NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 16-3311 & 16-3312
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FRANK NOONAN; RANDY FEATHERS;
RICHARD A. SHEETZ, JR.;
E. MARC COSTANZO; FRANK FINA
v.
KATHLEEN KANE; MICHAEL MILETTO;
CHRISTOPHER BRENNAN*; PHILADELPHIA DAILY NEWS*;
PHILADELPHIA MEDIA NETWORK (DIGITAL) LLC*;
PHILADELPHIA MEDIA NETWORK LLC*
Frank Noonan, Randy Feathers, Richard A. Sheetz, Jr., Frank Fina,
Appellants (No. 16-3311)
E. Marc Costanzo,
Appellant (No. 16-3312)
*(Dismissed pursuant to Court's Order dated 02/03/2017)
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-15-cv-06082)
District Judge: Honorable Harvey Bartle, III
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Argued July 10, 2017
Before: MCKEE, AMBRO, and RESTREPO, Circuit Judges
(Opinion filed: August 9, 2017)
Mark W. Tanner (Argued)
Feldman Shepherd Wohlgelernter Tanner & Weinstock
1845 Walnut Street, 21st Floor
Philadelphia, PA 19103
Fortunato N. Perri, Jr.
McMonagle Perri McHugh & Mischak
1845 Walnut Street
Suite 701, 19th Floor
Philadelphia, PA 19103
Peter J. Scuderi
121 South Broad Street
Suite 1400
Philadelphia, PA 19107
Counsel for Appellants
Edward T. Ellis (Argued)
Richard R. Harris
Rachel F. Satinsky
Littler Mendelson
1601 Cherry Street
Suite 1400, Three Parkway
Philadelphia, PA 19102
Counsel for Appellees
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OPINION*
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AMBRO, Circuit Judge
Before us is the fallout of a public feud principally among former Pennsylvania
officials. Plaintiffs were three prosecutors in Pennsylvania’s Office of Attorney General
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
(Richard A. Sheetz, Jr., E. Marc Costanzo, and Frank Fina), an investigator (Randy P.
Feathers), and the Commissioner of the Pennsylvania State Police (Frank Noonan). They
sue former Pennsylvania Attorney General Kathleen Kane and a current investigator in
the AG’s Office, Michael Miletto, for retaliating against them after exercising their First
Amendment rights to speak out against Kane. The District Court dismissed their claims
essentially for failing to allege that the retaliatory acts were accompanied by threats.
Because Plaintiffs have adequately pled unlawful retaliatory conduct in this context, we
reverse.
I. BACKGROUND
In November 2012, Kane was elected Attorney General of Pennsylvania. During
her campaign, she was highly critical of her predecessor and the Office of Attorney
General for their handling of the investigation of Jerry Sandusky, the former Penn State
assistant football coach who was eventually convicted of sexually abusing minors. On
the campaign trail, Kane accused the AG’s Office of delaying the investigation for
political reasons and allocating insufficient resources to it. She pledged, if elected, to
conduct her own investigation into that Office’s purported mishandling of the Sandusky
investigation that involved each Plaintiff. Feathers publicly challenged Kane’s
allegations and called her uninformed.
Once in office, Kane assumed oversight of another investigation in which
Plaintiffs had been involved. It concerned elected Philadelphia public officials who were
suspected of taking bribes in exchange for votes and influence. An informant, Tyron Ali,
assisted investigators in exchange for the dropping of separate criminal charges against
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him. When Kane took control of the investigation, Fina discovered that she had a
conflict of interest and brought it to her attention. Kane disregarded Fina’s concerns,
decided to maintain control of the matter, declined to prosecute it, and refused to honor
the plea agreement with Ali. Only after Fina disclosed to the supervising court Kane’s
conflict of interest in the investigation did she agree to drop the charges against Ali.
Following this dispute, Kane began making public accusations about the Ali
bribery investigation, challenging that it lacked quality, was flawed, and was not
prosecutable. She also stated that the entire investigation was racially motivated, as only
members of the General Assembly’s Black Caucus were targeted. Plaintiffs allege that
Kane made these public accusations to damage the reputation of those involved in the
investigation. They made public statements refuting Kane’s accusations, and the
Philadelphia District Attorney ultimately concluded that her statements were false.
