# DANKANICH v. PRATT

> District Court, E.D. Pennsylvania · December 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10400155

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** December 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10400155

## How later opinions describe it (automated extraction)

- rejecting a First Amendment challenge to the seal requirement under 31 U.S.C. §3730(b)(2) and finding the Federal Act’s seal provisions to be “narrowly tailored in three important ways . . . including a narrow window of time (i.e. 60 days

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:
ANDREW J. DANKANICH and : CIVIL ACTION
NICHOLAS A. MARRANDINO, :
:
Plaintiffs, :
:
v. : No. 19-735
:
MARCEL PRATT, City Solicitor of :
Philadelphia, and CITY OF :
PHILADELPHIA, :
:
:
Defendants. :
:

Goldberg, J. December 8, 2020
MEMORANDUM OPINION

Plaintiffs, Andrew J. Dankanich and Nicholas A. Marrandino, have sued Defendants
Marcel Pratt, in his official capacity as the City Solicitor of Philadelphia (the “City Solicitor”), and
the City of Philadelphia (the “City”) (collectively, “Defendants”), alleging constitutional
violations under the City of Philadelphia’s False Claims Ordinance.
Defendants move, under Federal Rules of Civil Procedure 12(b)(6) and 12(f), to dismiss
and/or strike certain allegations from the Amended Complaint. Plaintiffs subsequently filed a
motion under Federal Rule of Civil Procedure 15, for leave to file a Second Amended Complaint.
For the reasons set forth below, Defendants’ Motion to Dismiss will be granted and Plaintiffs’
Motion for Leave will be denied.
I. FACTUAL AND PROCEDURAL HISTORY
A. The False Claims Ordinance
In 2010, the Philadelphia City Council enacted the City’s “False Claims Ordinance”
(hereinafter “the Ordinance”). Like its federal counterpart, the False Claims Act (the “Federal

Act”), the Ordinance incentivizes would-be whistleblowers to report instances of fraud perpetrated
on the government. The Ordinance does so by permitting individuals, in certain circumstances, to
bring a civil qui tam action against an alleged fraudster on behalf of the City and to be entitled to
a share of any recovery. (Am. Compl. ¶¶ 16–20); see also Phila. Code § 19-3603.
However, the Ordinance differs from the Federal Act in how such an action is initiated.
Under the Federal Act, the individual—termed the relator—initiates the action by filing a
complaint in the district court. The Federal Act then requires the relator to serve that complaint
on the government only, while the complaint remains under seal, thus allowing the government
time to review the complaint before it is unsealed and served on the defendant. After reviewing
the relator’s allegations, the government may decide to intervene and assume control over the

direction of the litigation or it may decline to intervene and leave control of the litigation to the
relator. Compare Phila. Code § 19-3603, with U.S. §§ 3730–3731.
Under the Ordinance, however, the individual relator does not file a complaint with the
court but, rather, submits a proposed complaint to the City Solicitor, allowing the Solicitor to
review the complaint and conduct an investigation of the allegations raised therein before it is
filed. And importantly here, the Ordinance provides the City Solicitor complete discretion to (1)
file the complaint, (2) permit the relator to file the complaint on the City’s behalf, or (3) do neither.
(Am. Compl. ¶ 23.) Specifically, the Ordinance provides, in relevant part:
(b) After the investigation [of the allegations raised in the proposed
complaint] has been completed, the City Solicitor may:
(.1) Bring a civil action, based upon the facts alleged in such
complaint, against one or more of the defendants named therein;

(.2) Enter into an agreement with and designate the person who
submitted the proposed civil complaint, or if that person is not an
attorney, his or her attorney, to file a civil action for the person and
the City, in the name of the City, based upon the facts alleged in the
complaint, against one or more of the defendants named therein;

…

(.3) Decline to commence a civil action and decline to designate the
person who submitted the proposed complaint to commence a civil
action; or

(.4) Proceed in any other manner the City Solicitor deems
appropriate.

Phila. Code § 19-3603 (2)(b).

