Hira Educational Services North America v. Frank Augustine

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-2377
____________
HIRA EDUCATIONAL SERVICES NORTH AMERICA
v.
FRANK AUGUSTINE, in his official capacity as Chairman
of the Board of Supervisors of the TWP OF Shenango,
Lawrence County, Pennsylvania; ALBERT BURICK, III, in
his official capacity as Supervisor and Secretary-Treasurer of
the Board of Supervisors of the Twp of Shenango, Lawrence
County, Pennsylvania; RUSSELL RILEY, in his official
capacity as Vice Chairman of the Board of Supervisors of the
Twp of Shenango, Lawrence County, Pennsylvania; CURT
TOPPER, in his official capacity as Secretary of the
Pennsylvania Department of General Services; JOSHUA
LAMANCUSA, in his official capacity as District Attorney at
the Lawrence County District Attorney’s Office in
Pennsylvania; BRUCE LEONATTI, in his official capacity as
President of the Pittsburgh Chapter of Act for America;
AARON BERNSTINE, in his individual capacity as State
Representative of the PA State House of Representatives;
CHRISTOPHER SAINATO, in his individual capacity as
State Representative of the PA State House of
Representatives; ELDER VOGEL, JR., in his individual
capacity as Senator at the PA State Senate,

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Christopher Sainato,
Appellant
____________
No. 18-2378
____________
HIRA EDUCATIONAL SERVICES NORTH AMERICA
v.
FRANK AUGUSTINE, in his official capacity as Chairman
of the Board of Supervisors
of the TWP OF Shenango, Lawrence County, Pennsylvania;
ALBERT BURICK, III, in his official capacity as Supervisor
and Secretary-Treasurer of the Board of Supervisors of the
Twp of Shenango, Lawrence County, Pennsylvania;
RUSSELL RILEY, in his official capacity as Vice Chairman
of the Board of Supervisors of the Twp of Shenango,
Lawrence County, Pennsylvania; CURT TOPPER, in his
official capacity as Secretary of the Pennsylvania Department
of General Services; JOSHUA LAMANCUSA, in his official
capacity as District Attorney at the Lawrence County District
Attorney’s Office in Pennsylvania; BRUCE LEONATTI, in
his official capacity as President of the Pittsburgh Chapter of
Act for America; AARON BERNSTINE, in his individual
capacity as State Representative of the PA State House of
Representatives; CHRISTOPHER SAINATO, in his
individual capacity as State Representative of the PA State
House of Representatives; ELDER VOGEL, JR., in his
individual capacity as Senator at the PA State Senate,

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Aaron Bernstine,
Appellant
____________
No. 18-2400
____________
HIRA EDUCATIONAL SERVICES NORTH AMERICA
v.
FRANK AUGUSTINE, in his official capacity as Chairman
of the Board of Supervisors of the TWP OF Shenango,
Lawrence County, Pennsylvania; ALBERT BURICK, III, in
his official capacity as Supervisor and Secretary-Treasurer of
the Board of Supervisors of the Twp of Shenango, Lawrence
County, Pennsylvania; RUSSELL RILEY, in his official
capacity as Vice Chairman of the Board of Supervisors of the
Twp of Shenango, Lawrence County, Pennsylvania; CURT
TOPPER, in his official capacity as Secretary of the
Pennsylvania Department of General Services; JOSHUA
LAMANCUSA, in his official capacity as District Attorney at
the Lawrence County District Attorney’s Office in
Pennsylvania; BRUCE LEONATTI, in his official capacity as
President of the Pittsburgh Chapter of Act for America;
AARON BERNSTINE, in his individual capacity as State
Representative of the PA State House of Representatives;
CHRISTOPHER SAINATO, in his individual capacity as
State Representative of the PA State House of
Representatives; ELDER VOGEL, JR., in his individual
capacity as Senator at the PA State Senate,

