Troster v. Pennsylvania State Dept. of Corrections, 94-3162

• Decision Date: 13 September 1995
• Docket Number: No. 94-3162,94-3162
• Citation: 65 F.3d 1086
• Parties: 66 Empl. Prac. Dec. P 43,692, 64 USLW 2175, 10 IER Cases 1714 Dieter H.M. TROSTER v. PENNSYLVANIA STATE DEPARTMENT OF CORRECTIONS; Joseph D. Lehman, Commissioner; Frederick Rosemeyer, Superintendent Dieter Troster, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1086

65 F.3d 1086

66 Empl. Prac. Dec. P 43,692, 64 USLW

2175, 10 IER Cases 1714

Dieter H.M. TROSTER v. PENNSYLVANIA STATE DEPARTMENT OF CORRECTIONS; Joseph D Lehman, Commissioner; Frederick Rosemeyer, Superintendent Dieter Troster, Appellant.

No. 94-3162.

United States Court of Appeals Third Circuit.

Argued Sept. 22, 1994.

Decided Sept. 13, 1995.

Bruce V. Hicks (argued), John H. Bingler, Thorp, Reed & Armstrong, Pittsburgh, PA, Witold J. Walczak, American Civil Liberties Union, Pittsburgh, PA, for appellant.

Ernest D. Preate, Jr., Attorney General, Thomas F. Halloran, Jr. (argued), Gloria A. Tischuk, Calvin R. Koons, John G. Knorr, III, Office of Attorney General of Pennsylvania, Pittsburgh, PA, for appellees.

Before: BECKER, COWEN, Circuit Judges, and GARTH, Senior Circuit Judge.

OPINION OF THE COURT

BECKER, Circuit Judge.

Appellant Dieter Troster, an employee of the State Correctional Institution at Greensburg, Pennsylvania ("SCI"), is in danger of losing his job as a corrections officer because, as a matter of principle, he refuses to wear an American flag patch on his uniform as required by departmental regulations. He filed suit in the District Court for the Western District of Pennsylvania against the Pennsylvania State Department of Corrections, its Commissioner Joseph D. Lehman, and SCI Superintendent Fredric A. Rosemeyer, seeking injunctive and declaratory relief under 42 U.S.C. Sec. 1983. After holding an evidentiary hearing, the district court denied Troster's request for a preliminary injunction. The Pennsylvania Department of Corrections then ordered Troster suspended for five days for gross insubordination. This court granted an emergency motion for an injunction pending appeal, and Troster has remained on the job. Troster has appealed the district court's order denying him a preliminary injunction.

Troster advances two theories to support his allegations that the threatened disciplinary action violates his rights under the First and Fourteenth Amendments. First, he advances a "compelled speech" argument--that the flag patch regulation that he refuses to observe unconstitutionally compels him to engage in expressive or symbolic conduct. Second, he presses a "symbolic protest" theory, under which he urges that his refusal to comply with the department regulation should be protected as expressive or symbolic conduct intended and likely to communicate his opposition to being compelled to "speak" by wearing the flag patch.

In Part II of this opinion we hold that Troster did not demonstrate a likelihood of success on the merits of his compelled expression claim. Even recognizing that in the wake of Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, --- U.S. ----, ----, 115 S.Ct. 2338, 2344, 132 L.Ed.2d 487 (1995), the threshold test of expressiveness necessary to raise a First Amendment compelled expression claim is no longer as stringent as we previously suggested in Steirer by Steirer v. Bethlehem Area Sch. Dist., 987 F.2d 989 (3d Cir.1993), see infra at 1089-90 & n. 1, we believe that on the record before it the district court properly concluded that the Department's flag patch regulation did not require correctional officers such as Troster to engage in any conduct sufficiently imbued with elements of communication that the regulation might be forbidden by the First Amendment's proscription against compelled speech.

With respect to the alternative symbolic protest theory, we conclude in Part III that, under the particular facts of this case, Troster has not stated an analytically independent claim of constitutional violation. One who violates a governmental compulsion to speak or engage in expressive conduct merely to express opposition to that compulsion on "compelled expression" grounds engages in no independently constitutionally protected conduct. In such a case the appropriate rubric for a First Amendment claim is simply "compelled expression," and that is therefore the sole free speech theory that we consider. As noted, it fails on the present record. Accordingly the order of the district court denying Troster's motion for a preliminary injunction must be affirmed.

