                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                  ________________

                     No. 17-2172
                  ________________


                CAROL LEE WALKER,
                           Appellant

                           v.

       SENIOR DEPUTY BRIAN T. COFFEY, in his
individual capacity; SPECIAL AGENT PAUL ZIMMERER,
                  in his individual capacity
                     ________________

     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
        (D. C. Civil Action No. 2-17-cv-00040)
      District Judge: Honorable Mark A. Kearney
                  ________________

               Argued on January 8, 2018
      Before: JORDAN, ROTH, Circuit Judges and
      STEARNS ∗, District Judge

            (Opinion filed: September 20, 2018)


Geoffrey R. Johnson, Esq.        (ARGUED)
1110 Wellington Road
Jenkintown, PA 19046

             Counsel for Appellant

John G. Knorr, III, Esq.         (ARGUED)
J. Bart DeLone, Esq.
Office of Attorney General of Pennsylvania
Strawberry Square
15th Floor
Harrisburg, PA 17120

             Counsel for Appellees


                    ________________

                        OPINION
                    ________________


ROTH, Circuit Judge


∗
 The Honorable Richard G. Stearns, District Judge of the
Massachusetts District Court, sitting by designation




                             2
        Appellant Carol Lee Walker commenced this action
under 42 U.S.C. § 1983. She alleges that Appellees—a
prosecutor and a special agent employed by the Pennsylvania
Office of the Attorney General (OAG)—violated her Fourth
Amendment right to be free from an unreasonable search
when they used an invalid subpoena to induce Walker’s
employer, Pennsylvania State University (Penn State), to
produce her work emails. The District Court granted
Appellees’ motion to dismiss, concluding that they were
entitled to qualified immunity because Walker did not have a
clearly established right to privacy in the content of her work
emails. For the reasons stated below, we will affirm the
dismissal of Walker’s § 1983 claim. We will vacate the
District Court’s denial of Walker’s subsequent motion for
leave to file a second amended complaint, asserting claims
under the Stored Communications Act (SCA), 1 and remand
for further proceedings consistent with this opinion.

                              I.

       This case stems from a criminal prosecution brought
against Walker by the OAG. In July 2015, the OAG filed
criminal charges against Walker in state court, which
included numerous counts of forgery and various computer
crime offenses. These charges were joined with prior charges
that had been filed against Walker’s husband, Ray Allen
Walker, Jr., and his trucking company. Appellee Brian
Coffey, a senior deputy attorney general, was the prosecutor
assigned to the case, and Appellee Paul Zimmerer, an OAG

1
  18 U.S.C. § 2701 et seq. Throughout her filings, Walker
sometimes erroneously refers to the SCA as the “Secured”
Communications Act.




                              3
special agent, served as the lead investigator. Following a
preliminary hearing in August 2015, some of the charges
against Walker were dismissed, but four counts of conspiracy
to commit forgery remained pending.

       In October 2015, before her trial had been scheduled,
Coffey and Zimmerer sought to obtain Walker’s work emails
from her employer, Penn State, as part of their investigation.
Coffey and Zimmerer initially asked Penn State to produce
Walker’s work emails voluntarily, but Penn State officials
requested formal documentation, saying, “We just need
something formal, a subpoena.” 2 Coffey and Zimmerer then
obtained a blank subpoena form from the Centre County
Court of Common Pleas, which they filled out in part. The
subpoena includes the case caption, is addressed to “John
Corro, PSU General Counsel & Senior Security / Systems
Analyst,” and requests production of “any & all
emails/computer files/documents/attachments to or from
Carol Lee Walker at her email address, to or from the
following email addresses: . . ..” 3 The seven listed email
addresses appear to belong to either Walker’s husband or his
business. The subpoena is blank as to the date, time, and
place of production and the party on behalf of whom
testimony is required. As such, Appellees concede that the
subpoena was, on its face, incomplete and unenforceable. On
October 21, 2015, Zimmerer presented the unenforceable
subpoena to Katherine Allen, Assistant General Counsel at
Penn State. Under Allen’s direction, Penn State employees
searched for the requested emails and turned them over to
Zimmerer. At some point after Penn State produced the

2
    App. at 150-51.
3
    App. at 49.




                              4
emails, the remaining criminal charges against Walker were
dismissed with prejudice, nolle prosequi.

