Three new opinions, including a notable employee-retaliation-suit reversal

Baloga v. Pittston Area School Dist.—contsitutional / public employment—partial reversal—Krause

The unimprovably clear introductory paragraph:

Mike Baloga, a custodian for the Pittston Area School District and vice president of the custodial union, alleges that the District and its maintenance director, Jim Serino, violated his First Amendment rights by retaliating against him based on his union association and related speech. Treating Baloga’s speech and association claims together, the District Court granted summary judgment in favor of the District and Serino, concluding that Baloga’s activity was not constitutionally protected because it did not implicate a matter of public concern. As we recently emphasized in Palardy v. Township of Millburn, however, where a public employee asserts retaliation in violation of the First Amendment as a free speech claim and a pure union association claim, those claims must be analyzed separately, and consistent with longstanding Supreme Court precedent, there is no need to make a separate showing of public concern for a pure union association claim because membership in a public union is “always a matter of public concern.” 906 F.3d 76, 80–81, 83 (3d Cir. 2018), cert. denied, No. 18-830, — S. Ct. —, 2019 WL 2078114, at *1 (May 13, 2019). Because Baloga has raised a triable issue about whether he was retaliated against based solely on his union association, we will affirm in part, reverse in part, and remand for further proceedings.

Joining Krause were Cowen and Fuentes. Arguing counsel were Cynthia Pollick of the Employment Law Firm for the custodian and Thomas Specht of Marshall Dennehey for the school district.


In re: S.S. Body Armor I, Inc.—bankruptcy—affirmance—Greenaway

Honestly, I struggled while reading this opinion to get over the fact that someone decided to name their company “S.S. Body Armor I.” It ended badly. In this appeal, the Third Circuit held that the district court’s denial of an emergency stay motion qualified as an appealable final order because denying the stay prevented “a full airing of the issues on appeal and a decision on the merits.” On the merits, it held that the district court properly denied the stay motion, a holding ultimately derived from its rejection of one side’s striking argument that $5 million in attorneys’ fees was inadequate compensation for its preservation of a specific legal claim.

Joining Greenaway were Ambro and Scirica. Arguing counsel were Alan Kornfeld of California for the appellee and Gary Sesser of New York for the fee challengers.


U.S. v. Greene—criminal—affirmance—Hardiman

Can an officer patting down a suspect identify a bulge in the suspect’s pocket, “by its feel and texture” alone, as a bag of marijuana? Indeed he can, held the Third Circuit today.

Joining Hardiman were Porter and Cowen. The case was decided without oral argument.