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Elder Vogel, Jr.,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-18-cv-00486)
District Judge: Honorable Arthur J. Schwab
____________
Argued on November 9, 2020
Before: HARDIMAN, GREENBERG,∗ and SCIRICA,
Circuit Judges.
(Filed: March 15, 2021)
Jonathan F. Bloom
Karl S. Myers [argued]
Melissa L. Perry
STRADLEY RONON
STEVENS & YOUNG, LLP
2600 One Commerce Square
Philadelphia, PA 19103
Attorneys for Appellant Representative Christopher Sainato
Arthur H. Stroyd, Jr.
Zachary N. Gordon [argued]
Del Sole Cavanaugh Stroyd LLC
∗ The Honorable Morton I. Greenberg died on January 28,
2021; this opinion is filed by a quorum of the Court. 28 U.S.C.
§ 46 and Third Circuit IOP 12.1(b).

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Three PPG Place, Suite 600
Pittsburgh, PA 15222
Attorneys for Appellant Representative Aaron Bernstine
John P. Krill, Jr.
Anthony R. Holtzman [argued]
Mark A. Rush
Thomas R. DeCesar
K&L Gates LLP
17 North Second Street, 18th Floor
Harrisburg, PA 17101-1507
Attorneys for Appellant Senator Elder Vogel Jr.
Christina A. Jump [argued]
Charles D. Swift
833 E. Arapaho Rd.
Suite 102
Richardson, Texas 75081
Attorneys for the Appellee
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
This interlocutory appeal was filed by three
Pennsylvania legislators. Senator Elder Vogel and
Representatives Christopher Sainato and Aaron Bernstine
(collectively, Legislators) seek review of District Court orders
denying them absolute legislative immunity and qualified

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immunity from claims brought by HIRA Educational Services
of North America.
I
The two orders under review denied Appellants’
motions to dismiss under Rule 12(b). So we accept HIRA’s
well-pleaded allegations as true, and we construe the facts and
draw all reasonable inferences in HIRA’s favor. See Starnes v.
Butler Cnty. Ct. of C.P., 50th Jud. Dist., 971 F.3d 416, 422 (3d
Cir. 2020).
A
This dispute involves the sale of property owned by the
Commonwealth of Pennsylvania. Each year, the Pennsylvania
Department of General Services (DGS) develops a plan to sell
Commonwealth-owned property. 71 PA . STAT . AND CONS .
STAT . A NN . § 651.3 (West). The Pennsylvania General
Assembly, comprised of the Senate and the House of
Representatives, must approve DGS’s plan. § 651.4.
In 2017, consistent with the plan approved by the
General Assembly, DGS solicited bids for the purchase of the
New Castle Youth Development Center, a property which had
housed juvenile offenders in Shenango Township until it
closed in 2013. DGS had been trying to sell the property for
several years but never received an adequate bid.
This time, Appellee HIRA—a consulting agency for
Islamic educational groups—submitted the highest bid of
$400,000. HIRA wanted to use the property to establish a
youth intervention center much like the one located there
before. HIRA also hoped to establish an Islamic boarding

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school on the property. DGS accepted HIRA’s bid, and the
parties entered into a land sale agreement.
On June 7, 2017, a week after HIRA and DGS entered
into the sale agreement, Vogel, Bernstine, and Sainato sent a
letter to Governor Tom Wolf expressing concerns about the
sale. The Legislators claimed HIRA was not in a financial
position to turn the property into an economic driver for the
community. They noted that New Jersey had revoked HIRA’s
corporate status and HIRA reported low income on several of
its tax filings. The Legislators also complained that HIRA had
not returned their phone calls and that some paperwork relating
to the sale remained incomplete. The Legislators requested a
written response and a meeting with Governor Wolf to discuss
their concerns.
When Governor Wolf did not act, the Legislators took a
public stand against the sale. Bernstine, Sainato, and a staffer
from Vogel’s office attended a Shenango Township
community meeting where some members of the public made
disparaging comments about Muslims and espoused baseless
rumors about HIRA and HIRA’s plans for the property.
Bernstine and Sainato also complained to the press. They
thought the sale was being pushed through too quickly, and
distrusted HIRA’s stated intentions for the property. Bernstine
vowed to “continue to pursue every avenue possible to uncover
information related to this facility and [to] continue to call
[HIRA] daily until they pick up their phone.” App. 45, ¶ 69.
And when the Lawrence County District Attorney’s Office
opened a criminal investigation into the sale based on an
anomaly in the bidding process, Bernstine saw the
investigation as “another step toward getting the sale vacated.”
App. 46, ¶ 72.

