                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-1998

Larsen v. Senate of The Commonwealth
Precedential or Non-Precedential:

Docket 97-7153




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Recommended Citation
"Larsen v. Senate of The Commonwealth" (1998). 1998 Decisions. Paper 194.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/194


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Filed August 11, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7153

ROLF LARSEN

v.

SENATE OF THE COMMONWEALTH OF PENNSYLVANIA;
ROY C. AFFLERBACH; ANTHONY B. ANDREZESKI;
GIBSON E. ARMSTRONG; EARL BAKER; ALBERT V.
BELAN; CLARENCE D. BELL; LEONARD J. BODACK;
MICHAEL E. BORTNER; DAVID J. BRIGHTBILL;
J. DOYLE CORMAN; MICHAEL M. DAWIDA; MICHAEL
               B.
FISHER; VINCENT J. FUMO; STEWART J. GREENLEAF;
MELISSA A. HART; DAVID W. HECKLER; EDWARD W.
HELFRICK; EDWIN G. HOLL; ROXANNE H. JONES;
ROBERT C. JUBELIRER; GERALD J. LAVALLE;
CHARLES D. LEMMOND, JR.; H. CRAIG LEWIS;
J. WILLIAM LINCOLN; F. JOSEPH LOEPER; ROGER
               A.
MADIGAN; BRUCE S. MARKS; ROBERT J. MELLOW;
HAROLD F. MOWERY, JR.; RAPHAEL J. MUSTO;
MICHAEL A. O'PAKE; FRANK A. PECORA; JOHN E.
PETERSON; EUGENE E. PORTERFIELD; TERRY L. PUNT;
JEANETTE F. REIBMAN; JAMES J. RHOADES;
ROBERT D. ROBBINS; FRANK A. SALVATORE;
ALLYSON Y. SCHWARTZ; TIM SHAFFER; JOHN J.
SHUMAKER; PATRICK J. STAPLETON, WILLIAM J.
STEWART; J. BARRY STOUT; RICHARD TILGHMAN; JACK
WAGNER; NOAH W. WENGER; HARDY WILLIAMS;
SUPREME COURT OF PENNSYLVANIA; ROBERT NIX;
JOHN FLAHERTY; STEPHEN ZAPPALA; NICHOLAS
PAPADAKOS; RALPH CAPPY; FRANK MONTEMURO;
RONALD CASTILLE; COMMONWEALTH OF
PENNSYLVANIA COURT OF JUDICIAL DISCIPLINE;
JOSEPH F. MCCLOSKEY; WILLIAM F. BURNS;
DAWSON R. MUTH; PETER DEPAUL; CAROL K.
MCGINLEY, CHRISTINE L. DONOHUE; JUSTIN M.
JOHNSON; WILLIAM CASSENBAUM; JUDICIAL CONDUCT
BOARD; JOSEPH A. DEL SOLE; ARTHUR J. EDMUNDS
              ;
DIANE M. EDMUNDSON; GERALD P. EGAN; JOHN W.
HERRON; FREDERICK WELLS HILL; MATTHEW ANITA
MACDONALD; GERALD J. O'CONNOR; ANDREW PALM;
CHARLES W. RUBENDALL, II; JAMES E. RUSSO,
BERNARD C. WATSON; WILLIAM J. ARBUCKLE, III;
BRUCE A. ANTKOWIAK; THOMAS A. BERGSTROM;
ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS*;
NANCY M. SOBOLEVITCH; DAVID A. FRANKFORTER, in
their official and individual capacities;
INDIVIDUAL SENATORS

       Chief Justice Robert N.C. Nix
       (retired), Chief Justice John
       Flaherty, Associate Justices
       Stephen Zappala, Nicholas
       Ronald Castille, and Judge
       Frank Montemuro, *The
       Administrative Office of
       Pennsylvania Courts, Nancy M.
       Sobolevitch and David A.
       Frankforter,

       Appellants

*Dismissed pursuant to Clerk order dated 6/27/97

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 95-CV-01540)

Argued May 19, 1998

BEFORE: SLOVITER, GREENBERG, and GIBSON,*
Circuit Judges

(Filed: August 11, 1998)
_________________________________________________________________

*Honorable John R. Gibson, Senior Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.

                               2
       Arlin M. Adams (argued)
       Joseph T. Lukens
       Michael J. Barry
       Schnader, Harrison, Segal &
        Lewis, L.L.P.
       1600 Market Street, Suite 3600
       Philadelphia, PA 19103

       Attorneys for Appellants
       Individual Justices of the
       Supreme Court of Pennsylvania

       Arthur G. Raynes
       Harold I. Goodman
       Stephen E. Raynes
       Raynes, McCarty, Binder Ross &
        Mundy
       1845 Walnut Street, Suite 2000
       Philadelphia, PA 19103

       Attorneys for Appellants
       Individual Administrative Office
       Defendants

       Cletus P. Lyman (argued)
       Michael S. Fettner
       Lyman & Ash
       1612 Latimer Street
       Philadelphia, PA 19103

       Attorneys for Appellee Rolf Larsen

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellants, present and former justices and court
administrators of the Supreme Court of Pennsylvania,
appeal from the district court's February 28, 1997 order

                                  3
denying their motion to dismiss appellee Rolf Larsen's
claims against them on qualified immunity grounds. The
district court had jurisdiction over Larsen's claims
pursuant to 28 U.S.C. S 1331 and 28 U.S.C.S 1343 as
Larsen states his claims under 42 U.S.C. S 1983 and 42
U.S.C. S 300bb. Jurisdiction over this appeal from a denial
of qualified immunity rests on 28 U.S.C. S 1291 pursuant
to the collateral order doctrine. See Mitchell v. Forsyth, 472
U.S. 511, 530, 105 S.Ct. 2806, 2817 (1985). For the
reasons that follow, we will affirm in part and reverse in
part the district court's denial of qualified immunity and
will remand the case to the district court for further
proceedings.

II. FACTUAL AND PROCEDURAL HISTORY

This case arises from appellants' June 1994 decision to
terminate the medical insurance benefits of appellee Rolf
Larsen, a former justice of the Supreme Court of
Pennsylvania, following his conviction on felony charges in
the Allegheny County Court of Common Pleas and his
suspension from office pursuant to an order of the
Pennsylvania Court of Judicial Discipline. In November
1977, Larsen was elected to a ten-year term on the
Pennsylvania Supreme Court beginning in January 1978.
In November 1987, Larsen won a retention election for a
second ten-year term beginning in January 1988. On
December 12, 1989, toward the end of Larsen's 12th year
as a Supreme Court justice, the Supreme Court adopted a
benefits plan which provided lifetime medical insurance
benefits for retired judges with ten or more years of judicial
service, regardless of their age. See app. at 93.

