Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 01-cv-00744 District Judge: Honorable John E. Jones, III
The opinion of the court was delivered by: Roth, Circuit Judge
Argued on September 3, 2003
Before: SLOVITER, NYGAARD and ROTH Circuit Judges
Since 1980, the city of Scranton, Pennsylvania, has maintained an ordinance requiring city employees to reside within the city. In 1997, a group of twenty-two police officers sought to have the ordinance declared unconstitutional. The U.S. District Court for the Middle District of Pennsylvania dismissed the suit and we affirmed. After an investigation in 2000, the city terminated four of these officers, as well as a police mechanic, who was not a party to the 1997 suit, for failing to comply with the ordinance. The terminated officers brought a new suit, alleging that the city had infringed their First Amendment freedom to petition the government and had violated their right to equal protection of the laws by enforcing the ordinance against them in retaliation for their participation in the 1997 suit. The mechanic also brought suit, alleging that he was terminated in retaliation for complaining about the condition of the Department of Public Works garage. Three of the four officers' cases were consolidated for pre-trial purposes with the mechanic's case. The District Court granted summary judgment in favor of the city on the three officers' claims but allowed the mechanic's claims to proceed to trial.*fn1
We conclude that the District Court should not have granted summary judgment on the police officers' retaliation claim. The officers presented enough evidence to raise a dispute of material fact as to whether the city impermissibly targeted the 1997 plaintiffs. First and foremost, the officers presented evidence that other city employees, who were not parties to the 1997 suit, were permitted to keep their jobs despite the city's knowledge that they were not city residents. Further, it is undisputed that, prior to the officers' terminations in 2000, no city employee had ever been fired for non-compliance with the residency ordinance.
We further hold that the District Court did not abuse its discretion or otherwise err in denying Officer Hickey leave to amend his complaint to add a due process claim that his post-termination Municipal Service Commission hearing has been unreasonably delayed. We also reject the officers' contention that the District Court improperly and unnecessarily entered a final judgment on January 8, 2003. Finally, we reject without substantive discussion all of the remaining issues raised in these appeals.*fn2
II. Facts and Procedural History
In 1997, a group of twenty-two Scranton police officers filed a complaint alleging that the city's residency ordinance was unconstitutional on its face and as applied. With certain exceptions, the ordinance requires all city employees to maintain a "bona-fide residence" within the corporate limits of Scranton during their time of employment. See Scranton, Pa., File of the Council No. 17 § 2 (Feb. 27, 1980). *fn3 The District Court dismissed the complaint in December of 1997. The court rejected the officers' facial due process and equal protection challenges to the ordinance, holding, among other things, that the ordinance was rationally related to one or more legitimate government purposes and that the term "bona-fide residence" is not unconstitutionally vague because it is synonymous with "legal domicile," a wellunderstood legal concept. *fn4 The District Court also held that the officers' as-applied and procedural due process challenges were not ripe for adjudication. The officers alleged that, despite the ordinance's general applicability, only police officers had received threats of impending enforcement and requests for documents establishing residency. However, the District Court reasoned that none of these claims were ripe because the city had not yet formally enforced the ordinance against any employee or group of employees, nor had the officers alleged that waivers had been granted in an arbitrary or discretionary manner. We affirmed in an unpublished decision. Kreischer v. City of Scranton, No. 98-7439 (3d Cir. June 16, 1999).
In late December 1997, shortly after the District Court dismissed the police officers' challenge, the City Controller issued a memorandum to all city employees requesting documentation and affidavits verifying each employee's residency. *fn5 In October 1999, several months after we had affirmed the dismissal, the city and the police union agreed to incorporate the residency ordinance into the new collective bargaining agreement (CBA), which was ratified later that month. The CBA specified that the term "bona fide residence" means "sole legal residence or domicile." It also provided for a six-month grace period for all police officers to come into compliance. While the precise language varied, the residency ordinance was also incorporated into other collective bargaining agreements between the city and other unions representing city employees.
In May 2000, the city hired a private investigation firm to investigate certain employees who were suspected of living outside the city. The city initially sent a list of eight names to the investigator, seven of whom were police officers who had sued the city in 1997 and one of whom was a firefighter.
Ultimately, between 2000 and 2001, the city investigated about 25 individuals but only terminated five: Donald Hickey, Phyllis Hill, Paul Graham, Jason Gnall, and Robert Murray. Hickey, Hill, Graham, and Gnall were police officers involved in the 1997 suit against the city. All were offered pre-termination hearings with the mayor. Hickey and Gnall sought post-termination hearings before the Municipal Service Commission of the City of Scranton but as of early 2004 had yet to receive their hearings.
In April 2001, Hickey, Hill, Graham, and Murray brought this suit under 42 U.S.C. § 1983 against the city of Scranton and Mayor James Connors (hereinafter the "city"), alleging among other things that the city selectively enforced the residency ordinance against them in retaliation for exercising their First Amendment rights. *fn6 Hickey, Hill, and Graham alleged that the city retaliated against them for suing the city in 1997, while Murray alleged that the city terminated him for complaining about the condition of the Department of Public Works garage. In July 2001 the District Court consolidated these cases for all pretrial purposes. In July 2002, the parties filed cross-motions for summary judgment. In Hickey's brief opposing the city's motion for summary judgment, he argued for the first time that the lengthy delay in his post-termination Municipal Service hearing violated his right to procedural due process. In September, 2002 the District Court granted summary judgment in favor of the city against Hickey, Hill, and Graham but denied summary judgment with respect to Murray's claims. The court denied the plaintiffs' motions for summary judgment. The court treated Hickey's new argument concerning post-termination hearing delay as a constructive motion to amend his complaint and gave the parties additional time to brief the issue whether leave to amend should be granted. In October 2002, the court denied leave to amend after finding that the amendment would be futile and would be made in bad faith. Hill and Graham appealed the September 2002 order and Hickey appealed both the September and October orders.*fn7
In November 2002 the city filed a motion for partial final judgment pursuant to Federal Rule of Civil Procedure 54(b). The District Court granted this motion over the plaintiffs' opposition, reasoning that a final judgment under Rule 54(b) was necessary to terminate Hickey, Hill, and Graham's claims because the September order was not final as to Murray's claims. Hill, Hickey, and Graham appealed this decision as well. We consolidated all of the appeals for purposes of oral argument and resolve all of them in this opinion.
The District Court had jurisdiction over the plaintiffs' federal claims and pendent state claims under 28 U.S.C. §§ 1331 and 1367, respectively. We have appellate jurisdiction to review the District Court's final decisions pursuant to 28 U.S.C. § 1291. As noted, this case involves consolidated appeals. Because the officers' appeal of the District Court's January 2003 Rule 54(b) order implicates our jurisdiction over the officers' other appeals we consider it in this section.
Federal Rule of Civil Procedure 54(b) provides a mechanism for rendering a partial final judgment as to some, but not all, parties or claims in a single action. *fn8 See Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 140 (3d Cir. 2001). Without a valid Rule 54(b) order, we do not ordinarily have appellate jurisdiction over a district court order that resolves fewer than all the claims of all the parties in a single action because such orders do not constitute "final decisions" per 28 U.S.C. § 1291. Id. As explained below, we hold that the ...