Amidst this growing battle between Kane and Plaintiffs, she came across a 2009
investigation conducted in part by Fina and Costanzo. The AG’s Office had been
investigating J. Whyatt Mondesire, the former head of the Philadelphia chapter of the
NAACP, and suspected that state grant money was improperly used to make payments to
him. Due to the unavailability of witness testimony, that investigation came to a
standstill. On learning of the stalled inquiry, Kane retrieved confidential grand jury
documents relating to it and, through an associate of hers, transferred those materials to a
reporter who wrote a story suggesting that Fina and Costanzo had obstructed or otherwise
improperly terminated the investigation. Plaintiffs allege that this story was written at
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Kane’s instruction.1 They also allege that Kane conspired with Co-Defendant Miletto by
directing him to fabricate a story that he uncovered evidence of Mondesire’s wrongdoing
but that Fina and Costanzo removed him from the investigation when told of his
discovery.
After learning of the release of the grand jury documents, Fina and Costanzo
alerted the grand jury’s supervising judge in the Mondesire investigation of the leak.2 A
separate investigation ensued, and both Fina and Costanzo testified before the grand jury.
On the day they were scheduled to testify, they allege that Miletto and other agents in the
AG’s Office met them as they arrived, made threatening and harassing statements and
attempted physically to intimidate them. Following this incident, the supervising judge
imposed a protective order preventing any further attempted intimidation.
While the grand jury leak investigation was ongoing, Kane decided to make good
on her campaign pledge to investigate the handling of the Sandusky investigation.
Geoffrey Moulton, the attorney in the AG’s Office directing the inquiry, completed his
report of that investigation and, per the supervising judge’s protocol, provided a copy of
it to Fina, Noonan, Sheetz, and Feathers so that they would have the opportunity to
respond. They did so, criticizing its findings and Kane’s motives, and these responses
were included in the report. Battling press conferences followed its public release. Kane
1
Plaintiffs also named as defendants on this claim the reporter, Philadelphia Daily
News, Philadelphia Media Network, LLC, and Philadelphia Media Network (Digital),
LLC, but they were dismissed by party stipulation.
2
The Commonwealth later indicted Kane for unlawfully disclosing grand jury
materials and committing perjury before a grand jury. She was convicted of these
charges in October 2016.
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declared that the delay in the investigation provided Sandusky the opportunity to sexually
assault other minors; Plaintiffs countered that these allegations were untrue, Kane knew
they were untrue, and she was sensationalizing the series of events for the sole purpose of
delivering on her campaign promises. Kane later conceded that her accusations were
false.
Their public combat continued to escalate. Following Moulton’s report, Kane
came across a deluge of emails sent among the AG’s Office officials—on government
email accounts—in connection with the Sandusky investigation that were pornographic in
nature and contained images of children. Plaintiffs were included on these email chains.
On two separate occasions, Kane’s subordinates allegedly threatened Fina’s colleagues
that she would release those emails in a manner damaging to Plaintiffs if they did not stop
publicly criticizing her regarding the grand jury leak in the Mondesire investigation. See
J.A. at 177 (Plaintiffs “are going to be hurt if Fina does not back off.” (quotations
omitted)); (Fina’s colleague was instructed to warn “Fina that if [he] did not stop
criticizing Kane, [she] would release the private emails of the former [AG’s Office]
staff.”). Although Kane was advised that she could not lawfully release these emails in a
selective manner and a Commonwealth court informed her that the emails were not
subject to public release under Pennsylvania law, she released them nonetheless.
Plaintiffs allege that she selectively released only some of the emails to paint them in a
false light and depict them as the primary participants in the distribution of offensive
email content. During an interview with Kane broadcast nationally, she chastised those
6
involved in the email scandal and insinuated that they disseminated child pornography
via government email accounts. These insinuations were false.
