Argued: July 12, 2016
FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA (D.C. No. 2-14-cv-07368) District
Judge: Honorable Berle M. Schiller
G. Mahoney [ARGUED] Peter R. Kulp Deasey, Mahoney &
Valentini Counsel for Appellants Joseph P. Walsh and Jeffrey
Mirabella [ARGUED] Counsel for Appellees.
Before: FUENTES, [*] SHWARTZ and RESTREPO, Circuit
RESTREPO, Circuit Judge.
Maureen and John Mirabella petitioned their local government
for assistance in a dispute with their neighbors and, at the
same time, threatened the local government with litigation. A
local official responded, via email, by barring the
Mirabellas from communicating directly with any members of
the local government, other than its counsel. Local officials
also threatened to move for sanctions against the Mirabellas
for frivolous litigation if they filed suit.
Mirabellas allege that the government officials violated
their First Amendment rights in two ways: (1) by retaliating
against the Mirabellas for the exercise of their First
Amendment rights and (2) by violating the Mirabellas'
First Amendment right to petition the government for redress
of grievances. As to these claims, the District Court denied
the Defendants' motions to dismiss and denied qualified
immunity. The government officials now appeal on qualified
immunity grounds. For the reasons below, we conclude that the
Mirabellas have adequately alleged both a retaliation claim
and a violation of their right to petition. The rights
allegedly violated, however, were not clearly established for
the purpose of qualified immunity. Therefore, we are
constrained to reverse.
case arises out of a dispute between the Mirabellas and their
neighbors regarding a public wetlands abutting their
properties. The wetlands is owned by Montgomery Township,
Pennsylvania. The Mirabellas allege that their neighbors
extended their backyards into the public wetlands by
attempting to fence in the open space, placing playground
equipment there and landscaping it.
Mirabellas complained to the Township, which removed the
fence, required the neighbors to move their playground
equipment and-initially-required the neighbors to stop
landscaping the open space. Nevertheless, the Mirabellas
allege, the neighbors continued to "cut and clear"
the open space "using driving mowers, weed whackers,
push mowers, chainsaws and other means." App. 39. The
Mirabellas continued to complain about this, but the Township
ultimately reversed course and gave the neighbors permission
to mow the open space.
Mirabellas viewed the Township's response as overly
permissive and environmentally destructive. For these
reasons, the Mirabellas-who are both attorneys-notified the
Township Board of Supervisors by email that they intended to
sue their neighbors for "encroachment and
destruction" of the open space. App. 119. The Mirabellas
protested "the Board's failure to . . . protect our
natural open spaces, " which put them "in the
position of having to sue neighbors in order to see that our
environment is preserved." Id. The Mirabellas
further stated that as the owner of the open space, "the
Township will be an indispensable party in this
litigation." Id. Walsh and McDonnell
interpreted this as a threat that the Mirabellas would sue
same day the Mirabellas ostensibly threatened litigation, the
Township responded. Appellant Joseph Walsh, Chairperson of
the Board of Supervisors, wrote to the Montgomery Township
Solicitor and copied the Mirabellas. Walsh wrote that
"[i]f the Township is sued by the Mirabellas make sure
our insurance counsel motions the court for sanctions . . .
as they have no standing to file such a frivolous
action." App. 121. Another member of the Board of
Supervisors, Appellant Jeffrey McDonnell, concurred later
that evening. He wrote: "I agree. I would also suggest
our [attorney] put them on notice now that we will seek
san[c]tions so there's no surprise." App. 126.
Mirabella replied within minutes defending the potential
lawsuit as non-frivolous. He requested that the Board of
Supervisors provide "any legal authority to support the
Board's decision and your claim that we do not have
standing." App. 123.
that night, at 11:26 p.m., Walsh replied from his iPhone.
