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. e du/thir dc ir c uit_1998/195CORRECTED OPINION

Filed August 11, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7153

ROLF LARSEN

v.

SENATE OF THE COMMONWEALTH OF PENNSYLVANIA; ROY C. AFFLERBACH; ANTHONY B. ANDREZESKI; GIBSON E. ARMSTRONG; EARL BAKER; ALBERT V. BELAN; CLARENCE D. BELL; LEONARD J. BODACK; MICHAEL E. BORTNER; DAVID J. BRIGHTBILL; J. DOYLE CORMAN; MICHAEL M. DAWIDA; MICHAEL

B. FISHER; VINCENT J. FUMO; STEWART J. GREENLEAF; MELISSA A. HART; DAVID W. HECKLER; EDWARD W. HELFRICK; EDWIN G. HOLL; ROXANNE H. JONES; ROBERT C. JUBELIRER; GERALD J. LAVALLE; CHARLES D. LEMMOND, JR.; H. CRAIG LEWIS; J. WILLIAM LINCOLN; F. JOSEPH LOEPER; ROGER

A. MADIGAN; BRUCE S. MARKS; ROBERT J. MELLOW; HAROLD F. MOWERY, JR.; RAPHAEL J. MUSTO; MICHAEL A. O'PAKE; FRANK A. PECORA; JOHN E.
PETERSON; EUGENE E. PORTERFIELD; TERRY L. PUNT; JEANETTE F. REIBMAN; JAMES J. RHOADES; ROBERT D. ROBBINS; FRANK A. SALVATORE; ALLYSON Y. SCHWARTZ; TIM SHAFFER; JOHN J. SHUMAKER; PATRICK J. STAPLETON, WILLIAM J. STEWART; J. BARRY STOUT; RICHARD TILGHMAN; JACK WAGNER; NOAH W. WENGER; HARDY WILLIAMS; SUPREME COURT OF PENNSYLVANIA; ROBERT NIX; JOHN FLAHERTY; STEPHEN ZAPPALA; NICHOLAS PAPADAKOS; RALPH CAPPY; FRANK MONTEMURO; RONALD CASTILLE; COMMONWEALTH OF PENNSYLVANIA COURT OF JUDICIAL DISCIPLINE; JOSEPH F. MCCLOSKEY; WILLIAM F. BURNS;DAWSON R. MUTH; PETER DEPAUL; CAROL K.

MCGINLEY, CHRISTINE L. DONOHUE; JUSTIN M. JOHNSON; WILLIAM CASSENBAUM; JUDICIAL CONDUCT BOARD; JOSEPH A. DEL SOLE; ARTHUR J. EDMUNDS

; DIANE M. EDMUNDSON; GERALD P. EGAN; JOHN W. HERRON; FREDERICK WELLS HILL; MATTHEW ANITA MACDONALD; GERALD J. O'CONNOR; ANDREW PALM;
CHARLES W. RUBENDALL, II; JAMES E. RUSSO, BERNARD C. WATSON; WILLIAM J. ARBUCKLE, III; BRUCE A. ANTKOWIAK; THOMAS A. BERGSTROM; ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS*; NANCY M. SOBOLEVITCH; DAVID A. FRANKFORTER, in their official and individual capacities;

INDIVIDUAL SENATORS

Chief Justice Robert N.C. Nix (retired), Chief Justice John Flaherty, Associate Justices Stephen Zappala, Nicholas Papadakos, Ralph Cappy and Ronald Castille, and Judge Frank Montemuro, *The Administrative Office of Pennsylvania Courts, Nancy M. Sobolevitch and David A. Frankforter,

Appellants

*Dismissed pursuant to Clerk order dated 6/27/97

On Appeal from the United States District Court for the Middle District of Pennsylvania (No. 95-CV-01540)

Argued May 19, 1998

BEFORE: SLOVITER, GREENBERG, and GIBSON,* Circuit Judges

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*Honorable John R. Gibson, Senior Judge of the Unit ed States Court of Appeals for the Eighth Circuit, sitting by designat ion.

2(Filed: August 11, 1998)

Arlin M. Adams (argued) Joseph T. Lukens Michael J. Barry Schnader, Harrison, Segal & Lewis, L.L.P. 1600 Market Street, Suite 3600 Philadelphia, PA 19103

Attorneys for Appellants
Individual Justices of the Supreme Court of Pennsylvania

Arthur G. Raynes

Harold I. Goodman Stephen E. Raynes Raynes, McCarty, Binder Ross & Mundy 1845 Walnut Street, Suite 2000 Philadelphia, PA 19103

Attorneys for Appellants
Individual Administrative Office

Defendants

Cletus P. Lyman (argued)
Michael S. Fettner Lyman & Ash
1612 Latimer Street Philadelphia, PA 19103

Attorneys for Appellee Rolf Larsen

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellants, present and former justices and court administrators of the Supreme Court of Pennsylvania
,

3appeal from the district court's February 28, 1997 order

denying their motion to dismiss appellee Rolf Larse n's claims against them on qualified immunity grounds. The district court had jurisdiction over Larsen's claim s pursuant to 28 U.S.C. S 1331 and 28 U.S.C.S 1343 as
Larsen states his claims under 42 U.S.C. S 1983 and 42 U.S.C. S 300bb. Jurisdiction over this appeal from a denial of qualified immunity rests on 28 U.S.C. S 1291 pur suant
to the collateral order doctrine. See Mitchell v. F orsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817 (1985). For the reasons that follow, we will affirm in part and rev erse in part the district court's denial of qualified immun ity and
will remand the case to the district court for furt her proceedings.

II. FACTUAL AND PROCEDURAL HISTORY

This case arises from appellants' June 1994 decisio n to terminate the medical insurance benefits of appelle e Rolf Larsen, a former justice of the Supreme Court of Pennsylvania, following his conviction on felony ch arges in the Allegheny County Court of Common Pleas and his suspension from office pursuant to an order of the Pennsylvania Court of Judicial Discipline. In Novem ber 1977, Larsen was elected to a ten-year term on the Pennsylvania Supreme Court beginning in January 197 8. In November 1987, Larsen won a retention election f or a second ten-year term beginning in January 1988. On December 12, 1989, toward the end of Larsen's 12th year as a Supreme Court justice, the Supreme Court adopt ed a benefits plan which provided lifetime medical insur ance benefits for retired judges with ten or more years of judicial service, regardless of their age. See app. at 93.

On July 17, 1991, the Pennsylvania Judicial Inquiry Review Board ("JIRB"), following an investigation i nto allegations of misconduct, reported to the Pennsylv ania Supreme Court that Larsen had created an appearance of impropriety by engaging in ex parte communications with a trial judge in a pending case. The JIRB recommended that Larsen be reprimanded publicly. See app. at 72. On October 14, 1992, the Supreme Court, acting through a panel of three justices, adopted the JIRB's recomme ndation

4and issued an order publicly reprimanding Larsen. S ee In

re Larsen, 616 A.2d 529 (Pa. 1992). Justices Zappal a and Cappy voted in favor of the order while Justice Pap adakos
dissented.

