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Carlson v. Beemer

United States District Court, M.D. Pennsylvania

December 21, 2016

MICHAEL A. CARLSON, et at, Plaintiffs
v.
BRUCE R. BEEMER, in his official Capacity as Attorney General of the Commonwealth of Pennsylvania, et al., Defendants

          MEMORANDUM

          Christopher C. Conner, Chief Judge.

         Plaintiffs Michael A. Carlson and Michael J. Cranga allege that defendants Kathleen G. Kane and Jonathan A. Duecker retaliated against them for testifying before a Philadelphia County grand jury in October 2014. Specifically, plaintiffs aver that defendants denied them promotions and publicly exposed their private emails after both plaintiffs defied Kane's order not to testify. Defendants move to dismiss plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that the First Amendment does not embrace plaintiffs' grand jury testimony. The court will deny the motions.

         I. Factual Background and Procedural History

         Carlson and Cranga are special agents employed by the Pennsylvania Office of Attorney General ("OAG"). (Doc. ¶¶ 14-23). At the time of defendants' alleged conduct, Kane was the Attorney General of the Commonwealth of Pennsylvania and Duecker was her chief of staff. (Id. ¶¶ 14, 26).[1]

         From 2010 to 2012, the OAG investigated possible incidents of corruption involving certain public officials in Philadelphia, Pennsylvania. (Id. ¶ 27). Carlson and Cranga were "integral parts" of the investigation team for approximately eighteen months. (Id. ¶ 34). Frank Fina ("Fina"), then Chief Deputy Attorney General, served as lead attorney for the investigation and supervised both Carlson and Cranga. (Id. ¶ 35). The investigation had not yet concluded when Kane assumed office in January 2013. (Id. ¶ 37).

         Kane declined to continue the investigation. (Id. ¶¶ 38, 43). After the Philadelphia Inquirer published an article critical of this decision, Kane publically defended her choice, claiming that the investigation was "deeply flawed and tainted by racism." (Id. ¶¶ 39-41). Kane rejected the Inquirer's insinuation that her decision was politically-motivated to protect fellow Democrats. (See id. ¶¶ 39-40). Kane suspected Fina as the source of the Inquirer article and purportedly declared "war" on Fina and those close to him. (Id. ¶¶ 41-42).

         The Philadelphia District Attorney's Office subsequently assumed jurisdiction of the case and presented evidence developed during the OAG's investigation to a grand jury. (Id. ¶¶ 43-44). In October 2014, both Carlson and Cranga received subpoenas to testify before this Philadelphia grand jury. (Id. ¶ 45). Carlson and Cranga each desired the opportunity to testify, but Kelly Sekula ("Sekula"), a Senior Deputy Attorney General, advised them that the OAG would seek to quash the subpoenas. (Id. ¶ 47). Neither agent heard from the OAG again prior to their departure to Philadelphia to testify before the grand jury. (Id. ¶ 48).

         Sekula called Cranga en route to Philadelphia. (Id. ¶¶ 49-50). Sekula requested that both agents "tell the supervising judge . . . that they wanted an attorney to represent them" in the grand jury proceedings. (Id. ¶ 51). Neither Carlson nor Cranga thought it necessary to secure an attorney. (Id. ¶ 55). Rather, both agents perceived the suggested action as a transparent attempt by Kane to suppress their anticipated courtroom testimony. (Id. ¶¶ 54-57).

         After the agents arrived in Philadelphia, Sekula and another senior OAG attorney unsuccessfully argued to the grand jury's supervising judge that neither agent should be compelled to testify. (Id. ¶ 58). Thereafter, Carlson and Cranga testified before the grand jury concerning their involvement with and perception of the OAG investigation. (Id. ¶¶ 61-62). Both agents testified that the investigation was neither flawed nor motivated by racism as alleged by Kane. (Id. ¶¶ 63-64).

         The grand jury returned three presentments recommending charges against six officials investigated by plaintiffs, and the Philadelphia District Attorney's Office filed the recommended charges. (Id. ¶¶ 65-67). Fina, who had by then accepted a position with the Philadelphia District Attorney's Office, emailed Carlson when Fina's office filed the last of the charges and observed that Carlson and Cranga "were key" to the charging decision. (Id. ¶¶ 67, 70).

         Plaintiffs claim that defendants retaliated against them for their grand jury testimony. (See id. ¶98). Both agents were denied promotions in April 2015 when individuals with less experience and training were promoted over them. (See Id. ¶¶ 72-87). A former OAG human resources representative later informed the agents that Kane and Duecker had placed them on an unofficial "blacklist" as a result of their grand jury testimony. (See id. ¶¶ 96-97).

         Another grand jury began investigating allegations that Kane had surreptitiously leaked confidential OAG material to settle the score with Fina over the Inquirer article. (See id. ¶¶ 109, 119). In an emergency application to the Pennsylvania Supreme Court on November 12, 2014, Kane sought to quash the statewide grand jury investigation into her conduct. (Id. ¶ 109). Kane maintained that the investigation was political gamesmanship orchestrated by Fina to dissuade Kane from exposing his involvement in a developing email scandal embroiling a number of Pennsylvania public officials. (Id. ¶ 110). Kane attached to her filing select emails implicating Fina and his associates, including both Carlson and Cranga. (Id. ¶¶ 111, 114).

         The Pennsylvania Supreme Court denied Kane's emergency application, but acceded to her request that the application and attached emails be made public. (Id. ¶¶ 118-23). Plaintiffs aver that defendants selectively disclosed their emails in further retaliation for their grand jury testimony in support of Fina's investigation. (Id., ¶¶ 112, 130).

         Plaintiffs commenced the instant action with the filing of a single-count complaint (Doc. 1) on December 21, 2015. Both agents assert a claim pursuant to 42 U.S.C. § 1983 for retaliation in violation of their First Amendment rights. (Id. ¶¶ 131-39). Kane and Duecker subsequently filed the instant motions (Docs. 17, 19) to dismiss. The motions are fully briefed (Docs. 18, 20, 29, 34-35) and ripe for disposition.

         II. Legal Standard

         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the ...


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