                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-2001

McLaughlin v. Watson
Precedential or Non-Precedential:

Docket 00-2377




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Recommended Citation
"McLaughlin v. Watson" (2001). 2001 Decisions. Paper 269.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/269


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Filed November 20, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-2377 and 01-1372

JOHN MCLAUGHLIN; CHARLES A. MICEWSKI; DENNIS J.
MCKEEFERY; EDWARD EGGLES

v.

ALEX WATSON, Assistant Secretary of State for the U.S.
State Department; DAVE LAWRENCE; LARRY LEIGHTLEY;
VICTORIA NAYLOR; MICHAEL STILES; DETECTIVE
SILVANA; DETECTIVE WOODS; ARNOLD GORDON; TOM
CORBETT; JOHN KELLY; MICHAEL B. FISHER; RICHARD
PATTON; LOU GENTILE; FIQUITO VASQUEZ; PENA-
GOMEZ; PEDRO CORPORAN

Michael Stiles,
       Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 97-cv-01555)
District Judge: Hon. A. Richard Caputo

Argued October 9, 2001

Before: SCIRICA, GREENBERG and COWEN,
Circuit Judges

(Filed: November 20, 2001)
Mary C. Fry, Esq.
Office of the United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108

Peter R. Maier, Esq. (Argued)
United States Department of Justice
Civil Division, Appellate Staff
601 D. Street, N.W., Rm. 9106
Washington, DC 20530

Barbara L. Herwig, Esq.
United States Department of Justice
Civil Division, Appellate Staff
601 D. Street, N.W., Rm. 9110
Washington, DC 20530

 Counsel for Appellant

Donald A. Bailey, Esq. (Argued)
4311 North 6th Street
Harrisburg, PA 17110

 Counsel for Appellees McLaughlin;
Micewski; McKeefery and Eggles

Robert B. Hoffman, Esq.
Reed Smith
213 Market Street
P.O. Box 11844
Harrisburg, PA 17101

 Counsel for Appellees Kelly;
Fisher; Patton and Gentile

                          2
OPINION OF THE COURT

COWEN, Circuit Judge.

We are presented with the question of when a federal
official is entitled to "qualified immunity" in a Bivens-based1
civil action for damages. Because we conclude that the
District Court erred in denying Defendant the protection of
qualified immunity, we will reverse.

I.

This litigation centers around an investigation into drug
trafficking activities in the Dominican Republic.
Plaintiffs/Appellees are agents of the Pennsylvania Attorney
General's Office who were involved in the drug
investigation. In 1997, Plaintiffs filed a Bivens suit against
Defendant/Appellant Michael Stiles ("Stiles"), then United
States Attorney for the Eastern District of Pennsylvania.
The Complaint alleged that Stiles violated Plaintiffs' first
amendment rights and fifth amendment due process rights,
and violated the provisions of 42 U.S.C. S 1981. Plaintiffs
also filed a civil rights action against members of the
Pennsylvania Attorney General's Office ("PAG" Defendants),
including Pennsylvania Attorney General Michael Fisher
("Fisher"), alleging violations of 42 U.S.C.SS 1981 and
1983. The original Complaint is long, prolix, and somewhat
difficult to discern. However, the various causes of action
were grounded in factual assertions that Defendants
intentionally impeded Plaintiffs' criminal investigation and
caused adverse employment conditions for Plaintiffs
because Defendants wished to protect the Dominican drug
organization. This appeal only involves the allegations
against Stiles.

Stiles moved to dismiss the Complaint for non-
compliance with Federal Rule of Civil Procedure 8. The
Magistrate judge issued a Report and Recommendation that
_________________________________________________________________

1. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91
S.Ct. 1999 (1971).

                               3
the Motion to Dismiss be granted. The District Court
adopted the Magistrate's Recommendations and dismissed
the case against Stiles, noting that Stiles was entitled to
"absolute prosecutorial immunity." The case against the
PAG Defendants was also dismissed because it failed to
state viable claims and because the suit was barred by the
11th amendment to the United States Constitution.