On July 17, 1991, the Pennsylvania Judicial Inquiry
Review Board ("JIRB"), following an investigation into
allegations of misconduct, reported to the Pennsylvania
Supreme Court that Larsen had created an appearance of
impropriety by engaging in ex parte communications with a
trial judge in a pending case. The JIRB recommended that
Larsen be reprimanded publicly. See app. at 72. On
October 14, 1992, the Supreme Court, acting through a
panel of three justices, adopted the JIRB's recommendation
and issued an order publicly reprimanding Larsen. See In

                                4
re Larsen, 616 A.2d 529 (Pa. 1992). Justices Zappala and
Cappy voted in favor of the order while Justice Papadakos
dissented.

On November 24, 1992, Larsen filed a petition before the
Supreme Court seeking the disqualification and recusal of
Justices Zappala and Cappy on the grounds that these
justices, together with Chief Justice Nix and other
individuals, had engaged in various forms of misconduct
involving ex parte communications, kickbacks, partiality
toward litigants and interference in pending cases. See app.
at 72-73; 769. A grand jury then commenced a nine-month
investigation into Larsen's accusations and on November 5,
1993, released a report stating that it had found evidence
of further wrongdoing by Larsen.1 The grand jury reported
that Larsen had maintained a list of petitions for allowance
of appeal to be afforded special handling by his staff and
had obtained prescription tranquilizers for his own use by
causing a physician to issue prescriptions in the names of
members of his judicial staff. See app. at 76.

The Attorney General of Pennsylvania, acting on a
presentment issued by the grand jury on October 22, 1993,
brought criminal charges against Larsen relating to his
unlawful acquisition of prescription medications. By order
dated October 28, 1993, the Supreme Court relieved Larsen
of all judicial and administrative duties as a justice, but did
not suspend his pay. See app. at 76.

On November 23, 1993, the Pennsylvania House of
Representatives adopted House Resolution Number 205
authorizing its judiciary committee to investigate Larsen.
See app. at 77. That investigation culminated in a writ of
impeachment summons which eventually resulted in
Larsen's conviction on October 4, 1994. See app. at 790.
Larsen has brought claims challenging various aspects of
the impeachment proceedings. Those claims are the subject
_________________________________________________________________

1. While the 1992 grand jury reported no evidence to substantiate
Larsen's accusations against the other justices, the United States
District Court for the Eastern District of Pennsylvania later found that
Chief Justice Nix had interfered substantially in a pending criminal case.
See Yohn v. Love, 887 F. Supp. 773 (E.D. Pa. 1995), aff 'd in relevant
part, 76 F.3d 508 (3d Cir. 1996).

                               5
of separate appeals before this court and thus we do not
address them in this opinion.

On April 9, 1994, after a five-day trial before the Court of
Common Pleas of Allegheny County, a jury convicted
Larsen of two counts of felony conspiracy for unlawful
procurement of controlled substances. See app. at 77.2 On
June 3, 1994, the Pennsylvania Court of Judicial Discipline
suspended Larsen from office without pay based on Article
V, S 18(d)(2) of the Pennsylvania Constitution, which
authorizes orders "directing the suspension, with or without
pay, of any justice, judge or justice of the peace .. . against
whom has been filed an indictment or information charging
a felony." See In re Larsen, 655 A.2d 239 (Pa. Ct. Judic.
Disc. 1994).

The Court of Common Pleas sentenced Larsen on June
13, 1994, and as part of its sentence removed Larsen from
judicial office pursuant to Article VI, S 7 of the Pennsylvania
Constitution, which provides that, "[a]ll civil officers shall
hold their offices on the condition that they behave
themselves well while in office, and shall be removed on
conviction of misbehavior in office or of any infamous
crime." See Larsen v. Senate of Pennsylvania , 646 A.2d
694, 697 (Pa. Commw. Ct. 1994).

In a letter dated June 17, 1994, David A. Frankforter,
Human Resources Manager for the Court Administrator of
Pennsylvania, acting on behalf of Court Administrator
Nancy Sobolevitch and the justices of the Pennsylvania
Supreme Court, notified Larsen that he was ineligible to
receive retirement medical benefits as of June 3, 1994, the
date of the Court of Judicial Discipline order suspending
Larsen without pay. See app. at 94.

Until 1993, the Pennsylvania Constitution contained a
provision mandating that, "[n]o compensation shall be paid
to any justice, judge or justice of the peace who is
suspended or removed from office. . . ." Pa. Const. art. V,
S 16(b). In a 1992 decision, the Pennsylvania Supreme
_________________________________________________________________

2. Larsen contended that the prescription tranquilizers were medically
necessary and that he had them prescribed in the names of third parties
to protect his privacy.

                               6
Court, analyzing the language and history of that provision,
held that its denial of "compensation" to suspended or
removed judges did not encompass retirement benefits.
Thus, the court held that judges who had been removed
from office for misconduct could not be denied retirement
benefits based on that provision. See Glancey v. State
Retirement Bd., 610 A.2d 15, 22-23 (Pa. 1992).

In 1993, section 16 was amended to provide that,
"[e]xcept as provided by law, no salary, retirement benefit or
other compensation, present or deferred, shall be paid to
any justice, judge or justice of the peace who . . . is
suspended, removed or barred from holding judicial office."
Pa. Const. art. V, S 16(b). Therefore, in contrast to the prior
version of section 16(b) which addressed only
"compensation," the 1993 version explicitly encompassed
retirement benefits and other forms of deferred
compensation and provided for the denial of such benefits
upon removal.

Larsen commenced this action on September 13, 1995,
by filing a complaint in the United States District Court for
the Middle District of Pennsylvania under 42 U.S.C.S 1983
which, insofar as material to this opinion, alleged that
appellants' June 17, 1994 decision to terminate his medical
benefits violated his rights under the Impairment of
Contracts Clause, U.S. Const. Art. I, S 10, the Due Process
and Equal Protection Clauses, U.S. Const. amend. XIV, S 1,
the First Amendment, U.S. Const. amend. I, and the Public
Health Services Act, 42 U.S.C. SS 300bb-1 et seq.
Appellants moved to dismiss Larsen's claims on the
grounds that his complaint failed to state a claim on which
relief could be granted and that his claims were barred by
the doctrine of qualified immunity. In an opinion and order
dated February 28, 1997, the district court denied
appellants' assertion of qualified immunity. See Larsen v.
Senate of the Commonwealth of Pennsylvania, 955 F. Supp.
1549, 1580 n.31 (M.D. Pa. 1997). Appellants filed a timely
notice of appeal on March 27, 1997.3
_________________________________________________________________

3. By orders dated June 18, 1997, and September 30, 1997, this appeal
was consolidated with, respectively, the appeals in numbers 97-7296
and 97-7451 which concern Larsen's challenge to his impeachment. This
opinion, however, concerns only the appeal in number 97-7153.

