Christine Kougher; Tracy Miller; Keystone Golden Retriever Rescue Inc. v. Rick Burd

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1506
CHRISTINE KOUGHER; TRACY MILLER; KEYSTONE GOLDEN RETRIEVER
RESCUE INC.,
Appellants
v.
RICK BURD; MARY BENDER; NATHAN MYER; ANGIE H. HOLLOWAY
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Civ. No. 04-2209)
District Judge: Hon. Christopher C. Conner
Submitted Under Third Circuit LAR 34.1(a)
March 14, 2008
Before: FUENTES, CHAGARES, and VAN ANTWERPEN, Circuit Judges.
(Filed: April 16, 2008)
OPINION OF THE COURT

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CHAGARES, Circuit Judge.
Christine Kougher, Tracy Miller, and Keystone Golden Retriever Rescue Inc.
(Plaintiffs/Appellants) appeal the District Court’s grant of summary judgment in favor of
Rick Burd, Mary Bender, and Nathan Myer (Defendants/Appellees). Plaintiffs alleged
that Defendants retaliated against them for speech concerning the mistreatment of dogs at
a Pennsylvania kennel. For the following reasons, we will affirm the District Court’s
judgment.
I.
As we write only for the parties, our summary of the facts is brief. Keystone
Golden Retriever Rescue Inc. (Rescue) is a private, non-profit organization that aids in
the care and adoption of homeless golden retrievers. Christine Kougher (Kougher) serves
as Rescue’s president. In June 2003, Angie H. Holloway (Holloway), who operated an
unlicensed kennel in Pennsylvania, placed three dogs with Rescue. The dogs arrived at
Rescue suffering from a variety of physical ailments. Seeking an investigation of
Holloway’s operation, Kougher contacted Tracy Miller (Miller), a Pennsylvania state dog
warden employed by the Bureau of Dog Law Protection (Bureau) of the Pennsylvania
Department of Agriculture (Department); Rick Burd (Burd), Executive Director of the
Bureau; and Mary Bender (Bender), Director of Enforcement for the Bureau. The Bureau
ordered Holloway to apply for a kennel license, and Bender, Burd, Miller, and a state
veterinarian conducted an inspection of Holloway’s kennel in October 2003. After

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discovering 131 dogs living in unsanitary conditions, Miller filed state animal cruelty
charges against Holloway. The Bureau directed Miller to withdraw these citations, based
upon its position, reiterated in a December 2003 memorandum, that dog wardens lack the
proper authority to file such charges. On November 20, 2003, Holloway was denied a
kennel license and ordered to cease and desist operations; the denial was affirmed at an
administrative hearing in January 2004.
In October 2003, Kougher sent a letter to the Department’s Secretary complaining
about the Bureau’s inaction on the Holloway matter. That same month, while traveling
together, Burd allegedly told Miller that he was considering filing criminal charges
against Kougher due to her interference in the Bureau’s Holloway investigation. Against
Burd’s request, Miller informed Kougher of the conversation, advising her to be careful.
Kougher continued to communicate with various state officials and interest groups after
the meeting between Burd and Miller; in 2004, Rescue experienced a delay in receiving
its kennel tags.
In January 2004, Miller refiled animal cruelty charges against Holloway. He also
spoke to the Bedford Gazette regarding the Bureau’s ongoing investigation of Holloway’s
kennel, in spite of a policy that dog wardens refer all media inquiries to the Department’s
press office. On January 6, 2004, the article ran in the Bedford Gazette. Miller
subsequently received a one-day suspension due to his unauthorized communication with
the press about a pending investigation and his failure to complete required kennel

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Plaintiffs also brought suit against Holloway; however, the District Court1
dismissed these claims sua sponte, since Holloway is a non-state actor and cannot be
liable under § 1983. Plaintiffs do not appeal this determination.
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inspections for 2003.
In October 2004, Kougher, Rescue, and Miller filed a § 1983 action against Burd,
Bender, and Nathan Myer (Myer), a member of the Dog Law Advisory Board, alleging
that Defendants retaliated against them for their speech. The District Court for the1
Middle District of Pennsylvania granted Defendants’ motion for summary judgment,
finding that Kougher and Rescue failed to establish retaliatory action, while Miller’s
expressions fell within his public duties and therefore were not protected. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we will affirm.
II.
When the District Court grants a motion for summary judgment, “[o]ur review is
plenary.” Jensen v. Potter, 435 F.3d 444, 448 (3d Cir. 2006). Summary judgment is
appropriate when no genuine issues of material fact are presented and the moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). We “resolve all factual doubts and draw all reasonable inferences in favor of [the
appellants].” DL Res., Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 216 (3d Cir.
2007).
III.

