PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-2723
_____________
JEANNE ZALOGA; EDWARD ZALOGA, D.O., C.P.A.;
CORRECTIONAL CARE INC
v.
BOROUGH OF MOOSIC; MOOSIC BOROUGH
COUNCIL; MOOSIC BOROUGH PLANNING
COMMISSION; MOOSIC BOROUGH ZONING BOARD
OF ADJUSTMENTS; JOSEPH MERCATILI, Individually
and in his official capacities as President of Moosic Borough
Council; JOSEPH DENTE, Individually and in his official
capacity as Vice President of Moosic Borough Council and
member of the Moosic Borough Planning Commission;
THOMAS HARRISON; Individually and in his official
capacity as Moosic Borough Manager; BRYAN FAUVER,
Individually and in his official capacity as Chairman of
Moosic Borough Planning Commission; JAMES DURKIN,
Individually and in his official capacity as Moosic Borough
Zoning and Enforcement Officer; JOHN J. BRAZIL;
WILLARD HUGHES
Joseph Mercatili,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-10-cv-02604)
District Judge: Hon. Matthew W. Brann
_______________
Argued
July 12, 2016
Before: SMITH, JORDAN, and RENDELL, Circuit
Judges.
(Filed: October 24, 2016)
_______________
Joshua M. Autry [ARGUED]
Laverty Faherty Patterson
225 Market Street – Ste. 304
P.O. Box 1245
Harrisburg, PA 17108
Counsel for Appellants
Bruce L. Coyer
Joseph T. Healey [ARGUED]
O’Malley Harris Durkin & Perry
345 Wyoming Avenue
Scranton, PA 18503
Counsel for Appellees
Honorable D. Brooks Smith, United States Circuit Judge for
the Third Circuit, assumed Chief Judge status on October 1,
2016
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_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
This case is an appeal from an interlocutory decision
denying defendant Joseph Mercatili’s claim to qualified
immunity. Dr. Edward Zaloga, who had been engaged in an
ongoing feud with local government officials, publicly
opposed Mercatili’s reelection as the President of the Moosic,
Pennsylvania Borough Council. Mercatili allegedly retaliated
against Zaloga by seeking to damage his business interests.
Zaloga brought this § 1983 suit against several county
entities and individuals, alleging various constitutional
violations, including Mercatili’s retaliation. The United
States District Court for the Middle District of Pennsylvania
granted the defendants’ motion for summary judgment with
respect to all defendants except Mercatili. The Court decided
that Mercatili’s claim to qualified immunity depended on
disputed facts and would have to be resolved by a jury.
Mercatili now appeals, arguing that he is entitled to
qualified immunity because his conduct, even if Zaloga’s
allegations are true, did not violate clearly established law.
We agree and will reverse and remand for the District Court
to grant summary judgment in Mercatili’s favor.
3
I. BACKGROUND
A. Factual Background 1
The Plaintiffs in this case are Dr. Edward Zaloga and
Correctional Care, Inc., a medical company he owns and “that
provides contracted services to correctional facilities.” 2
(Zaloga v. Borough of Moosic, M.D. Pa. CA No. 10-2604-
MWB Docket Item (“D.I.”) 156, at 2 ¶ 3.) Zaloga resides in
the Borough of Moosic in Lackawanna County, Pennsylvania.
At all relevant times, Lackawanna County, through the
oversight of the Lackawanna County Prison Board, has
contracted with Correctional Care to provide medical services
to the Lackawanna County Prison.
Although the Plaintiffs initially sued the Borough of
Moosic, the Borough Council, the Borough’s planning
commission and zoning board, and various Borough officers,
the only remaining defendant is Mercatili. The legal friction
between Zaloga and the Borough originated in disputes
between the Zaloga family and a tire company that occupied a
facility immediately adjacent to the Zalogas’ home.
Frustrated by the Borough’s handling of those disputes,
1
For purposes of summary judgment, we recount the
facts as alleged by the plaintiffs, accepting them as true and
drawing all factual inferences in their favor. Scheetz v. The
Morning Call, Inc., 946 F.2d 202, 205 (3d Cir. 1991).
2
Zaloga is the sole shareholder of Correctional Care.
Although Zaloga’s wife, Jeanne, continues to be listed as a
plaintiff in the caption of this case, the District Court’s
June 16, 2015 order dismissed her as a party and no one has
contested that decision.
4
Zaloga launched political attacks on Mercatili and John
Segilia – the then-mayor of the Borough (now deceased) –
publically opposing their nominations for reelection to public
office.
