NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-1008

_____________

ANDREW J. DANKANICH; NICHOLAS A. MARRANDINO, 

 Appellants

v.

MARCEL PRATT, City Solicitor of Philadelphia; CITY OF PHILADELPHIA 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-19-cv-0735)

District Judge: Honorable Mitchell S. Goldberg 

_______________

Submitted Under Third Circuit LAR 34.1(a)

November 19, 2021

Before: AMBRO, JORDAN, and ROTH, Circuit Judges

(Filed: December 9, 2021)

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OPINION

_______________

JORDAN, Circuit Judge.

Andrew Dankanich and Nicholas Marrandino, two former Philadelphia Parking 

Authority (“PPA”) employees, sought to bring a qui tam complaint on behalf of the City 

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent. 
2

of Philadelphia against high-ranking PPA officials. When the City Solicitor’s Office 

declined to authorize their suit or have the City itself file suit, they sued the City and its

then-Solicitor, Marcel Pratt. On appeal, Dankanich and Marrandino argue that the 

District Court improperly dismissed their First Amendment and Pennsylvania Local 

Agency Law (“LAL”) claims. We will affirm.

I. BACKGROUND 

Dankanich and Marrandino (the “Appellants”) worked for the PPA until being

terminated in 2017. During their tenure, they became aware of what they describe as a 

“conspiracy” among high-ranking PPA officials to fraudulently secure contracts worth 

roughly $100 million for a company called Conduent State and Local Services, Inc. to 

service the PPA’s Red Light Camera program.1 The Appellants claim that Conduent 

received the contracts despite being unqualified and that, due to the corrupt scheme, the 

City failed to collect millions of dollars in penalties that Conduent owed.

The Appellants decided to challenge that misconduct by bringing a qui tam

complaint under Philadelphia’s False Claims Ordinance, Phila., Pa., Code §§ 19-3601 to 

-3606. That ordinance allows “[a]ny person” to submit to the City Solicitor a proposed 

complaint seeking to recover, on the City’s behalf, any fraudulently acquired City 

property or money. Id. §§ 19-3602, -3603(2). The City Solicitor is authorized to 

investigate the complaint and may take one of four actions: bring a civil lawsuit on 

1 The Red Light Camera program enables the City of Philadelphia to use an 

“automated red light enforcement system” operated by the PPA to record traffic 

violations. 75 Pa. Cons. Stat. § 3116(a), (h).
3

behalf of the City; designate the person who brought the complaint to sue in the name of 

the City, in which case the City Solicitor may still dismiss the action at any point and still 

retains “sole authority” over settlement; take no action at all; or “[p]roceed in any other 

manner the City Solicitor deems appropriate.” Id. § 19-3603(2), (6)(b). The complainant

is entitled to receive a share of the proceeds from any successful suit based on his 

complaint, as set by a court within a statutory range. Id. § 19-3603(8). Relevant to the 

Appellants’ First Amendment claim here, the ordinance also requires that all 

“[i]nformation submitted by a person in support of a complaint” or “gathered as a result 

of the City Solicitor’s ... investigation” be kept “confidential and protected from 

disclosure to the fullest extent permitted under applicable law.” Id. § 19-3603(2)(c).

The Appellants submitted a proposed complaint in October 2018. The City, 

through the Solicitor’s Office, declined to either designate the Appellants to file the 

complaint or to bring suit itself, as it concluded that “the False Claims [Ordinance] did 

not apply” to the allegations. (J.A. at 41 ¶ 45.) Because the Commonwealth of 

Pennsylvania rather than the City ran the PPA’s Red Light Camera program, the City 

determined that it could not claim that it was defrauded even if the allegations were 

true.