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A.
Plaintiffs first argue that Defendants took retaliatory action against Kougher and
Rescue for their speech regarding the Holloway kennel operation. Namely, they allege
that Defendants delayed Rescue’s license renewal, misdirected Kougher and Rescue, and
threatened Kougher with criminal prosecution. A § 1983 retaliation claim predicated on
the First Amendment must show that: (1) the plaintiff engaged in activity protected by the
First Amendment, (2) the government responded with retaliatory action sufficient to deter
a person of ordinary firmness from exercising his or her rights, and (3) the protected
activity was the cause of the retaliatory action. Lauren W. ex rel. Jean W. v. Deflaminis,
480 F.3d 259, 267 (3d Cir. 2007); Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir.
2003).
Here, the District Court found that the retaliation claims of Kougher and Rescue
were either de minimis or too vague to support a First Amendment violation, save for the
criminal prosecution threat allegedly communicated by Burd. Regarding this threat, the
court determined that Burd’s conduct did not rise to the level of actionable retaliation.
We agree.
Plaintiffs’ allegations that Rescue was temporarily denied kennel tags and that
Kougher and Rescue received misinformation from the Bureau “in their efforts to monitor
the puppy mill issue and the Holloway investigation,” Appellant Br. at 24, are not
sufficient to support a First Amendment violation. See McKee v. Hart, 436 F.3d 165, 170

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(3d Cir. 2006) (effect of alleged retaliation on protected activities “need not be great in
order to be actionable, but [] must be more than de minimis”) (quotation marks and
citation omitted). Plaintiffs argue that the sufficiency standard for measuring the
necessary level of retaliatory action only applies in the public employment context. They
contend that “there is no such thing as a de minimis act of retaliation in the government’s
dealing with [] private citizen[s]” such as themselves. Appellant Br. at 26. This assertion
is not grounded in law, and courts have acknowledged that alleged retaliatory action
against private citizens must reach a certain level in order to be actionable. See, e.g.,
Suarez Corp. Industries v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000) (“just as the nature
of retaliatory action impacts whether a public employee’s rights were adversely affected,
so too the nature of the retaliatory acts impacts whether those acts were actionable when a
private citizen is the speaker and a public official is the retaliator.”).
Plaintiffs also contest the District Court’s determination that Kougher and Rescue,
who continued to engage in protected speech after the conversation between Burd and
Miller, failed to establish that they were injured by Defendants’ actions. Plaintiffs argue
that they need only demonstrate that Defendants’ conduct was intended to deter a person
of ordinary firmness from exercising his First Amendment rights. While the District
Court did find that Kougher and Rescue failed to show that Defendants’ actions adversely
affected the exercise of their First Amendment rights, the court based summary judgment
on its determination that Plaintiffs established no retaliatory action. Burd’s

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conduct–telling Miller in confidence that he was considering criminal charges against
Kougher–did not constitute retaliatory action. Burd did not inform Miller that he was
definitely going to file charges, and Kougher never faced prosecution. Thus, the District
Court properly determined that the claims asserted against Defendants by Kougher and
Rescue failed.
B.
Plaintiffs also argue that the District Court erred in determining that Miller’s
retaliation claims failed because they concerned unprotected speech. To state a First
Amendment retaliation claim, a public employee plaintiff such as Miller must allege: (1)
that the activity in question is protected by the First Amendment, and (2) that the
protected activity was a substantial factor in the alleged retaliatory action. See Hill v.
City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). “The first factor is a question of law;
the second factor is a question of fact.” Hill v. Borough of Kutztown, 455 F.3d 225, 241
(3d Cir. 2006).
A public employee’s statement is protected activity when: “(1) in making it, the
employee spoke as a citizen, (2) the statement involved a matter of public concern, and
(3) the government employer did not have ‘an adequate justification for treating the
employee differently from any other member of the general public’ as a result of the
statement he made.” Id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). When
a public employee makes a statement pursuant to his official duties, he does not speak “as

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Miller also asserts that he was denied an opportunity for a promotion in2
retaliation for his communications with the media. The District Court properly found this
claim abandoned for lack of record support, and we will not further address it.
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a citizen.” Ceballos, 547 U.S. at 421. “Whether an employee’s speech addresses a matter
of public concern must be determined by the content, form, and context of a given
statement, as revealed by the whole record.” Rankin v. McPherson, 483 U.S. 378, 384
(1987) (quotation marks omitted).
Miller’s speech was not protected by the First Amendment. Miller admits that his
claims “do involve some element of [ ] Miller’s performance of his official duties,” but
argues that his actions “involve[d] much more than that.” Appellant Br. at 15. Miller
contends that the District Court could not segregate his official duties from his expressive
conduct as a private citizen concerned about the enforcement of state dog laws. Miller’s
actions that led to his suspension, however, were entirely job-related. He filed charges2
against Holloway in his capacity as a state dog warden, and his unauthorized contact with
the press concerned matters related to his professional duties. Therefore, the District
Court correctly determined that “Miller’s claims fail[ed] because his expressions fall
clearly within the scope of his professional duties as a state dog warden.” Appendix
(App.) 31.
C.
Finally, Plaintiffs note that the District Court did not explicitly address the liability
of Defendant Myer, and assert that Myer should not have been granted summary

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judgment due to an alleged relationship between Holloway and Myer that resulted in the
Bureau’s preferential treatment of Holloway and retaliation against Plaintiffs. The court’s
summary judgment determination, however, was based on its determination that no
actionable retaliation existed; any supposed facts concerning a Holloway-Myer
relationship would not change this conclusion.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.

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