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The Legislators then tried to pass a law divesting DGS
of the authority to sell the property. See S. Res. 154, 2017 Leg.,
2017 Sess. (Pa. 2017). Vogel introduced Resolution 154, and
after the Senate approved it, Sainato and Bernstine presented it
to the House State Government Committee. The full House
abandoned the resolution without a vote. After the resolution
failed, Bernstine, Sainato, and a staffer from Vogel’s office
met with the Secretary of DGS to try to persuade DGS to halt
the sale.
At the local level, Shenango Township adopted
Ordinance No. 4 of 2017, which rezoned the area where the
Development Center was located to prohibit commercial
schools. HIRA alleged the Township adopted the ordinance to
frustrate HIRA’s goal of establishing a boarding school on the
property. But HIRA did not allege any connection between the
Legislators and the ordinance.
HIRA claimed the public outcry, Shenango Township’s
new zoning ordinance, Senator Vogel’s resolution, and the
criminal investigation prevented HIRA from securing funding
and prevented the Commonwealth from transferring clear title,
which caused the parties to void the land sale agreement.
After the sale fell through, DGS asked for new bids.
HIRA offered $500,000 but was outbid by a group that offered
$2,000,000. Bernstine and Sainato promised to ensure the new
purchaser secured funding, and none of the Legislators
challenged the sale to this new buyer.
B
HIRA sued various state and local officials, including
the Legislators in their individual capacities. At issue on appeal

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are the Legislators’ alleged violations of the Religious Land
Use and Institutionalized Persons Act (RLUIPA), the
Pennsylvania Religious Freedom Protection Act, and 42
U.S.C. § 1983. HIRA also requested declaratory and injunctive
relief to delay the transfer of the property to the new buyer.
The Legislators moved to dismiss. All three claimed
absolute legislative immunity under federal common law and
the Pennsylvania Constitution’s Speech or Debate Clause.
Vogel and Sainato also claimed qualified immunity, but
Bernstine did not.
The District Court denied the Legislators’ motions to
dismiss. Although at first it found the immunity claims to be
“straightforward legal arguments,” the Court rejected the
motions as “premature” because “[w]hether any of these
individuals is entitled to immunity rests upon whether the
individuals engaged in ‘legitimate’ activities while in the
course and scope of their position and authority.” Dist. Ct. Dkt.
88, at 2. It found, based on the allegations of HIRA’s
complaint, that none of the Legislators were engaged in
legitimate legislative activities, so the “legal issues concerning
immunity . . . [were] mired in facts, which need to be
developed through the discovery process.” Id. The District
Court denied Sainato’s motion to dismiss in its order dated
June 13. It denied Bernstine and Vogel’s motions to dismiss on
June 21 after resolving their unrelated arguments.
The Legislators filed Notices of Appeal from the
District Court’s orders.1 But the District Court challenged the
1 Bernstine filed his Notice of Appeal prematurely. Under Rule
4(a)(2) of the Federal Rules of Appellate Procedure and the
Cape May Greene doctrine, his Notice became effective when