       Walker then filed this § 1983 action against Zimmerer
and Coffey, alleging that their use of an invalid subpoena to
obtain Walker’s work emails violated her right to be free
from unreasonable search under the Fourth Amendment of
the U.S. Constitution. 4 Zimmerer and Coffey both moved to
dismiss, arguing, in part, that they were entitled to qualified
immunity because Walker did not have a reasonable
expectation of privacy in her work emails or, if she did, that
right was not clearly established.

       The District Court granted the motion to dismiss,
agreeing that Zimmerer and Coffey were entitled to qualified
immunity. The court concluded that Walker could not show a
clearly established right to privacy in the content of her work
emails. 5 Following the dismissal of her case, Walker filed a
motion for reconsideration of the District Court’s ruling and
for leave to file a second amended complaint. Walker’s
proposed second amended complaint was filed as an
attachment to her motion. The proposed complaint included a
new claim for violation of the SCA and pleaded additional

4
  Walker’s complaint also alleged a violation of Article I,
section 8 of the Pennsylvania Constitution. The District
Court dismissed this claim on the grounds that Pennsylvania
law does not provide a private right of action allowing
plaintiffs to seek money damages for violations of the
Pennsylvania Constitution. App. at 20. Walker does not
challenge that ruling on appeal.
5
  Walker v. Coffey, No. 17-40, 2017 WL 1477144, at *6-*9
(E.D. Pa. Apr. 24, 2017).




                              5
facts regarding Penn State’s role as both Walker’s employer
and Walker’s internet service provider (ISP), the measures
Walker took to protect the privacy of her work email account,
and the Penn State internet privacy policy applicable at the
time of the search. In a short memorandum order, the District
Court denied Walker’s motion. Ignoring the SCA claim, the
court simply concluded that, even if it were to allow Walker
to file her proposed second amended complaint, the additional
factual allegations therein would not alter the court’s prior
conclusion that the Defendants were entitled to qualified
immunity.

       Walker now appeals both the District Court’s dismissal
of her complaint on qualified immunity grounds and the
District Court’s denial of her motion for reconsideration and
leave to file a second amended complaint.

                               II.

        The District Court exercised subject matter jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1343. We have appellate
jurisdiction over the District Court’s final orders pursuant to
28 U.S.C. § 1291.

       “We review a motion to dismiss based on the defense
of qualified immunity de novo as it involves a pure question
of law.” 6 We review a district court’s denial of a motion for




6
    McLaughlin v. Watson, 271 F.3d 566, 570 (3d Cir. 2001).




                               6
reconsideration and denial of leave to amend for abuse of
discretion. 7

                              III.

                               A.

       “Qualified immunity shields government officials from
civil damages liability unless the official violated a statutory
or constitutional right that was clearly established at the time
of the challenged conduct.” 8 Qualified immunity is a strong
shield and protects “all but the plainly incompetent or those
who knowingly violate the law.” 9 “To resolve a claim of
qualified immunity, courts engage in a two-pronged inquiry:
(1) whether the plaintiff sufficiently alleged the violation of a
constitutional right, and (2) whether the right was ‘clearly
established’ at the time of the official’s conduct.” 10 A court
may address either of these questions first, “in light of the
circumstances in the particular case at hand,” 11 and the
Supreme Court has “repeatedly . . . stressed the importance of




7
   Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 259
(3d Cir. 2014); Caver v. City of Trenton, 420 F.3d 243, 258
(3d Cir. 2005).
8
   Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (internal
quotation marks omitted).
9
   Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal
quotation marks omitted).
10
    L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 241 (3d Cir.
2016).
11
   Pearson v. Callahan, 555 U.S. 223, 236 (2009).




