United States District Court, M.D. Pennsylvania
MICHAEL A. CARLSON, et at, Plaintiffs
BRUCE R. BEEMER, in his official Capacity as Attorney General of the Commonwealth of Pennsylvania, et al., Defendants
Christopher C. Conner, Chief Judge.
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.
Factual Background and Procedural History
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,
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. ¶
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).
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).
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.
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).
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).
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).
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).
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).
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.
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