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appeal for two reasons. First, the Court did not believe it made
a final decision on the Legislators’ immunity because it
“simply dismissed [the] Motion[s] to Dismiss as ‘premature’”
to allow the parties “to develop a factual record.” Dist. Ct. Dkt.
102, at 2. Second, because it denied the motions without
prejudice, the District Court did not think the collateral order
doctrine applied.2
II
The District Court had subject matter jurisdiction over
HIRA’s federal claims under 28 U.S.C. § 1331. It had
supplemental jurisdiction over the Pennsylvania Religious
Freedom Protection Act claim under 28 U.S.C. § 1367.
Our jurisdiction is disputed. HIRA claims we lack
jurisdiction over this appeal because the District Court’s orders
were not final. We disagree.
Ordinarily, a final order “is one that ends the litigation
on the merits and leaves nothing for the court to do but execute
the judgment.” Ray Haluch Gravel Co. v. Cent. Pension Fund
of Int’l. Union of Operating Eng’rs & Participating Emps., 571
the District Court entered judgment. See F ED . R. A PP . P.
4(a)(2); Adapt of Phila. v. Phila. Housing Authority, 433 F.3d
353, 362–64 (3d Cir. 2006).
2 The District Court treated Sainato’s Notice of Appeal as a
motion to stay, denied that motion, and ordered the Legislators
to continue to comply with the deadlines set in the District
Court’s scheduling order. The District Court later granted a
stay pending this appeal after the case was reassigned to a
different judge.

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U.S. 177, 183 (2014). But under the collateral order doctrine,
certain interlocutory orders are final for purposes of 28 U.S.C.
§ 1291, including some orders denying immunity. See, e.g.,
George v. Rehiel, 738 F.3d 562, 570–71 (3d Cir. 2013)
(qualified immunity); Youngblood v. DeWeese, 352 F.3d 836,
838 (3d Cir. 2003) (legislative immunity). Where absolute or
qualified immunity apply, parties are immune from suit, not
merely from liability. Mitchell v. Forsyth, 472 U.S. 511, 525,
527–28 (1985). For that reason, the Supreme Court has
“repeatedly . . . stressed the importance of resolving immunity
questions at the earliest possible stage in litigation.” Hunter v.
Bryant, 502 U.S. 224, 227 (1991) (per curiam).
Denials of immunity are immediately appealable even
if the denial is “implicit.” When a district court refuses to rule
on an immunity claim “on the premise that the court is unable,
. . . or prefers not to, determine the motion without discovery”
then it is making “at least an implicit decision that the
complaint alleges a . . . claim on which relief can be granted.”
Rehiel, 738 F.3d at 571 (quoting X-Men Sec., Inc. v. Pataki,
196 F.3d 56, 66 (2d Cir. 1999)). Such delay vitiates immunity
as government officials “otherwise entitled to immunity [are]
nonetheless subjected to ‘the burdens of such pretrial matters
as discovery.’” Oliver v. Roquet, 858 F.3d 180, 188 (3d Cir.
2017) (quoting Behrens v. Pelletier, 516 U.S. 299, 308 (1996)).
Here, the District Court made two errors when it
deemed the Legislators’ appeals improper. First, its order acted
as an implicit denial of immunity—even though it was without
prejudice—because it would require the Legislators to bear the
burdens of discovery and other pretrial matters. See id. Second,
the Legislators’ immunity claims depend on questions of law
and not on factual disputes that would deprive us of
jurisdiction. See id. at 187. The Legislators do not, for purposes

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of this appeal, challenge the truth of HIRA’s allegations. They
argue instead that even if HIRA’s allegations are true they are
nonetheless entitled to absolute or qualified immunity.
Besides, any factual challenge by the Legislators would be
doomed because this appeal arises from the District Court’s
denial of their motions to dismiss. As previously noted, at this
stage of the litigation we accept HIRA’s well-pleaded
allegations as true. See Starnes, 971 F.3d at 422. Whether
HIRA alleged conduct by the Legislators that falls outside the
sphere of legitimate legislative activities or that violates clearly
established law is a question of law over which we have
jurisdiction. See Mammaro v. N.J. Div. of Child Prot. &
Permanency, 814 F.3d 164, 168 (3d Cir. 2016); Carver v.
Foerster, 102 F.3d 96, 99 (3d Cir. 1996).
III
Having established our jurisdiction, we turn to the
merits. The question presented is whether the Legislators are
entitled to either absolute legislative immunity or qualified
immunity.
A
We first consider absolute immunity. Although
legislative immunity from federal claims and state claims arise
from different sources, in this case the scope of immunity is the
same for both. State legislators’ immunity from federal claims
comes from federal common law, which “in civil cases . . . is
coterminous with that of the immunity provided by the Speech
or Debate Clause.” Larsen v. Senate of Pa., 152 F.3d 240, 249
(3d Cir. 1998) (discussing immunity and liability under