On November 24, 1992, Larsen filed a petition befor e the Supreme Court seeking the disqualification and recu sal of Justices Zappala and Cappy on the grounds that thes e justices, together with Chief Justice Nix and other individuals, had engaged in various forms of miscon duct involving ex parte communications, kickbacks, parti ality toward litigants and interference in pending cases. See app. at 72-73; 769. A grand jury then commenced a nine-m onth investigation into Larsen's accusations and on Nove mber 5, 1993, released a report stating that it had found e vidence of further wrongdoing by Larsen.1 The grand jury re ported that Larsen had maintained a list of petitions for allowance of appeal to be afforded special handling by his st aff and had obtained prescription tranquilizers for his own use by causing a physician to issue prescriptions in the n ames of members of his judicial staff. See app. at 76.

The Attorney General of Pennsylvania, acting on a presentment issued by the grand jury on October 22, 1993, brought criminal charges against Larsen relating to his unlawful acquisition of prescription medications. B y order dated October 28, 1993, the Supreme Court relieved Larsen of all judicial and administrative duties as a just ice, but did not suspend his pay. See app. at 76.

On November 23, 1993, the Pennsylvania House of Representatives adopted House Resolution Number 205 authorizing its judiciary committee to investigate Larsen. See app. at 77. That investigation culminated in a writ of impeachment summons which eventually resulted in Larsen's conviction on October 4, 1994. See app. at 790. Larsen has brought claims challenging various aspec ts of

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1. While the 1992 grand jury reported no evidence t o substantiate Larsen's accusations against the other justices, th e United States District Court for the Eastern District of Pennsylv ania later found that Chief Justice Nix had interfered substantially in a pending criminal case. See Yohn v. Love, 887 F. Supp. 773 (E.D. Pa. 1995), aff 'd in relevant part, 76 F.3d 508 (3d Cir. 1996).

5the impeachment proceedings. Those claims are the s ubject

of separate appeals before this court and thus we d o not address them in this opinion.

On April 9, 1994, after a five-day trial before the Court of Common Pleas of Allegheny County, a jury convicted Larsen of two counts of felony conspiracy for unlaw ful procurement of controlled substances. See app. at 7 7.2 On June 3, 1994, the Pennsylvania Court of Judicial Di scipline suspended Larsen from office without pay based on A rticle V, S 18(d)(2) of the Pennsylvania Constitution, whi ch authorizes orders "directing the suspension, with o r without pay, of any justice, judge or justice of the peace .. . against
whom has been filed an indictment or information ch arging a felony." See In re Larsen, 655 A.2d 239 (Pa. Ct. Judic. Disc. 1994).

The Court of Common Pleas sentenced Larsen on June 13, 1994, and as part of its sentence removed Larse n from judicial office pursuant to Article VI, S 7 of the Pennsylvania Constitution, which provides that, "[a]ll civil off icers shall hold their offices on the condition that they behav e themselves well while in office, and shall be remov ed on conviction of misbehavior in office or of any infam ous crime." See Larsen v. Senate of Pennsylvania , 646 A.2d 694, 697 (Pa. Commw. Ct. 1994).

In a letter dated June 17, 1994, David A. Frankfort er, Human Resources Manager for the Court Administrator of Pennsylvania, acting on behalf of Court Administrat or Nancy Sobolevitch and the justices of the Pennsylva nia Supreme Court, notified Larsen that he was ineligib le to receive retirement medical benefits as of June 3, 1 994, the date of the Court of Judicial Discipline order susp ending Larsen without pay. See app. at 94.

Until 1993, the Pennsylvania Constitution contained a provision mandating that, "[n]o compensation shall be paid to any justice, judge or justice of the peace who i s suspended or removed from office. . . ." Pa. Const. art. V,

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2. Larsen contended that the prescription tranquili zers were medically necessary and that he had them prescribed in the na mes of third parties to protect his privacy.

6S 16(b). In a 1992 decision, the Pennsylvania Supre me

Court, analyzing the language and history of that p rovision, held that its denial of "compensation" to suspended or removed judges did not encompass retirement benefit s. Thus, the court held that judges who had been remov ed
from office for misconduct could not be denied reti rement benefits based on that provision. See Glancey v. St ate Retirement Bd., 610 A.2d 15, 22-23 (Pa. 1992).

In 1993, section 16 was amended to provide that, "[e]xcept as provided by law, no salary, retirement benefit or other compensation, present or deferred, shall be p aid to any justice, judge or justice of the peace who . . . is suspended, removed or barred from holding judicial office." Pa. Const. art. V, S 16(b). Therefore, in contrast to the prior version of section 16(b) which addressed only "compensation," the 1993 version explicitly encompa ssed
retirement benefits and other forms of deferred compensation and provided for the denial of such be nefits upon removal.

Larsen commenced this action on September 13, 1995, by filing a complaint in the United States District Court for the Middle District of Pennsylvania under 42 U.S.C. S 1983 which, insofar as material to this opinion, alleged that appellants' June 17, 1994 decision to terminate his medical benefits violated his rights under the Impairment o f Contracts Clause, U.S. Const. Art. I, S 10, the Due Process and Equal Protection Clauses, U.S. Const. amend. XI V, S 1, the First Amendment, U.S. Const. amend. I, and the Public Health Services Act, 42 U.S.C. SS 300bb-1 et seq. Appellants moved to dismiss Larsen's claims on the grounds that his complaint failed to state a claim on which relief could be granted and that his claims were ba rred by the doctrine of qualified immunity. In an opinion a nd order dated February 28, 1997, the district court denied appellants' assertion of qualified immunity. See La rsen v. Senate of the Commonwealth of Pennsylvania, 955 F. Supp. 1549, 1580 n.31 (M.D. Pa. 1997). Appellants filed a timely notice of appeal on March 27, 1997.3

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3. By orders dated June 18, 1997, and September 30, 1997, this appeal was consolidated with, respectively, the appeals in numbers 97-7296 and 97-7451 which concern Larsen's challenge to his impeachment. This opinion, however, concerns only the appeal in numbe r 97-7153.

7III. DISCUSSION

A. Clearly Established Rights

Initially we set forth the framework for our analys is. In Seigert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 178 9, 1793 (1991), the Supreme Court explained that when a qua lified immunity defense is raised a court first should det ermine whether the plaintiff has asserted a violation of a constitutional right at all. Only if that question is answered affirmatively need the court determine whether the defendant is entitled to qualified immunity on the grounds that his conduct did "not violate clearly establish ed statutory or constitutional rights of which a reaso nable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). The Court re cently reaffirmed this principle in County of Sacramento v . Lewis, 118 S.Ct. 1708, 1714 n.5 (1998). In this case we la rgely focus on the second question because we are satisfi ed that except with respect to the equal protection of the law and the Public Health Services Act claims Larsen adequa tely asserted a violation of his constitutional rights.