B. Facts Alleged in the Complaint
Plaintiffs are two former employees of the Philadelphia Parking Authority (the “PPA”).
(Am. Compl. ¶¶ 28–29.) On October 17, 2018, Plaintiffs, acting through their attorney, submitted
to the City Solicitor, a proposed complaint pursuant to the Ordinance. The proposed complaint
alleged that the named defendant—a company that contracted with the PPA to provide certain
services—had committed fraud by, among other things, conspiring with the PPA’s executive
director to ensure that it would be awarded contracts notwithstanding the fact that its services did
not meet the requirements of these contracts. (Am. Compl. ¶¶ 30–38.)
According to Plaintiffs, the City Solicitor did not engage in a good-faith review of their
proposed complaint. Rather, Plaintiffs allege that representatives of the City Solicitor’s Office
“summarily” concluded that the Ordinance did not apply to the fraud alleged in the proposed
complaint. (Am. Compl. ¶¶ 41–45.)
Plaintiffs further allege that their counsel met with representatives of the City Solicitor on
January 29, 2019, following a number of telephone and email conversations about the viability of
the proposed complaint. (Am. Compl. ¶ 65.) According to Plaintiffs, during this meeting, the City
Solicitor’s representatives again reiterated their position that the Ordinance did not apply to the

fraud alleged in the proposed complaint. (Am. Compl. ¶¶ 66–69.) At this meeting, Plaintiffs’
counsel requested that the City Solicitor designate them to pursue the action on the City’s behalf,
pursuant to the Ordinance. (Am. Compl. ¶¶ 69–73.)
Plaintiffs allege that, on February 8, 2019, after their counsel had placed follow-up
telephone calls to the City Solicitor’s office, and the Mayor’s office, a representative of the City
Solicitor sent Plaintiffs’ counsel a two-page letter. This letter advised that the City Solicitor
declined to bring Plaintiffs’ proposed complaint and “further declin[ed] to designate [Plaintiffs’
counsel] to commence a civil action in the City’s name.” (Am. Compl. ¶¶ 103–108, Ex. B.)
C. Relevant Procedural History
On February 21, 2019, Plaintiffs brought this action against Defendants, followed by

Defendants’ March 13, 2019 Motion to Dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). On March
27, 2019, Plaintiffs filed an Amended Complaint, alleging violations of their procedural and
substantive due process rights under the Fourteenth Amendment, as well as First Amendment
violations of freedom of speech. Plaintiffs also asserted state law claims including breach of
contract and unjust enrichment. On April 10, 2019, Defendants renewed their Motion to Dismiss.
Following my April 12, 2019 Order denying Plaintiffs’ Motion for Preliminary Injunction and
Temporary Restraining Order, Plaintiffs filed a Motion for Leave to Amend, which Defendants
oppose. I will address each Motion individually.
II. DEFENDANTS’ MOTION TO DISMISS
A. Standard of Review: Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must “contain
sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Conclusory allegations do not suffice. Id. Twombly and Iqbal’s plausibility
standard requires more than a “sheer possibility that a defendant has acted unlawfully.” Id.
Plausibility requires “enough facts to raise a reasonable expectation that discovery will reveal
evidence of the necessary elements of a claim.” Phillips v. Cnty. Of Allegheny, 515 F.3d 224, 234
(3d Cir. 2008). To determine the sufficiency of a complaint under Twombly and Iqbal, a court
must (1) “tak[e] note of the elements a plaintiff must plead to state a claim;” (2) identify the
allegations that are not entitled to the assumption of truth because they are no more than
conclusions; and (3) “where there are well-pleaded factual allegations, assume their veracity and
then determine whether they plausibly give rise to an entitlement for relief.” Burtch v. Millberg

Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (citations omitted). Courts must construe the
allegations in a complaint “in the light most favorable to the plaintiff.” Id. at 220.
In deciding a motion to dismiss, the court must accept all factual allegations in the
complaint as true, construe the complaint in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading, the plaintiff may be entitled to relief. Atiyeh v. Nat’l Fire
Ins. Co. of Hartford, 742 F. Supp. 2d 591, 596 (E.D. Pa. 2010). Additionally, “courts generally
consider only the allegations contained in the complaint, exhibits attached to the complaint and
matters of public record.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
B. Discussion
1. Counts One and Three: Substantive Due Process
The United States Court of Appeals for the Third Circuit has explained that there are two
types of substantive due process claims: (1) a “challenge [ ] to the validity of a legislative act,”

based on the plaintiff’s claim that the act burdens a fundamental right or is not rationally related
to a legitimate state interest; and (2) a challenge to “certain types of non-legislative state action,”
based on the plaintiff’s claim that the action is arbitrary, irrational, tainted by an improper motive,
or so egregious that it shocks the conscience. See Nicholas v. Pa. State. Univ., 227 F.3d 133, 139–
130 (3d Cir. 2000) (explaining that legislative acts are “generally laws and broad . . . regulations
[that] apply to large segments of society,” in contrast to non-legislative acts, which “typically apply
to one person or a limited number of persons”). Before addressing the merits of a substantive due
process challenge, I must first “determine the standard of review.” Alexander v. Whitman, 114
F.3d 1392, 1403 (3d Cir. 1997) (citing Sammon v. New Jersey Bd. of Med. Examiners, 66 F.3d
639, 643–44 (3d Cir. 1995)).