                               7
resolving qualified immunity questions at the earliest possible
stage in litigation.” 12

        When considering whether a right is clearly
established for purposes of qualified immunity, a court must,
as a threshold matter, identify the scope of the right at issue.
The Supreme Court has emphasized that, for purposes of this
inquiry, a court must define or identify the right at a
particularized level. 13 “A Government 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.’” 14
Although the Supreme Court “do[es] not require a case
directly on point, . . . existing precedent must have placed the
statutory or constitutional question beyond debate.” 15 A
plaintiff must identify either “controlling authority in the[]
jurisdiction” or a “consensus of cases of persuasive
authority.” 16

                              B.

      Consistent with the Supreme Court’s precedent, we
begin our analysis by identifying the constitutional right at


12
    Id. at 232 (quoting Hunter v. Bryant, 502 U.S. 224, 227
(1991) (per curiam)).
13
   See, e.g., Anderson v. Creighton, 483 U.S. 635, 640 (1987).
14
    Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting
Anderson, 483 U.S. at 640).
15
   Id.
16
   Wilson v. Layne, 526 U.S. 603, 617 (1999).




                               8
issue, as “particularized to the facts of the case.” 17 Thus, for
purposes of qualified immunity, we must consider, at a
minimum, whether it is clearly established that the Fourth
Amendment affords an employee, such as Walker, the right to
have the contents of her work emails remain free from a law
enforcement search, absent a warrant or valid exception to the
warrant requirement. Because we conclude that such a right
is not clearly established—especially where, as here, the
employer ultimately produces the emails to law
enforcement—we hold that Appellees are entitled to qualified
immunity.

                               1.

       “The touchstone of Fourth Amendment analysis is
whether a person has a ‘constitutionally protected reasonable
expectation of privacy.’” 18 Courts answer this question
through a two-part test, examining both subjective and
objective expectations of privacy. First, a court considers
whether an individual has “manifested a subjective
expectation of privacy in the object of the challenged
search.” 19 Second, a court considers whether “society [is]
willing to recognize that expectation as reasonable.” 20

17
   White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam).
18
   California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting
Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring)).
19
   Id.
20
   Id.; see also United States v. Jacobsen, 466 U.S. 109, 113
(1984) (noting that a “search,” for Fourth Amendment
purposes, “occurs when an expectation of privacy that society
is prepared to consider reasonable is infringed”).




                               9
Throughout this litigation, Walker’s subjective expectation of
privacy in her work emails has not been contested. Thus, our
analysis focuses on whether Walker enjoyed an objectively
reasonable expectation of privacy in the content of her work
emails.

       When conducting such analysis, the Supreme Court
has historically expressed sensitivity to advances in
technology, 21 though in recent years the Court has also
exercised caution in this area. 22 In addition, although the
Fourth Amendment “protects people not places,” 23 the
caselaw consistently recognizes that objective expectations of
privacy in the workplace are distinct from those in other
contexts. 24 In analyzing Walker’s claim, we are therefore
mindful of this delicate balance.

       The Supreme Court’s early decisions addressing the
Fourth Amendment’s application to telephone calls provide
our initial foundation. In United States v. Katz, the Court first

21
   See, e.g., Katz, 389 U.S. at 352 (holding that failure to
recognize a reasonable expectation of privacy in a telephone
booth would “ignore the vital role that the public telephone
has come to play in private communication”).
22
   See City of Ontario v. Quon, 560 U.S. 746, 759 (2010)
(“The Court must proceed with care when considering the
whole concept of privacy expectations in communications
made on electronic equipment . . .. The judiciary risks error
by elaborating too fully on the Fourth Amendment
implications of emerging technology before its role in society
has become clear.”).
23
   Katz, 389 U.S. at 351.
24
   See, e.g., Mancusi v. DeForte, 392 U.S. 364, 369 (1968).