About a month later, the Lackawanna County Solicitor
notified Zaloga that the County intended not to continue its
contractual arrangement with Correctional Care upon
expiration of the contract’s term. The Solicitor also said,
however, that Correctional Care could compete with other
health care providers in bidding for a new contract. It indeed
did so, but Zaloga’s attorney informed him that, according to
conversations with a Lackawanna County Prison Board
member, Segilia and Mercatili were attempting “to block
[Correctional Care’s] contract renewal.” (A169a ¶ 29.)
Shortly thereafter, a Prison Board member told Zaloga that
“both Segilia and [Mercatili] were upset with [Zaloga’s]
persistent opposition to their decisions regarding the … [t]ire
facility and [Zaloga’s] challenge to their nominating petitions,
and that Segilia and [Mercatili] wanted the Prison Board
member to oppose [Correctional Care’s] upcoming contract
renewal.” (D.I. 156, at 32-33 ¶¶ 102-03.) Later, a “second
Prison Board member informed [Zaloga] that Segilia and
[Mercatili] contacted him and demanded that he also vote
against the renewal of [Correctional Care’s] contract … in
exchange for their support for his [i.e., the Board member’s]
political campaign.” (D.I. 156, at 33 ¶ 104.) Sometime
between April and November 2009, Segilia and Mercatili also
approached John Szymanski – the Lackawanna County
Sheriff and a Prison Board member – and told him that “they
would support [his] campaign for re-election only if [he]
would oppose Dr. Zaloga’s company’s contract renewal.”
(A179a ¶ 5 (emphasis in original).)
5
The record contains several additional instances of
Segilia and Mercatili purportedly applying political pressure
on Prison Board members. The District Attorney for
Lackawanna County, also a Prison Board member, averred
that, when discussing Correctional Care’s contract renewal
with Segilia in 2009, Segila “indicated that he [had] a
problem with Dr. Zaloga … because of his ongoing legal
battle in Moosic and because [Zaloga] ‘…attempted to have
[Segilia and Mercatili] thrown off the ballot.’” (A175a ¶ 6.)
According to the District Attorney, “just prior to Correctional
Care’s medical contract renewal,” another Prison Board
member told him that Segilia and Mercatili were angry at him
for “considering a vote in favor of renewing Correctional
Care’s contract with the Lackawanna County Prison.”
(A175a ¶ 7.) The Board member went on to express his
personal concern that Segilia and Mercatili “would either not
support him or even work against him in his re-election bid.”
(A175a ¶ 7.) The District Attorney himself did not speak
with Mercatili until after the County had already renewed its
contract with Correctional Care.
Ultimately, the County unanimously voted to award
Correctional Care a three-year contract renewal, and the
contract was renewed again in 2012.
B. Procedural Background
The Plaintiffs filed their first complaint in 2010, and
subsequently amended it three times. Count I of the Third
Amended Complaint alleges that the Defendants retaliated in
response to Zaloga’s exercise of his First Amendment rights.
Count II says that the Defendants violated the Plaintiffs’
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substantive due process and Fourteenth Amendment rights by
interfering with the Plaintiffs’ reputational, constitutional, and
property rights. Finally, Counts III and IV allege that the
Defendants conspired against the Plaintiffs in violation of
both 42 U.S.C. § 1983 and state common law.
After completion of discovery, the Defendants moved
for summary judgment. The District Court granted summary
judgment on all counts against all Defendants, except for
Counts I, III, and IV against Mercatili. As to Mercatili, the
Court concluded that his assertion of qualified immunity
hinged upon fact questions that would need to be settled by a
jury.
Mercatili appealed.
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IV. DISCUSSION 3
Qualified immunity shields government actors from
suit “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In Saucier v. Katz, the Supreme
Court divided the analysis of qualified immunity into two
parts: First, a court considering qualified immunity must ask
whether the alleged facts, taken in the light most favorable to
the injured party, “show [that] the [government official]’s
conduct violated a constitutional right”; second, the court
3
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343. “[A] district court’s denial of a claim of
qualified immunity, to the extent that it turns on an issue of
law, is an appealable ‘final decision’ within the meaning of
28 U.S.C. § 1291 … .” Mitchell v. Forsyth, 472 U.S. 511,
530 (1985). The qualified immunity question implicated in
this case – namely, whether the law allegedly violated was
“clearly established” at the time of the defendant’s actions –
is the type of legal issue immediately appealable as a final
decision. In re Montgomery Cty., 215 F.3d 367, 373-74 (3d
Cir. 2000). Thus, we have appellate jurisdiction to consider
that question at this stage of the proceedings. Our review of a
district court’s grant or denial of summary judgment is
plenary. Heffner v. Murphy, 745 F.3d 56, 65 (3d Cir. 2014).
“To prevail on a motion for summary judgment, the moving
party must demonstrate ‘that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.’” Interstate Outdoor Adver., L.P. v. Zoning
Bd. of Twp. of Mount Laurel, 706 F.3d 527, 530 (3d Cir.