In an unpublished opinion, a panel of this Court
reversed. See McLaughlin v. Watson, No. 99-3087, (Sept.
21, 1999) ("McLaughlin I"). The Panel held that Plaintiffs
were entitled to amend their Complaint to state a first
amendment cause of action against the PAG defendants
and an "administrative" cause of action against Stiles. Id. at
3-4. The Panel explained that while Plaintiffs' Complaint
was "not a model of clarity," the Complaint suggested that
Stiles used his influence as a United States Attorney to
"obtain adverse personnel actions" against Plaintiffs. Id. at
3. The Panel further explained:

       As we made clear in Carter v. City of Philadelphia, [181
       F.3d 339 (3d Cir. 1999)], prosecutorial immunity is
       restricted to prosecutorial--as distinguished from
       administrative--functions. Administrative decisions,
       including those regarding the employment or
       supervision of personnel outside the prosecutor's office,
       are not subject to absolute prosecutorial immunity.
       Because [U.S. Attorney] Stiles was not clearly entitled
       to prosecutorial immunity from all of the claims
       against him, the analysis for whether the Agents state
       a cause of action against Stiles should proceed along
       the same lines as for the PAG Defendants.

Id. at 4.

Pursuant to the Panel's suggestion in McLaughlin I,
Plaintiffs amended their Complaint, which now included
three counts.2 In Count I, Plaintiffs alleged that Defendants
_________________________________________________________________

2. We note that the Amended Complaint is--like the initial
Complaint--less than clear as to what precise constitutional violations
are actually being alleged against Stiles. We will, however, interpret the
allegations in the Amended Complaint's language giving every benefit to
Plaintiffs.

                               4
(both PAG and Stiles) impaired Plaintiffs' "terms and
conditions" of employment via adverse "administrative"
personnel action. According to Count I, Plaintiffs' rights
were violated because Stiles and the PAG Defendants:

       [impaired] where [Plaintiffs] could work, how much
       they were required to travel to the point of extreme
       hardship causing serious and painful medical
       consequences, loss of promotional opportunities, and
       subsequent wages, shift differentials and overtime and
       career damaging evaluation reports.

App. at   234. According to the Amended Complaint, these
actions   breached Plaintiffs' "federally guaranteed rights to
be free   of irrational and injuries [sic] administrative actions
for the   proper performance of their duties. . . ."

Count II of the Amended Complaint alleged that
Defendants deprived Plaintiffs of their right to"substantive
due process" by subjecting them to unfair treatment in
their public employment. Count II further alleged that
Defendants acted against Plaintiffs solely because of "their
successful efforts to investigate [the Dominican] criminal
wrongdoing." Id. at 235.

Count III of the Amended Complaint alleged that
Defendants violated Plaintiffs' first amendment rights by
preventing Plaintiffs from responding to negative comments
about Plaintiffs contained in certain press releases.
According to the Amended Complaint: "the PAG defendants
are still unlawfully enforcing today [their order to Plaintiffs]
not to respond to the press in any form, or answer any
charges in any forums." App. at 236.

Stiles moved to dismiss the Amended Complaint based
on qualified immunity or, in the alternative, for summary
judgment. The summary judgment part of the motion
argued that there was no issue of fact as to whether Stiles
acted administratively against Plaintiffs. In a Memorandum
Opinion dated July 6, 2000, the District Court denied
Stiles' Motion to Dismiss with the following language:

       Defendant contends he is entitled to qualified
       immunity. I find it premature to determine this issue in
       defendant's favor. There is a first amendment claim

                                 5
       asserted against defendant. That is a clearly
       established constitutional right, which, if interfered
       with by defendant's use of influence with plaintiffs'
       employer, would nullify the availability of qualified
       immunity.

The Motion for Summary Judgment was denied because
the District Court concluded that "there is a genuine issue
of material fact as to whether actions taken by defendant
caused adverse employment decisions to be made
concerning the plaintiffs. . . ."3 Stiles now appeals again to
this Court, solely on the qualified immunity issue.

