Frank Noonan v. Attorney General Pennsylvania
698 F. App'x 49
3rd Cir.2017Background
- Kathleen Kane, elected Pennsylvania Attorney General in 2012, publicly criticized her predecessor and the AG’s Office for its handling of the Sandusky investigation and promised to investigate prior prosecutors.
- Plaintiffs are three former AG prosecutors (Sheetz, Costanzo, Fina), an investigator (Feathers), and the PA State Police Commissioner (Noonan) who publicly contradicted Kane’s accusations and criticized her investigations.
- Kane obtained and selectively released confidential grand-jury materials and government emails (some pornographic) to the press, and allegedly instructed an investigator (Miletto) to fabricate and disseminate false narratives about Plaintiffs’ conduct.
- Plaintiffs allege direct threats and intimidation: statements that private emails would be released to harm them if criticism continued, assertions that Plaintiffs would be “hurt” if they did not stop, and an alleged physical/intimidating encounter by Miletto at a courthouse that led to a protective order.
- Plaintiffs sued under 42 U.S.C. § 1983 for First Amendment retaliation (six federal counts tied to different incidents) and state defamation claims; the district court dismissed the federal claims under Rule 12(b)(6) for failing to allege threats, and declined supplemental jurisdiction over state claims.
- The Third Circuit reversed, holding Plaintiffs sufficiently alleged retaliatory action accompanied by threats/coercion to survive a motion to dismiss and remanded for discovery; it did not decide qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs adequately pleaded First Amendment retaliation | Plaintiffs argued they alleged protected speech, causation, and retaliatory acts involving threats and intimidation (emails release threats, courthouse intimidation) sufficient to deter an ordinary person | Kane/Miletto argued alleged acts were speech/criticism and, absent threats/coercion, are not actionable retaliation; district court required threats and found none | Reversed: Plaintiffs pleaded threats/coercion (direct threats to release emails; courthouse intimidation) sufficient to allege actionable retaliation at pleading stage |
| Standard for retaliation when retaliator is a public official speaking | Plaintiffs: objective deterrence standard; need not show actual chilling | Defendants: official speech implicates speaker’s First Amendment rights so only actionable if accompanied by threat/coercion | Court: when official’s speech is implicated, Suarez/Mirabella line requires threats/coercion; plaintiffs here pleaded such conduct |
| Whether alleged acts (false accusations, selective release of records) can be actionable | Plaintiffs: selective release and false insinuations combined with threats constitute retaliation | Defendants: false statements/criticism alone are generally non-actionable as retaliation | Held: false statements combined with threats/coercion can be actionable; factual dispute for discovery |
| Qualified immunity | Plaintiffs: defendants acted knowingly and unlawfully (e.g., illegal grand-jury disclosure); thus immunity inappropriate | Defendants: argued immunity would apply if claims actionable | Held: District Court did not decide; Third Circuit deemed qualified immunity premature on appeal and left for further proceedings |
Key Cases Cited
- Thomas v. Independence Twp., 463 F.3d 285 (3d Cir. 2006) (elements of First Amendment retaliation claim)
- Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003) (speech that is criticism/false accusation often not actionable retaliation)
- McKee v. Hart, 436 F.3d 165 (3d Cir. 2006) (retaliation claim hinges on deterrence to a person of ordinary firmness)
- Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000) (retaliatory acts must be more than de minimis)
- Suarez Corp. Indus. v. McGraw, 202 F.3d 676 (4th Cir. 2000) (when official’s own speech implicated, threats/coercion required for retaliation)
- Mirabella v. Villard, 853 F.3d 641 (3d Cir. 2017) (applies Suarez test to official speech; requires coercion/threats)
- Malleus v. George, 641 F.3d 560 (3d Cir. 2011) (Rule 12(b)(6) dismissal standard)
- Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013) (pleading standards; accept well-pleaded facts)
- Saliba v. Attorney General of U.S., 828 F.3d 182 (3d Cir. 2016) (plausibility standard for entitlement to relief)