2

2 The Appellants contest that legal conclusion in both their complaint and their 

briefing before us. The City defends its rationale for the denial. We do not consider the

issue, as we hold that the Appellants did not have a cause of action under the LAL,

regardless of the merits of the denial.
4

Unsatisfied with the denial, the Appellants informed the City Solicitor’s Office of 

their intent to file the present suit against the City and Solicitor Pratt in his official 

capacity. In response, attorneys for the City “demand[ed]” that the Appellants correct

their “current proposed filings[,]” which referenced “discussions [the Appellants] had 

with the City Solicitor’s office” and “information [they] plan[ned] to include in the 

proposed [qui tam] complaint against the Parking Authority and other parties[.]” (J.A. at 

57 ¶ 135.) Those allegations, the attorneys asserted, did not comply with the 

confidentiality restrictions of the False Claims Ordinance applicable to “any information 

shared with the City in support of a proposed complaint[.]” (J.A. at 57 ¶ 135.) When the 

Appellants pushed back, they were told that “the City has made clear to you its position 

and you will proceed at your own risk.” (J.A. at 57 ¶ 136.) The Appellants interpreted 

that “stern warning” as “requir[ing]” them to file the lawsuit under seal, which they 

did. (J.A. at 58 ¶ 137.) Three weeks after they initiated the suit, the Appellants filed a 

consent motion to unseal the case, and the District Court granted it. 

The Appellants alleged that the City’s failure to authorize them to file the 

proposed complaint or to itself bring suit violated their procedural and substantive due 

process rights, breached a contract, and caused unjust enrichment. They also challenged

the City’s decision under the LAL, 2 Pa. Cons. Stat. §§ 551-555, 751-754. Finally, they

asserted that the requirement in the False Claims Ordinance that “any information shared 

with the City Solicitor” be kept confidential constituted a violation of their First 

Amendment free speech rights, both facially and as applied. (J.A. at 65-66.)
5

The City moved to dismiss all the claims for failure to state a claim, and the 

District Court granted that motion in December 2020. This timely appeal followed. The 

Appellants only contest the dismissal of their First Amendment and LAL claims.

3

 

II. DISCUSSION4

A. First Amendment claim

As a threshold matter, the City asks us to affirm the dismissal of the First 

Amendment claim because the Appellants lack standing.5 The Appellants, however, have 

alleged a “specific present objective harm or a threat of specific future harm” sufficient to 

establish standing. Sherwin-Williams Co. v. County of Delaware, 968 F.3d 264, 269-70 

(3d Cir. 2020) (citation omitted). The City, through counsel, “made clear” its position 

that the Appellants had to keep certain information confidential. (J.A. at 57-58 ¶¶ 136-

3 The Appellants abandon their due process, contract, and quasi-contract claims. 

They also do not contest the District Court’s denial of their motion for leave to file a 

second amended complaint. 

4 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, as 

further detailed herein. We have appellate jurisdiction under 28 U.S.C. § 1291. “We 

review de novo a district court’s grant of a motion to dismiss for failure to state a 

claim[.]” Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014) 

(citation omitted). We look to see if, “tak[ing] as true” all factual allegations in the 

complaint and any “reasonable inferences that can be drawn from them,” the complaint 

“state[s] a claim to relief that is plausible on its face.” Santiago v. Warminster Township, 

629 F.3d 121, 128 (3d Cir. 2010) (citation omitted). “We may affirm the district court on 

any ground supported by the record.” Joyce v. Maersk Line Ltd, 876 F.3d 502, 512 n.11 

(3d Cir. 2017).

5 While this issue was not raised below, “standing is not subject to waiver,” as we 

have an “independent obligation” to assure ourselves of our jurisdiction. United States v. 

Hays, 515 U.S. 737, 742 (1995) (citation omitted).
6

37.) Failure to obey was “at [their] own risk,” a “stern warning” made real by the 

possibility of $300-a-day fines. (J.A. at 57-58 ¶¶ 136-37.) See Phila. Code § 1-109(1). 

For several weeks until the complaint was unsealed, the Appellants stayed silent out of a 

fear of punishment from the City, and they thus suffered a First Amendment injury. See 

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159-61 (2014) (noting that plaintiffs 

who “ha[ve] been warned to stop” protected expression and “desire to continue” 

speaking, but stop to avoid punishment, have standing to sue (citation omitted)).

The Appellants’ facial challenge, however, fails on the merits because it cannot

meet the high bar of alleging that “no set of circumstances exist under which the [False 

Claims Ordinance] would be valid[,]” or, at least, that the ordinance is “overbroad 

because a substantial number of its applications are unconstitutional[.]” United States v. 

Marcavage, 609 F.3d 264, 273 (3d Cir. 2010). The Appellants themselves concede that 

the ordinance “may ... meet strict scrutiny” in certain circumstances.6 (Opening Br. at 

11, 24.) Moreover, it only requires confidentiality “to the fullest extent permitted under 

applicable law,” limiting itself on its face to lawful applications. Cf. Bldg. & Const. 