In Count One of the Amended Complaint, Plaintiffs challenge a legislative act—the
Ordinance—arguing it cannot survive rational basis review. Plaintiffs contend that the provision
of the Ordinance permitting the City Solicitor to decline to bring an individual’s proposed
complaint, or to designate that individual or his counsel to bring the complaint on the City’s behalf,
is not rationally related to a legitimate state interest. Defendants respond that there are legitimate
reasons for providing the City Solicitor complete discretion, explaining:
[T]he legitimate and salutary reasons for giving the City, as the
owner of any claim under the [Ordinance], the power to authorize or
to decline to authorize the bringing of a lawsuit in its name are
obvious. Even where a private party brings the lawsuit, the lawsuit
inevitably will consume the City’s valuable and scarce resources.
The City will be forced to deal with written discovery, depositions,
and the other burdens of litigation. The City will have to monitor
the lawsuit and will be responsible for its ultimate resolution. And
the lawsuit will, of course, consume the resources of the Court in
which it is filed. For all these reasons, it makes eminently good
sense for the City, as the owner of the claim, to have control over
whether any lawsuit should be filed. If the City determines that a
lawsuit lacks merit, the City’s option to decline to authorize the
lawsuit clearly and obviously serves a legitimate government
purpose.

(Defs.’ Br. in Opp’n 5–6.)
To defeat Plaintiffs’ substantive (legislative) due process claim, Defendants need not
demonstrate that the City Council’s decision to provide the City Solicitor complete discretion is
the best (or even a good) policy decision. Rather, Defendants need only show that there is “a
conceivable rational basis” for that decision. Am. Exp. Travel Related Servs., Inc. v. Sidamon-
Eristoff, 669 F.3d 359, 367 (3d Cir. 2012).
Defendants offer various legitimate state interests that support rational basis review. For
example, the discretion provided to the City Solicitor under the Ordinance prevents otherwise
inevitable burdens of litigation, such as the resources needed for discovery, deposition, and case
management. These state interests are at least conceivably rational reasons. In light of those
reasons, Plaintiff has not plausibly alleged that there is no rational basis for the challenged
provision of the Ordinance. Therefore, this claim does not give rise to an entitlement for relief and
fails under Twombly and Iqbal.
In Count Three of the Amended Complaint, Plaintiffs allege a violation of non-legislative
substantive due process. To prevail on a non-legislative substantive due process claim, “a
plaintiff must establish as a threshold matter that he has a protected property interest to which the
Fourteenth Amendment’s due process protection applies.’” Nicholas v. Pa. State. Univ., 227 F.3d
133, 140 (3d Cir. 2000) (quoting Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d
Cir. 2000)). “To have a property interest in a benefit, a person clearly must have more than an
abstract need or desire for it. He must have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.” Baraka v. McGreevey, 481 F.3d 187, 205
(3d Cir. 2007) (quoting Bd. of Regents of State Coll. v. Roth, 408 U.S. 562, 577 (1972)).

Plaintiffs contend that they were denied an interest in property, particularly their share of
any proceeds the City would recover if the proposed action were brought and the City prevailed in
that action. Defendants respond that there is no cognizable property interest because potential
proceeds are entirely contingent on the City choosing to bring the claim. This is a choice that the
Ordinance leaves solely to the City Solicitor. In addition, the alleged property right is also
dependent on the City’s success on the merits of that claim or in settlement. These factors weigh
against Plaintiffs’ claim of entitlement.
Plaintiffs are certainly correct that, under the Ordinance, a person who submits a proposed
complaint to the City Solicitor could receive a share of any proceeds that the City recovers if the
City chooses to pursue the action. However, the Ordinance does not require that the City pursue