                               10
recognized a reasonable expectation of privacy in the content
of a telephone call made from a public phone booth. 25 The
Court concluded that the government’s use of an electronic
listening device to record the call constituted a search that,
absent a warrant or valid exception to the warrant
requirement, violated the Fourth Amendment. 26 Next, in
Smith v. Maryland, the Court addressed the government’s use
of a pen register to record the number dialed from an
individual’s home telephone. 27 After reaffirming Katz’s
holding that the content of a phone call is protected by the
Fourth Amendment, the Court concluded that telephone users
do not have a legitimate expectation of privacy in the
numbers that they dial. 28 Whereas the holding of Katz
reflected widely-held expectations that the words spoken into
the mouthpiece of a phone will remain private, the Smith
Court reasoned that no such expectation existed for the
numbers a user dials, because the numbers, unlike the content
of the calls, are voluntarily turned over to the phone
company. 29

       The core holding of Smith rested upon the established
rule that “a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties.” 30 This
principle—the third-party doctrine—has arisen in a variety of
contexts. With regard to communications, the third-party
doctrine often dictates distinct treatment for the content of

25
   Katz, 389 U.S. at 351-52.
26
   Id.
27
   Smith, 442 U.S. at 737.
28
   Id. at 743.
29
   Id. at 742-44.
30
   Id. at 743-44.




                               11
communications as opposed to surface-level identifying
information or metadata. Notably, the rules established for
telephone calls in Katz and Smith align with prior and
subsequent Supreme Court caselaw applying the Fourth
Amendment to physical mail: Senders enjoy a reasonable
expectation of privacy in the content of their letters and
packages, but not in information readily discernable from the
surface of a mailed item, such as the address. 31

        Content, however, is not categorically protected;
content that is turned over to a third party is not subject to a
reasonable expectation of privacy. Smith drew upon the
Court’s prior decision in United States v. Miller, which
addressed an account holder’s reasonable expectation of
privacy in checks and bank records. 32 The Miller Court
concluded that because the documents “contain[ed] only
information voluntarily conveyed to the banks and exposed to
their employees in the ordinary course of business,” the
account holder had “no legitimate ‘expectation of privacy’ in
their contents.” 33


31
    See, e.g., Jacobsen, 466 U.S. at 114 (“Letters and other
sealed packages are in the general class of effects in which
the public at large has a legitimate expectation of privacy;
warrantless searches of such effects are presumptively
unreasonable.”); Ex Parte Jackson, 96 U.S. 727, 733 (1877)
(“Letters and sealed packages . . . in the mail are as fully
guarded from examination and inspection, except as to their
outward form and weight, as if they were retained by the
parties forwarding them in their own domiciles.”).
32
   United States v. Miller, 425 U.S. 435, 438-39 (1976).
33
   Id. at 442.




                              12
       As technology has advanced, courts have grappled
with defining objective expectations of privacy in the content
of electronic communications. And those expectations can be
even harder to define in the workplace context. City of
Ontario v. Quon posed the question whether a police officer
enjoyed a reasonable expectation of privacy in the content of
text messages sent from his City-issued pager. 34          The
Supreme Court declined to resolve the question definitively.
Instead, after noting the risk of “elaborating too fully on the
Fourth Amendment implications of emerging technology
before its role in society has become clear,” 35 the Court
assumed arguendo that “Quon had a reasonable expectation
of privacy in the text messages sent on the pager provided to
him by the City” and that a search had occurred for purposes
of the Fourth Amendment. 36           The Court nevertheless
concluded that the search was reasonable because, pursuant to
an established Fourth Amendment exception, it was
conducted by Quon’s employer for a legitimate work-related
purpose. 37

       Only months after Quon was decided, the Eleventh
Circuit, in Rehberg v. Paulk, 38 confronted a set of facts
similar to those of our present case. The defendants in that
case—a state prosecutor and law enforcement investigator—
had been investigating Rehberg and issued an allegedly
defective subpoena to Rehberg’s ISP in order to obtain emails


34
   560 U.S. 746, 750 (2010).
35
   Id. at 759.
36
   Id. at 760.
37
   Id. at 764-65.
38
   611 F.3d 828 (11th Cir. 2010).




