Herman v. Harman, 111914 FED3, 14-1013

Docket Nº:14-1013
Opinion Judge:KRAUSE, CIRCUIT JUDGE.
Party Name:CURTIS M. HERMAN; AUSTIN JAMES ASSOCIATES, INC., Appellants, v. STEVEN J. HARMAN; UNDERGROUND STORAGE TANK INDEMNIFICATION BOARD MEMBERS; KERRY L. YOUNDT; ICF INCORPORATED, LLC; MICHAEL F. CONSEDINE; E. CHRISTOPHER ABRUZZO; W. MICHAEL SMITH; E. BRUCE SHELLER; J. STEPHEN HIEBER; LARRY T. MORTON; NANCY MARICONDI; STEPHANIE C. WISSMAN
Judge Panel:Before: MCKEE, Chief Judge, GREENAWAY, JR. and KRAUSE, Circuit Judges
Case Date:November 19, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

CURTIS M. HERMAN; AUSTIN JAMES ASSOCIATES, INC., Appellants,

v.

STEVEN J. HARMAN; UNDERGROUND STORAGE TANK INDEMNIFICATION BOARD MEMBERS; KERRY L. YOUNDT; ICF INCORPORATED, LLC; MICHAEL F. CONSEDINE; E. CHRISTOPHER ABRUZZO; W. MICHAEL SMITH; E. BRUCE SHELLER; J. STEPHEN HIEBER; LARRY T. MORTON; NANCY MARICONDI; STEPHANIE C. WISSMAN

No. 14-1013

United States Court of Appeals, Third Circuit

November 19, 2014

NOT PRECEDENTIAL

Submitted under Third Circuit LAR 34.1(a) October 31, 2014

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-13-cv-01118) District Judge: Honorable James M. Munley

Before: MCKEE, Chief Judge, GREENAWAY, JR. and KRAUSE, Circuit Judges

OPINION [*]

KRAUSE, CIRCUIT JUDGE.

During the period relevant to this appeal, Curtis M. Herman and Austin James Associates, Inc. (collectively "Appellants") were government contractors who evaluated claims, provided litigation support, developed strategy on major projects, and provided expert opinions on technical and budgetary questions for Pennsylvania's Underground Storage Tank Indemnification Fund (the "Tank Fund"), a state agency that provides payments to owners of underground storage tanks to remediate releases of hazardous substances.1 Appellants challenge the dismissal of their First Amendment retaliation claim, which stems from the non-renewal of their contract by the Tank Fund. We affirm because the speech at issue did not address a matter of public concern and thus was not constitutionally protected.2

The controversy here emanates from gasoline leaks at a station run by Leroy and Mary Musser. In September 2003, the Mussers contracted with Appellants to remediate the site of a 1997 fuel leak. Later that month, the Mussers and the Tank Fund reached a final settlement and release agreement that included a $1.208 million payment to fund remediation; the Mussers distributed this payment to Appellants. Eight years later, the Mussers filed another claim with the Tank Fund, ostensibly for a 1999 leak at their station, with an estimated additional remediation cost of approximately $1 million. The Tank Fund denied the new claim, finding that it was included in the 2003 release. The Mussers appealed.

While the Mussers technically filed the claim and appeal, Appellants actually funded and prosecuted them after determining that fully remediating the Mussers' site was going to be significantly more expensive than provided for in their 2003 contract. Appellants pursued the claim despite a conflict-of-interest provision in their contract with the Tank Fund, which prohibited Appellants from "representation of a client in regard to a claim against [the Tank Fund] on a release."3 As a result, the Tank Fund did not renew Appellants' contract.

"In order to plead a retaliation claim under the First Amendment, a plaintiff must allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action."4 This protection shields government contractors from adverse employment actions that result from speech on matters of public concern.5 We use a three-part test to determine whether speech by government contractors is constitutionally protected: (1) whether they were speaking as citizens rather than as public contractors discharging their contractual duties; (2) whether their speech "address[ed] a...

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