Walsh's email-later an impetus for the Mirabellas'
First Amendment claims-stated:
Dear Mr[.] Mirabella and his wife attorney. Please direct all
further communications to the Township attorney. Please
never contact me, the Board of Supervisors or the
Township employees directly. Do not call me at work,
email me at work or speak to me in public or private. The dye
is caste [sic].
App. 125 (emphasis added). Walsh copied this "no
contact"email to numerous Township officials,
including the Board of Supervisors, Township Manager,
Planning and Zoning Director and members of the police
the Mirabellas attended one meeting of the Board of
Supervisors, at which they allegedly protested the
destruction of the open space and expressed their
"dismay and anger" over Walsh and McDonnell's
emails. App. 45.
Mirabellas filed this lawsuit under 42 U.S.C. § 1983,
alleging, inter alia, violations of their First
Amendment rights. The defendants filed motions to dismiss
under Federal Rule of Civil Procedure 12(b)(6), in which they
asserted a qualified immunity defense. The District Court
dismissed all of the Mirabellas' claims except for
certain First Amendment claims against Walsh and McDonnell.
opinion, the District Court construed the Mirabellas'
surviving First Amendment claims as alleging two violations:
(1) retaliation against the Mirabellas for the exercise of
their First Amendment rights to free speech and to petition
the government for redress of grievances and (2) a direct
violation of the Mirabellas' First Amendment right to
petition the government. As to both claims, the District
Court found that the Mirabellas had pled a constitutional
violation. The District Court denied qualified immunity via a
very brief analysis. Walsh and McDonnell now appeal, alleging
that they are entitled to qualified immunity on both claims.
District Court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction over the District Court's
denial of qualified immunity under 28 U.S.C. § 1291 and
the collateral order doctrine. L.R. v. Sch. Dist. of
Phila., 836 F.3d 235, 240 (3d Cir. 2016). The qualified
immunity issue before us is solely a question of law and is,
therefore, immediately appealable as a final order.
Zaloga v. Borough of Moosic, 841 F.3d 170, 174 n.3
(3d Cir. 2016). We exercise plenary review. L.R.,
836 F.3d at 241. As this is an appeal from the denial of a
motion to dismiss, we accept the allegations in the complaint
as true. Mammaro v. New Jersey Div. of Child Prot. &
Permanency, 814 F.3d 164, 166 (3d Cir. 2016).
immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the
official violated a statutory or constitutional right, and
(2) that the right was 'clearly established' at the
time of the challenged conduct." Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted).
"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.'" Id. at 741 (alterations in
original) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)).
determine if a right is clearly established, we first look
for Supreme Court precedent. Mammaro, 814 F.3d at
169. If there is none, we may rely on a "'robust
consensus of cases of persuasive authority' in the
Court[s] of Appeals." Id. (quoting Taylor
v. Barkes, 135 S.Ct. 2042, 2044 (2015) (per curiam)).
"[A]lthough earlier cases involving fundamentally
similar facts can provide especially strong support for a
conclusion that the law is clearly established, they are not
necessary to such a finding." L.R., 836 F.3d at
248 (quoting Hope v. Pelzer, 536 U.S. 730, 741
exercise our discretion to decide which of the two prongs of
the qualified immunity analysis to address first "in
light of the circumstances in the particular case at
hand." Pearson v. Callahan, 555 U.S. 223, 236
(2009). For reasons of constitutional avoidance, we may begin
by determining whether a right was clearly established.
Camreta v. Greene, 563 U.S. 692, 705 (2011). Yet in
other cases "following the two-step sequence-defining
constitutional rights and only then conferring immunity-is
sometimes beneficial to clarify the legal standards governing
public officials." Id. at 707.
Mirabellas' case, we exercise our discretion to follow
the two-step sequence. We do so in order to guide local
officials in safeguarding the First Amendment rights of
constituents in challenging circumstances: when the
government's constituents are also litigation
adversaries. See Am. Canoe Ass'n, Inc. v. City of St.
Albans, 18 F.Supp.2d 620, 621 (S.D.W.Va. 1998)
(observing that ...