                              13
sent and received from Rehberg’s personal computer. 39
Rehberg later filed a § 1983 action alleging, among other
claims, that the subpoena violated his Fourth Amendment
rights. After noting the paucity of caselaw addressing Fourth
Amendment protection of email content and the “marked lack
of clarity in what privacy expectations as to content of
electronic communications are reasonable,” 40 the Eleventh
Circuit, relying on Quon, concluded that the case presented
“‘far-reaching’ legal issues that [the court] should be cautious
about resolving too broadly.” 41 Rather than attempting to
resolve those issues, the Eleventh Circuit simply concluded
that a right to privacy in the content of email communications
was not clearly established. 42 Notably, the Eleventh Circuit
acknowledged the apparent relevance of the Supreme Court’s
precedents governing telephone communications, but found
those cases were not dispositive. As the court explained,
“The Supreme Court’s decisions in Katz and Smith clearly
established an objectively reasonable privacy right in
telephone conversation content, but, as the modern Internet
did not exist at the time of those decisions, whether the
analytical framework, much less the rationale, of those
decisions transfers to privacy rights in Internet email is
questionable and far from clearly established.” 43
        Several months later, the Sixth Circuit took a different
approach in United States v. Warshak. 44 In Warshak, law


39
   Id. at 835.
40
   Id. at 843-44.
41
   Id. at 846.
42
   Id. at 847.
43
   Id.
44
   631 F.3d 266 (6th Cir. 2010).




                              14
enforcement agents, relying on section 2703(b) of the SCA, 45
had obtained a subpoena compelling Warshak’s ISP to
produce the contents of approximately 27,000 emails sent or
received from Warshak’s account. Warshak moved to
suppress, arguing that the government’s warrantless search
and seizure of his emails violated his Fourth Amendment
rights. 46 After reviewing the case law discussed above, the
Sixth Circuit concluded that, “[g]iven the fundamental
similarities between email and traditional forms of
communication, it would defy common sense to afford emails
lesser Fourth Amendment protection.” 47 The court found that
an ISP is “the functional equivalent of a post office or
telephone company,” and, as a result, “the government cannot
compel a commercial ISP to turn over the contents of email
without triggering the Fourth Amendment.” 48 Addressing the
potential applicability of the third-party doctrine, the Sixth
Circuit, drawing on Katz and Smith, held that the “mere
ability” of an ISP to access the content of emails is not
“sufficient to extinguish a reasonable expectation of
privacy.” 49 The Sixth Circuit distinguished Miller on the
grounds that Warshak’s ISP, unlike the bank in Miller, was an
intermediary rather than the intended recipient of the material
in question.

       Walker argues, in short, that Warshak should carry the
day. She characterizes the Sixth Circuit’s decision as a
straightforward and modest application of the Supreme

45
   18 U.S.C. § 2703(b).
46
   Warshak, 631 F.3d at 282.
47
   Id. at 285-86.
48
   Id. at 286.
49
   Id. at 286-87.




                               15
Court’s precedents on mail and telephone communications to
the field of electronic communications. But Walker has
failed to identify, nor can we, a “robust consensus of cases of
persuasive authority” 50 supporting the position she advances.
To the contrary, at present Warshak remains closer to a lonely
outlier than to a representation of consensus. Although
Warshak arguably tracks a longstanding distinction in Fourth
Amendment law between content and metadata, that
distinction is not dispositive, as content is not uniformly
protected. 51 As Quon and Rehberg recognized, electronic
communications present new considerations, and perhaps
distinguishing features, that may counsel caution rather than a
rote application of older precedents addressing other forms of
communication. Moreover, the Fourth Amendment issues in
Warshak arose in the context of suppression of evidence.
Thus, the Sixth Circuit did not face the question that we must
answer: whether the particular Fourth Amendment right was
clearly established.