In considering the second question we recognize tha t qualified immunity is from suit as well as from lia bility, so that "[u]nless the plaintiff 's allegations state a claim of violation of clearly established law, a defendant p leading qualified immunity is entitled to dismissal before the commencement of discovery." Mitchell, 472 U.S. at 5 26, 105 S.Ct. at 2815. For purposes of this appeal from the district court's denial of qualified immunity based upon the pleadings, we must accept Larsen's allegations as t rue and
afford him the benefit of all reasonable inferences . See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Appellant s' entitlement to qualified immunity under these stand ards is a question of law subject to plenary review. See Pr o v. Donatucci, 81 F.3d 1283, 1285 (3d Cir. 1996); Giuff re v. Bissell, 31 F.3d 1241, 1247 (3d Cir. 1994). 4

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4. The district court addressed the qualified immun ity issue as follows:

[appellants'] arguments in support of qualif ied immunity are
limited to the same arguments they assert in support of the outright

8A right is "clearly established" for qualified immu nity

purposes only if "[t]he contours of the right" are "sufficiently
clear that a reasonable official would understand t hat what he is doing violates that right." Anderson v. Creig hton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1982). Thus, defendants are entitled to qualified immunity if"re asonable officials in [their] position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful." In re City of Phila delphia Litig., 49 F.3d 945, 961 n.14 (3d Cir. 1995). Even where officials "clearly should have been aware of the go verning legal principles, they are nevertheless entitled to immunity if based on the information available to them they could
have believed their conduct would be consistent wit h those principles." Acierno v. Cloutier, 40 F.3d 597, 620 (3d Cir. 1994) (citations and internal quotations marks omit ted).

However, for reasonable officials to be on notice t hat their conduct would be unlawful, there need not be "a pre vious precedent directly on point." Acierno, 40 F.3d at 6 20; accord Anderson, 483 U.S. at 640, 107 S.Ct. 3039 (holding that the "clearly established" standard does not require that "the very action in question has previously been held un lawful"). Rather, there need only be "some but not precise fa ctual correspondence between relevant precedents and the conduct at issue," Pro, 81 F.3d at 1292 (citations and internal quotation marks omitted), so that "in the light of pre-existing law the unlawfulness [would be] appare nt." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. We mu st

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dismissal of Larsen's claims. As the court h as determined that

these arguments provide no basis upon which to dis miss Larsen's . . . claims, they also provide no basis upon whic h to afford [appellants] immunity from suit in their personal capacit ies.

Larsen, 955 F. Supp. at 1580 n.31. Thus the court d id not distinguish the issue of whether the complaint alleged viable c laims for purposes of Federal Rule of Civil Procedure 12(b)(6) from the i ssue of whether it alleged violations of clearly established rights wi thin the meaning of the qualified immunity doctrine. Our analysis largely t urns on a de novo inquiry as to the latter issue, see Mitchell, 472 U .S. at 526, 105 S.Ct.

at 2815, as we are satisfied that for the most part La rsen adequately has asserted a violation of his constitutional rights.

9determine, in light of these principles, whether La rsen

alleges violations of clearly established rights. 5

B. Impairment of Contracts Clause

Appellants contend that the district court erred in denying them qualified immunity as to Larsen's clai m that termination of his benefits violated his rights und er the Impairment of Contracts Clause, which provides that "[n]o state shall . . . pass any . . . Law impairing the Obligation of Contracts." U.S. Const. art. I, S 10. According to appellants, Larsen's right to receive those benefit s following his removal from office was not clearly established , since
reasonable officials could have believed either tha t Larsen was not eligible for benefits under the terms of th e benefits plan, or that Larsen, even if otherwise eligible fo r benefits, lawfully could be denied those benefits pursuant to the 1993 version of Article V, section 16, of the Penns ylvania Constitution which precludes payment of benefits to justices who have been removed from office.

1. Eligibility Under the Retirement Benefits Pla n

Appellants contend that Larsen fails to allege a cl early established right to receive retirement medical ben efits because, according to his complaint, the plan confe rring the right to those benefits applied only to "retire d" members of the judiciary. Thus, appellants argue, a reasona ble official "would have been justified in concluding t hat Larsen was not covered" by the terms of the benefits plan since he

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5. Larsen, br. at 14, contends that the doctrine of qualified immunity is inapplicable because appellants' revocation of his medical benefits involved "a ministerial, non-discretionary act." Se e People of Three Mile Island v. Nuclear Regulatory Comm'rs, 747 F.2d 139, 143 (3d Cir. 1984). We disagree. As the Supreme Court recognized in Dav is v. Scherer, 468 U.S. 183, 195 n.14, 104 S.Ct. 3012, 3020 n.14 (1984 ), officials must make discretionary determinations even in the cours e of applying facially clear provisions. Because appellants' decision to d eny Larsen's benefits required such discretionary determinations, includi ng legal analysis as to the applicability of the 1993 version of section 16(b), it cannot be characterized as a ministerial act outside the scop e of the qualified immunity doctrine.

10had been removed from office and had not "retired"

voluntarily. Br. at 12. We disagree. As of the time appellants decided to deny Larsen's benefits, the Pennsylvania Supreme Court had held that judicial o fficers
who had been removed from office for misconduct wer e entitled to receive benefits under a plan which by its terms applied to "retired" judicial officers. In upholdin g removed judges' right to receive "retirement" benefits, the Pennsylvania Supreme Court did not find it signific ant that those judges had not "retired" voluntarily from off ice. Rather, the court treated them as fully eligible un der the retirement plan and proceeded to analyze whether a separate provision of law precluded them from recei ving those benefits to which they were entitled under th e plan. See Glancey, 610 A.2d at 22-23.6 The decision in G lancey forecloses appellants' argument that officials char ged with administering a retirement benefits plan reasonably could construe the terms of that plan narrowly to exclude removed judges from coverage when the Pennsylvania Supreme Court had included such individuals in the terms of eligibility.7

In light of this case law including individuals suc h as Larsen within the terms of eligibility for retireme nt benefits, and in the absence of any authority for excluding individuals from eligibility under a retirement pla n on the

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6. Glancey resolved the cases of several different judges, some of whom
were removed while still in office and others of wh om were not issued removal orders until after they had resigned or ret ired. The court treated those judges identically in terms of their eligibil ity for benefits under

the retirement plan. See 610 A.2d at 22-23.