II.

We have jurisdiction over the appeal under 28 U.S.C.
S 1291; see Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151
(1995); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806
(1985). We review a motion to dismiss based on the defense
of qualified immunity de novo as it involves a pure question
of law. Acierno v. Cloutier, 40 F.3d 597, 609 (3d Cir. 1994)
(citing Burns v. County of Cambria, 971 F.2d 1015, 1020
(3d Cir. 1992)).
_________________________________________________________________

3. The District Court based this conclusion on deposition testimony
regarding a meeting that took place between Stiles and Fisher in August,
1998. The meeting apparently involved the results of an investigation
being conducted by Stiles' office regarding allegations of improper
conduct by Plaintiffs in their investigatory duties. At this meeting,
Stiles
informed Fisher that he would not prosecute any cases investigated by
Plaintiffs. Additionally, Fisher and Stiles discussed the possibility of
an
"FBI/US Attorney operation" leasing space in the same Philadelphia
office building (the "Essington Avenue" Office) that housed
Pennsylvania's Bureau of Narcotics Investigation ("BNI"). According to
Fisher's deposition, Stiles said that the United States Attorney's Office
and the FBI would "continue[ ] to have problems" dealing with "BNI at
Essington Avenue so long as any of the [plaintiffs] continue to be housed
at Essington Avenue." Reacting to this statement by Stiles, Fisher wrote
a note that read: "Personnel Problems--FBI/U.S. Atty Assignment,"
accompanied by the words, "need them [Plaintiffs] out of Essington."
Fisher further stated in his deposition that Stiles promised to provide
witnesses against Plaintiffs if they filed a grievance following their
reassignment. Fisher also indicated that the Attorney General's Office
would "check out" Philadelphia Police Department employees with the
FBI before they moved into Essington Avenue.

                               6
The contours of the doctrine of "qualified immunity" are
well-delineated and its underlying rationale has been
clearly pronounced. As the Supreme Court explained,
"permitting damages suits against government officials can
entail substantial social costs, including the risk that fear
of personal monetary liability and harassing litigation will
unduly inhibit officials in the discharge of their duties."
Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034,
3038 (1987). Courts have accommodated this concern"by
generally providing government officials performing
discretionary functions with a `qualified immunity,'
shielding them from civil damages liability as long as their
actions could reasonably have been thought consistent with
the rights they are alleged to have violated." Id.; see Malley
v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096 (1986).

"One of the purposes of [qualified] immunity . . . is to
spare a defendant not only unwarranted liability, but
unwarranted demands customarily imposed upon those
defending a long drawn out lawsuit." Siegert v. Gilley, 500
U.S. 226, 237, 111 S.Ct. 1789, 1793 (1991). Doctrinally
speaking, qualified immunity "is an immunity from suit
rather than a mere defense to liability; and like absolute
immunity, it is effectively lost if a case is erroneously
permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511,
526, 105 S.Ct. 2806, 2815 (1985) (emphasis in original);
see Siegert, 500 U.S. at 226, 111 S.Ct. at 1794. As the
Supreme Court has explained, "qualified immunity" affords
"protection to all but the plainly incompetent or those who
knowingly violate the law." Malley, 475 U.S. at 341, 106
S.Ct. at 1096. The rule supports "the need to protect
officials who are required to exercise their discretion and
the related public interest in encouraging the vigorous
exercise of official authority." In Re City of Philadelphia
Litig., 49 F.3d 945, 960 (3d Cir. 1995) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 817, 102 S.Ct. 2727, 2732 (1982)
(citations omitted)).