the action. Rather, the Ordinance gives the City Solicitor complete discretion as to whether to
bring an action based on the proposed complaint or authorize the individual who submitted the
proposed complaint to do so on the City’s behalf. Moreover, any claims set out in a proposed
complaint under the Ordinance belong to the City. Accordingly, Plaintiffs have not demonstrated
a legitimate claim of entitlement and thus have not plausibly alleged a legitimate property interest
improperly denied by the City. Cf. United States ex. rel. Mateski v. Mateski, 634 F. App’x 192,
195 (9th Cir. 2015) (rejecting a procedural due process claim by a relator in an action under the
Federal Act and concluding that the relator “ha[d] not demonstrated a . . . property interest
sufficient to trigger procedural due process rights,” because the Act “makes clear that
notwithstanding the relator’s statutory right to the government’s share of the recovery, the
underlying claim of fraud always belongs to the government”).
2. Count 2: Procedural Due Process
To succeed on a procedural due process claim, a plaintiff must demonstrate that “(1) he

was deprived of an individual interest that is encompassed within the Fourteenth Amendment’s
protection of ‘life, liberty, or property,’ and (2) the procedures available to him did not provide
him ‘due process of law.’” Hill v. Borough of Kutztown, 455 F.2d 225, 233–234 (3d Cir. 2006).
As discussed above, a plaintiff must demonstrate a legitimate claim of entitlement in order to have
a property interest in a benefit. See Baraka, 481 F.3d at 205 (3d Cir. 2007).
In briefing the validity of Count Two of the Amended Complaint, the parties focus on the
first element. Like their argument in Count Three discussed above, Plaintiffs contend that they
were denied an interest in property, particularly their share of any proceeds the City would recover
if the proposed action were brought and the City prevailed in that action. For the same reasons
discussed above, Plaintiffs have failed to identify a cognizable property interest of which they were

deprived and thus fail to state a claim upon which relief may be granted.
3. Count Four: First Amendment
The First Amendment provides that “Congress shall make no law . . . abridging the
freedom of speech . . . or the right of the people to peacefully assemble.” U.S. Const. amend. I.
“As a general matter, the First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content.” United States v.
Marcavage, 609 F.3d 264, 279 (3d Cir. 2010) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573
(2002)).
The Third Circuit has explained that there are two types of First Amendment challenges:
(1) a facial challenge and (2) an as-applied constitutional challenge. See Marcavage, 609 F.3d at
273–74. “A facial attack tests a law’s constitutionality based on its text alone and does not
consider the facts or circumstances of a particular case. An as-applied attack, in contrast, does not

contend that a law is unconstitutional as written but that its application to a particular person under
particular circumstances deprived that person of a constitutional right.” Id.
In addressing the merits of a facial versus an as-applied challenge, the court must apply the
“relevant constitutional test to the challenged statute.” Bruni v. City of Pittsburgh, 824 F.2d 353,
363 (3d Cir. 2016). To do so, the First Amendment requires the court to draw a distinction between
content-based laws and content-neutral laws. Id. A content-based law “encompass[es] restrictions
not only on ‘particular viewpoints’ but also ‘an entire topic.’” Marcavage, 609 F.3d at 279–80
(quoting Consol. Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 537 (1980)). To safeguard
against content-based restrictions on speech, a court must apply strict scrutiny. Reed v. Town of
Gilbert, 576 U.S. 155, 163–4 (2015). A content-based law only survives strict scrutiny if it meets

three requirements: “[it] serves a compelling government interest; (2) is narrowly tailored to
achieve that interest; and (3) is the least restrictive means of advancing that interest.” Free Speech
Coal., Inc. v. Attorney Gen. United States, 974 F.3d 408, 420 (3d Cir. 2020).
On the other hand, a law is content neutral if the speech restrictions “are justified without
reference to the content of the regulated speech.” Marcavage, 609 F.3d at 279–80 (citing City of
Renton v. Playtime Theatres, 475 U.S. 41, 48 (1986)). In other words, a content-neutral law
“applies to all speech irrespective of the ideas or views expressed.” Galena v. Leone, 711 F. Supp.
2d. 440, 452 (W.D. Pa. 2010), aff’d, 638 F.3d 186 (3d. Cir. 2011). If a law is determined to be
content-neutral, the court must “apply intermediate scrutiny and ask whether it is ‘narrowly
tailored to serve a significant governmental interest.’” Bruni, 824 F.3d at 363–64 (quoting Madsen
v. Women’s Health Ctr., Inc., 512 U.S. 753, 764 (1994)).
In Count Four of the Amended Complaint, Plaintiffs challenge the Ordinance’s
confidentiality clause pursuant to the First Amendment, alleging both facial and as-applied