       As such, we would be hard put to find that Walker
enjoyed a clearly established right to privacy in the content of
her work emails. But because this case involves Walker’s
work emails, which were produced to law enforcement by her
employer, Penn State, our inquiry does not end there. As
explained below, those facts remove any doubt that Walker
has failed to allege a violation of a clearly established
constitutional right.
                               2.


50
    L.R. v. Sch. Dist. of Phila., 836 F.3d at 248 (internal
quotation marks omitted).
51
   See, e.g., Miller, 425 U.S. at 442.




                              16
       Most of the cases discussed above address the
reasonable     expectation   of    privacy    in    personal
communications.       Here, it is undisputed that the
communications in question were sent or received from
Walker’s work email account. And although the Fourth
Amendment affords employees a reasonable expectation of
privacy in the content of certain work-related
communications and files, an employee’s Fourth Amendment
rights in the workplace are subject to additional exceptions
and limitations.

       The Supreme Court has recognized that employees
may be entitled to a reasonable expectation of privacy in the
contents of documents stored in the workplace, both in the
private 52 and public 53 sectors. At the same time, public
employers remain free to conduct a warrantless search of an
employee’s files or communications if the search is
“conducted for a ‘noninvestigatory, work-related purpos[e]’
or for the ‘investigatio[n] of work-related misconduct.’” 54
This rule is consistent with the nature of an employer-
employee relationship and reflects an understanding that,
although employees may have certain privacy interests in
their work-related documents and communications vis-à-vis
outsiders, their privacy interests vis-à-vis their employer are
far more circumscribed.




52
   Mancusi v. DeForte, 392 U.S. 364, 368-70 (1968).
53
   O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (extending
the holding of Mancusi to public sector employees).
54
   Quon, 560 U.S. at 761 (quoting O’Connor, 480 U.S. at
725-26).




                              17
       In a similar vein, courts have long recognized that
employers, as third parties who possess common authority
over the workplace, may independently consent to a search of
an employee’s workplace documents or communications. 55
This rule is a logical application, in the workplace context, of
general principles governing third-party consent.            An
individual or entity exercising common authority over the
place or thing to be searched may independently consent to a
search. 56

       More recently, the Ninth Circuit addressed the
application of this principle to modern workplace technology.
United States v. Ziegler 57 involved an investigation into an
employee who, law enforcement believed, had been accessing
child pornography on his work computer. Following several
conversations with an FBI agent, employees from the
company’s IT department made a copy of the suspect-
employee’s hard drive and produced it to the FBI. After
finding, pursuant to Mancusi and O’Connor, that the suspect-
employee enjoyed a reasonable expectation of privacy in the

55
    See, e.g., Mancusi, 392 U.S. at 369 (holding that an
employee could reasonably have expected that documents
stored in a shared office “would not be touched except with
the[] permission [of co-occupants of the office] or that of
[workplace supervisors]”).
56
    See, e.g., United States v. Matlock, 415 U.S. 164, 171
(1974) (holding that the government “may show that
permission to search was obtained from a third party who
possessed common authority over or other sufficient
relationship to the premises or effects sought to be
inspected”).
57
   474 F.3d 1184 (9th Cir. 2007).




                              18
contents of his work computer, the Ninth Circuit nevertheless
concluded that the search of the computer was permissible
because the FBI had obtained consent from the employer,
who exercised common authority over the workplace
computer at issue. 58

        We reach the same conclusion here. There is no
dispute that the emails in question were sent or received via
Walker’s work email address, as part of an email system
controlled and operated by Penn State. Thus, for purposes of
the Fourth Amendment, the emails were subject to the
common authority of Walker’s employer. Walker did not
enjoy any reasonable expectation of privacy vis-à-vis Penn
State, and Penn State could independently consent to a search
of Walker’s work emails. Upon receipt of the subpoena,
Penn State exercised its independent authority to consent to a
search and produced Walker’s work emails. 59

       Walker argues that we should find Penn State’s
consent invalid because it was procured through fraud or
coercion, via the invalid subpoena. She notes that a law
enforcement officer cannot evade the limitations of the Fourth
Amendment by inducing private parties to do what they
cannot. With that proposition, we agree. But Walker fails to
recognize that Penn State was not merely a private party
induced to perform a search; rather, it was a third party with
common authority over Walker’s emails and the independent
ability to consent to a search. As alleged in Walker’s

58
  Id. at 1190-91.
59
   In holding that Penn State had joint control over Walker’s
work emails, we need not address the government’s argument
that the third party doctrine applies.