In order to defeat an assertion of qualified immunity, a
plaintiff must allege that the official violated a"clearly
established" right. Anderson, 483 U.S. at 635, 107 S.Ct. at
3038. A plaintiff does not fulfill this requirement simply by
alleging the defendant violated some constitutional

                               7
provision. Rather, "the right the official is alleged to have
violated must have been `clearly established' in a more
particularized, and hence more relevant, sense." Anderson,
483 U.S. at 640, 107 S.Ct. at 3039 (emphasis added). As
this Court explained, "clearly established rights" are those
with contours sufficiently clear that a reasonable official
would understand that what he is doing violates that right.
A plaintiff need not show that the very action in question
has previously been held unlawful, but needs to show that
in light of preexisting law the unlawfulness was apparent.
Shea v. Smith, 966 F.2d 127, 130 (3d Cir. 1992) (citations
omitted).

In determining whether an official violated a clearly
established right, the Court first must ask whether a
plaintiff has asserted a violation of a constitutional right at
all, D.R. v. Middle Bucks Area Vocational Technical School,
972 F.2d 1364, 1368 (3d Cir. 1992) (citing Siegert, 111
S.Ct. at 1793), and, if so, then go on to examine whether
the right was "clearly established." Id. This Court has
interpreted the phrase "clearly established" to mean "some
but not precise factual correspondence" between relevant
precedents and the conduct at issue, and that "[a]lthough
officials need not predic[t] the future course of
constitutional law, they are required to relate established
law to analogous factual settings." Ryan v. Burlington
County, 860 F.2d 1199, 1208-09 (3d Cir. 1988), cert.
denied, 490 U.S. 1020, 109 S.Ct. 1745 (1989) (quoting
People of Three Mile Island v. Nuclear Regulatory Comm'rs,
747 F.2d 139, 144 (3d Cir. 1984)). The essential inquiry is
whether a reasonable official in the defendant's position at
the relevant time "could have believed, in light of clearly
established law, that [his or her] conduct comported with
established legal standards." Merkle v. Upper Dublin Sch.
Dist., 211 F.3d 782, 797 (3d Cir. 2000) (quoting Stoneking
v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir.
1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840 (1990)).

III.

Stiles argues that he is entitled to "qualified immunity"
on all three counts in Plaintiffs' Amended Complaint. More
specifically, Stiles asserts that the District Court erred by

                               8
not following the requisite analytical framework for
assessing a "qualified immunity" claim and that--had the
District Court performed the correct analysis--the Court
would have had to grant the motion to dismiss. Along these
lines, Stiles asserts that Plaintiffs have not alleged
violations of any federal rights and, therefore, could not
prove violations of any "clearly established" rights.
Defendant posits that Plaintiffs have, at best, alleged
violations of "garden variety" state employment law claims.

Plaintiffs' appellate Brief offers no substantive response
to the "qualified immunity" arguments raised by Stiles.
Rather, Plaintiffs' theory of the case, as explained in their
Brief, is that "[t]his appeal is no more than a re-submission
of the same issues that were before the Court previously [in
McLaughlin I]." Plaintiffs' Brief at 6 ("Summary of
Argument"). As such, Plaintiffs label Stiles' appeal a "poorly
disguised misnamed motion to vacate and reconsider." Id.
Plaintiffs' apparent contention is that this Court already
conclusively decided the issue of qualified immunity against
Stiles in McLaughlin I.

We reject Plaintiffs' contention that the qualified
immunity issue was already decided by this Court in
McLaughlin I. A careful reading of that case reveals that the
panel decided only that Stiles was not necessarily entitled
to absolute immunity on all claims. The Court did not
address the completely distinct doctrine of qualified
immunity. See id. at 3-4.