Plaintiffs brought an action under 42 U.S.C. § 1983 alleging that Kane and Miletto
unlawfully retaliated against them for exercising their First Amendment rights to speak
out against Kane. They brought six federal counts: I) retaliation regarding accusations of
Plaintiffs’ racial bias in the Ali bribery investigation; II) retaliation regarding Plaintiffs’
impeding the Mondesire investigation and releasing associated confidential grand jury
documents; III) conspiracy to retaliate regarding the Mondesire investigation; IV)
retaliation regarding Plaintiffs’ delay in the Sandusky investigation and Moulton’s report
on it; V) retaliation regarding Plaintiffs’ emails in the Sandusky investigation and
insinuations that they were distributing child pornography; and VI) retaliation and casting
false light on Plaintiffs in selectively releasing those emails. They also brought two state-
law defamation claims.
The District Court dismissed all First Amendment retaliation claims under Federal
Rule of Civil Procedure 12(b)(6) and then, declining to exercise supplemental jurisdiction
over the Pennsylvania law claims, dismissed them without prejudice so that they could be
brought in state court. The District Court did not reach Defendants’ argument that they
are entitled to qualified immunity. This appeal follows.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction per 28 U.S.C. § 1291. We review without deference a
district court’s dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). When
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conducting our review, “we must accept the allegations in the complaint as true, [but] are
not compelled to accept unsupported conclusions and unwarranted inferences, or a legal
conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d
Cir. 2013) (en banc) (quotation omitted). “We first take note of the elements a plaintiff
must plead to state a claim” and then, assuming “the veracity of well-pleaded factual
allegations[,] . . . determine whether they plausibly give rise to an entitlement to relief.”
Saliba v. Att’y Gen. of United States, 828 F.3d 182, 188-89 (3d Cir. 2016) (quotations
omitted).
III. ANALYSIS
A. First Amendment Claims
“In order to plead a retaliation claim under the First Amendment, a plaintiff must
allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a
person of ordinary firmness from exercising his constitutional rights, and (3) a causal link
between the constitutionally protected conduct and the retaliatory action.” Thomas v.
Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citation omitted). It “is a fact
intensive inquiry focusing on the status of the speaker, the status of the retaliator, the
relationship between the speaker and retaliator, and the nature of the retaliatory acts.”
Brennan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003) (quotation and emphases omitted). 3
3
In their briefing, Kane and Miletto suggest that Plaintiffs were never employees
for the purpose of their First Amendment retaliation claims and thus a different legal
analysis would apply. Appellees’ Br. at 20. Not only do they concede that Plaintiffs
might have been employees under Kane, see, e.g., id. at 27 (Plaintiffs “left the [AG’s
Office] shortly before or after [Kane’s] inauguration”), and cite to First Amendment
retaliation cases in which the plaintiff was an employee, the District Court expressly
8
The “key question” is the second element—whether the action would sufficiently deter
the exercise of constitutional rights. McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006).
An official’s retaliatory action “need not be great in order to be actionable,” but it must
be more than de minimus. Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)
(quotation omitted). “On the other hand, . . . where the [official’s] alleged retaliatory acts
were criticism, false accusations, or verbal reprimands,” a First Amendment retaliation
claim typically does not exist. Brennan, 350 F.3d at 419 (quotation omitted).
As the District Court observed and the parties agree, Plaintiffs have satisfied the
first and last elements of their retaliation claims—Plaintiffs were engaged in conduct
protected by the First Amendment and there is a causal link between that conduct and the
alleged retaliatory action. Kane and Miletto argue, however, that Plaintiffs have not
sufficiently claimed any retaliatory action that would deter a person of ordinary firmness
from engaging in the protected conduct. The District Court agreed, finding that Plaintiffs
had not met this required element because they did not allege any threats or intimidation.
We disagree.
The District Court correctly determined that “where a public official’s alleged
retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation
intimating that punishment, sanction, or adverse regulatory action will immediately
follow, such speech does not adversely affect a citizen’s First Amendment rights, even if
declined to make such a finding given Plaintiffs’ pleadings, J.A. at 48. Our reading of
paragraphs 35 through 61 of the Complaint is that Costanzo likely left the AG’s Office
prior to Kane’s inauguration, and the employee status of the remaining Plaintiffs remains
ambiguous. This is fact-finding that the District Court should make in the first instance.
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defamatory.” J.A. at 64 (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687 (4th
Cir. 2000)). This is so because, “when a public official’s allegedly retaliatory acts are in
the form of speech, the official’s own First Amendment speech rights are implicated.”
