NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
Nos. 20-3610 and 20-3614
______________
FRANK NOONAN; RANDY FEATHERS; RICHARD A. SHEETZ, JR.; E.
MARC COSTANZO; FRANK FINA,
Appellants
v.
KATHLEEN KANE; MICHAEL MILETTO; CHRISTOPHER BRENNAN;
PHILADELPHIA DAILY NEWS; PHILADELPHIA MEDIA NETWORK (DIGITAL)
LLC; PHILADELPHIA MEDIA NETWORK, LLC
E. Marc Costanzo,
Appellant in No. 20-3610
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 in No. 20-3614
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Civ. No. 2-15-cv-06082)
District Judge: Honorable Harvey Bartle, III
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 28, 2021
______________
Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges.
(Opinion Filed: July 12, 2022)
______________
OPINION*
______________
GREENAWAY, JR., Circuit Judge.
The genesis of this dispute, between an elected official and former government
employees who disagreed with her, is a war of words waged in the press—that is to say,
politics as usual. Because the objectionable conduct took the form of statements to the
media, liability will attach only if the public officials who are defendants in this case
imposed or threatened official action. The District Court determined, and we agree, that
the Appellants either failed to allege such actions or failed to adduce evidence to satisfy
this burden. Accordingly, we will affirm the District Court’s partial grant of Appellees’
motion to dismiss and grant of summary judgment in Appellees’ favor.
I. BACKGROUND
This appeal arises out of claims by former employees of the Office of the Attorney
General of Pennsylvania (the “OAG”) that the former Attorney General, Kathleen Kane,
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
and an investigator in the OAG, Michael Miletto, retaliated against them for exercising
their First Amendment rights to criticize Kane in the press and testify before a grand jury.
Appellants Frank Noonan, Randy P. Feathers, Richard A. Sheetz, Jr., E. Marc
Costanzo, and Frank G. Fina were previously employed by the OAG as law enforcement
officers or prosecutors. Appellants were all, in one way or another, involved in the
OAG’s investigation of child sexual abuse perpetrated by a Pennsylvania State University
football coach, Jerry Sandusky.
Kane, in her 2012 campaign for Attorney General, made statements critical of the
Sandusky investigation and promised to conduct an independent inquiry into the
investigation if she were to be elected. Those statements became the opening volleys of a
heated battle between Kane and Appellants. Apparently in response to criticism from
Appellants in the media, Kane engaged in a retaliatory campaign against them that
included making defamatory statements in the media, conducting internal investigations
of matters Appellants worked on, allegedly directing current and former employees of the
OAG to deliver threats to Appellants, and ultimately disclosing to the media sealed grand
jury materials.
KANE’S STATEMENTS AND OAG INVESTIGATIONS OF APPELLANTS
After taking office, Kane appointed H. Geoffrey Moulton, Jr., to review the
OAG’s investigation of Sandusky. During his investigation, Moulton discovered a cache
of pornographic emails exchanged among OAG employees assigned to the Sandusky
investigation. These emails, Appellants allege, were later wielded against them in an
attempt to secure their silence. The OAG published Moulton’s report on June 23, 2014,
3
with no mention of the emails. At a press conference held the same day, Kane falsely
suggested that the pace of the Sandusky investigation permitted Sandusky to abuse two
other victims.
Unlike the other Appellants, Fina’s term in the OAG overlapped with Kane’s for
three days.1 In that brief time, Fina did the following—he alerted Kane to her potential
conflict of interest with an ongoing investigation of members of the Pennsylvania
General Assembly and advised her to recuse herself. Kane declined to recuse herself, did
not bring forth any charges in connection with the investigation, and directed a review of
the investigation. In statements to the press, Kane criticized the investigation as, among
other things, being tainted by racial targeting of Black legislators.
A March 16, 2014 article in the Philadelphia Inquirer identified a confidential
source in the investigation and published Kane’s purported conflict of interest. Fina’s
prior comments about the case were quoted in the March 16 story and he responded to
Kane’s criticism by challenging her to a public debate on the facts. In email
correspondence about the March 16 story, Kane declared to her outside media consultant
that she would not allow those involved with the story to discredit the OAG and that the
story signaled “war.” The consultant responded that Kane would be wise to wage war
with Fina and not the Inquirer.
On March 19, 2014, Miletto relayed to David Peifer, Special Agent in Charge of
the Bureau of Special Investigations in the OAG, that he knew of an investigation that
1
Before Kane took office, Noonan, Feathers, Sheetz, and Costanzo had all left the OAG.
