Pennsylvania Sen. Mastriano’s Ph.D. Lawsuit Largely Dismissed

Yesterday, Judge Bernard Jones of the Western District of Oklahoma commented in Mastriano v. Gregory:

According to the Plaintiff:

This case seeks damages stemming from the Defendants’ coordinated scheme involving deceit, defamation, and anti-competitive behavior intended to wreck the Plaintiff’s scholarly standing, eliminate him as a rival in the market for World War I military history and related scholarship, and disrupt his political campaigns for public office.

In the Second Amended Complaint (SAC), the Plaintiff claims to be a retired United States Army colonel who earned a Ph.D. in United States military history from the University of New Brunswick (UNB) in 2013, previously taught at the Army War College, authored books on Sergeant Alvin York (Sgt. York) and World War I as fought in France, and spoken publicly about military history. The Plaintiff also asserts he currently serves as a state senator for Pennsylvania’s 33rd District, was the Republican nominee for Pennsylvania governor in 2022, and was reputedly the frontrunner for the 2024 U.S. Senate seat…

Gregory was a former graduate student and Ph.D. candidate at the University of Oklahoma. He is one of several historians who contend that Sgt. York’s role in capturing German soldiers has been exaggerated, contrary to the Plaintiff’s view of York’s part in those events. Gregory authored a book titled Unraveling the Myth of Sgt. Alvin York: The Other Sixteen, which examines the soldiers who fought alongside York but whose contributions are largely omitted from the history the Plaintiff and others popularized.

During his research, Gregory identified what he believed were numerous inaccuracies in the Plaintiff’s scholarship and reported 213 alleged errors to the Plaintiff’s publisher and UNB in 2021 and 2022. When the Plaintiff campaigned for governor of Pennsylvania in 2022, media coverage highlighted Gregory’s notices of inaccuracies and his view that the substantial number of errors suggested academic fraud….

The court rejected the Plaintiff’s RICO claim:

… The Plaintiff asserts RICO violations based on Gregory’s complaints about errors in the Plaintiff’s PhD dissertation, UNB’s release and investigation of the embargoed dissertation during the gubernatorial campaign, the Defendants’ discussions and criticisms of the Plaintiff’s dissertation to the press, and Gregory’s contact with the publisher of the Plaintiff’s books challenging the Plaintiff’s research and thesis. “To plead a RICO claim, a plaintiff must allege that the defendant violated the substantive RICO statute, 18 U.S.C. § 1962, by setting forth four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” The Supreme Court defines an enterprise as “a group of persons associated together for a common purpose of engaging in a course of conduct.” “Under this test, a group must have [1] a purpose, [2] relationships among those associated with the enterprise, and [3] longevity sufficient to permit these associates to pursue the enterprise’s purpose.”

After a careful review of the SAC, the Court concludes the Plaintiff has not alleged sufficient facts showing the existence of an enterprise among Gregory and his co-defendants. In particular, the Court finds the Plaintiff failed to allege a shared purpose among Gregory and the UNB Defendants. In fact, given the facts in the SAC, the interests of Gregory and the UNB Defendants regarding the Plaintiff’s dissertation and PhD actually conflict. As alleged, Gregory has criticized the Plaintiff’s research for years in support of his dissertation; this is the same research UNB accepted in awarding the Plaintiff his PhD. Gregory’s critique of the Plaintiff’s scholarship therefore also casts doubt on UNB’s doctoral policies and procedures.

The court rejected the Plaintiff’s antitrust claims:

The Plaintiff contends that the Defendants “conspired to restrain trade and commerce internationally and interstate by joining with James Gregory III to accept his complaints against Col. Mastriano’s PhD and thesis, and books, all in exchange for Mr. Gregory’s similar-topic book and speaking engagements would benefit and that UNB’s economic opportunities would advance in the face of smears of one of its students, Col. Mastriano.” {The Court is perplexed how criticisms directed at the Plaintiff’s UNB PhD would advance UNB’s economic opportunities.}

To establish a claim under Section 1 of the Sherman Act, a plaintiff must plead three elements: “(1) a contract, combination, or conspiracy among two or more independent actors; (2) that unreasonably restrains trade; and (3) is in, or substantially affects, interstate commerce.” “To meet its initial burden, the plaintiff cannot simply show that the challenged action harmed its business. Instead, because antitrust laws focus on effects on consumers rather than competitors, the plaintiff must show a negative impact on competition in general.” After thorough examination of the SAC, the Court determines that the Plaintiff has failed to present sufficient facts showing a broad impact on competition in general. The plaintiff’s allegations are focused solely on harm to his own business interests….