                               7
III. DISCUSSION

A. Clearly Established Rights

Initially we set forth the framework for our analysis. In
Seigert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793
(1991), the Supreme Court explained that when a qualified
immunity defense is raised a court first should determine
whether the plaintiff has asserted a violation of a
constitutional right at all. Only if that question is answered
affirmatively need the court determine whether the
defendant is entitled to qualified immunity on the grounds
that his conduct did "not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 2738 (1982). The Court recently
reaffirmed this principle in County of Sacramento v. Lewis,
118 S.Ct. 1708, 1714 n.5 (1998). In this case we largely
focus on the second question because we are satisfied that
except with respect to the equal protection of the law and
the Public Health Services Act claims Larsen adequately
asserted a violation of his constitutional rights.

In considering the second question we recognize that
qualified immunity is from suit as well as from liability, so
that "[u]nless the plaintiff 's allegations state a claim of
violation of clearly established law, a defendant pleading
qualified immunity is entitled to dismissal before the
commencement of discovery." Mitchell, 472 U.S. at 526, 105
S.Ct. at 2815. For purposes of this appeal from the district
court's denial of qualified immunity based upon the
pleadings, we must accept Larsen's allegations as true and
afford him the benefit of all reasonable inferences. See Nami
v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Appellants'
entitlement to qualified immunity under these standards is
a question of law subject to plenary review. See Pro v.
Donatucci, 81 F.3d 1283, 1285 (3d Cir. 1996); Giuffre v.
Bissell, 31 F.3d 1241, 1247 (3d Cir. 1994). 4
_________________________________________________________________

4. The district court addressed the qualified immunity issue as follows:

       [appellants'] arguments in support of qualified immunity are
limited
       to the same arguments they assert in support of the outright

                                8
A right is "clearly established" for qualified immunity
purposes only if "[t]he contours of the right" are "sufficiently
clear that a reasonable official would understand that what
he is doing violates that right." Anderson v. Creighton, 483
U.S. 635, 640, 107 S.Ct. 3034, 3039 (1982). Thus,
defendants are entitled to qualified immunity if"reasonable
officials in [their] position at the relevant time could have
believed, in light of what was in the decided case law, that
their conduct would be lawful." In re City of Philadelphia
Litig., 49 F.3d 945, 961 n.14 (3d Cir. 1995). Even where
officials "clearly should have been aware of the governing
legal principles, they are nevertheless entitled to immunity
if based on the information available to them they could
have believed their conduct would be consistent with those
principles." Acierno v. Cloutier, 40 F.3d 597, 620 (3d Cir.
1994) (citations and internal quotations marks omitted).

However, for reasonable officials to be on notice that their
conduct would be unlawful, there need not be "a previous
precedent directly on point." Acierno, 40 F.3d at 620; accord
Anderson, 483 U.S. at 640, 107 S.Ct. 3039 (holding that
the "clearly established" standard does not require that "the
very action in question has previously been held unlawful").
Rather, there need only be "some but not precise factual
correspondence between relevant precedents and the
conduct at issue," Pro, 81 F.3d at 1292 (citations and
internal quotation marks omitted), so that "in the light of
pre-existing law the unlawfulness [would be] apparent."
Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. We must
_________________________________________________________________

        dismissal of Larsen's claims. As the court has determined that
these
       arguments provide no basis upon which to dismiss Larsen's . . .
       claims, they also provide no basis upon which to afford
[appellants]
       immunity from suit in their personal capacities.

Larsen, 955 F. Supp. at 1580 n.31. Thus the court did not distinguish
the issue of whether the complaint alleged viable claims for purposes of
Federal Rule of Civil Procedure 12(b)(6) from the issue of whether it
alleged violations of clearly established rights within the meaning of the
qualified immunity doctrine. Our analysis largely turns on a de novo
inquiry as to the latter issue, see Mitchell, 472 U.S. at 526, 105 S.Ct.
at
2815, as we are satisfied that for the most part Larsen adequately has
asserted a violation of his constitutional rights.

                                9
determine, in light of these principles, whether Larsen
alleges violations of clearly established rights. 5

B. Impairment of Contracts Clause

Appellants contend that the district court erred in
denying them qualified immunity as to Larsen's claim that
termination of his benefits violated his rights under the
Impairment of Contracts Clause, which provides that"[n]o
state shall . . . pass any . . . Law impairing the Obligation
of Contracts." U.S. Const. art. I, S 10. According to
appellants, Larsen's right to receive those benefits following
his removal from office was not clearly established, since
reasonable officials could have believed either that Larsen
was not eligible for benefits under the terms of the benefits
plan, or that Larsen, even if otherwise eligible for benefits,
lawfully could be denied those benefits pursuant to the
1993 version of Article V, section 16, of the Pennsylvania
Constitution which precludes payment of benefits to
justices who have been removed from office.

1. Eligibility Under the Retirement Benefits Plan

Appellants contend that Larsen fails to allege a clearly
established right to receive retirement medical benefits
because, according to his complaint, the plan conferring
the right to those benefits applied only to "retired" members
of the judiciary. Thus, appellants argue, a reasonable
official "would have been justified in concluding that Larsen
was not covered" by the terms of the benefits plan since he
_________________________________________________________________

5. Larsen, br. at 14, contends that the doctrine of qualified immunity is
inapplicable because appellants' revocation of his medical benefits
involved "a ministerial, non-discretionary act." See People of Three Mile
Island v. Nuclear Regulatory Comm'rs, 747 F.2d 139, 143 (3d Cir. 1984).
We disagree. As the Supreme Court recognized in Davis v. Scherer, 468
U.S. 183, 195 n.14, 104 S.Ct. 3012, 3020 n.14 (1984), officials must
make discretionary determinations even in the course of applying facially
clear provisions. Because appellants' decision to deny Larsen's benefits
required such discretionary determinations, including legal analysis as
to the applicability of the 1993 version of section 16(b), it cannot be
characterized as a ministerial act outside the scope of the qualified
immunity doctrine.

                               10
had been removed from office and had not "retired"
voluntarily. Br. at 12. We disagree. As of the time
appellants decided to deny Larsen's benefits, the
Pennsylvania Supreme Court had held that judicial officers
who had been removed from office for misconduct were
entitled to receive benefits under a plan which by its terms
applied to "retired" judicial officers. In upholding removed
judges' right to receive "retirement" benefits, the
Pennsylvania Supreme Court did not find it significant that
those judges had not "retired" voluntarily from office.
Rather, the court treated them as fully eligible under the
retirement plan and proceeded to analyze whether a
separate provision of law precluded them from receiving
those benefits to which they were entitled under the plan.
See Glancey, 610 A.2d at 22-23.6 The decision in Glancey
forecloses appellants' argument that officials charged with
administering a retirement benefits plan reasonably could
construe the terms of that plan narrowly to exclude
removed judges from coverage when the Pennsylvania
Supreme Court had included such individuals in the terms
of eligibility.7

In light of this case law including individuals such as
Larsen within the terms of eligibility for retirement benefits,
and in the absence of any authority for excluding
individuals from eligibility under a retirement plan on the
_________________________________________________________________

6. Glancey resolved the cases of several different judges, some of whom
were removed while still in office and others of whom were not issued
removal orders until after they had resigned or retired. The court treated
those judges identically in terms of their eligibility for benefits under
the
retirement plan. See 610 A.2d at 22-23.