                             19
complaint, Appellees presented the subpoena to Penn State’s
Assistant General Counsel. 60 Rather than contest the validity
of the subpoena or otherwise limit any search, the Assistant
General Counsel instructed an employee in her office to assist
with the production of Walker’s emails. 61 That decision was
within the authority of Penn State—acting through its
attorney—as Walker’s employer. Under these circumstances,
despite the facial invalidity of the subpoena, we decline to
find that the university’s consent was coerced. 62

       We emphasize that nothing in this opinion should be
taken as condoning the actions of Appellees in this case. On
the contrary we are dismayed by their reliance on an invalid
subpoena to procure the documents that they sought. And we
add a note of caution that, under slightly difference
circumstances, similar actions might well lead us to a
conclusion opposite from the one we reach today. But
improper conduct alone does not result in a forfeiture of
qualified immunity. 63 Rather, the relevant question is
whether, under the particular circumstances of this case,
Appellees’ conduct violated Walker’s clearly established

60
   App. at 39.
61
   App. at 39.
62
   Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)
(“[T]he question whether a consent to a search was in fact
‘voluntary’ or was the product of duress or coercion, express
or implied, is a question of fact to be determined from the
totality of all the circumstances.”).
63
   See Davis v. Scherer, 468 U.S. 183, 194 (1984) (“Officials
sued for constitutional violations do not lose their qualified
immunity merely because their conduct violates some
statutory or administrative provision.”).




                             20
constitutional rights. Because we conclude that it did not,
Appellees are entitled to qualified immunity. We will
therefore affirm the District Court’s dismissal of Walker’s §
1983 claim.

                             C.

       Walker also appeals the denial of her subsequent
motion for reconsideration and for leave to file a second
amended complaint. Attached to Walker’s motion was a
proposed second amended complaint, which included a new
claim alleging violation of the SCA. 64 The District Court
denied Walker’s motion in a brief memorandum order that
focused solely on reconsideration of Walker’s § 1983 claim
and made no mention of Walker’s attempt to assert a new
claim under the SCA. 65

        For the reasons stated at length above, we agree that
Appellees are entitled to qualified immunity as to Walker’s §
1983 claim, and the District Court therefore did not err in
denying reconsideration. At present, however, we have
insufficient information to determine whether Walker could
plead a valid claim under the SCA. We therefore conclude
that, as to Walker’s attempt to assert a new claim under the
SCA, the District Court abused its discretion by denying out
of hand Walker’s motion for leave to file a second amended
complaint. We will therefore vacate in part the District




64
     App. at 105.
65
     App. at 28-30.




                             21
Court’s order of May 17, 2017, and remand this matter to the
District Court to address the SCA issue in the first instance. 66

                              IV.

       For the reasons stated above, we will affirm the
District Court’s dismissal of Walker’s § 1983 claim, because
we find that Appellees are entitled to qualified immunity. We
will vacate in part the District Court’s subsequent order
denying Walker leave to file a second amended complaint, so
that the District Court may address in the first instance
Walker’s attempt to assert a new claim under the SCA.




66
   Post-argument, the Supreme Court decided Carpenter v.
United States, 585 U.S. ___, 138 S.Ct. 2206 (2018). As
Carpenter post-dates the events in question, it has no bearing
on the state of the law pertinent to the qualified immunity
analysis. Any impact of Carpenter on the SCA claim is in the
first instance for the District Court on remand.




                               22