Furthermore, we agree with Defendant that the District
Court erred in summarily dispensing with the qualified
immunity issue in favor of Plaintiffs. As discussed above,
the analytical framework that a court must use in
addressing a "qualified immunity" argument is well-settled
in this Circuit. The court cannot--as the District Court
essentially did here--stop with a conclusory statement that
Stiles' alleged use of "influence with plaintiffs' employer"
violated the first amendment. Rather, the District Court
must go one step further and determine whether the facts
alleged by plaintiffs violated a "clearly established right."
This necessarily entails an analysis of case law existing at
the time of the defendant's alleged improper conduct.
Without such an analysis there is no way to determine if

                               9
the defendant should have known that what he or she was
doing was constitutionally prohibited. See In Re City of
Philadelphia Litg., 49 F.3d at 961 (if the law is not
established clearly when an official acts, he is entitled to
qualified immunity because he "could not reasonably be
expected to anticipate subsequent legal developments, nor
could he fairly be said to `know' that the law forbade
conduct not previously identified as unlawful.") (quoting
Harlow, 457 U.S. at 819, 102 S.Ct. at 2738). In other
words, there must be sufficient precedent at the time of
action, factually similar to the plaintiff's allegations, to put
defendant on notice that his or her conduct is
constitutionally prohibited. Although the District Court
seemed to be aware of the appropriate test, see App. at 6
n.1, it did not adequately apply the test to this case.

We see no need to remand the case. Even assuming as
true Plaintiffs' allegations, we cannot say that Stiles--at the
time he acted--violated any "clearly established"
constitutional right. Notably, Plaintiffs' Brief fails to
mention even one case in this Circuit or elsewhere to
suggest that Stiles violated a "clearly established" right.4 In
fact, as explained above, Plaintiffs did not substantively
respond at all in their Brief to Stiles' arguments regarding
qualified immunity. Rather, Plaintiffs' Brief argued a
different theory of the case altogether--that the qualified
immunity issue had already been decided by this Court in
McLaughlin I. As noted above, however, that reading of our
prior opinion is incorrect.

Moreover, our own review of the law existing at the time
of Stiles' alleged conduct reveals that he had no reason to
think that his alleged interaction with the Pennsylvania
Attorney General violated Plaintiffs' "clearly established"
_________________________________________________________________

4. Plaintiffs fared no better in their Brief to the District Court in
response
to Defendant's Motion to Dismiss or in the alternative for Summary
Judgment. In the Motion to Dismiss, Stiles clearly asserted a "qualified
immunity" defense. App. at 258. In responding to that Motion, Plaintiffs
cited no case law--in existence at the time of Stiles' alleged conduct--to
suggest violation of a "clearly established" right. See App. at 362-363.
The District Court--although it refused to grant Stiles qualified
immunity--also did not analyze the factual allegations against case law
precedent.

                               10
constitutional rights. In Count I of the Amended Complaint,
Plaintiffs allege that Stiles acted administratively to
influence the Pennsylvania Attorney General to take
adverse employment-related action against them. Although
the Amended Complaint does not identify the specific
source of any right Stiles may have violated, the District
Court apparently construed Count I as a first amendment
based retaliation claim. Nevertheless, even if we assume
that Count I alleges a constitutional right, it does not
demonstrate violation of one that is "clearly established."

When a public official is sued for allegedly causing a
third party to take some type of adverse action against
plaintiff's speech, we have held that defendant's conduct
must be of a particularly virulent character. It is not
enough that defendant speaks critically of plaintiff or even
that defendant directly urges or influences the third party
to take adverse action. Rather, defendant must "threaten"
or "coerce" the third party to act. Along these lines Stiles'
Brief aptly directs us to our sister circuit's opinion in
Suarez Corp. Indus. v. McGraw, 202 F.3d 676 (4th Cir.
2000):

       The nature of the [defendant's] retaliatory acts has
       particular significance where the public official's acts
       are in the form of speech. Not only is there an interest
       in having public officials fulfill their duties, a public
       official's own First Amendment speech rights are
       implicated. Thus, where a public official's alleged
       retaliation is in the nature of speech, in the absence of
       a threat, coercion, or intimidation, intimating that
       punishment, sanction, or adverse regulatory action will
       follow, such speech does not adversely affect a citizen's
       First Amendment rights even if defamatory.

Id. at 687.