7. The Pennsylvania Supreme Court had reached simil ar results in cases involving "retirement" plans for elected officials and public employees, upholding the eligibility under such plans of indiv iduals who did not retire voluntarily. See Bellomini v. State Retireme nt Bd., 445 A.2d 737, 741 (Pa. 1982) (holding that legislators who resign ed under pressure at
about the time of their criminal convictions were e ntitled to "retirement" benefits); Harvey v. Retirement Bd. of Allegheny Co unty, 141 A.2d 197, 203 (Pa. 1958) (holding that public employee who ha d been dismissed for cause was entitled to "retirement" benefits); Wrigh t v. Retirement Bd. of Allegheny County, 134 A.2d 231, 233-34 (Pa. 1957) ( holding that public employee who had been separated involuntarily from employment was entitled to "retirement" benefits).

11grounds that they were involuntarily removed from o ffice,

we find that it was clearly established that Larsen could not be disqualified from receiving benefits under the t erms of the benefits plan. Accordingly, we must consider wh ether appellants are entitled to qualified immunity on th e grounds that they reasonably could have believed th at Article V, section 16, as amended in 1993, operated to
divest Larsen of benefits which he otherwise would have been eligible to receive.

2. Divestiture of Benefits Pursuant to Section 1 6

Appellants contend that they are entitled to qualif ied immunity because a reasonable official could have b elieved
that their revocation of Larsen's benefits was lawf ul pursuant to the 1993 version of section 16, which p rovides that judges who are suspended or removed from offic e shall not receive any "salary, retirement benefit or othe r compensation, present or deferred." Pa. Const. art. V, S 16(b). Larsen, however, contends that the applica tion of that provision violated his clearly established rig hts, as it was adopted after his right to retirement benefits had vested in 1989, at which time he had completed ten years of service and thus had satisfied all requirements necessary to receive full retirement benefits.8 Larsen empha sizes that
the version of section 16 in effect at the time his rights vested did not revoke retirement benefits upon remo val from office. See Glancey, 610 A.2d at 22-23. Thus, Larsen argues that the 1993 amendment to that provision unilaterally altered the terms of his employment compensation, retroactively depriving him of contra ctual rights which had vested before the amendment and violating his right against impairment of contractu al obligations. See br. at 19.

We agree. The Pennsylvania Supreme Court has held that,

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8. Vesting occurs when an individual "has completed the number of years of service required for eligibility" to recei ve benefits under the terms of a retirement plan. Police Pension Fund Ass 'n Bd. v. Hess, 562 A.2d 391, 395 (Pa. Commw. Ct. 1989).

12[i]t has long been recognized in Pennsylvani a that the

nature of retirement provisions for public e mployees is that of deferred compensation for service ac tually rendered in the past. And it is the law of t his
Commonwealth that unilateral modifications . . . after retirement eligibility requirements have bee n met, may not be adverse to the [employee].

Commonwealth ex rel. Zimmerman v. Officers & Employ ees Retirement Bd., 461 A.2d 593, 595 (Pa. 1983) (citat ions omitted). In Zimmerman, the Commonwealth sought to terminate a public official's retirement benefits b ased on a statute providing for forfeiture of the right to su ch benefits upon conviction of a crime related to public office . The court, finding that the official's vested right to retirement
benefits had accrued before enactment of the statut e, held that that right "cannot be reached by a retroactive forfeiture provision," and thus upheld the official's right to receive retirement benefits despite his conviction for crim es that
warranted forfeiture under the statute. See id. at 598.

In reaffirming its decision on reargument, the cour t reiterated that, "[i]t is [the] attempt to divest p reviously vested rights of a public . . . official by subsequ ent legislative judgment that we find to be a constitut ionally impermissible retroactive divestment of vested righ ts." Commonwealth ex rel. Zimmerman v. Officers & Employ ees Retirement Bd., 469 A.2d 141, 142 (Pa. 1983) (per c uriam). Justice Zappala, one of four justices who joined in the majority opinion, wrote separately "to emphasize th at no law, regardless of how noble its purpose may retroa ctively affect existing contract obligations. U.S. Const. a rt. 1 S 10. cl. 1. . . . Once a contractual obligation vests . .. the same cannot be altered, amended or changed by unilateral action." 469 A.2d at 144 (Zappala, J., concurring). We find that these precedents analyzing an impairment of co ntract claim under circumstances closely analogous to thos e in the present case clearly establish that retirement benefits could not lawfully be denied based upon a provision adopted after the right to receive those benefits h ad vested.9

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9. Because Larsen's right to retirement benefits ha d vested before adoption of the 1993 constitutional amendment, we n eed address only the implications of applying that amendment retroac tively to previously vested rights. Accordingly, our opinion has no appl ication to individuals whose rights vested after 1993.

13Appellants contend that Zimmerman is distinguishabl e

because the official in that case had begun receivi ng benefits before the Commonwealth sought to terminat e them. However, Zimmerman expressly noted that the c ourt's prior decisions had established that a subsequently adopted provision "could not prevent the payment of benefits to employees whose . . . rights were veste d in enjoyment" before passage of the provision. See id. at 143 (citing Bellomini v. State Employees' Retirement Bd ., 445 A.2d 737 (Pa. 1982)). The court then held that the same principle applied where the official's "right in th e terms of entitlement, although not enjoyment, had vested" be fore passage of the benefits forfeiture provision. Id. T hus, Zimmerman establishes that the dispositive time aft er which an employee's right to benefits cannot be altered i s the time of the vesting of those rights "in the terms of ent itlement." In this case, Larsen's right to retirement benefits vested in terms of entitlement in 1989, at which time he had satisfied all conditions necessary to receive full retirement benefits, and under the law that existed at that time, those benefits could not be terminated upon removal from office. S ee Glancey, 610 A.2d 15. Accordingly, it was clearly
established that Larsen could not be denied benefit s based upon a provision adopted in 1993.10

Numerous other Pennsylvania cases have reached the same result precluding infringements on previously vested rights based on rules that did not exist at the tim e of vesting. In Association of Pennsylvania State Colle ge & Univ. Faculties v. State Sys. of Higher Educ., 479 A.2d 9 62, 965 (Pa. 1984), the court, applying both the federal an d state Impairment of Contracts Clauses, held that the "constitutional infirmity" of an adverse amendment of previously existing rules "with respect to [employe es] whose entitlement to retirement benefits had already vest ed is clear." Thus, the court held that the amendment was "void

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10. Zimmerman, in dictum, distinguished the situati on before it from a
situation where a removal due to misconduct would r esult in the official's "failure . . . to complete the term of e ligibility." See 469

A.2d at 143. This dictum does not apply to Larsen, who had satisfied the term of eligibility before he was removed from office an d before the benefits forfeiture provision was adopted.