7. The Pennsylvania Supreme Court had reached similar results in cases
involving "retirement" plans for elected officials and public employees,
upholding the eligibility under such plans of individuals who did not
retire voluntarily. See Bellomini v. State Retirement Bd., 445 A.2d 737,
741 (Pa. 1982) (holding that legislators who resigned under pressure at
about the time of their criminal convictions were entitled to "retirement"
benefits); Harvey v. Retirement Bd. of Allegheny County, 141 A.2d 197,
203 (Pa. 1958) (holding that public employee who had been dismissed for
cause was entitled to "retirement" benefits); Wright v. Retirement Bd. of
Allegheny County, 134 A.2d 231, 233-34 (Pa. 1957) (holding that public
employee who had been separated involuntarily from employment was
entitled to "retirement" benefits).

                               11
grounds that they were involuntarily removed from office,
we find that it was clearly established that Larsen could not
be disqualified from receiving benefits under the terms of
the benefits plan. Accordingly, we must consider whether
appellants are entitled to qualified immunity on the
grounds that they reasonably could have believed that
Article V, section 16, as amended in 1993, operated to
divest Larsen of benefits which he otherwise would have
been eligible to receive.

2. Divestiture of Benefits Pursuant to Section 16

Appellants contend that they are entitled to qualified
immunity because a reasonable official could have believed
that their revocation of Larsen's benefits was lawful
pursuant to the 1993 version of section 16, which provides
that judges who are suspended or removed from office shall
not receive any "salary, retirement benefit or other
compensation, present or deferred." Pa. Const. art. V,
S 16(b). Larsen, however, contends that the application of
that provision violated his clearly established rights, as it
was adopted after his right to retirement benefits had
vested in 1989, at which time he had completed ten years
of service and thus had satisfied all requirements necessary
to receive full retirement benefits.8 Larsen emphasizes that
the version of section 16 in effect at the time his rights
vested did not revoke retirement benefits upon removal
from office. See Glancey, 610 A.2d at 22-23. Thus, Larsen
argues that the 1993 amendment to that provision
unilaterally altered the terms of his employment
compensation, retroactively depriving him of contractual
rights which had vested before the amendment and
violating his right against impairment of contractual
obligations. See br. at 19.

We agree. The Pennsylvania Supreme Court has held
that,
_________________________________________________________________

8. Vesting occurs when an individual "has completed the number of
years of service required for eligibility" to receive benefits under the
terms of a retirement plan. Police Pension Fund Ass'n Bd. v. Hess, 562
A.2d 391, 395 (Pa. Commw. Ct. 1989).

                               12
       [i]t has long been recognized in Pennsylvania that the
       nature of retirement provisions for public employees is
       that of deferred compensation for service actually
       rendered in the past. And it is the law of this
       Commonwealth that unilateral modifications . . . after
       retirement eligibility requirements have been met, may
       not be adverse to the [employee].

Commonwealth ex rel. Zimmerman v. Officers & Employees
Retirement Bd., 461 A.2d 593, 595 (Pa. 1983) (citations
omitted). In Zimmerman, the Commonwealth sought to
terminate a public official's retirement benefits based on a
statute providing for forfeiture of the right to such benefits
upon conviction of a crime related to public office. The
court, finding that the official's vested right to retirement
benefits had accrued before enactment of the statute, held
that that right "cannot be reached by a retroactive forfeiture
provision," and thus upheld the official's right to receive
retirement benefits despite his conviction for crimes that
warranted forfeiture under the statute. See id. at 598.

In reaffirming its decision on reargument, the court
reiterated that, "[i]t is [the] attempt to divest previously
vested rights of a public . . . official by subsequent
legislative judgment that we find to be a constitutionally
impermissible retroactive divestment of vested rights."
Commonwealth ex rel. Zimmerman v. Officers & Employees
Retirement Bd., 469 A.2d 141, 142 (Pa. 1983) (per curiam).
Justice Zappala, one of four justices who joined in the
majority opinion, wrote separately "to emphasize that no
law, regardless of how noble its purpose may retroactively
affect existing contract obligations. U.S. Const. art. 1 S 10.
cl. 1. . . . Once a contractual obligation vests . .. the same
cannot be altered, amended or changed by unilateral
action." 469 A.2d at 144 (Zappala, J., concurring). We find
that these precedents analyzing an impairment of contract
claim under circumstances closely analogous to those in
the present case clearly establish that retirement benefits
could not lawfully be denied based upon a provision
adopted after the right to receive those benefits had vested.9
_________________________________________________________________

9. Because Larsen's right to retirement benefits had vested before
adoption of the 1993 constitutional amendment, we need address only
the implications of applying that amendment retroactively to previously
vested rights. Accordingly, our opinion has no application to individuals
whose rights vested after 1993.

                               13
Appellants contend that Zimmerman is distinguishable
because the official in that case had begun receiving
benefits before the Commonwealth sought to terminate
them. However, Zimmerman expressly noted that the court's
prior decisions had established that a subsequently
adopted provision "could not prevent the payment of
benefits to employees whose . . . rights were vested in
enjoyment" before passage of the provision. See id. at 143
(citing Bellomini v. State Employees' Retirement Bd., 445
A.2d 737 (Pa. 1982)). The court then held that the same
principle applied where the official's "right in the terms of
entitlement, although not enjoyment, had vested" before
passage of the benefits forfeiture provision. Id. Thus,
Zimmerman establishes that the dispositive time after which
an employee's right to benefits cannot be altered is the time
of the vesting of those rights "in the terms of entitlement."
In this case, Larsen's right to retirement benefits vested in
terms of entitlement in 1989, at which time he had satisfied
all conditions necessary to receive full retirement benefits,
and under the law that existed at that time, those benefits
could not be terminated upon removal from office. See
Glancey, 610 A.2d 15. Accordingly, it was clearly
established that Larsen could not be denied benefits based
upon a provision adopted in 1993.10

Numerous other Pennsylvania cases have reached the
same result precluding infringements on previously vested
rights based on rules that did not exist at the time of
vesting. In Association of Pennsylvania State College & Univ.
Faculties v. State Sys. of Higher Educ., 479 A.2d 962, 965
(Pa. 1984), the court, applying both the federal and state
Impairment of Contracts Clauses, held that the
"constitutional infirmity" of an adverse amendment of
previously existing rules "with respect to [employees] whose
entitlement to retirement benefits had already vested is
clear." Thus, the court held that the amendment was "void
_________________________________________________________________

10. Zimmerman, in dictum, distinguished the situation before it from a
situation where a removal due to misconduct would result in the
official's "failure . . . to complete the term of eligibility." See 469
A.2d at
143. This dictum does not apply to Larsen, who had satisfied the term
of eligibility before he was removed from office and before the benefits
forfeiture provision was adopted.