challenges. Specifically, Plaintiffs argue that the Ordinance’s confidentiality clause, “on its face
and as applied,” is “irrational and unreasonable,” “unconstitutionally overbroad” and “vague,” and
is neither “narrowly tailored nor the least restrictive means to accomplish any permissible
government purpose sought to be served.” (Am. Compl. ¶ 196–99.) Although both challenges
can be raised, a facial challenge’s “burden is significantly heavier” than that of an as-applied
challenge. Marcavage, 609 F.3d at 273. Therefore, I will address Plaintiffs’ facial challenge first
and then their as-applied challenge.
a. Facial Challenge
To succeed on a facial challenge, a plaintiff must demonstrate “that no set of circumstances
exists under which the [law] would be valid.” Marcavage, 609 F.3d at 273; see also United States

v. Mitchell, 652 F.3d 387, 405 (3d Cir. 2011) (en banc). Simply put, Plaintiffs would have to show
that the “law is unconstitutional in all of its applications.” Id. “This is the ‘most difficult challenge
to mount successfully.’” Mitchell, 652 F.3d at 405 (quoting United States v. Salerno, 481 U.S.
739, 745 (1987)). When assessing a facial challenge, the court must consider the law’s
constitutionality based on its text alone, without considering the facts or circumstances of the case.
Marcavage, 609 F.3d at 273.
Plaintiffs’ facial attack on the Ordinance’s confidentiality clause urges that the Ordinance’s
text alone is unconstitutional. The relevant clause states:
(c) Information submitted by a person in support of a complaint, and
information gathered as a result of the City Solicitor’s or other City
officer’s investigation of the complaint, shall be confidential and
protected from disclosure to the fullest extent permitted under
applicable law.

Phila. Code § 19-3603(2)(c).

Plaintiffs argue that strict scrutiny must apply because the text of this clause
unconstitutionally restricts their speech and that of the general public. In turn, they contend that
the Ordinance’s text is not “narrowly tailored nor the least restrictive means to accomplish any
permissible government purpose sought to be served.” (Am. Compl. ¶ 198.) Defendants counter
that only intermediate scrutiny applies and that the confidentiality clause serves a significant
governmental interest.
I find that Defendants’ position has merit. As a primary matter, the text of the Ordinance’s
confidentiality clause does not discriminate against speech based on its substance, ideas, or views.
Rather, it “applies to all speech irrespective of the ideas or views expressed.” Galena, 711 F. Supp.
2d. at 452. Therefore, since this law is content-neutral, intermediate scrutiny applies.
The question then becomes whether the law is narrowly tailored to serve a significant
governmental interest. Defendants maintain that the confidentiality clause serves a significant
governmental interesting by protecting and preserving “the confidentiality of allegations of fraud,
subject to reasonable limitations.” (Defs.’ Br. in Opp’n 19.) They explain that the confidentiality
clause is “. . . intended to preserve a reasonable period for evaluation and to prevent the
dissemination of information relevant to the claimed fraud.” Id. at 19–20. In light of the
governmental interests proffered by Defendants, I conclude that the Ordinance’s confidentiality
clause serves a significant governmental interest. Cf. ACLU v. Holder, 673 F.3d 245, 253–54 (4th
Cir. 2011) (rejecting a First Amendment challenge to the seal requirement under 31 U.S.C.
§3730(b)(2) and finding the Federal Act’s seal provisions to be “narrowly tailored in three
important ways . . . including a narrow window of time (i.e. 60 days) in which the seal provisions
are mandatory, [a mandated] judicial review at the end of the 60-day period,” and a limitation only
applied to the relator from “publicly discussing the filing of the qui tam complaint”). For that
reason, Plaintiffs fail to state a claim upon which relief can be granted for a facial challenge under

the First Amendment.
b. As-Applied Challenge
Unlike a facial challenge, “[a]n as-applied attack . . . does not contend that a law is
unconstitutional as written but that its application to a particular person under particular
circumstances deprived that person of a constitutional right.” Marcavage, 609 F.3d at 273. As
discussed above, all First Amendment challenges are subject to varying levels of scrutiny. See
Bruni, 941 F.3d at 83.
Plaintiffs assert that strict scrutiny must also be applied to their as-applied challenge.
Again, I disagree. The Ordinance’s confidentiality clause, as applied to the Plaintiffs in this case,
is not content-based because the confidentiality requirement does not depend on the facts or