2013) (quoting FED R. CIV. P. 56(a)).
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must ask whether the right was clearly established “in light of
the specific context of the case, [and] not as a broad general
proposition.” 533 U.S. 194, 201 (2001). Notwithstanding the
sequence of the Saucier questions, federal courts are
“permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the
particular case at hand.” Pearson v. Callahan, 555 U.S. 223,
236 (2009). Summary judgment based on qualified immunity
should be granted when “the law did not put the officer on
notice that his conduct would be clearly unlawful.” Saucier,
533 U.S. at 202.
Here, the District Court erred in its consideration of
the second prong of the qualified immunity analysis. We
therefore do not need to decide whether Mercatili’s actions
could have violated Zaloga’s constitutional rights, and we
decline to do so. Discussing the constitutionality of
Mercatili’s actions would require us to grapple with the
tension between his First Amendment right to speak and
Zaloga’s right to be free of government retaliation. Because
the law does not clearly address how to harmonize those
competing interests, the second Saucier prong is not met and
any analysis addressing the first prong would “be an
essentially academic exercise.” Pearson, 555 U.S. at 237.
The doctrine of constitutional avoidance counsels against
unnecessarily wading into such muddy terrain. Cf. id. at 241
(justifying resolving a dispute solely on the basis of the
second prong due to “older, wiser judicial counsel not to pass
on questions of constitutionality ... unless such adjudication is
unavoidable[]” (internal quotation marks omitted)). We thus
move directly to an explanation of our conclusion with
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respect to the second prong of the qualified immunity
analysis.
A. The “Clearly Established” Standard
The standard for qualified immunity is tilted in favor
of shielding government actors and “gives ample room for
mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.”
Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal
quotation marks omitted). To defeat qualified immunity, the
right purportedly violated must be so clearly established that
every reasonable official would have
understood that what he is doing violates that
right. In other words, existing precedent must
have placed the statutory or constitutional
question beyond debate. This “clearly
established” standard … ensur[es] that officials
can reasonably … anticipate when their conduct
may give rise to liability for damages.
Reichle v. Howards, __ U.S. __, 132 S. Ct. 2088, 2093 (2012)
(emphasis added) (internal quotation marks, citations, and
brackets omitted); see also Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011) (explaining that, for the contours of a right to be
clearly established, “[w]e do not require a case directly on
point, but existing precedent must have placed the statutory or
constitutional question beyond debate”).
Given that exacting standard, it is not surprising that
some degree of specificity in the law is required before a right
is said to be “clearly established.” The Supreme Court has
repeatedly stressed that, for purposes of determining whether
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a right is so well settled as to defeat qualified immunity, it
“must be established not as a broad general proposition, but in
a particularized sense so that the contours of the right are
clear to a reasonable official[.]” Reichle, 132 S. Ct. at 2094
(internal quotation marks and citations omitted). Thus, in
Reichle v. Howards, the Supreme Court rejected the
plaintiff’s argument that a right was clearly established
merely because that Court’s precedent “settled the rule that,
as a general matter, the First Amendment prohibits
government officials from subjecting an individual to
retaliatory actions for his speech.” Id. at 2093-94 (internal
quotation marks omitted). The Court explained that, in the
fact scenario it faced, “the right in question is not the general
right to be free from retaliation for one’s speech, but the
more specific right to be free from a retaliatory arrest that is
otherwise supported by probable cause.” Id. at 2094
(emphasis added). We thus understand that the right should
be framed in terms specific enough to put “every reasonable
official” on notice of it, and the more specific the precedent,
the more likely it is that a right will meet that threshold.
Especially in light of Reichle, it is not sufficient to
conclude, as the District Court did in this case, that the second
Saucier prong is satisfied because there is a well-known
“right against government retaliation for exercising one[’]s
right to [free] speech … .” (A34a.) That put the question of
whether the “clearly established” standard had been met at
much too high a level of abstraction. Instead, we must attend
to context; we need to “consider the state of the existing law
at the time of the alleged violation and the circumstances
confronting [Mercatili] to determine whether a reasonable
state actor could have believed his conduct was lawful.”
11
Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.
2010).
B. Applying Precedent
Our opinion in McLaughlin v. Watson, 271 F.3d 566
(3d Cir. 2001) – which is the most analogous precedent with
respect to Mercatili’s alleged actions – effectively precludes
Zaloga and Correctional Care from arguing that Mercatili’s
actions violated clearly established law. The plaintiffs in
McLaughlin were agents of the Pennsylvania Attorney
General’s office who alleged (among other things) that the
United States Attorney for the Eastern District of
Pennsylvania had “acted administratively to influence the
Pennsylvania Attorney General to take adverse employment-
related action against them.” Id. at 572. Assuming arguendo
that those allegations could constitute a First Amendment
retaliation claim, id. at 572-73, we nevertheless concluded
that they did not establish the violation of a clearly
established right, explaining our reasoning, in part, as
follows:
When a public official is sued for allegedly
causing a third party to take some type of
adverse action against plaintiff’s speech, we
have held that defendant’s conduct must be of a
particularly virulent character. It is not enough
that defendant speaks critically of plaintiff or
even that defendant directly urges or influences
the third party to take adverse action. Rather,
defendant must “threaten” or “coerce” the
third party to act.