Zaloga v. Borough of Moosic, 841 F.3d 170, 176 (3d Cir. 2016) (quotations omitted).
Because each party has a First Amendment interest in those circumstances, “we employ a
more specific test to determine whether the official’s speech amounts to a retaliatory
act”—that outlined in Suarez. Mirabella v. Villard, 853 F.3d 641, 651 (3d Cir. 2017).
As noted, normally “an [official’s] actions have [not] adversely affected [the] exercise of
[] First Amendment rights where the [] alleged retaliatory acts were criticism, false
accusations, or verbal reprimands.” McKee, 436 F.3d at 170 (quoting Brennan, 350 F.3d
at 419 (quotation omitted)). However, a retaliation claim involving a government
official’s own speech must involve a “threat, coercion, or intimidation” by the official
that a punishment will follow from the continued exercise of a plaintiff’s First
Amendment rights. Mirabella, 853 F.3d at 651 (quotation omitted). See also Koren v.
Noonan, 586 F. App’x 885, 888 (3d Cir. 2014); Mun. Revenue Servs., Inc. v. McBlain,
347 F. App’x 817, 825 (3d Cir. 2009).
With this understanding—that to survive a motion to dismiss Plaintiffs must allege
retaliation by Defendants accompanied by coercion, threats, or intimidation—they have
sufficiently pled as much in their first amended complaint. They assert at least three
specific instances in which Defendants (or associates at their direction) threatened them.
Fina alleges that his colleague was told by Kane’s deputy that “if Fina did not stop
criticizing Kane, [she] would release the private emails of the former [AG’s Office]
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staff.” J.A. at 177. In another encounter between Fina’s colleague and Kane’s
subordinate, Fina alleges that Kane’s staff threatened that “a lot of [Fina’s] people are
going to be hurt if ‘Fina does not back off.’” Id. Although the District Court did not
believe Plaintiffs alleged that these threats came directly from Kane, they do in fact make
such an allegation. Id. at 175; see also id. at 222 (“Each of the Plaintiffs was subject to
direct attempts of intimidation and blackmail by the Defendant Kane, as she threatened
that if the Plaintiffs continued to be publicly critical of her, she would selectively release
damaging and embarrassing information in an attempt to humiliate and impugn them.”).
Finally, Plaintiffs allege that Miletto physically threatened and intimidated them at the
courthouse where they were about to testify against him regarding the grand jury leak,
which lead to the court issuing a protective order against him. Id. at 172. These
constitute threats of adverse action or punishment that would follow if Plaintiffs
continued to exercise their First Amendment right to speak out against Kane. 4
No doubt facts found in discovery will make or break Plaintiffs’ case. But at the
motion-to-dismiss stage they have alleged a colorable claim of retaliation in violation of
their First Amendment rights. Whether that retaliation would deter a person of ordinary
firmness from exercising those rights is a question to be decided by the factfinder and not
discarded so early. Accordingly, we reverse.
4
In passing, Plaintiffs assert that we must apply an objective standard to their
claims, presumably because their allegations indicate that they were not in fact chilled
from exercising their First Amendment rights and continued to make public statements
against Kane following the alleged threats made in attempt to silence them. Plaintiffs are
correct that an objective standard is applied and that they need not allege actual
deterrence to state a First Amendment retaliation claim. See Mirabella, 853 F.3d at 650.
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B. Qualified Immunity
Defendants ask us to grant them qualified immunity should we find that Plaintiffs
allege an actionable First Amendment retaliation claim. In response, Plaintiffs argue that
Defendants are not entitled to qualified immunity when they knowingly violate the law,
as they acted deliberately to retaliate against Plaintiffs and committed unlawful acts in
doing so (such as releasing confidential grand jury documents). Moreover, Plaintiffs
point out that Kane had two legal opinions advising her of the illegality of releasing
Plaintiffs’ emails, and Kane herself actively challenged the release of them in court when
requested by journalists under Pennsylvania law. Because the District Court did not
reach Defendants’ arguments that they are entitled to qualified immunity, it is premature
to consider it in the first instance.
* * * * *
Plaintiffs have sufficiently pled claims of retaliation against government officials
in violation of their First Amendment rights. Thus we reverse and remand so that they
can proceed to discovery.
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