14as applied to employees whose rights were vested pr ior to

its enactment." Id.; accord Burello v. State Employ es' Retirement Sys., 411 A.2d 852, 855 (Pa. Commw. Ct. 1980) (citations omitted) ("[W]hen the conditions of reti rement eligibility have been satisfied, retirement pay has ripened into a full contractual obligation and become a ves ted right [which] cannot be disturbed by subsequent legislati on."); Harvey v. Allegheny County Retirement Bd., 141 A.2d 197, 203 (Pa. 1958) (holding that employee who had "comp lied with all conditions necessary" to receive benefits "cannot be affected adversely by subsequent legislation which changes the terms of the retirement contract"); Wright v. A llegheny County Retirement Bd., 134 A.2d 231, 233-34 (Pa. 19 57) (holding that a provision which was adopted after a n employee's rights had vested but before employee re tired could not lawfully be applied, as the employee's ri ghts were "vested and unqualified" under the previously exist ing law and "could not be qualified or altered" by a subseq uent enactment).11

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11. The Pennsylvania Impairment of Contracts Clause provides that, "[n]o . . . law impairing the obligation of contrac ts . . . shall be passed." Pa. Const. art. I, S 17. Because the Pennsylvania c ases discussed above apply the federal Impairment of Contracts Clause, s ee, e.g., Association of Pennsylvania State College & Univ. Faculties, 47 9 A.2d at 964; Zimmerman, 469 A.2d at 144 (Zappala, J., concurring ); Burello, 411 A.2d at 855, they clearly establish Larsen's rights unde r federal law, particularly absent any federal precedent to the co ntrary. See Mississippi v. Miller, 276 U.S. 174, 179, 48 S.Ct. 266, 268 (19 28) (holding that "retroactive application" of a law adopted"after se rvices have been rendered" would deprive employee of an amount"he ha d theretofore earned" and thus "would impair the obligation of th e . . . contract" that existed at the time service was rendered). In Dodge v. Board of Educ. of Chicago, 302 U.S. 74, 77-78, 58 S.Ct. 98, 99-100 (1 937), the Court permitted an impairment of retirement benefits, but did so on the grounds that state law rendered those benefits"mere gratuities" that did not give rise to vested contractual rights. Thus, D odge is inapposite in
this case where the benefits are a form of deferred compensation to which employees have enforceable contractual rights , see Zimmerman, 469 A.2d at 142 ("[W]e have rejected the view that pension benefits are mere gratuities . . . . [I]t is the well settled la w of this jurisdiction

that the nature of retirement provisions . . . is that o f deferred compensation for services actually rendered in the past.") (cita tions omitted), and

does not alter the fact that nothing in the federal prec edents blurs the clearly

15Appellants, br. at 12-13, argue that despite these cases

clearly holding that retroactive denials of previou sly vested rights to retirement benefits unconstitutionally im pair a contractual obligation to pay those benefits, the c ontours of Larsen's rights were not clearly established becaus e cases analyzing impairments of contract have held that af inding of a "technical impairment is merely a preliminary step in resolving the more difficult question of whether th at impairment is permitted under the Constitution," Un ited States Trust Co. v. New Jersey, 431 U.S. 1, 21, 97 S.Ct. 1505, 1517 (1976) (citations and internal quotation s omitted), and therefore have analyzed the nature, p urpose, and extent of the impairment in light of the public interests at stake. See Association of Surrogates & Supreme C ourt Reporters v. New York, 940 F.2d 766, 771 (2d Cir. 1 991). We find this argument unpersuasive. As of the time of appellants' decision, the Pennsylvania Supreme Cour t had considered and rejected the argument that public in terests in sanctioning official misconduct warranted retroa ctive impairment of vested rights. The court held that,"a ny

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established contours of the rights under the federa l Impairment of Contracts Clause which are set forth in the Pennsyl vania cases.

In this case the provision adopted after vesting wa s set forth in the
state constitution whereas in the cases discussed a bove, the provisions purporting to infringe the right to benefits were a dopted by statute or ordinance. However, it was clearly established that ,"[a] state can no more pass a law violating the obligation of a contr act by means of a convention than by its legislature, so a provision in a state constitution which prohibits the enforcement of a contract is vo id." Fisk v. Police
Jury of Jefferson, 116 U.S. 131, 135, 6 S.Ct. 329, 331 ( 1885) (citations omitted); accord McBride v. Retirement Bd. of Alleg heny County, 199 A. 130, 132-33 (Pa. 1938) ("the Contract Clause of the Federal Constitution . . . forbids impairment by the states, not only by statute, but also by amendment to . . . the State Constitution") (citati ons omitted). Moreover, nothing in the cases addressing retroactive statuto ry impairments of vested rights suggests that their holdings turn on the source of the retroactive law. Thus, the contours of the right ag ainst retroactive impairment were clearly established when appellants terminated Larsen's benefits despite the lack of "precise fact ual correspondence" between this case and those where the subsequently enacted provision was statutory. See Pro, 81 F.3d at 1292.

16argument predicated upon a compelling state interes t must

necessarily fail when applied to this attempted ret roactive forfeiture" of previously vested retirement benefit s. See Zimmerman, 461 A.2d at 598.12 Thus, officials charg ed with administering a retirement benefits plan could not reasonably have believed, in light of the decided c ases construing the scope of the Impairment of Contracts Clause, that the balance of interests rendered the impairment of Larsen's rights lawful.

Based on the cases discussed above, we find that La rsen, by alleging that he was deprived of previously vest ed rights pursuant to a provision adopted after vesting, has alleged a violation of clearly established rights under the I mpairment
of Contracts Clause of which reasonable officials c harged with administering retirement benefits would have k nown.13

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12. The court explained that benefit forfeiture pro visions are powerless

to
deter official misconduct that occurred before thei r enactment. See 461 A.2d at 598. The misconduct leading to Larsen's rem oval occurred well before the 1993 adoption of the amended section 16, bringing this case squarely within the rationale of Zimmerman's holdin g that the public interest in enforcing benefit forfeiture provisions did not outweigh the constitutional interests in protecting vested contr actual rights to retirement benefits against retroactive impairment.

13. Appellants also contend that they are entitled to qualified immunity because it was not clearly established that retirem ent medical benefits
were to be treated in the same manner as other form s of retirement benefits. See br. at 11-12. We reject this contenti on. It was clearly established that "the nature of retirement provisio ns . . . is that of deferred compensation for services actually rendere d in the past." Zimmerman, 469 A.2d at 142-43 (citations omitted). Retirement medical benefits, like other retirement benefits, are an it em of economic value offered in return for work performed, and thus fall squarely within the principles set forth in the cases discussed above. Indeed, to accept appellants' argument we would have to close our eye s to what we know in this era of high medical costs, that medical ben efits are of crucial importance to retired employees. Moreover, while th e Pennsylvania Supreme Court had not applied this rule in the prec ise context of medical benefits, it had indicated in dictum that i t would do so. See,

e.g., In re Upper Providence Police Delaware County Lodge No. 27, 526 A.2d 315, 322 n.6 (Pa. 1987) (citing deferred compensati on cases for the proposition that denial of medical benefits would"p ose serious constitutional problems"); Lower Merion Fraternal O rder of Police Lodge v.