4
would also receive media coverage. On March 21, Peifer met with Miletto at Kane’s
request. Miletto relayed information about an aborted grand jury investigation into
allegations of financial impropriety by the then-head of the Philadelphia Chapter of the
NAACP, J. Whyatt Mondesire, in connection with a state-funded job training program
(the “CUES-Mondesire investigation”).2
Kane, through a subordinate, handed over documents relating to the CUES-
Mondesire investigation to Christopher Brennan of the Philadelphia Daily News.
Brennan used the documents to write an article which appeared on June 6, 2014. These
documents included confidential material from a grand jury inquiry into the matter.
Appellants allege that this article was published at Kane’s direction and was written to
suggest that they improperly terminated the CUES-Mondesire investigation.
In early July, the OAG began to receive Pennsylvania Right-to-Know-Law
(“RTKL”) requests for the pornographic emails discovered during Moulton’s
investigation. Several of these requests asked for the emails of specific OAG employees,
including Fina, Noonan, Feathers, and Costanzo. Multiple reporters reached out to Fina,
advising him that the OAG had suggested the media file RTKL requests for Appellants’
emails.
The OAG retained an outside attorney, Sara Yerger, to review the RTKL requests.
That September, Yerger sent letters to reporters denying the RTKL requests. On
2
Miletto led the investigation and clashed with Fina and Costanzo over their failure to
bring charges against Mondesire. Miletto was subsequently transferred out of the
Criminal Prosecutions section of the OAG.
5
September 23, 2014, Kane emailed her media consultant an article reporting the denial of
the RTKL requests by Yerger. Kane subsequently authorized the release of certain
emails to the press, notwithstanding Yerger’s determination that the OAG was permitted
to deny the requests, on September 25, 2014. The emails were selectively redacted to
conceal the names of senders and recipients. The names of Noonan, Feathers, and Sheetz
were not redacted, but the names of Fina and Costanzo were. 3 In a nationally televised
interview, Kane falsely suggested that the emails contained child pornography.
THREATS AND CONFRONTATIONS
Former Chief Deputy Attorney General Glenn Parno became aware of Moulton’s
discovery of the emails sometime in February or March 2014. In August 2014, Parno
learned from Chief Deputy Attorney General of Appeals James Barker that Kane had
intended to release the emails because of Fina’s comments to the press. Barker also told
Parno to reach out to Fina and encourage him to stop speaking with the press.
Chief Deputy Attorney General of Operations David Tyler also spoke with Parno
and advised him that Kane would release the emails because of the animosity between
her and Fina. Parno, however, did not relay this information to Fina. Tyler also spoke
with former OAG employee Christopher Carusone, asking him to tell Fina to agree to a
3
On August 26, 2015, the Supreme Court of Pennsylvania unsealed the records of the
grand jury investigating Kane’s leak of the CUES-Mondesire grand jury material,
including 20 email chains containing pornographic material. A subsequent OAG
investigation and report detailed 11,930 inappropriate emails sent by more than 370 OAG
employees and 25 Pennsylvania judges and judiciary employees. All Appellants received
some of these emails, while Feathers, Sheetz, and Fina forwarded some of these emails.
6
truce with Kane or “[p]eople are going to get hurt.” A64. Carusone relayed his
conversation with Tyler to Fina.
On August 26, 2014, Fina and Costanzo arrived in Norristown to testify before a
grand jury investigating the leak of CUES-Mondesire grand jury materials to the Daily
News. Miletto was working in the OAG’s office in the same building. As Fina and
Costanzo walked into the building lobby, Miletto and three other men, including two
OAG agents, began following them. Fina turned to Miletto and asked “[w]hat’s up,
Mike?” to which Miletto responded “I don’t know, Frank. You tell me. The sky? The
moon? The star[s]? That’s what’s up.” Fina, Costanzo, Miletto, and the three others
stepped onto the elevator. Miletto and Fina stood nose-to-nose but no physical contact
occurred. Appellants maintain that all of these incidents occurred at Kane’s direction to
prevent them from exercising their First Amendment rights.
GRAND JURY INVESTIGATION
After learning of the June 6, 2014 story in the Daily News, Fina and Costanzo
brought the matter to the attention of Montgomery County Court of Common Pleas Judge
Carpenter, who was supervising the Statewide Investigating Grand Jury. Judge Carpenter
informed First Deputy Attorney General Bruce Beemer and appointed a special
prosecutor to investigate the leak of the CUES-Mondesire grand jury materials. A grand
jury was empaneled, and, in July 2014, the special prosecutor subpoenaed Fina and
Costanzo in connection with the investigation.