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§ 1983); see U.S. C ONST . art. I, § 6, cl. 1.3 Legislative
immunity from state law claims is governed by the
Pennsylvania Constitution’s Speech or Debate Clause, P A .
CONST . art. II, § 15,4 but the Pennsylvania Supreme Court
looks to caselaw interpreting the federal Speech or Debate
Clause to guide its interpretation of the Pennsylvania clause.
See Consumers Educ. & Protective Ass’n v. Nolan, 368 A.2d
675, 680–81 (Pa. 1977). Thus, our analysis is governed by
caselaw applying the federal Speech or Debate Clause when
determining the Legislators’ immunity to HIRA’s claims.
Although the text of the Speech or Debate Clauses
protects only speech made during a legislative session, the
Supreme Court has extended the immunity far beyond that
context. In civil cases, a legislator is immune for “all actions
taken ‘in the sphere of legitimate legislative activity.’” Bogan
v. Scott-Harris, 523 U.S. 44, 54 (1998) (quoting Tenney v.
Brandhove, 341 U.S. 367, 376 (1951)). This sphere includes
3 “The Senators and Representatives . . . shall in all cases,
except treason, felony and breach of the peace, be privileged
from arrest during their attendance at the session of their
respective Houses, and in going to and returning from the
same; and for any speech or debate in either House, they shall
not be questioned in any other place.”
4 “The members of the General Assembly shall in all cases,
except treason, felony, violation of their oath of office, and
breach or surety of the peace, be privileged from arrest during
their attendance at the sessions of their respective Houses and
in going to and returning from the same; and for any speech or
debate in either House they shall not be questioned in any other
place.”

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acts that are “quintessentially legislative” or that are “integral
steps in the legislative process.” Id. at 55. We have recognized
several activities within this sphere: legislative factfinding and
investigation, writing committee reports, offering resolutions,
voting, and “the things generally done in a session of the House
by one of its members in relation to the business before it.”
Youngblood, 352 F.3d at 839 (internal quotation marks
omitted) (quoting Kilbourn v. Thompson, 103 U.S. 168, 204
(1880)).
Immunity does not attach, however, to acts only
“casually or incidentally related to legislative affairs but not a
part of the legislative process itself.” Id. at 840 (internal
quotation marks omitted) (quoting United States v. Brewster,
408 U.S. 501, 528 (1972)). Such acts include political activities
like performing “errands” for constituents, making
appointments with government agencies, securing government
contracts, preparing news releases, and delivering speeches
outside Congress. Id.
Although HIRA makes slightly different claims against
each of the Legislators, it seeks to hold them liable for the
following actions: (1) introducing a resolution to divest DGS
of its authority to sell the property; (2) co-authoring a letter to
Governor Wolf describing their concerns with the sale; (3)
acting with discriminatory intent; (4) making public statements
against the sale that implied unscrupulous behavior by HIRA
or DGS; (5) calling HIRA repeatedly; (6) meeting with the
Secretary of DGS to try to persuade him to halt the sale; and
(7) treating the subsequent purchaser of the property more
favorably than they treated HIRA. We address each below.
At the outset, our analysis is unaffected by HIRA’s
allegation that the Legislators acted with discriminatory intent.