17We hold, therefore, that appellants are not entitle d to

qualified immunity as to Larsen's claim that their
termination of his medical benefits unconstitutiona lly

impaired his contractual right to those benefits.

C. Due Process

The Due Process Clause provides that "[n]o state sh all . . . deprive any person of life, liberty, or prope rty without due process of law." U.S. Const. amend. XIV,S 1. La rsen claims that appellants violated his due process rig hts by terminating his medical benefits as they did so wit hout providing him notice and either a pre- or post- rev ocation hearing. Br. at 22. Appellants answer that, because Larsen had no clearly established property interest in med ical benefits for retired members of the judiciary, thei r

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Lower Merion Township, 512 A.2d 612, 619 (Pa. 1986) (noting that three justices of equally divided court would treat medic al benefits like any other form of deferred compensation while three jus tices would resolve case on grounds that did not implicate the issue). Thus, despite the lack of a precedent "directly on point," the law was suf ficiently clearly
established that a reasonable official would have k nown that an action
that was unlawful as to other forms of retirement b enefits also would be
unlawful as to retirement medical benefits. See Aci erno, 40 F.3d at 620.

In holding that retroactive application of a provis ion adopted after vesting violates rights of which a reasonable offic ial charged with administering retirement benefits would have known, we recognize that Larsen alleges that both Supreme Court justices and court administrators participated in the decision to deny his benefits. Although, under certain circumstances, a reasonable judicial officer might be held to more stringent standards than a re asonable court administrator, the cases proscribing retroactive di vestment of vested rights are sufficiently clear that any reasonable o fficial, whether judicial or administrative, charged with administering a ret irement benefits program should have known of this proscription. We also recognize that the judicial officers and court administrators may have played different roles in the decision to deny Larsen's benefits. Ho wever, at this juncture, the pleadings do not elucidate the nature of each a ppellant's participation in the challenged decision. According ly, we address only the principles of law of which reasonable officials in any of the appellants' positions should have known in participating in a d ecision to deny
vested benefits.

18cancellation of Larsen's benefits did not violate c learly

established rights under the Due Process Clause of which a reasonable official would have known. Appellants, however, do not deny that if Larsen had a property interest
in his medical benefits he was entitled to some sor t of hearing with respect to their termination. See, e.g
., McDaniels v. Flick, 59 F.3d 446, 453-61 (3d Cir. 19 95).

For the purposes of the Due Process Clause, propert y interests are defined by state law. See Board of Re gents v. Roth, 408 U.S. 564, 569, 577, 92 S.Ct. 2701, 2709 ( 1972); Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir. 1997). Larsen contends that he had a clearly establ ished property right to the benefits associated with his office, since he had a contractual right to those benefits, and it was "clearly established that contractual rights ar e property
interests under the Due Process Clause of the Fourt eenth Amendment." Br. at 22. We find merit in this argume nt because it is clear that a contract right is a "for m of property." United States Trust Co., 431 U.S. at 19 n.16, 97 S.Ct. at 1516 n.16. Thus, inasmuch as "in Pennsylva nia . . . the nature of retirement provisions for publi c employees is that of deferred compensation for services actua lly rendered in the past," Zimmerman, 461 A.2d 597, Lar sen had a property interest in his right to medical ben efits that was sufficiently clear that appellants should have
understood that the termination of those benefits t riggered Larsen's right under the Due Process Clause to an opportunity to be heard regarding his claim of enti tlement to those benefits. Anderson, 483 U.S. at 640, 107 S .Ct. at
3039.14

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14. Appellants contend that since the Pennsylvania Supreme Court had held that elected public officials have no constitu tionally protected property interest in their elected public office, s ee In re 1991 Pennsylvania Legislative Reapportionment Comm'n, 60 9 A.2d 132 (Pa. 1992), it was reasonable for them to infer that the re was no constitutionally protected right to the benefits as sociated with that public office. Br. at 15. We disagree. A holding th an an elected official does not have a property right in his office is com pletely distinguishable
from the situation at hand which involves deferred compensation for
services rendered.

19Appellants contend that even if Larsen had a clearl y

established property interest in his medical benefi ts "a reasonable state official would be justified in con cluding that Larsen received all the process to which he wa s entitled before the cancellation of his health care benefits." Br. at 15-16. Specifically, appellants argue that L arsen had ample opportunity to challenge his impeachment in t he Senate, his criminal conviction in the state courts , and his suspension by the Court of Judicial Discipline. Id. at 15. We reject this argument because, while these procee dings allowed Larsen to contest the basis for his suspens ion and removal from office, none of them afforded him an opportunity to address the distinct issue of whethe r medical benefits lawfully could be terminated as a result of that suspension and removal. Since Larsen was not afforded an opportunity to be heard regarding the p ropriety of terminating his medical benefits, reasonable off icials could not have believed that Larsen received the pr ocess he was due in connection with a deprivation of a clear ly established property right. Accordingly, appellants are not entitled to qualified immunity with respect to Lars en's due process claim.15

D. Equal Protection

Appellants contend that they are entitled to qualif ied immunity as to Larsen's claim that the denial of hi s medical benefits violated his rights under the Equal Protec tion Clause, which provides that "[n]o state shall. . . deny to any person within its jurisdiction the equal protec tion of the laws." U.S. Const. amend. XIV, S 1. We agree. L arsen asserts that he was denied equal protection of the law because he was denied retirement benefits following his removal from office, whereas judges who had been re moved for misconduct in the past had received such benefi ts notwithstanding their removal. Since Larsen does no t allege that appellants violated a fundamental right or rel ied on a

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15. We do not find it necessary to address the ques tion of what opportunity to be heard should have been afforded L arsen as appellants offered him no such opportunity at all either befor e or after

Frankforter's June 17, 1994 letter.