circumstances of Plaintiffs’ proposed complaint. Rather, the confidentiality requirement applies
regardless of what information Plaintiffs’ proposed complaint contains. Therefore, I must apply
intermediate scrutiny to this content-neutral statute. See Free Speech Coal., v. Attorney Gen. of
U.S., 677 F.3d 519, 535 (3d Cir. 2012) (citing Holder v. Humanitarian Law Project, 561 U.S. 1,
130 (2010)).
Plaintiffs contend that the City Solicitor adopted an unconstitutional interpretation of the
Ordinance’s confidentiality clause specifically as it applied to their proposed complaint. (Am.
Compl. ¶ 199.) Defendants argue that “it was entirely reasonable . . . to expect plaintiffs to honor
the confidentiality provisions of the ordinance under which they sought to proceed by filing their
complaint under seal.” (Defs.’ Reply Br. 8.) Even viewing the facts in the light most favorable to
Plaintiffs, I find that the Ordinance, as applied to Plaintiffs, is narrowly tailored to the same
significant governmental interests mentioned above, including preventing the dissemination of
information and allowing a reasonable period for evaluation. Therefore, Plaintiffs fail to state a

claim upon which relief can be granted for an as-applied challenge under the First Amendment.
4. Count Five: State Claim for Judicial Review De Novo 1

In Count Five of the Amended Complaint, Plaintiffs seek de novo review of the City
Solicitor’s denial pursuant to Pennsylvania Local Agency Law, 42 Pa. Cons. Stat. §101. Plaintiffs
allege that I “may hear the appeal of this adjudication de novo, without respect to the Defendants’
underlying proceedings or determination, under 42 Pa. C.S. §754.” (Am. Compl. ¶ 210.) In order
to address the sufficiency of Plaintiffs’ claim, I must first determine if Pennsylvania’s Local
Agency Law applies to the underlying dispute.
Section 752 of the Pennsylvania Local Agency Law states, in pertinent part, that
“[a]ny person aggrieved by an adjudication of a local agency who has a direct interest in the
adjudication shall have the right to appeal therefrom.” 2 Pa. Cons. Stat. § 752. Section 101 of the
Pennsylvania Administrative Agency Law defines the term “adjudication” as:
Any final order, decree, decision, determination or ruling by
an agency affecting personal or property rights, privileges,
immunities, duties, liabilities or obligations of any or all of the
parties to the proceeding in which the adjudication is made. The
term does not include any order based upon a proceeding before a
court or which involves the seizure or forfeiture of property, paroles,
pardons or releases from mental institutions.

2 Pa. Cons. Stat. §101.

1 In Counts Six and Seven, Plaintiffs allege state claims regarding breach of contract and
unjust enrichment. However, in their April 24, 2019 Brief in Opposition to Defendants’ Motion
to Dismiss, Plaintiffs concede that these counts fail to state a claim for relief. (Pls.’ Br. in Opp’n.
¶11.) Therefore, I will dismiss these claims.
Additionally, § 101 defines an “agency” as “[a] government agency,” which is “[a]ny
Commonwealth agency or any political subdivision or municipal or other local authority, or any
officer or agency of any such political subdivision or local authority.” Id. Thus, “to be an
adjudication, [1] the action ‘must be an agency’s final order, decree, decision, determination or
ruling and . . . [2] it must impact on a person’s personal or property rights, privileges, immunities,
duties, liabilities or obligations.’” Guthrie v. Borough of Wilkinsburg, 478 A.2d 1279, 1281 (Pa.
1984).
In light of the foregoing, Plaintiffs must establish that the City Solicitor qualifies as an
“agency” and that its decision regarding the proposed complaint under the Ordinance was an

“adjudication,” i.e. that there was a final order, which impacts Plaintiffs’ personal or property
rights. The City Solicitor’s Office qualifies as an “agency,” and thus, the first requirement is
satisfied. Regarding the second, Plaintiffs argue that the City Solicitor’s decision was the final
determination regarding their proposed complaint and, therefore, they have plausibly pled this
requirement. However, Plaintiffs fail to address the second aspect of the adjudication requirement.
As discussed above, Plaintiffs cannot have a cognizable property interest in potential proceeds.
Therefore, Plaintiffs’ claim does not meet the requirements of an “adjudication” under
Pennsylvania’s Local Agency Law, and Plaintiffs have failed to state a claim upon which relief
may be granted.
5. Conclusion
For the reasons set forth above, I conclude that Plaintiffs’ claims in the Amended
Complaint are insufficiently pled under Twombly and Iqbal. Therefore, I will grant Defendants’
Motion to Dismiss.2