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Both legislative and qualified immunity protect legislators
irrespective of their subjective intent. See Youngblood, 352
F.3d at 840–41 (legislative immunity); Harlow v. Fitzgerald,
457 U.S. 800, 817–18 (1982) (qualified immunity).
Vogel’s introduction of Senate Resolution 154 and
Sainato and Bernstine’s presentation of it to the House were
quintessentially legislative activities. See Youngblood, 352
F.3d at 839. HIRA tries to distinguish this resolution by citing
Ryan v. Burlington Cnty., N.J., which created two criteria for
an action to be legislative; the action must be both
substantively legislative (i.e., involve general policy decisions
rather than target individuals) and procedurally legislative (i.e.,
passed by proper legislative procedures). See 889 F.2d 1286,
1290–91 (3d Cir. 1989). HIRA argues that because the
resolution targeted HIRA, it was too narrowly focused to be
substantively legislative. HIRA misreads our precedent. We
ask whether an official act is substantively and procedurally
legislative when classifying actions performed by municipal
officials who possess both legislative and administrative
powers. Larsen, 152 F.3d at 252. When determining whether
state legislators are acting legislatively, however, we consider
only the nature of the act rather than its target or effect. See id.;
Bogan, 523 U.S. at 54. Accordingly, we hold the Legislators
are entitled to absolute legislative immunity for introducing
Resolution 154.
Absolute legislative immunity also applies to the
Legislators’ letter to Governor Wolf and Bernstine’s calls to
HIRA because both are examples of protected legislative
factfinding. See Youngblood, 352 F.3d at 839. Legislative
factfinding is an “essential” part of the legislative process.
Gov’t of V.I. v. Lee, 775 F.2d 514, 521 (3d Cir. 1985) (applying
federal Speech or Debate Clause principles when interpreting

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Virgin Islands immunity statute). Here, because the Legislators
had the authority to introduce legislation to block the sale, they
also had the authority to engage in factfinding to help draft
such legislation. The letter to the Governor outlined the
Legislators’ concerns but then requested a meeting so they
could learn more about the sale before introducing Resolution
154. Likewise, the calls to HIRA were attempts to learn more
about the sale while the resolution was pending in the
legislature.
In addition to the quintessentially legislative activities
just discussed, HIRA claimed the Legislators made
disparaging public comments about HIRA, met with the DGS
Secretary in an attempt to get DGS to cancel the sale to HIRA,
and gave preferential treatment to the subsequent purchaser of
the property. These are most accurately described as political
“errands” or “speeches delivered outside [of] Congress,” so the
Legislators are not entitled to absolute immunity for those
activities under Brewster. See 408 U.S. at 512.5 But are the
5 The Commonwealth Court’s decision in Firetree, Ltd. v.
Fairchild ruled under Pennsylvania law that public speeches
and comments by a legislator opposed to the sale of
Commonwealth property “fell within the ambit of legitimate
legislative activity” because the General Assembly could act
on the issue. 920 A.2d 913, 922 (Pa. Commw. Ct. 2007). While
Firetree may serve as a basis to dismiss the state law claims
related to public comments on absolute immunity grounds,
Firetree cannot resolve the federal law claims against the
Legislators. Accordingly, we must address whether or not the
Legislators’ public comments are covered by qualified
immunity.

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Legislators entitled to qualified immunity for that conduct? We
address that question next.
B
Qualified immunity shields officials from civil liability
“insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow, 457 U.S. at 818. When analyzing
a qualified immunity claim we consider “(1) whether the
plaintiff sufficiently alleged the violation of a constitutional
right, and (2) whether the right was ‘clearly established’ at the
time of the official’s conduct.” L.R. v. Sch. Dist. of Phila., 836
F.3d 235, 241 (3d Cir. 2016).
To be clearly established, a right must be so apparent
that “every reasonable official would understand that what he
is doing is unlawful.” James v. N.J. State Police, 957 F.3d 165,
169 (3d Cir. 2020) (internal quotation marks omitted) (quoting
District of Columbia v. Wesby, 583 U.S. ---, 138 S. Ct. 577,
589 (2018)). An official will not be charged with such an
understanding unless existing precedent has “placed the
statutory or constitutional question beyond debate.” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011). And as the Supreme Court
emphasized recently, the right must be defined with a “high
‘degree of specificity’” before we consider that right clearly
established. Wesby, 138 S. Ct. at 590 (quoting Mullenix v.
Luna, 577 U.S. 7, 13 (2015)). The legal principle established
in a precedential case must “clearly prohibit the offic[ial’s]
conduct in the particular circumstances before him.” Id. at 581.
HIRA’s claims against Vogel and Sainato fail because
HIRA has not pointed to any precedential case prohibiting
legislators from speaking against the sale of state-owned