1. FACTS AND PROCEDURAL HISTORY

Dieter Troster is a naturalized American who emigrated to the United States from Germany when he was in his early twenties. He enlisted in the U.S. army, went to Officers' Candidate School, became an officer, and was eventually promoted to the rank of Major. In 1981 he retired after twenty years of service, including time in Viet Nam. Two years later Troster secured employment with SCI. He has since received promotions taking him from Corrections Officer Trainee to Corrections Officer 2 with the rank of Sergeant. His duties include supervising inmates acting as janitors and directing other corrections officers in their assigned tasks. Troster is also a Training Sergeant, and he thus serves as an example to lower ranking corrections officers.

In 1991, the American Federation of State, County and Municipal Employees, the bargaining representative for the corrections officers, requested the Department to allow officers to wear an American flag patch on their uniforms. The Department adopted a regulation allowing officers up through the rank of Sergeant to wear an American flag patch on the right shoulder sleeve of their uniform shirts. The patch authorized by the Department displays the flag with the star field oriented toward the officer's back (with the star field in its customary position in the upper left corner of the flag). Although the original regulation was permissive, on February 15, 1993 the Department promulgated new uniform regulations (effective March 15) that mandated display of the flag patch on the right sleeve of the uniform shirt, star field oriented toward the rear.

The Department adopts regulations concerning uniforms, including the flag patch regulation, with the intent of projecting the image of a professional correctional force. The district court found that such an image is important to the overall operations and security of SCI. The presence of the American flag patch is now one of the identifying features of a corrections officers's uniform, which indicates, the district court found, that the wearer is authorized to exercise the lawful powers of corrections officers, including the use of firearms. The district court accepted Superintendent Rosemeyer's contention that the Department's interest in displaying the American flag as part of the uniform is legitimate because it fosters loyalty and obedience to superior officers.

Almost immediately upon adoption of the mandatory flag patch regulation, Troster objected to being compelled to display the American flag. He believes that state-compelled display desecrates the flag and debases it. Troster considers the required displays deeply objectionable not only because of his conviction that the American flag symbolizes freedom from state-coerced political or patriotic speech, but also because, in his view, displaying the flag with its star field to the rear signifies cowardice and retreat from the principles for which the flag stands. Troster further believes that the "New Flag Code" Resolution adopted by Congress in 1976, 36 U.S.C. Secs. 173-177, does not authorize corrections officers to wear the flag as part of their uniform (although he does not press this argument on appeal).

In May 1993, in response to Troster's objections, the Department decided not to enforce the flag patch regulation pending review by the Department's General Counsel. Thus, the regulation remained optional or unenforced from the spring of 1991 to January 27, 1994, with few if any disciplinary problems resulting. Operations ran smoothly at SCI during this time.

Nevertheless, despite the fact that Troster's performance as a corrections officer had otherwise been completely satisfactory, on January 20, 1994 the Superintendent of SCI notified Troster that the Department would begin enforcing the flag patch requirement on January 27, and that he must comply or face disciplinary proceedings. Troster continued to refuse to wear the flag, and on January 26 he filed this 42 U.S.C. Sec. 1983 action seeking declaratory and injunctive relief against the mandatory aspect of the Department's flag patch regulation. The next day the Department ordered Troster to appear at a fact finding meeting.

There, Troster was advised that his continuing refusal to comply with the regulation constituted gross insubordination and violated specific paragraphs of the Correctional Officer's Code of Ethics. A disciplinary hearing was set for February 8. In the interim, however, a short-term agreement between Troster's and the Department's counsel allowed Troster to continue working without wearing the patch. Except for that temporary dispensation for Troster, the Department has enforced the regulation uniformly since the end of January 1994.

On February 1, 1994, Troster moved for a preliminary injunction against the Department's attempts to discipline him and against the mandatory aspect of the flag patch regulation on which those proceedings were based. On February 3, the district court held a hearing on this motion, at which time the Corrections Department agreed to stay disciplinary proceedings against Troster until the court ruled on the injunction.

By order dated March 18 the district court denied Troster's motion. The court concluded that Troster had failed to demonstrate a likelihood of success on the merits because neither the flag patch regulation nor Troster's refusal to wear the patch was sufficiently expressive to be protectable under First Amendment free speech rights. Five days later, Troster moved for reconsideration or injunction pending appeal. Two days after this motion the Corrections Department held a pre-disciplinary conference; four days later the district court denied Troster's request for reconsideration. On April 4...