III. PLAINTIFFS’ MOTION FOR LEAVE TO FILE SECOND AMENDED
COMPLAINT

A. Standard of Review: Federal Rule of Civil Procedure 15

Pursuant to Federal Rule of Civil Procedure 15, a plaintiff is entitled to amend the
complaint once as a matter of course. See Fed. R. Civ. P. 15(a)(1). Subsequently, “a party may
amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R.
Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. However, “a
district court has discretion to deny a request to amend if it is apparent from the record that (1) the
moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment
would be futile, or (3) the amendment would prejudice the other party.” Fraser v. Nationwide
Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2004). “‘Futility’ means that the complaint, as amended,
would fail to state a claim upon which relief could be granted. In assessing futility, courts apply
the same standard of legal sufficiency as applied under [Fed. R. Civ. P.] 12(b)(6). Accordingly, if
a claim is vulnerable to dismissal under Rule 12(b)(6), but the plaintiff moves to amend, leave to
amend generally must be granted unless the amendment would not cure the deficiency.” Shave v.
Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citing In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1434 (3d Cir. 1997)).

2 In Defendants’ April 10, 2019 Motion to Dismiss, they also moved, under Fed. R. Civ. P.
12(f) to strike certain paragraphs from Plaintiffs’ Amended Complaint. In light of my ruling to
grant Defendants’ Motion to Dismiss, the Motion to Strike will be denied as moot.
B. Discussion
1. Counts One and Three: Substantive Due Process
In Count One of the proposed Second Amended Complaint, Plaintiffs continue to challenge
the Ordinance on substantive (legislative) due process grounds. They propose, however, that their

claims should be “subject to strict scrutiny” instead of rational basis review because it triggers a
“fundamental right” of “access to the courts.” (Proposed Second Am. Compl. ¶¶ 158, 161).
Plaintiffs’ argument for heightened scrutiny rests on the allegation that court access is a
fundamental right.
I find that any such amendment would be futile on these grounds. The Third Circuit has
recognized that strict scrutiny applies only when a fundamental right is triggered. Alexander, 114
F.3d at 1403. The due process clause merely “assures that no person will be denied the opportunity
to present to the judiciary allegations concerning violations of fundamental constitutional rights.”
Wolff v. McDonnell, 418 U.S. 539, 579 (1974). Embedded in that assurance is the underlying
concept that court access is guaranteed only when a fundamental constitutional right is at stake.

In their new allegation, Plaintiffs fail to identify what fundamental constitutional right
permits them access to the courts. Defendants correctly point out that the right to court access is
only triggered when “necessary to protect some independent right that is fundamental” and “the
right of court access is not such a fundamental right.” (Defs.’ Br. in Opp’n 12). Because access
to the courts is not a fundamental right that would trigger strict scrutiny review and Plaintiffs fail
to identify such a right, Plaintiffs’ claim is still subject to rational basis review, which I discuss
above. For those same reasons, I conclude that Plaintiffs’ proposed amendment of the substantive
(legislative) due process claim fails to cure the deficiencies in the Amended Complaint and, as
stated, fails to support a claim upon which relief can be granted.
Plaintiffs’ non-legislative substantive due process claim in Count Three likewise fails to
allege a protected property interest. Rather, Plaintiffs continue to assert a claim of entitlement to
their “property interest in the bounty.” (Proposed Second Am. Compl. ¶ 178.) As discussed above,
Plaintiffs have failed to plausibly establish a protected property interest in potential proceeds that

would satisfy the elements of a non-legislative substantive due process claim. For those same
reasons, this claim remains insufficiently pled under Rule 12(b)(6) and is therefore futile.
2. Count Four: Procedural Due Process

Plaintiffs also assert that their procedural due process claim in Count Four of the proposed
Second Amended Complaint is now plausibly pled. Plaintiffs, however, offer no new allegations
to rectify the deficiencies I have identified above. Rather, Plaintiffs continue to allege that they
“have a cognizable property interest in the bounty.” (Id. at ¶ 191.) For the reasons discussed
above, Plaintiffs have not plausibly established a protected property interest that would satisfy the
elements required. Therefore, amendment of this claim would be futile in light of the deficiencies
previously identified.
3. Counts Five and Six: First Amendment

