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Mirabella v. Villard

United States Court of Appeals, Third Circuit

April 4, 2017


          Argued: July 12, 2016


          Harry G. Mahoney [ARGUED] Peter R. Kulp Deasey, Mahoney & Valentini Counsel for Appellants Joseph P. Walsh and Jeffrey W. McDonnell.

          John Mirabella [ARGUED] Counsel for Appellees.

          Before: FUENTES, [*] SHWARTZ and RESTREPO, Circuit Judges.


          RESTREPO, Circuit Judge.

         Appellees 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.

         The 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.


         This 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.

         The 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.

         The 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 the Township.

         On the 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.

         John 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.

         Later 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"[2]email to numerous Township officials, including the Board of Supervisors, Township Manager, Planning and Zoning Director and members of the police department.

         Thereafter, 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.

         The 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.

         In its 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.


         The 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).


         "Qualified 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)).

         To 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 (2002)).

         We 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.

         In the 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 ...

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