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Id. at 573 (emphasis added). We ordered dismissal of the
case on the basis of qualified immunity. Id. at 574.
McLaughlin thus suggests that a government official like
Mercatili would not necessarily understand that mere political
pushback could be unlawful.
In that same vein, we cited in McLaughlin, with
approval, a decision of the United States Court of Appeals for
the Fourth Circuit recognizing that, when a public official’s
allegedly retaliatory acts “are in the form of speech,” the
official’s “own First Amendment speech rights are
implicated.” Id. at 573 (quoting Suarez Corp. Indus. v.
McGraw, 202 F.3d 676, 687 (4th Cir. 2000)). Mercatili’s
First Amendment speech rights are likewise implicated here,
and our cases do not provide government officials with clear
guidance as to when a government official’s own speech can
nevertheless constitute unconstitutional retaliation.
Also important to our analysis in McLaughlin was our
prior decision in R.C. Maxwell Co. v. Borough of New Hope,
735 F.2d 85 (3d Cir. 1984). In that case, the defendant
borough council wrote to a third party, Citibank, urging it to
remove certain commercial billboards and threatening to
litigate if the billboards were not removed. Id. at 86-87.
Citibank acquiesced, admitting that it was motivated, in part,
by a desire to stay in the borough’s “good graces.” Id. at 87.
Afterwards, the plaintiff, who had leased billboard space from
Citibank, sued the borough for violating the First Amendment
right to free expression. We concluded that the borough’s
actions did not “coerce” the third party sufficiently to be a
trigger of any constitutional violation. Id. at 89. In
McLaughlin, we read the holding of R.C. Maxwell to mean
that “strongly urging or influencing, but not ‘coercing[,]’ a
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third party to take adverse action affecting a plaintiff’s speech
did not violate plaintiff’s constitutional rights.” 271 F.3d at
573. We did not elaborate on that distinction, nor did we
provide specific examples of behavior that would cross the
line from permissible influence to constitutionally
impermissible coercion.
The present case, though, does not appear to involve
coercion. Unlike the defendant’s threats in R.C. Maxwell,
Mercatili’s efforts to pressure members of the Prison Board
were not even coercive enough to achieve their desired effect.
By Zaloga’s own admission, none of the Board members
complied with Mercatili’s wishes by voting against renewal
of the Borough’s contract with Correctional Care. Cf. Zherka
v. Amicone, 634 F.3d 642, 646 (2d Cir. 2011) (observing that
in retaliation cases involving “speech against speech” there
should be a “threshold of measurable harm required to move
government response to public complaint from the forum of
free speech into federal court”). Thus, even if we were to
characterize Mercatili’s alleged statements to Prison Board
members as a “threat” to withdraw political support, there is
ample room to debate whether a reasonable official would
have known that such threats, without any evident coercive
power, were constitutionally out of bounds.4
4
There may of course be circumstances in which
political threats carry a potential for coercion that is plain or
can at least be fairly anticipated. That may present a different
case. But on this record, even viewed in the light most
favorable to the Plaintiffs, it can only be said that Mercatili
hoped his political horse-trading would get what he wanted,
not that he had the power to force anything.
14
Finally, it has never been established that a
governmental official who does not himself retaliate but
instead pressures another individual to retaliate – which is the
position Mercatili is in – can be held personally liable. At
least one of our sister circuits has held that there is no liability
in such circumstances, see Beattie v. Madison Cty. Sch. Dist.,
254 F.3d 595, 601 (5th Cir. 2001) (observing that government
officials “cannot be liable independently if they did not make
the final decision”), and another has noted that this remains
an unsettled question of law, see Trant v. Oklahoma, 754 F.3d
1158, 1170 n.5 (10th Cir. 2014) (observing that the Fifth
Circuit has held that “only final decisionmakers may be
liable” and noting that this is an unsettled question in the
Tenth Circuit).
We conclude that legal precedent leaves space for
good faith disagreement about the constitutionality of
Mercatli’s alleged actions. Under the high standard for
“clearly established” law, that is enough to defeat the
Plaintiffs’ challenge to qualified immunity.
V. CONCLUSION
For the foregoing reasons, we will reverse the District
Court’s order denying Mercatili’s motion for summary
judgment on the basis of qualified immunity and remand with
instructions to enter judgment in his favor.
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