Count Five of the proposed Second Amended Complaint asserts a new First Amendment
challenge. Plaintiffs argue that the Ordinance’s “unlimited-scope confidentiality” clause, as
detailed above, infringes on the public’s constitutional right to access court records. (Proposed
Second Am. Compl. ¶ 200–2.) Specifically, they allege that the confidentiality clause “prevents
the public meaningful access to documents required to be in the public eye.” (Id. at ¶ 206.)
Defendants respond that Plaintiffs do not have standing to assert a First Amendment challenge on
behalf of the public. (Defs.’ Br. in Opp’n 21.)
The Third Circuit has addressed the standing requirement in First Amendment cases. As a
general matter, a plaintiff cannot assert “the legal rights or interests of third parties.” The Pitt
News v. Fisher, 215 F.3d 354, 363 (3d Cir. 2000) (quoting Secretary of State of Maryland v. Joseph
H. Munson Co., Inc., 467 U.S. 947, 955 (1975)). Nevertheless, a relaxed standing requirement

may be appropriate in challenges to “overbroad restriction[s] on First Amendment rights.” Id. “In
determining whether a litigant should be able to assert third-party rights, a crucial factor is ‘the
impact of the litigation on the third-party interests.’” Id.
The confidentiality clause at issue has little to no impact on any third-party interests.
Defendants point out that “Plaintiffs have not identified any particular member of the general
public that actually desired to access the filings in this case during the limited period of time (28
days) in which it was under seal.” (Defs.’ Br. in Opp’n 21.) I agree. Plaintiffs fail to articulate
the impact on any third-party interests and thus cannot establish standing to bring the amended
claim on behalf of the public. The proposed amendment cannot survive a motion to dismiss and
is therefore futile.

Plaintiffs’ First Amendment claim in Count Six of the proposed Second Amended
Complaint alleges the same constitutional violations as Count Four of the Amended Complaint.
In their proposed amendment, Plaintiffs narrow their claim to only include an as-applied First
Amendment challenge. They continue to challenge the City Solicitor’s alleged interpretation of
the Ordinance’s confidentiality clause. (Proposed Second Am. Compl. ¶ 212.) As previously
discussed, I must apply intermediate scrutiny to the challenged content-neutral regulation. See
Free Speech Coal., 677 F.3d at 535. Given the same governmental interests offered in support of
this regulation in Count Four of the Amended Complaint, I conclude that the Ordinance’s
confidentiality clause is narrowly tailored as it applies to Plaintiffs. For the same reasons, the
allegations in the proposed amendment do not satisfy the required elements of this claim, as
outlined above, and amendment is therefore futile.
4. Counts Two and Seven: State Claims

Plaintiffs also seek to bring a new claim under Pennsylvania state law pursuant to the
Remedies Clause of the Pennsylvania Constitution. The Remedies Clause, in relevant part, states
that “[a]ll courts shall be open; and every man for an injury done him in his lands, goods, person
or reputation shall have remedy by due course of law . . .” Pa. Const. art. I § 11. The Supreme
Court of Pennsylvania has recognized that “[i]t is the constitutional right of every person who finds
it necessary or desirable to repair to the courts for the protection of legally recognized interests to
have justice administered without sale, denial or delay”; yet, the Remedies Clause “can be invoked
only with respect to a legal injury.” Masloff v. Port Auth. of Allegheny Cty., 613 A.2d 1186, 1190
(1992) (internal quotation marks omitted).
Plaintiffs allege that they “suffered legal injury both in their denial of their right to a partial-
assignment of the City’s damages claim, but also in their right to restoration of employment rights

under the FCO’s [False Claim Ordinance’s] retaliation provisions.” (Proposed Second Am.
Compl. ¶ 171.) In response, Defendants maintain that “Plaintiffs do not have any ‘vested right’ to
bring an FCO lawsuit on behalf of the City, nor do they have any vested right in the non-existent
‘bounty.’” (Defs.’ Br. in Opp’n 23.) Having previously found that Plaintiffs have no legitimate
claim of entitlement to potential proceeds or bounty from a possibly successful lawsuit, I likewise
cannot find they were denied a right to such potential proceeds. Therefore, I find that Plaintiffs
cannot plead a legal injury that would trigger the Remedies Clause of the Pennsylvania
Constitution. In sum, Plaintiffs’ allegations cannot satisfy the required elements of this claim and
thus fail to state a claim upon which relief can be granted.
Finally, Plaintiffs argue that the proposed Second Amended Complaint plausibly pleads
their claim for de novo review under Pennsylvania’s Local Agency Law in Count Seven of the
proposed Second Amended Complaint. However, they offer no new allegations to cure the
deficiencies identified above. Having previously found this claim to fail under Rule 12(b)(6)’s

motion to dismiss standard, I find the amendment to be futile.
IV. CONCLUSION

For the foregoing reasons, I will (1) grant Defendants’ Motion to Dismiss Plaintiffs’
Amended Complaint; and (2) deny Plaintiffs’ Motion for Leave to File a Second Amended
Complaint.
An appropriate Order follows.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10400155. Public record. Not legal advice.