Trades Dep’t v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002) (reading executive order that 

required agencies to execute policies “[t]o the extent permitted by law” as self-limited to 

mandating lawful actions, given that the order “itself instruct[ed] ... agenc[ies] to follow 

6 The District Court applied intermediate scrutiny to the First Amendment claim, 

but the Appellants argue that it should have used strict scrutiny instead. The City does 

not defend the Court’s tiers-of-scrutiny analysis. We need not reach the issue because the

claim fails under any standard.
7

the law”). The ordinance is therefore not “unconstitutional in all its applications,” or 

even in a “substantial number” of them. Marcavage, 609 F.3d at 273.

The as-applied challenge, meanwhile, fails to establish municipal liability under 

Monell because the Appellants do not allege any unconstitutional “policy or custom[.]”

7

 

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). They point to emails from the 

City’s attorneys demanding that they keep information confidential and stating that “the 

City has made clear ... its position[.]” (J.A. at 57 ¶¶ 135-36.) The Appellants thus insist 

that the attorneys had announced an “official interpretation” of the False Claims 

Ordinance. (Reply Br. at 10-13.)

Even if that were so, it is not enough. An interpretation in one instance does not 

amount to a policy or custom. Those emails reflect the City’s position on confidentiality 

in this specific case, not an official position on the interpretation of the ordinance

generally. “A mere legal position, without anything more, is insufficient to constitute an 

official policy,” Teesdale v. City of Chicago, 690 F.3d 829, 837 (7th Cir. 2012), and the 

Appellants do not point to any unconstitutional City conduct beyond the decision leading 

to this case.8 See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (holding 

7 Because Pratt was sued in his official capacity, the suit is “treated as if” it was 

brought only against the City. McGreevy v. Stroup, 413 F.3d 359, 369 (3d Cir. 2005).

8 The claim also fails under Monell because a law firm retained by the City to deal 

with the Appellants’ demands does not have “final policymaking authority[,]” so outside 

counsel’s actions cannot be imputed to the City. Simmons v. City of Philadelphia, 947 

F.2d 1042, 1062 (3d Cir. 1991); Phila. Code § 3-101 (The City Solicitor “shall exercise 

the powers and perform the duties vested in and imposed upon the [Law] 

[D]epartment[.]”).
8

that “a single incident of unconstitutional activity is not sufficient to impose liability 

under Monell” absent evidence that the incident was caused by an existing policy).

B. Local Agency Law claim

Both sides argue, for different reasons, that we should dispose of the LAL claim 

on jurisdictional grounds rather than reaching its merits. Both are wrong. 

The City contends that the LAL claim is “wholly unrelated” to the only federal 

claim still in play: the First Amendment claim, which is based on separate events that 

occurred weeks after the denial of the proposed qui tam complaint. (Answering Br. at 

21-22.) It says the District Court would thus have no basis for supplemental jurisdiction 

on remand. But it is a “hornbook rule” that jurisdiction is assessed as of “the date of 

filing.” Nuveen Mun. Tr. ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith 

Brown, P.C., 692 F.3d 283, 299-300 (3d Cir. 2012). The Appellants initially alleged 

federal due process claims based on the denial of their proposed complaint, and original 

jurisdiction over those claims existed pursuant to 28 U.S.C. § 1331. The LAL claim 

challenging that same denial “derive[s] from a common nucleus of operative fact” as the

due process claims, so supplemental jurisdiction under 28 U.S.C. § 1367(a) was plainly 

proper at the outset of the case. City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 

164-66 (1997).

On the other side, the Appellants argue for the first time on reply that, once the 

District Court disposed of all the federal claims, it should have declined to exercise 

supplemental jurisdiction under 28 U.S.C. § 1367(c) and so should have dismissed the 

LAL claim on that basis rather than rejecting it on the merits. That, the Appellants say, 
9

would have allowed “Pennsylvania [c]ourts to properly resolve” the claim. (Reply Br. at 

8-9.). But they forfeited their “challenge to the district court’s discretionary exercise of 

supplemental jurisdiction over [their claim] because [they] failed to object in that court.” 

