Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-01453-JJF

Document 19

Filed 07/13/2005
Civil Division

Page 1 of 1

U.S. Department of Justice Federal Pro~arns Branch 20 MassachusettsAve, N.W. P.O. Box883 BenFranklin Station Washington,D.C. 20044

Jeffrey D. Kahn Trial Attorney

Tel: (202) 514-3716 Fax: (202) 616-8470 VIA ECF

July 13, 2005 The Honorable Joseph J. Farnan, Jr. Lock Box 27 United States District Court District of Delaware 844 North King Street Wihnington, DE 19801 Re: Dear Judge Faman, Adkins v. Rumsfeld~ et al.,

C.A. No. 04-1453-JJF

This letter is submitted in response to the letter submitted by plaintiffs counsel, dated June 30, 2005, concerning McGreevvv. Stroup, --- F.3d ---, 2005 WL1515891 (3d Cir. June 28, 2005). calling the Court's attention to this recent case, plaintiffs counsel asserted that the holding of this case was that "health related speech about the poisoning of public employees and others was a matter of true public concern." Plaintiffs description is not the holding of the case, but rather dicta. The Court noted in dicta that "in the case before us, it is undisputed that McGreevy's advocacy on behalf of the two disabled students, her notice to state officials that she was not a middle school nurse, and her objection to pesticide spraying by an unlicensed individual, were matters of true public concern. Defendants do not argue otherwise." Id_.~. at *4 (internal citations omitted). The holding and focus of the opinion, however, concerned the related issues of qualified immunityfor school officials nanaed as defendants in their individual capacity, the official capacity liability of other school officials, and the liability of the school district itself. Id_~at *5-9. Moreimportantly, this new case does not alter the existing law in the Third Circuit concerning the issue at the heart of defendant's motion to dismiss. Unlike McGreevy,who"informed the Pe~msylvania Department of Health that unlicensed pesticide spraying had occurred at the school," id. at *2, the plaintiff in the case before this Court confined his "speech" to personal questions asked of his physician in the closed confines of a private medical examination. Respectfully submitted,

Jeffrey D. Kalm Stephen J. Neuberger, Esq. (Via ECF) Thomas S. Neuberger, Esq. (Via ECF)