                               14
as applied to employees whose rights were vested prior to
its enactment." Id.; accord Burello v. State Employes'
Retirement Sys., 411 A.2d 852, 855 (Pa. Commw. Ct. 1980)
(citations omitted) ("[W]hen the conditions of retirement
eligibility have been satisfied, retirement pay has ripened
into a full contractual obligation and become a vested right
[which] cannot be disturbed by subsequent legislation.");
Harvey v. Allegheny County Retirement Bd., 141 A.2d 197,
203 (Pa. 1958) (holding that employee who had "complied
with all conditions necessary" to receive benefits "cannot be
affected adversely by subsequent legislation which changes
the terms of the retirement contract"); Wright v. Allegheny
County Retirement Bd., 134 A.2d 231, 233-34 (Pa. 1957)
(holding that a provision which was adopted after an
employee's rights had vested but before employee retired
could not lawfully be applied, as the employee's rights were
"vested and unqualified" under the previously existing law
and "could not be qualified or altered" by a subsequent
enactment).11
_________________________________________________________________

11. The Pennsylvania Impairment of Contracts Clause provides that,
"[n]o . . . law impairing the obligation of contracts . . . shall be
passed."
Pa. Const. art. I, S 17. Because the Pennsylvania cases discussed above
apply the federal Impairment of Contracts Clause, see, e.g., Association
of Pennsylvania State College & Univ. Faculties, 479 A.2d at 964;
Zimmerman, 469 A.2d at 144 (Zappala, J., concurring); Burello, 411 A.2d
at 855, they clearly establish Larsen's rights under federal law,
particularly absent any federal precedent to the contrary. See Mississippi
v. Miller, 276 U.S. 174, 179, 48 S.Ct. 266, 268 (1928) (holding that
"retroactive application" of a law adopted"after services have been
rendered" would deprive employee of an amount"he had theretofore
earned" and thus "would impair the obligation of the . . . contract" that
existed at the time service was rendered). In Dodge v. Board of Educ. of
Chicago, 302 U.S. 74, 77-78, 58 S.Ct. 98, 99-100 (1937), the Court
permitted an impairment of retirement benefits, but did so on the
grounds that state law rendered those benefits"mere gratuities" that did
not give rise to vested contractual rights. Thus, Dodge is inapposite in
this case where the benefits are a form of deferred compensation to
which employees have enforceable contractual rights, see Zimmerman,
469 A.2d at 142 ("[W]e have rejected the view that pension benefits are
mere gratuities . . . . [I]t is the well settled law of this jurisdiction
that
the nature of retirement provisions . . . is that of deferred compensation
for services actually rendered in the past.") (citations omitted), and
does
not alter the fact that nothing in the federal precedents blurs the
clearly

                               15
Appellants, br. at 12-13, argue that despite these cases
clearly holding that retroactive denials of previously vested
rights to retirement benefits unconstitutionally impair a
contractual obligation to pay those benefits, the contours of
Larsen's rights were not clearly established because cases
analyzing impairments of contract have held that afinding
of a "technical impairment is merely a preliminary step in
resolving the more difficult question of whether that
impairment is permitted under the Constitution," United
States Trust Co. v. New Jersey, 431 U.S. 1, 21, 97 S.Ct.
1505, 1517 (1976) (citations and internal quotations
omitted), and therefore have analyzed the nature, purpose,
and extent of the impairment in light of the public interests
at stake. See Association of Surrogates & Supreme Court
Reporters v. New York, 940 F.2d 766, 771 (2d Cir. 1991).
We find this argument unpersuasive. As of the time of
appellants' decision, the Pennsylvania Supreme Court had
considered and rejected the argument that public interests
in sanctioning official misconduct warranted retroactive
impairment of vested rights. The court held that,"any
_________________________________________________________________

established contours of the rights under the federal Impairment of
Contracts Clause which are set forth in the Pennsylvania cases.

In this case the provision adopted after vesting was set forth in the
state constitution whereas in the cases discussed above, the provisions
purporting to infringe the right to benefits were adopted by statute or
ordinance. However, it was clearly established that,"[a] state can no
more pass a law violating the obligation of a contract by means of a
convention than by its legislature, so a provision in a state constitution
which prohibits the enforcement of a contract is void." Fisk v. Police
Jury
of Jefferson, 116 U.S. 131, 135, 6 S.Ct. 329, 331 (1885) (citations
omitted); accord McBride v. Retirement Bd. of Allegheny County, 199 A.
130, 132-33 (Pa. 1938) ("the Contract Clause of the Federal Constitution
. . . forbids impairment by the states, not only by statute, but also by
amendment to . . . the State Constitution") (citations omitted). Moreover,
nothing in the cases addressing retroactive statutory impairments of
vested rights suggests that their holdings turn on the source of the
retroactive law. Thus, the contours of the right against retroactive
impairment were clearly established when appellants terminated
Larsen's benefits despite the lack of "precise factual correspondence"
between this case and those where the subsequently enacted provision
was statutory. See Pro, 81 F.3d at 1292.

                               16
argument predicated upon a compelling state interest must
necessarily fail when applied to this attempted retroactive
forfeiture" of previously vested retirement benefits. See
Zimmerman, 461 A.2d at 598.12 Thus, officials charged with
administering a retirement benefits plan could not
reasonably have believed, in light of the decided cases
construing the scope of the Impairment of Contracts
Clause, that the balance of interests rendered the
impairment of Larsen's rights lawful.

Based on the cases discussed above, we find that Larsen,
by alleging that he was deprived of previously vested rights
pursuant to a provision adopted after vesting, has alleged a
violation of clearly established rights under the Impairment
of Contracts Clause of which reasonable officials charged
with administering retirement benefits would have known.13
_________________________________________________________________

12. The court explained that benefit forfeiture provisions are powerless
to
deter official misconduct that occurred before their enactment. See 461
A.2d at 598. The misconduct leading to Larsen's removal occurred well
before the 1993 adoption of the amended section 16, bringing this case
squarely within the rationale of Zimmerman's holding that the public
interest in enforcing benefit forfeiture provisions did not outweigh the
constitutional interests in protecting vested contractual rights to
retirement benefits against retroactive impairment.

13. Appellants also contend that they are entitled to qualified immunity
because it was not clearly established that retirement medical benefits
were to be treated in the same manner as other forms of retirement
benefits. See br. at 11-12. We reject this contention. It was clearly
established that "the nature of retirement provisions . . . is that of
deferred compensation for services actually rendered in the past."
Zimmerman, 469 A.2d at 142-43 (citations omitted). Retirement medical
benefits, like other retirement benefits, are an item of economic value
offered in return for work performed, and thus fall squarely within the
principles set forth in the cases discussed above. Indeed, to accept
appellants' argument we would have to close our eyes to what we know
in this era of high medical costs, that medical benefits are of crucial
importance to retired employees. Moreover, while the Pennsylvania
Supreme Court had not applied this rule in the precise context of
medical benefits, it had indicated in dictum that it would do so. See,
e.g.,
In re Upper Providence Police Delaware County Lodge No. 27, 526 A.2d
315, 322 n.6 (Pa. 1987) (citing deferred compensation cases for the
proposition that denial of medical benefits would"pose serious
constitutional problems"); Lower Merion Fraternal Order of Police Lodge v.