Powers v. United States, 783 F.3d 570, 576 (5th Cir. 2015). “Now that the district court 

has resolved [the] claim[] against them” on the merits, the Appellants “must live with the 

consequences of [their] strategic decision.” Int’l Coll. of Surgeons v. City of Chicago, 

153 F.3d 356, 366 (7th Cir. 1998), on remand from Int’l Coll. of Surgeons, 522 U.S. 156 

(1997).

On the merits, the parties dispute whether the Appellants’ interest in the potential 

proceeds of their qui tam complaint was protected by the LAL, such that the City 

Solicitor’s denial of their complaint was an “adjudication” from which the Appellants can

seek relief.

9 The City claims that Pennsylvania courts “uniformly h[o]ld that, to be 

adjudicatory, a decision must impact a property interest protected by due process.” 

(Answering Br. at 19.) Relying on dictum in Pennsylvania Game Commission v. Marich, 

666 A.2d 253, 257 (Pa. 1995), the Appellants respond that the LAL also applies to

9 Under the LAL, an appellant must be “aggrieved” by an “adjudication” of a 

“local agency” in which he has a “direct interest.” 2 Pa. Cons. Stat. § 752. An 

adjudication is “any final ... decision ... by an agency affecting personal or property 

rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties 

to the proceeding[.]” Id. § 101. The parties agree “that Dankanich and Marrandino are 

aggrieved; that the City and its Solicitor are local agencies subject to the Local Agency 

Law; and that the February 8, 2019 letter was a final decision.” (Answering Br. at 19.) 

The question, then, is whether the determination not to authorize a qui tam action was an 

“adjudication.”
10

interests such as privileges, which are covered even though they do not receive “the full 

panoply of due process protections[.]” (Opening Br. at 13; Reply Br. at 4-5.)

Even under the Appellants’ broader reading of the statute, however, any

contingent interest they may have had in the potential proceeds of a qui tam lawsuit is not 

covered by the LAL. That law does not protect “amorphous interests[,]” “theoretical”

possibilities, or “remote, future, indirect or speculative rights.” Guthrie v. Borough of 

Wilkinsburg, 478 A.2d 1279, 1282-83 (Pa. 1984). The Appellants’ right to receive an 

undetermined share of the proceeds in the event a lawsuit is permitted and succeeds is far 

too remote and speculative to constitute a protected interest.

10

 See Phila. Code § 19-

3603(2)(b), (4), (6)-(8); Bruno v. Zoning Bd. of Adjustment, 664 A.2d 1077, 1080 (Pa. 

Commw. Ct. 1995) (permit that “may be revoked at any time” “confers no vested right or 

privilege”); cf. United States ex rel. Bayarsky v. Brooks, 210 F.2d 257, 258 (3d Cir. 1954)

(qui tam plaintiff who has already filed a suit lacks a protected interest in his claim (citing 

U.S. ex rel. Rodriguez v. Wkly. Publ’ns, 144 F.2d 186, 188 (2d Cir. 1944)).

Finally, quoting Wortman v. Phila. Comm’n on Hum. Rels., 591 A.2d 331, 333 

(Pa. Commw. Ct. 1991), the Appellants argue that the City Solicitor’s denial is 

reviewable because it left them with “no other forum [in which] to assert their ‘rights, 

10 The Appellants also argue that, because an “adjudication” is a decision that 

affects the interests “of any ... part[y],” they can seek review by piggybacking off the 

City’s “[p]roperty [i]nterest in the [proposed] claim[.]” (Reply Br. at 7-8.) That is yet far

afield: even assuming the City can be a “party” to a decision of its own agency in a nonadversarial proceeding – a proposition for which the Appellants cite no authority – it is 

no “adjudication” for the City itself to decide not to file suit.
11

privileges, or immunities.’” (Opening Br. at 13, 17-19.) That argument reads Wortman

too narrowly and ignores the next sentence of the opinion, which reaffirms the principle 

that an agency decision is a reviewable adjudication only if it “impacts on a person’s 

personal or property rights, privileges, immunities, duties, liabilities, or obligations.” 

Wortman, 591 A.2d at 333. Ultimately, the Appellants’ inability to allege a protected 

interest dooms their LAL claim.

III. CONCLUSION

The District Court correctly dismissed the First Amendment and LAL claims. We 

will therefore affirm.