20suspect or quasi-suspect classification, their acti ons, in

order to comport with the Equal Protection Clause, need have only a rational relationship to a legitimate s tate interest. See Tolchin v. Supreme Court of New Jerse y, 111 F.3d 1099, 1113 (3d Cir.), cert. denied, 118 S.Ct. 435 (1997); Dyszel v. Marks, 6 F.3d 116, 125 (3d Cir. 1 993).16

According to appellants, reasonable officials could believe that they had a rational basis for treating Larsen differently from judges removed in the past, since there had be en an intervening constitutional amendment which served t he rational and legitimate objective of preventing"off icials who have been removed from office for breaching the pub lic's trust from benefitting from the . . . public purse. " Br. at 17. We agree and in fact are satisfied that Larsen's eq ual protection claim does not adequately allege a viola tion of a constitutional right at all and thus does not satis fy the first prong of the Siegert test. See 500 U.S. at 232, 111 S.Ct. at 1793. The Equal Protection Clause does not require identical treatment of all individuals, but rather permits
differential treatment of individuals who are diffe rently situated in some relevant respect. See Nordlinger v . Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2331 (1992). Thus, individuals who are differently situated in terms o f their "legitimate expectation and reliance interests" rat ionally may be subjected to different rules designed to aff ord greater protection to those with heightened legitim ate expectations. Id. at 13 (citations omitted) (uphold ing imposition of greater tax burden on those who acqui red property after change in tax law based on their les ser expectation interests as compared to those who owne d property before change in law). Because Larsen was removed from office at a time when the Pennsylvania Constitution provided for denial of benefits upon r emoval, his position was different from that of judges who were removed when no such provision existed.17 Accordin gly,

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16. Suspect classifications involve traits such as race, national origin,

or alienage, while quasi-suspect classifications invol ve traits such as gender. See Dyszel, 6 F.3d 125 n.13.

17. The difference in the law at the time of remova l creates a distinction
which a reasonable official could believe was a rat ional basis, under the

21there was a rational basis for treating Larsen diff erently

from judges removed from office before the 1993 constitutional amendment, and appellants are entitl ed to dismissal of Larsen's equal protection claim.

E. First Amendment

Larsen contends that appellants' revocation of his benefits violated his right of free speech under th e First
Amendment because it was a form of retaliation for his protected speech in alleging misconduct on the part of his fellow Supreme Court justices. To state a claim for actionable retaliation under the First Amendment, t he plaintiff must allege facts which, if proven, would establish that the plaintiff 's protected First Amendment act ivity was a "substantial or motivating factor in the alleged retaliatory action." Feldman v. Philadelphia Hous. Auth. , 43 F .3d 823, 829 (3d Cir. 1994). This rule is derived from the S upreme Court's opinion in Mount Healthy City Sch. Dist. Bd . of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 57 6 (1977).

In support of their assertion that they are entitle d to qualified immunity as to Larsen's First Amendment c laim, appellants contend, br. at 18-19, that they could h ave

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Equal Protection Clause, for treating Larsen differ ently from the judges removed before 1993, thus entitling appellants to q ualified immunity under the second prong of the Siegert analysis even if Larsen's allegations satisfied the first prong. While a reas onable official could
believe that the 1993 constitutional amendment crea ted a distinction between different judges depending on their status at the time of its adoption, which provided a "rational basis" for dif ferential treatment within the meaning of the equal protection jurispru dence, as discussed in Part III. B 2, supra, a reasonable official coul d not believe that the 1993 amendment may be applied retroactively to deny previously vested rights, as the impairment of contracts jurisprudenc e clearly proscribes such retroactive impairments. Because of the diverg ent standards under these distinct constitutional provisions, we find t hat reasonable
officials could believe that the decision to deny Larsen's be nefits did not violate clearly established equal protection principles but could not believe that this decision did not violate clearly established i mpairment of contracts principles.

22believed that their decision to revoke Larsen's ben efits was

not unconstitutionally retaliatory because they cou ld have believed that they were required to apply the 1993 version of section 16, and thus that they would not be liab le under the First Amendment as they would have reached the same decision " `even in the absence of the protected co nduct.' " Givhan v. Eastern Line Consol. Sch. Dist., 439 U.S. 410, 416, 99 S.Ct. 693, 697 (1979) (quoting Mount Health y v. Doyle, 429 U.S. at 287, 97 S.Ct. at 576). Appellant s' argument requires the court to apply the objective reasonableness standards of the qualified immunity doctrine to the subjective element of a First Amend ment retaliation claim, and thus calls for the somewhat illogical inquiry into "whether a person reasonably could hav e thought that he in fact thought something." Sheppar d v. Beerman, 94 F.3d 823, 828 (2d Cir. 1996).

The qualified immunity analysis requires a determin ation
as to whether reasonable officials could believe th at their
conduct was not unlawful even if it was in fact unl awful. See In re City of Philadelphia Litig., 49 F.3d at 9 61 n.14. In the context of a First Amendment retaliation claim, that determination turns on an inquiry into whether offi cials reasonably could believe that their motivations wer e proper even when their motivations were in fact retaliator y. Even assuming that this could be demonstrated under a ce rtain set of facts, it is an inquiry that cannot be condu cted
without factual determinations as to the officials' subjective beliefs and motivations, and thus cannot properly b e resolved on the face of the pleadings, but rather c an be resolved only after the plaintiff has had an opport unity to adduce evidence in support of the allegations that the true
motive for the conduct was retaliation rather than the legitimate reason proffered by the defendants. See Sheppard, 94 F.3d at 828-29.18

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18. In this respect the qualified immunity analysis as to a First Amendment retaliation claim differs from the qualif ied immunity analysis as to claims under the Impairment of Contracts or D ue Process Clause, which requires only an objective analysis of whethe r reasonable officials could believe that the challenged actions conformed to objective

standards of conduct.

23According to Larsen's allegations, which we must ac cept

as true for purposes of this appeal from an order e ntered on the pleadings, the true motive for appellants' d ecision was retaliation for his protected speech. See app. at 72-73; 96-97. Appellants may be able to establish by the e nd of discovery that their decision in fact rested on a g ood faith belief, which they would have formed even in the ab sence of any protected speech, that they were to required to
revoke Larsen's benefits under the 1993 version of section 16. However, at this juncture, we must accept Larse n's allegations that their true reasons were retaliator y, allegations which state a claim for violation of cl early established rights under the First Amendment, precl uding dismissal on qualified immunity grounds. See Walker v. Schwalbe, 112 F.3d 1127, 1133 (11th Cir. 1997) (rej ecting assertion of qualified immunity on grounds that def endants' proffer of non-retaliatory reason created factual d ispute as
to "true reason" for the adverse action and did not defeat claim for violation of clearly established right ag ainst retaliatory action); see also Azzaro v. County of A llegheny, 110 F.3d 968, 981 (3d Cir. 1997) (holding that asse rtion of non-retaliatory reason which would have justified d ecision even in absence of protected activity created factu al issue precluding summary judgment as to retaliation claim ).

In reaching this result we are not suggesting that a bare allegation of retaliatory motive necessarily is suf ficient to defeat an assertion of qualified immunity as to a r etaliation claim. In some circumstances, the legitimate basis for the actions might be so apparent that the plaintiff 's allegations of retaliatory motive could not alter the conclusio n that under the circumstances alleged in the pleadings, t he defendants would have been compelled to reach the s ame decision even without regard for the protected Firs t Amendment activity. In this case, however, appellan ts were faced with a decision as to whether to subject Lars en to the more adverse 1993 version of section 16, a decision whose outcome, under the circumstances alleged by Larsen, could have been affected by a retaliatory motive.19 Thus we

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19. To defeat a First Amendment retaliation claim i f a plaintiff demonstrates that his protected First Amendment act ivity was a

24cannot conclude from the face of the pleadings that

appellants would have taken the same action in the absence of protected speech. Accordingly, appellant s are not entitled, at this preliminary stage of the liti gation, to qualified immunity as to Larsen's First Amendment
retaliation claim.