                               17
We hold, therefore, that appellants are not entitled to
qualified immunity as to Larsen's claim that their
termination of his medical benefits unconstitutionally
impaired his contractual right to those benefits.

C. Due Process

The Due Process Clause provides that "[n]o state shall
. . . deprive any person of life, liberty, or property without
due process of law." U.S. Const. amend. XIV,S 1. Larsen
claims that appellants violated his due process rights by
terminating his medical benefits as they did so without
providing him notice and either a pre- or post- revocation
hearing. Br. at 22. Appellants answer that, because Larsen
had no clearly established property interest in medical
benefits for retired members of the judiciary, their
_________________________________________________________________

Lower Merion Township, 512 A.2d 612, 619 (Pa. 1986) (noting that three
justices of equally divided court would treat medical benefits like any
other form of deferred compensation while three justices would resolve
case on grounds that did not implicate the issue). Thus, despite the lack
of a precedent "directly on point," the law was sufficiently clearly
established that a reasonable official would have known that an action
that was unlawful as to other forms of retirement benefits also would be
unlawful as to retirement medical benefits. See Acierno, 40 F.3d at 620.

In holding that retroactive application of a provision adopted after
vesting violates rights of which a reasonable official charged with
administering retirement benefits would have known, we recognize that
Larsen alleges that both Supreme Court justices and court
administrators participated in the decision to deny his benefits.
Although, under certain circumstances, a reasonable judicial officer
might be held to more stringent standards than a reasonable court
administrator, the cases proscribing retroactive divestment of vested
rights are sufficiently clear that any reasonable official, whether
judicial
or administrative, charged with administering a retirement benefits
program should have known of this proscription. We also recognize that
the judicial officers and court administrators may have played different
roles in the decision to deny Larsen's benefits. However, at this
juncture,
the pleadings do not elucidate the nature of each appellant's
participation in the challenged decision. Accordingly, we address only the
principles of law of which reasonable officials in any of the appellants'
positions should have known in participating in a decision to deny
vested benefits.

                               18
cancellation of Larsen's benefits did not violate clearly
established rights under the Due Process Clause of which
a reasonable official would have known. Appellants,
however, do not deny that if Larsen had a property interest
in his medical benefits he was entitled to some sort of
hearing with respect to their termination. See, e.g.,
McDaniels v. Flick, 59 F.3d 446, 453-61 (3d Cir. 1995).

For the purposes of the Due Process Clause, property
interests are defined by state law. See Board of Regents v.
Roth, 408 U.S. 564, 569, 577, 92 S.Ct. 2701, 2709 (1972);
Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir.
1997). Larsen contends that he had a clearly established
property right to the benefits associated with his office,
since he had a contractual right to those benefits, and it
was "clearly established that contractual rights are property
interests under the Due Process Clause of the Fourteenth
Amendment." Br. at 22. We find merit in this argument
because it is clear that a contract right is a "form of
property." United States Trust Co., 431 U.S. at 19 n.16, 97
S.Ct. at 1516 n.16. Thus, inasmuch as "in Pennsylvania
. . . the nature of retirement provisions for public employees
is that of deferred compensation for services actually
rendered in the past," Zimmerman, 461 A.2d 597, Larsen
had a property interest in his right to medical benefits that
was sufficiently clear that appellants should have
understood that the termination of those benefits triggered
Larsen's right under the Due Process Clause to an
opportunity to be heard regarding his claim of entitlement
to those benefits. Anderson, 483 U.S. at 640, 107 S.Ct. at
3039.14
_________________________________________________________________

14. Appellants contend that since the Pennsylvania Supreme Court had
held that elected public officials have no constitutionally protected
property interest in their elected public office, see In re 1991
Pennsylvania Legislative Reapportionment Comm'n, 609 A.2d 132 (Pa.
1992), it was reasonable for them to infer that there was no
constitutionally protected right to the benefits associated with that
public office. Br. at 15. We disagree. A holding than an elected official
does not have a property right in his office is completely distinguishable
from the situation at hand which involves deferred compensation for
services rendered.

                               19
Appellants contend that even if Larsen had a clearly
established property interest in his medical benefits "a
reasonable state official would be justified in concluding
that Larsen received all the process to which he was
entitled before the cancellation of his health care benefits."
Br. at 15-16. Specifically, appellants argue that Larsen had
ample opportunity to challenge his impeachment in the
Senate, his criminal conviction in the state courts, and his
suspension by the Court of Judicial Discipline. Id. at 15.
We reject this argument because, while these proceedings
allowed Larsen to contest the basis for his suspension and
removal from office, none of them afforded him an
opportunity to address the distinct issue of whether
medical benefits lawfully could be terminated as a result of
that suspension and removal. Since Larsen was not
afforded an opportunity to be heard regarding the propriety
of terminating his medical benefits, reasonable officials
could not have believed that Larsen received the process he
was due in connection with a deprivation of a clearly
established property right. Accordingly, appellants are not
entitled to qualified immunity with respect to Larsen's due
process claim.15

D. Equal Protection

Appellants contend that they are entitled to qualified
immunity as to Larsen's claim that the denial of his medical
benefits violated his rights under the Equal Protection
Clause, which provides that "[n]o state shall. . . deny to
any person within its jurisdiction the equal protection of
the laws." U.S. Const. amend. XIV, S 1. We agree. Larsen
asserts that he was denied equal protection of the law
because he was denied retirement benefits following his
removal from office, whereas judges who had been removed
for misconduct in the past had received such benefits
notwithstanding their removal. Since Larsen does not allege
that appellants violated a fundamental right or relied on a
_________________________________________________________________

15. We do not find it necessary to address the question of what
opportunity to be heard should have been afforded Larsen as appellants
offered him no such opportunity at all either before or after
Frankforter's
June 17, 1994 letter.