Fina then reported to the special prosecutor that Kane had threatened to release his
personal emails to the media as a result of his cooperation with the grand jury
7
investigation. On August 25, 2014, Judge Carpenter held an in camera ex parte hearing
after the special prosecutor shared what he knew from Fina. Fina relayed to Judge
Carpenter his conversations with Carusone and two reporters who had advised him of the
OAG’s recommendation that the press file RTKL requests.
On August 26, just after the encounter with Miletto on the elevator in Norristown,
Fina and Costanzo disclosed the incident to the special prosecutor. On August 27, the
day after the elevator incident, without another hearing discussing the interaction among
Fina, Costanzo, and Miletto, Judge Carpenter issued a protective order against the OAG
in connection with the grand jury’s investigation. The OAG filed a motion for
reconsideration and Judge Carpenter scheduled a hearing for October 17, 2014.
On October 17, 2014, Judge Carpenter held two hearings on the motion for
reconsideration. Judge Carpenter declined to issue subpoenas to Fina or Costanzo, to
take testimony from the special prosecutor, or to share with the OAG a transcript of the
August 25 hearing taking testimony from Fina. Chief Deputy Attorney General Barker,
however, did submit evidence and testify about the emails discovered in Moulton’s
investigation and the RTKL requests relating to those emails.
On October 30, 2014, Judge Carpenter entered an order denying the OAG’s
motion for reconsideration, keeping the protective order in place. At the direction of the
Supreme Court of Pennsylvania, Judge Carpenter subsequently filed an opinion detailing
his reasoning for the protective order.
The grand jury recommended the following charges against Kane: (1) perjury, 18
Pa. Cons. Stat. § 4902; (2) false swearing in an official proceeding, 18 Pa. Cons. Stat. §
8
4903(a); (3) obstructing the administration of law or other governmental functions, 18 Pa.
Cons. Stat. § 5101; (4) official oppression, 18 Pa. Cons. Stat. § 5301; and (5) contempt of
court, 18 Pa. Cons. Stat. § 4549. The Montgomery County District Attorney filed a
criminal complaint against Kane on the first four recommended charges of the grand jury,
and an additional charge of conspiracy to commit official oppression, 18 Pa. Cons. Stat.
§§ 903 and 5301.
On August 15, 2016, a jury returned a guilty verdict against Kane for every
offense charged. Kane resigned as Attorney General effective August 17, 2016.
II. PROCEDURAL HISTORY
Appellants filed this action on November 12, 2015. Appellants filed the operative,
first amended complaint on February 26, 2016. The first amended complaint alleged six
instances of First Amendment retaliation and sought relief pursuant to 42 U.S.C. § 1983.4
Count One alleged that Kane retaliated against Fina by publicly accusing him of racism
in connection with the investigation into the Pennsylvania General Assembly. Count
Two alleged that Kane retaliated against Fina and Costanzo when she told the press that
they had improperly terminated the CUES-Mondesire investigation. Count Three alleged
that Kane and Miletto conspired to defame Fina and Costanzo with respect to the CUES-
Mondesire investigation. Count Four alleged that Kane retaliated against Fina, Sheetz,
Feathers, and Noonan by falsely claiming that delays in the Sandusky investigation
resulted in two more abuse victims. Count Five alleged that Kane retaliated against Fina,
4
The amended complaint also raised claims of defamation and false light. Those claims
are not at issue in this appeal.
9
Sheetz, Feathers, and Noonan when she implied to the press that child pornography was
discovered in the emails of former OAG employees. Finally, in Count Six, Appellants
alleged that Kane retaliated against them by releasing their private emails despite the
OAG’s previous denial of RTKL requests.
Appellees filed motions to dismiss. The District Court dismissed all the First
Amendment retaliation claims in Appellants’ complaint for failure to state a claim.
Noonan v. Kane, 698 F. App’x. 49, 52 (3d Cir. 2017). We reversed and remanded the
matter to the District Court, concluding that Appellants’ allegations that (1) Kane had
directed a deputy to threaten Fina with release of the emails; (2) Kane’s staff had
threatened to hurt Appellants if Fina did not stop criticizing Kane in the press; and (3)
Miletto had physically intimidated Appellants before their grand jury testimony,
sufficiently stated First Amendment retaliation claims. Id. at 54. We left it to the District
Court to consider in the first instance whether qualified immunity shielded Appellees
from liability. Id. at 54-55.