F. Public Health Services Act

Appellants contend that they are entitled to qualif ied immunity as to Larsen's claim that the termination of his benefits violated his rights under the Public Healt h Services Act, 42 U.S.C. SS 300bb-1 et seq. ("PHSA"). The PHS A provides that state-operated group health plans mus t offer 18 months of continuing coverage to qualified benef iciaries who otherwise would lose coverage as a result of a "qualifying event." 42 U.S.C. SS 300bb-1(a), 300bb- 2(2). The PHSA defines the term "qualifying event" to include "termination (other than by reason of [the] employe e's gross misconduct)." Section 300bb-3(2).

Appellants contend that Larsen did not have a clear ly established right to continuing coverage under the PHSA,
because reasonable officials could believe that Lar sen's termination was not a "qualifying event" within the meaning of the PHSA entitling him to elect continuing cover age. According to appellants, reasonable officials could conclude that Larsen's termination was "by reason of . . . g ross misconduct," thus excluding his termination from th e definition of a "qualifying event" under section 30 0bb-3(2), and rendering him ineligible for coverage under sec tion

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substantial or motivating factor for the retaliator y action, a defendant must establish not merely that he "could properly" have taken the same adverse action based on an independent "legally suf ficient" reason, but
also that he "would have" done so in the absence of protected conduct. Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1075 (3d Cir. 1990). The mere fact that the 1993 version of section 16 p rovided for termination of benefits upon removal would not defe at Larsen's retaliation claim if he could demonstrate that appe llants decided to apply that provision, rather than the more lenient versio n of section 16 that existed at the time of vesting, due to retaliatory animus.

25300bb-1(a). In support of their argument that Larse n's

termination reasonably could be viewed as a termina tion "by reason of . . . gross misconduct," appellants e mphasize that Larsen had been convicted of two felony counts
, removed from office by the Court of Common Pleas as part of his criminal sentence, suspended from office by the Court of Judicial Discipline for his criminal condu ct which that court found had undermined public confidence i n the judiciary, and called before the Senate on a writ o f impeachment summons. Br. at 20-21.

Neither the PHSA, nor the comparable statute applic able to private employers, defines the term "gross misco nduct." See 42 U.S.C. SS 300bb-1 et seq.; 29 U.S.C. SS 1161 et seq.20 Moreover, as of the time appellants decided to term inate Larsen's benefits, the cases construing these provi sions had not set forth a clear definition of "gross miscondu ct" under the PHSA.21 These cases, however, had applied the
standard to conduct which reasonable officials coul d believe was no more egregious than Larsen's conduct in unla wfully procuring controlled substances through the use of his subordinates. See, e.g., Burke v. American Stores E mployee Benefit Plan, 818 F. Supp. 1131 (N.D. Ill. 1993) (h olding that use of improperly procured promotional discoun t vouchers to obtain free products from employer's re tail outlets constituted gross misconduct); Adkins v. Un ited Int'l Investigative Servs., Inc., 1993 WL 345186 (N.D. Ca l. 1993) (holding that leaving post unattended and falsifyin g records to receive additional paychecks constituted gross misconduct); Conery v. Bath Assocs., 803 F. Supp. 1 388, 1396 (N.D. Ind. 1992) (holding that misappropriatio n of

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20. The analogous provision governing private emplo yers is set forth in the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. S 1161(a), which requires the employer to of fer continuing coverage to employees who otherwise "would lose cov erage under the plan as a result of a qualifying event."

21. In Burke v. American Stores Employee Benefit Pl an, 818 F. Supp. 1131, 1135 (N.D. Ill. 1993), the court, applying 29 U.S.C. S 1161(a), noted that, "[t]here is little direct statutory or judicial guidance on

the meaning of `gross misconduct.' " While the Burke co urt looked to Illinois state law for guidance, we have not made any compar able state-law analysis.

26funds constituted gross misconduct). We are satisfi ed from

these cases and from the language of the PHSA that Larsen has not adequately alleged a violation of the PHSA and thus his complaint with respect to that statute does not pass muster under the first prong of a Siegert analysis. Moreover, even if it did, because a reasonable offi cial could
believe that the acts which resulted in Larsen's te rmination amounted to gross misconduct, it was not clearly established that Larsen's termination was a "qualif ying event" triggering his right to coverage under the P HSA.

Larsen contends that, regardless of the egregiousne ss of his conduct, it cannot be characterized as "gross
misconduct" under the PHSA because it did not occur "within the scope of his employment as an associate justice." Br. at 26-27. However, nothing in the sta tutory language or relevant case law clearly establishes, or even suggests, that "gross misconduct" under the PHSA mu st occur within the scope of employment. Accordingly, it appears that a reasonable official applying the pla in language of the PHSA could conclude that any termin ation which occurred "by reason of [the] employee's gross misconduct" would fall within the exception to sect ion 300bb-3(2) and thus would not constitute a "qualify ing event" entitling the employee to continuing coverag e, regardless of whether the conduct occurred within t he scope of employment.22 Because Larsen did not adequ ately allege a violation of the PHSA and because, therefo re, there was no clearly established law indicating that Lars en's termination was a qualifying event under section 30 0bb3(2), appellants are entitled to qualified immunity as to
Larsen's claim under the PHSA.

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22. Even if it were clearly established that"gross misconduct" encompassed only misconduct within the scope of emp loyment, a
reasonable official could believe that Larsen's con duct was sufficiently related to his employment to satisfy such a require ment. As the district court noted, 955 F. Supp. at 1581 & n.33, the crimi nal misconduct
which led to Larsen's removal from office involved Larsen's use of his subordinates and his state employees' prescription plan to procure prescription medications unlawfully. Absent some au thority to the contrary, reasonable officials could conclude that this nexus between Larsen's misconduct and his employment would satisf y any requirement in that regard.

27IV. CONCLUSION

For the foregoing reasons, we hold that Larsen's complaint alleges violations of clearly established rights under the Impairment of Contracts Clause, the Due P rocess Clause, and the First Amendment. Therefore, appella nts are not entitled to qualified immunity with respect to those claims and, accordingly, we will affirm the distric t court's denial of their motion to dismiss those claims on q ualified immunity grounds. However, Larsen's complaint fails to allege violations of his rights under the Equal Pro tection
Clause or the Public Health Services Act. We theref ore will reverse the denial of appellants' motion to dismiss those
claims and on remand the district court should dism iss those claims on qualified immunity grounds. In summ ary, we will affirm in part, will reverse in part, and w ill remand this case to the district court for further proceed ings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

28