                               20
suspect or quasi-suspect classification, their actions, in
order to comport with the Equal Protection Clause, need
have only a rational relationship to a legitimate state
interest. See Tolchin v. Supreme Court of New Jersey, 111
F.3d 1099, 1113 (3d Cir.), cert. denied, 118 S.Ct. 435
(1997); Dyszel v. Marks, 6 F.3d 116, 125 (3d Cir. 1993).16

According to appellants, reasonable officials could believe
that they had a rational basis for treating Larsen differently
from judges removed in the past, since there had been an
intervening constitutional amendment which served the
rational and legitimate objective of preventing"officials who
have been removed from office for breaching the public's
trust from benefitting from the . . . public purse." Br. at 17.
We agree and in fact are satisfied that Larsen's equal
protection claim does not adequately allege a violation of a
constitutional right at all and thus does not satisfy the first
prong of the Siegert test. See 500 U.S. at 232, 111 S.Ct. at
1793. The Equal Protection Clause does not require
identical treatment of all individuals, but rather permits
differential treatment of individuals who are differently
situated in some relevant respect. See Nordlinger v. Hahn,
505 U.S. 1, 10, 112 S.Ct. 2326, 2331 (1992). Thus,
individuals who are differently situated in terms of their
"legitimate expectation and reliance interests" rationally
may be subjected to different rules designed to afford
greater protection to those with heightened legitimate
expectations. Id. at 13 (citations omitted) (upholding
imposition of greater tax burden on those who acquired
property after change in tax law based on their lesser
expectation interests as compared to those who owned
property before change in law). Because Larsen was
removed from office at a time when the Pennsylvania
Constitution provided for denial of benefits upon removal,
his position was different from that of judges who were
removed when no such provision existed.17 Accordingly,
_________________________________________________________________

16. Suspect classifications involve traits such as race, national origin,
or
alienage, while quasi-suspect classifications involve traits such as
gender. See Dyszel, 6 F.3d 125 n.13.

17. The difference in the law at the time of removal creates a distinction
which a reasonable official could believe was a rational basis, under the

                                21
there was a rational basis for treating Larsen differently
from judges removed from office before the 1993
constitutional amendment, and appellants are entitled to
dismissal of Larsen's equal protection claim.

E. First Amendment

Larsen contends that appellants' revocation of his
benefits violated his right of free speech under the First
Amendment because it was a form of retaliation for his
protected speech in alleging misconduct on the part of his
fellow Supreme Court justices. To state a claim for
actionable retaliation under the First Amendment, the
plaintiff must allege facts which, if proven, would establish
that the plaintiff 's protected First Amendment activity was
a "substantial or motivating factor in the alleged retaliatory
action." Feldman v. Philadelphia Hous. Auth. , 43 F.3d 823,
829 (3d Cir. 1994). This rule is derived from the Supreme
Court's opinion in Mount Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576
(1977).

In support of their assertion that they are entitled to
qualified immunity as to Larsen's First Amendment claim,
appellants contend, br. at 18-19, that they could have
_________________________________________________________________

Equal Protection Clause, for treating Larsen differently from the judges
removed before 1993, thus entitling appellants to qualified immunity
under the second prong of the Siegert analysis even if Larsen's
allegations satisfied the first prong. While a reasonable official could
believe that the 1993 constitutional amendment created a distinction
between different judges depending on their status at the time of its
adoption, which provided a "rational basis" for differential treatment
within the meaning of the equal protection jurisprudence, as discussed
in Part III. B 2, supra, a reasonable official could not believe that the
1993 amendment may be applied retroactively to deny previously vested
rights, as the impairment of contracts jurisprudence clearly proscribes
such retroactive impairments. Because of the divergent standards under
these distinct constitutional provisions, we find that reasonable
officials
could believe that the decision to deny Larsen's benefits did not violate
clearly established equal protection principles but could not believe that
this decision did not violate clearly established impairment of contracts
principles.

                                22
believed that their decision to revoke Larsen's benefits was
not unconstitutionally retaliatory because they could have
believed that they were required to apply the 1993 version
of section 16, and thus that they would not be liable under
the First Amendment as they would have reached the same
decision " `even in the absence of the protected conduct.' "
Givhan v. Eastern Line Consol. Sch. Dist., 439 U.S. 410,
416, 99 S.Ct. 693, 697 (1979) (quoting Mount Healthy v.
Doyle, 429 U.S. at 287, 97 S.Ct. at 576). Appellants'
argument requires the court to apply the objective
reasonableness standards of the qualified immunity
doctrine to the subjective element of a First Amendment
retaliation claim, and thus calls for the somewhat illogical
inquiry into "whether a person reasonably could have
thought that he in fact thought something." Sheppard v.
Beerman, 94 F.3d 823, 828 (2d Cir. 1996).

The qualified immunity analysis requires a determination
as to whether reasonable officials could believe that their
conduct was not unlawful even if it was in fact unlawful.
See In re City of Philadelphia Litig., 49 F.3d at 961 n.14. In
the context of a First Amendment retaliation claim, that
determination turns on an inquiry into whether officials
reasonably could believe that their motivations were proper
even when their motivations were in fact retaliatory. Even
assuming that this could be demonstrated under a certain
set of facts, it is an inquiry that cannot be conducted
without factual determinations as to the officials' subjective
beliefs and motivations, and thus cannot properly be
resolved on the face of the pleadings, but rather can be
resolved only after the plaintiff has had an opportunity to
adduce evidence in support of the allegations that the true
motive for the conduct was retaliation rather than the
legitimate reason proffered by the defendants. See
Sheppard, 94 F.3d at 828-29.18
_________________________________________________________________

18. In this respect the qualified immunity analysis as to a First
Amendment retaliation claim differs from the qualified immunity analysis
as to claims under the Impairment of Contracts or Due Process Clause,
which requires only an objective analysis of whether reasonable officials
could believe that the challenged actions conformed to objective
standards of conduct.

                               23
According to Larsen's allegations, which we must accept
as true for purposes of this appeal from an order entered
on the pleadings, the true motive for appellants' decision
was retaliation for his protected speech. See app. at 72-73;
96-97. Appellants may be able to establish by the end of
discovery that their decision in fact rested on a good faith
belief, which they would have formed even in the absence
of any protected speech, that they were to required to
revoke Larsen's benefits under the 1993 version of section
16. However, at this juncture, we must accept Larsen's
allegations that their true reasons were retaliatory,
allegations which state a claim for violation of clearly
established rights under the First Amendment, precluding
dismissal on qualified immunity grounds. See Walker v.
Schwalbe, 112 F.3d 1127, 1133 (11th Cir. 1997) (rejecting
assertion of qualified immunity on grounds that defendants'
proffer of non-retaliatory reason created factual dispute as
to "true reason" for the adverse action and did not defeat
claim for violation of clearly established right against
retaliatory action); see also Azzaro v. County of Allegheny,
110 F.3d 968, 981 (3d Cir. 1997) (holding that assertion of
non-retaliatory reason which would have justified decision
even in absence of protected activity created factual issue
precluding summary judgment as to retaliation claim).

In reaching this result we are not suggesting that a bare
allegation of retaliatory motive necessarily is sufficient to
defeat an assertion of qualified immunity as to a retaliation
claim. In some circumstances, the legitimate basis for the
actions might be so apparent that the plaintiff 's allegations
of retaliatory motive could not alter the conclusion that
under the circumstances alleged in the pleadings, the
defendants would have been compelled to reach the same
decision even without regard for the protected First
Amendment activity. In this case, however, appellants were
faced with a decision as to whether to subject Larsen to the
more adverse 1993 version of section 16, a decision whose
outcome, under the circumstances alleged by Larsen, could
have been affected by a retaliatory motive.19 Thus we
_________________________________________________________________

19. To defeat a First Amendment retaliation claim if a plaintiff
demonstrates that his protected First Amendment activity was a

                               24
cannot conclude from the face of the pleadings that
appellants would have taken the same action in the
absence of protected speech. Accordingly, appellants are
not entitled, at this preliminary stage of the litigation, to
qualified immunity as to Larsen's First Amendment
retaliation claim.