POST-REMAND MOTION TO DISMISS
On remand, the District Court dismissed Counts One, Four, and Five on qualified
immunity grounds.5 Noonan v. Kane, 305 F. Supp. 3d 587, 605 (E.D. Pa. 2018). It noted
that many of Appellants’ claims were grounded in allegedly defamatory speech by Kane
against them. Id. at 597. In its view, the claims that Kane had retaliated against
Appellants by defaming them did not violate any clearly established right. Id. at 601,
5
We discuss qualified immunity in greater depth below. See infra, Sec. III.B.
10
604. The District Court also concluded that the harms alleged by Appellants were not
actionable, as some averred only damage to their reputations, while others who alleged
that they had suffered employment consequences did not allege that Kane had, in addition
to defaming them, exerted any official pressure against their employers in retaliation for
exercise of their First Amendment rights. Id. at 601-04.
SUMMARY JUDGMENT MOTIONS
The District Court granted Appellees’ motions for summary judgment on the
remaining claims. Noonan v. Kane, 504 F. Supp. 3d 387, 411 (E.D. Pa. 2020). It
concluded that Appellants had no protectable interest in the non-disclosure of
pornographic emails exchanged on government email accounts in the course of their
public employment. Id. at 406. It also determined that summary judgment was
appropriate because Appellants had adduced no evidence that Kane had threatened
Appellants or their employers with adverse regulatory action sufficient to trigger liability.
Id. at 406-09. The District Court acknowledged that other employees of the OAG had
impliedly threatened Appellants in connection with their public statements against Kane
but reasoned that Appellants could not make a showing that Kane had directed OAG
employees to make such threats. Id. at 407-08.
The District Court further found Appellants’ claims as to a conspiracy between
Miletto and Kane to retaliate against Appellants lacking because no evidence existed as
to any agreement between Appellees to deprive Appellants of their rights. Id. at 409.
Finally, the District Court dispensed with Appellants’ arguments that the release of their
11
emails was a violation of the RTKL or a violation of their First Amendment rights. Id. at
410-11.
III. ANALYSIS
Appellants6 collectively assert that the District Court erred in its resolution of all
six Counts of their complaint. Noonan, Feathers, Sheetz, and Fina urge that Kane’s
conduct was so egregious that it was not entitled to evaluation under the standard of
Suarez Corp. Industries v. McGraw, 202 F.3d 676 (4th Cir. 2000), which our Court
adopted in McLaughlin v. Watson, 271 F.3d 566, 573 (3d Cir. 2001). They argue that
Kane’s release of emails and documents in the OAG’s control in violation of the RTKL
precludes application of qualified immunity to her. Costanzo argues that the District
Court erred in entering summary judgment despite the evidence that Kane’s retaliatory
actions caused adverse employment consequences for him.7 For the following reasons,
we will affirm the District Court’s grant of the motion to dismiss with respect to Counts
One, Four, and Five, and the grant of summary judgment on the remaining Counts.
JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s treatment of
6
Costanzo filed separate briefs from the remainder of Appellants before us. We will
refer to Appellants’ arguments separately where appropriate.
7
Costanzo also raises the District Court’s reliance on Paul v. Davis, 424 U.S. 693 (1976)
as a basis for reversal. While Paul concluded that defamatory statements by public
officials were not cognizable as Due Process or “right of privacy” claims under § 1983,
id. at 713-14, Appellants’ complaint raised only First Amendment retaliation claims.
Paul is therefore inapposite and has no bearing on our analysis.
12
the dispositive motions in this case de novo, applying the same standards as the trial court
and drawing all inferences in favor of the non-moving party. Jutrowski v. Township of
Riverdale, 904 F.3d 280, 288 (3d Cir. 2018); Fowler v. UPMC Shadyside, 578 F.3d 203,
206 (3d Cir. 2009).
In our review of the District Court’s grant of the motions to dismiss, “[w]e ‘are
required to accept as true all allegations in the complaint and all reasonable inferences
that can be drawn from them after construing them in the light most favorable to the
nonmovant.’” United States v. One (1) Palmetto State Armory PA-15 Machinegun
Receiver/Frame, Unknown Caliber Serial Number: LW001804, 822 F.3d 136, 140 (3d
Cir. 2016) (quoting Foglia v. Rental Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d
Cir. 2014)).
In evaluating the District Court’s entry of summary judgment, we will view all
facts “‘in the light most favorable to the non-moving party,’ with ‘all reasonable
inferences [drawn] in that party’s favor.’” Jutrowski, 904 F.3d at 288 (quoting
Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d
Cir. 2006)). We will affirm the entry of summary judgment when the movant
nevertheless establishes “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)).