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property or from extending preferential treatment to certain
recipients of government contracts. HIRA counters that the
general constitutional rule that government officials cannot
interfere with the free exercise of religion was sufficiently clear
to give the Legislators fair warning of liability. But given the
high degree of specificity required to prove that a right has
been clearly established, the general constitutional rule HIRA
points to does not suffice.
HIRA’s case is weaker still in view of X-Men Security,
Inc. v. Pataki, the only case on point. See 196 F.3d 56 (2d Cir.
1999).6 In X-Men, the plaintiff security company held a public
contract. Two legislator-defendants: (1) urged a state agency to
terminate the contract, id. at 61; (2) asked a federal agency and
congressional committee to investigate the company, id. at 62;
and (3) accused the security company of being racist, anti-
Semitic, a religious hate group, misogynistic, and affiliated
with the Nation of Islam, see id. at 71. The Second Circuit held
that the plaintiffs failed to allege a violation of any
constitutional or statutory right—let alone a clearly established
one—because “the First Amendment protects a legislator’s
right to communicate with administrative officials to provide
assistance in securing a publicly funded contract, [and it also]
protect[s] the legislator’s right to state publicly his criticism of
the granting of such a contract to a given entity and to urge to
the administrators that such an award would contravene public
policy.” Id. at 70.
6 While not discussing qualified immunity and therefore not
directly on point, Firetree concluded in dicta that under the
First Amendment, legislators have “an absolute right, as a
citizen or as a legislator, to petition the executive branch to stop
a proposed sale of Commonwealth property.” 920 A.2d at 919.

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Like the plaintiffs in X-Men, HIRA alleges the
Legislators urged the agency (DGS) to terminate its contract
with HIRA, sought an investigation into the sale, disparaged
HIRA, and favored a different recipient of the government
contract. HIRA’s only attempt to distinguish this case from X-
Men is to assert that it “has clearly articulated both the
constitutional and statutory rights that have been violated by
the Legislative Defendants and the actions that constituted
those violations.” HIRA Response Br. 34–35. Even assuming
that HIRA has alleged violations of constitutional and statutory
rights that are not foreclosed by the Legislators’ First
Amendment rights, that would show only that HIRA has stated
a claim; it does nothing to show the Legislators violated clearly
established law. Although HIRA rightly notes that the Second
Circuit’s decision is not binding on this Court, the absence of
precedent in its favor from the Supreme Court or this Court
dooms its case.7 That, combined with an adverse precedent
from our sister court, puts HIRA well short of showing that the
rights it seeks to vindicate here were clearly established. So
Vogel and Sainato are entitled to qualified immunity.8
7 The recent Supreme Court decision in Taylor v. Riojas, 141
S. Ct. 52 (2020), does not change our analysis in this case. The
Legislators’ actions were not so outrageous that “no reasonable
. . . officer could have concluded” they were permissible under
the Constitution, Taylor, 141 S. Ct. at 53, especially in light of
X-Men and Firetree.
8 Because Bernstine failed to raise qualified immunity before
the District Court in his Rule 12(b)(6) motion, he has forfeited
that defense in this appeal. See Spireas v. Comm’r, 886 F.3d
315, 321 (3d Cir. 2018). He may re-raise it on remand. See

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* * *
For the reasons stated, we will reverse in part and affirm
in part. We will reverse the District Court’s order denying
Vogel and Sainato’s motions to dismiss based on absolute and
qualified immunity. Bernstine is entitled to absolute immunity
for some of the allegations made against him, so we will
reverse the District Court’s order except as to those actions for
which he is not entitled to absolute immunity. We leave those
issues to the District Court on remand.
Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (allowing
qualified immunity to be raised for a second time on remand).

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