F. Public Health Services Act

Appellants contend that they are entitled to qualified
immunity as to Larsen's claim that the termination of his
benefits violated his rights under the Public Health Services
Act, 42 U.S.C. SS 300bb-1 et seq. ("PHSA"). The PHSA
provides that state-operated group health plans must offer
18 months of continuing coverage to qualified beneficiaries
who otherwise would lose coverage as a result of a
"qualifying event." 42 U.S.C. SS 300bb-1(a), 300bb-2(2). The
PHSA defines the term "qualifying event" to include
"termination (other than by reason of [the] employee's gross
misconduct)." Section 300bb-3(2).

Appellants contend that Larsen did not have a clearly
established right to continuing coverage under the PHSA,
because reasonable officials could believe that Larsen's
termination was not a "qualifying event" within the meaning
of the PHSA entitling him to elect continuing coverage.
According to appellants, reasonable officials could conclude
that Larsen's termination was "by reason of . . . gross
misconduct," thus excluding his termination from the
definition of a "qualifying event" under section 300bb-3(2),
and rendering him ineligible for coverage under section
_________________________________________________________________

substantial or motivating factor for the retaliatory action, a defendant
must establish not merely that he "could properly" have taken the same
adverse action based on an independent "legally sufficient" reason, but
also that he "would have" done so in the absence of protected conduct.
Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1075 (3d Cir. 1990).
The mere fact that the 1993 version of section 16 provided for
termination of benefits upon removal would not defeat Larsen's
retaliation claim if he could demonstrate that appellants decided to apply
that provision, rather than the more lenient version of section 16 that
existed at the time of vesting, due to retaliatory animus.

                                25
300bb-1(a). In support of their argument that Larsen's
termination reasonably could be viewed as a termination
"by reason of . . . gross misconduct," appellants emphasize
that Larsen had been convicted of two felony counts,
removed from office by the Court of Common Pleas as part
of his criminal sentence, suspended from office by the
Court of Judicial Discipline for his criminal conduct which
that court found had undermined public confidence in the
judiciary, and called before the Senate on a writ of
impeachment summons. Br. at 20-21.

Neither the PHSA, nor the comparable statute applicable
to private employers, defines the term "gross misconduct."
See 42 U.S.C. SS 300bb-1 et seq.; 29 U.S.C. SS 1161 et seq.20
Moreover, as of the time appellants decided to terminate
Larsen's benefits, the cases construing these provisions had
not set forth a clear definition of "gross misconduct" under
the PHSA.21 These cases, however, had applied the
standard to conduct which reasonable officials could believe
was no more egregious than Larsen's conduct in unlawfully
procuring controlled substances through the use of his
subordinates. See, e.g., Burke v. American Stores Employee
Benefit Plan, 818 F. Supp. 1131 (N.D. Ill. 1993) (holding
that use of improperly procured promotional discount
vouchers to obtain free products from employer's retail
outlets constituted gross misconduct); Adkins v. United Int'l
Investigative Servs., Inc., 1993 WL 345186 (N.D. Cal. 1993)
(holding that leaving post unattended and falsifying records
to receive additional paychecks constituted gross
misconduct); Conery v. Bath Assocs., 803 F. Supp. 1388,
1396 (N.D. Ind. 1992) (holding that misappropriation of
_________________________________________________________________

20. The analogous provision governing private employers is set forth in
the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29
U.S.C. S 1161(a), which requires the employer to offer continuing
coverage to employees who otherwise "would lose coverage under the
plan as a result of a qualifying event."

21. In Burke v. American Stores Employee Benefit Plan, 818 F. Supp.
1131, 1135 (N.D. Ill. 1993), the court, applying 29 U.S.C. S 1161(a),
noted that, "[t]here is little direct statutory or judicial guidance on
the
meaning of `gross misconduct.' " While the Burke court looked to Illinois
state law for guidance, we have not made any comparable state-law
analysis.

                               26
funds constituted gross misconduct). We are satisfied from
these cases and from the language of the PHSA that Larsen
has not adequately alleged a violation of the PHSA and thus
his complaint with respect to that statute does not pass
muster under the first prong of a Siegert analysis.
Moreover, even if it did, because a reasonable official could
believe that the acts which resulted in Larsen's termination
amounted to gross misconduct, it was not clearly
established that Larsen's termination was a "qualifying
event" triggering his right to coverage under the PHSA.

Larsen contends that, regardless of the egregiousness of
his conduct, it cannot be characterized as "gross
misconduct" under the PHSA because it did not occur
"within the scope of his employment as an associate
justice." Br. at 26-27. However, nothing in the statutory
language or relevant case law clearly establishes, or even
suggests, that "gross misconduct" under the PHSA must
occur within the scope of employment. Accordingly, it
appears that a reasonable official applying the plain
language of the PHSA could conclude that any termination
which occurred "by reason of [the] employee's gross
misconduct" would fall within the exception to section
300bb-3(2) and thus would not constitute a "qualifying
event" entitling the employee to continuing coverage,
regardless of whether the conduct occurred within the
scope of employment.22 Because Larsen did not adequately
allege a violation of the PHSA and because, therefore, there
was no clearly established law indicating that Larsen's
termination was a qualifying event under section 300bb-
3(2), appellants are entitled to qualified immunity as to
Larsen's claim under the PHSA.
_________________________________________________________________

22. Even if it were clearly established that"gross misconduct"
encompassed only misconduct within the scope of employment, a
reasonable official could believe that Larsen's conduct was sufficiently
related to his employment to satisfy such a requirement. As the district
court noted, 955 F. Supp. at 1581 & n.33, the criminal misconduct
which led to Larsen's removal from office involved Larsen's use of his
subordinates and his state employees' prescription plan to procure
prescription medications unlawfully. Absent some authority to the
contrary, reasonable officials could conclude that this nexus between
Larsen's misconduct and his employment would satisfy any requirement
in that regard.

                               27
IV. CONCLUSION

For the foregoing reasons, we hold that Larsen's
complaint alleges violations of clearly established rights
under the Impairment of Contracts Clause, the Due Process
Clause, and the First Amendment. Therefore, appellants are
not entitled to qualified immunity with respect to those
claims and, accordingly, we will affirm the district court's
denial of their motion to dismiss those claims on qualified
immunity grounds. However, Larsen's complaint fails to
allege violations of his rights under the Equal Protection
Clause or the Public Health Services Act. We therefore will
reverse the denial of appellants' motion to dismiss those
claims and on remand the district court should dismiss
those claims on qualified immunity grounds. In summary,
we will affirm in part, will reverse in part, and will remand
this case to the district court for further proceedings
consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               28