MOTION TO DISMISS
In Counts One, Four, and Five, Appellants claim Kane’s defamatory statements to
the press violated their constitutional rights. The District Court observed that Kane’s
13
actions did not violate any clearly established right of the Appellants and concluded
qualified immunity was applicable. Noonan, 305 F. Supp. 3d at 601-05. We agree.
“Section 1983 does not, by its own terms, create substantive rights; it provides
only remedies for deprivations of rights established elsewhere in the Constitution or
federal laws.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). “[T]o establish a
section 1983 claim, a plaintiff ‘must demonstrate a violation of a right secured by the
Constitution and the laws of the United States [and] that the alleged deprivation was
committed by a person acting under color of state law.’” Id. (quoting Mark v. Borough
of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).
To plead a First Amendment retaliation claim, “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 Township, 463 F.3d 285, 296 (3d Cir. 2006). As the District Court
observed from our prior opinion, only the second element is in dispute. Noonan, 698 F.
App’x at 53.
An official’s retaliatory action “need not be great in order to be actionable,” but
must be more than de minimis. Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)
(quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). Where a public official’s
retaliatory actions take the form of speech, and the “public official’s own First
Amendment speech rights are implicated,” no action will lie “in the absence of a threat,
coercion, or intimidation intimating that punishment, sanction, or adverse regulatory
14
action will imminently follow.” Suarez, 202 F.3d at 687; see also McLaughlin, 271 F.3d
at 573. Crucially, without the threat of official action, a public official’s speech “does not
adversely affect a citizen’s First Amendment rights, even if defamatory.” Suarez, 202
F.3d at 687.
“Qualified immunity shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). A public official’s conduct “violates clearly
established law when, at the time of the challenged conduct, [t]he contours of [a] right
[are] sufficiently clear that every reasonable official would have understood that what he
is doing violates that right.” Mammaro v. N.J. Div. of Child Prot. & Permanency, 814
F.3d 164, 169 (3d Cir. 2016) (internal quotation marks omitted).
Kane’s statements did not violate clearly established law when they were made, as
Appellants did not allege that Kane exercised or threatened official action against them.
Because those allegations in the complaint do not satisfy the Suarez standard, Kane is
entitled to qualified immunity on Counts One, Four, and Five.
SUMMARY JUDGMENT
The District Court entered summary judgment in Appellees’ favor on the
remaining claims. Noonan, 504 F. Supp.3d at 411. Counts Two and Six concern
retaliation by Kane with the release of confidential material from the 2009 CUES-
Mondesire grand jury investigation, making defamatory statements against the
15
Appellants, and the release or threatened release of pornographic emails exchanged by
some of the Appellants on OAG computers.
Kane’s defamatory statements, even if expressed in retaliation for Appellants’
exercise of their First Amendment rights, may not form the basis of a First Amendment
retaliation action that survives summary judgment. Suarez, 202 F.3d at 687. Those
statements did not threaten adverse regulatory action, punishment, or sanction. Although
Suarez discussed an exception for “the retaliatory disclosure of information [that] ‘relates
to’ those personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of
ordered liberty,’” no one here contends that exchanging pornography via government
email accounts is such a personal right. Id. at 688 (internal quotation marks omitted).
While Appellants marshalled evidence that other employees of the OAG
threatened the release of certain emails in an effort to silence them, they did not present
evidence that Kane herself ordered the threats against them. Such claims must fail, as
§ 1983 claims may not be founded solely on a theory of respondeat superior. Monell v.
Dep’t of Social Servs., 436 U.S. 658, 690-93 (1978). Kane must have directed her
subordinates to threaten Appellants for liability to attach to her.
Summary judgment was likewise appropriate on Count Three for lack of evidence
that Kane directed, or otherwise conspired with, Miletto to threaten or harass Fina or
Costanzo before their testimony to the grand jury. Rather, the record reflects that Kane
and Miletto had, at most, one interaction when Kane congratulated Miletto during a visit
to the OAG’s Norristown office.
16
Noonan, Feathers, Sheetz, and Fina suggest that Judge Carpenter’s reasoning in
support of the protective order issued during the grand jury investigation weighs against a
grant of summary judgment for Appellees. Neither they nor any authority they cite
suggests that Judge Carpenter’s protective order should have preclusive effect in this
action. Rather, independently evaluating the record at summary judgment before us and
before the District Court, there is no basis to conclude that “a reasonable jury could return
a verdict” for Appellants. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
IV. CONCLUSION
Accordingly, we will affirm the order of the District Court partially granting
Appellees’ motions to dismiss and the entry of summary judgment in Appellees’ favor on
the remaining claims.
17