging that he had been terminated in retaliation for pushing for funding and blowing the whistle on the expungement noncompliance, violating his First Amendment rights. The district court ruled that Flora’s actions were not protected by the First Amendment and dismissed.

Today, CA3 reversed, holding that the district court failed to accept Flora’s allegations as true and that Flora sufficiently alleged protected citizen speech.

The case is Flora v. County of Luzerne. Opinion by Jordan, joined by Rendell and Nygaard. Arguing counsel were Mary Catherine Roper of ACLU-PA for Flora and Deborah Simon of Elliott Greenleaf for the county.


Today’s other opinion arises from an administrative law case. Here, a port authority fired a worker for excessive absenteeism related to an off-duty injury. An agency ruled that the firing violated a provision against disciplining employees for following a physician’s treatment plan. The port authority appealed, and today CA3 ruled in their favor, holding that the provision at issue only covered treatment for on-duty injuries.

The case is Port Authority v. Secretary. Opinion by Smith, joined by Hardiman and Barry. Arguing counsel were Megan Lee for the port authority and Steven Gardiner for the agency. Also arguing were Ronald Johnson of Jones Day for an amicus and Charles Goetsch for an intervenor.