At the time Stiles committed the alleged violations, the
Third Circuit had already held that strongly urging or
influencing, but not "coercing" a third party to take adverse
action affecting a plaintiff's speech did not violate plaintiff's
constitutional rights. R.C. Maxwell Co. v. Borough of New
Hope, 735 F.2d 85 (3d Cir. 1984). In R.C. Maxwell, Plaintiff
Maxwell leased space from Citibank in the Borough of New

                               11
Hope for the right to maintain commercial billboards. The
Borough Council felt that the billboards negatively affected
the town's "ambience" and wrote a strong letter to Citibank,
urging it to have the billboards removed when plaintiff's
lease expired. In that letter, the Borough expressly stated
that it would be seeking legal remedies--such as drafting a
zoning ordinance or dragging Citibank into litigation--if the
billboards were not removed. Id. at 86-87. Citibank
complied with the Borough's request, noting that its desire
to stay in the Borough Council's "good graces" was a
motivating factor in deciding not to allow Maxwell to
maintain the billboards after expiration of the lease. Id. at
87.

Maxwell refused to remove the billboards and brought an
action against the Borough for, among other causes of
action, violation of its first amendment rights. In addition to
damages, Maxwell sought a declaration that the Borough
acted unlawfully in "coercing" Citibank to take action
against it. Id. The District Court granted summary
judgment in favor of the Borough and ordered it to remove
the billboards within 15 days. Id. This Court affirmed. In
addressing the first amendment claim, we explained that
the Borough's actions did not amount to the type of serious
"coercion" that would trigger a constitutional violation. Id.
at 88-89. Moreover, the fact that Citibank acted in part
because it wished to have a "receptive climate" within the
Borough for future development projects did not alter our
conclusion. Id. at 89.

While not taking place specifically in the employment
context, we believe that our Opinion in R.C.
Maxwell--written well before Stiles' alleged interaction with
the Pennsylvania Attorney General--provides relevant legal
principles to guide us in this case. Stiles had no reason to
believe that requesting or influencing another's employer to
take adverse personnel action violated first amendment
rights. We note in this regard that the alleged improper
conduct itself took the form of speech--conversations with
Fisher where Stiles allegedly influenced Fisher to take
adverse action against Plaintiffs. Cf. X-Men Security, Inc. v.
Pataki, 196 F.3d 56, 68-70 (2d Cir. 1999) (noting that
public official's own right to free speech must also be

                               12
considered and that such rights are not necessarily
subordinate to plaintiffs' free speech rights); Smith v. School
District of Philadelphia, 112 F. Supp.2d 417, 431 (E.D. Pa.
2000) (school district's urging Home and School Association
to remove plaintiff from his position as president of that
association was itself a "protected right to free speech");
Northeast Women's Center, Inc. v. McMonagle, 670 F. Supp.
1300, 1308 (E.D. Pa. 1987) ("[a]ttempts to persuade
another to action are clearly within the scope of the First
Amendment").5

       IV.

       For the foregoing reasons we will reverse the order of the
District Court entered on July 7, 2000, and remand with
instructions to dismiss all claims against Stiles.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
5. Apparently, the District Court did not address the qualified immunity
issue as it related to Counts II and III in the Amended Complaint. Like
Count I, however, these claims cannot survive a qualified immunity
defense. Count II is apparently based on The "Privileges and Immunities
Clause" of the 14th Amendment. See Saenz v. Roe, 526 U.S. 489, 119
S.Ct. 1518 (1999). Plaintiffs have not set forth facts that demonstrate a
claim under this provision and certainly have not alleged violation of a
"clearly established" right under this provision of the Constitution. To
the extent that Count II alleges a substantive due process violation, we
note that this Court already decided in McLaughlin I that Plaintiffs have
no due process rights in their employment and we need not revisit that
issue here. Count III alleges that Stiles violated Plaintiffs' first
amendment rights because he "knew" that Plaintiffs' reputations were
being attacked in the Press. Count III only implies, however, that it was
the PAG Defendants--not Stiles--that ordered Plaintiffs' to remain silent
in the face of these negative comments. As such, Count III does not
allege a constitutional claim against Stiles, much less one that is
"clearly
established."

                               13