The Plaintiff also contends:

Defendants have illegally tethered Gregory’s conflicted and compromised complaints about Col. Mastriano’s PhD to a widespread assault on his intangible voting rights and property interests, including his elections and campaigns for public office and the publication of his books on Sgt. Alvin York and the WWI conflict in France….

Defendants have further linked these complaints to a broad attempt to deprive him of fair market opportunities for his earned PhD by making malicious, false accusations of academic dishonesty, imputed political viewpoints, and even violent falsehoods.

The aim and result of this alleged conspiracy to violate the Sherman Act is to prevent Col. Mastriano from offering alternate historical narratives about Sgt. Alvin York and his celebrated wartime feats in France….

The Tenth Circuit has defined a “tying arrangement” in Sherman Act terms as “an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (tied) product, or at least agrees that he will not purchase that product from another supplier.” A tying arrangement is typically illegal under § 1 of the Sherman Act if a party can show: “(1) two separate products or services are involved; (2) the sale or agreement to sell one product or service is conditioned on the purchase of another; (3) the seller has sufficient economic power in the tying product market to restrain trade in the tied product market; and (4) a not insubstantial amount of interstate commerce in the tied product is affected.” …

The Plaintiff has not alleged any facts demonstrating the existence of a tying arrangement… The Plaintiff has failed to allege any facts showing that selling or agreeing to purchase one product was conditioned on the purchase of another product.

The court also dismissed the Plaintiff’s defamation claim on statute-of-limitations grounds; however, it allowed the Plaintiff’s false light claim against Gregory to proceed (Oklahoma’s two-year window for false light, as opposed to the one-year limit for defamation):

To plead a false light invasion of privacy, a plaintiff must allege:

(1) the defendant publicized information about the plaintiff that placed the plaintiff before the public in a false light, (2) the false light would be highly offensive to a reasonable person, and (3) the defendant knew of or acted with reckless disregard concerning the falsity of the publicized information and the false light in which the plaintiff would be cast.

Presuming all of the Plaintiff’s factual allegations are true and viewing them in the Plaintiff’s favor, the Court finds that the Plaintiff has stated a plausible false light claim. The Court also notes that the Plaintiff’s allegations do not rest solely on Gregory’s academic opinions. Finally, the Court finds that the Plaintiff has adequately pled actual malice in relation to the false light claim. Accordingly, the Plaintiff’s false light claim will not be dismissed….

Here is the Plaintiff’s argument concerning the false light claim, which the court appeared to find persuasive at the motion-to-dismiss stage.

The SAC contends that Gregory stated Mastriano “lied about documents,” “fabricated sources,” and committed “fraud.” These are clearly verifiable accusations of dishonest behavior, not merely expressions of opinion. This is further supported by Gregory’s own statements that he repeatedly filed complaints about Col. Mastriano’s work with both his publisher and UNB regarding the embargoed PhD, and spoke publicly about it during his campaigns, all alleging dishonest conduct and directly attacking Mastriano’s character. These dramatic actions by Gregory are not simply matters of opinion as he now claims….

Gregory’s reliance on Greenbelt Coop. Publ’g Ass’n v. Bresler (1970) is misplaced. There, the term “blackmail” was treated as mere rhetorical hyperbole in a local zoning dispute. Here, by contrast, Gregory is alleged to have presented himself as a historian with identified documentary findings, to have spoken to journalists and radio audiences in that capacity, and to have accused Mastriano of intentional academic deceit. In that setting, a reasonable listener would understand Gregory to be asserting verifiable facts, not simply using metaphor….

Nor do ONY, Dilworth, or Turkish Coalition compel dismissal. ONY (2d Cir. 2013) involved peer-reviewed scientific conclusions accompanied by disclosed data and methodological limitations. Dilworth (7th Cir. 1996) involved a book criticizing “mathematical cranks”—the Seventh Circuit stressed that the dispute was about ideas and methods, not accusations of concrete dishonest acts. And Turkish Coalition recognized that disagreements about the credibility of historical sources may be opinion, but it did not hold that a scholar may publicly accuse a named rival of fabrication and lying without consequences. Gregory’s alleged statements cross the line those cases preserve….

The SAC adequately pleads [actual malice, defined] … as publication with knowledge of falsity or reckless disregard for the truth. Reckless disregard exists when the speaker actually “entertains serious doubts as to the truth of his publication.” And “purposeful avoidance of the truth” is probative of actual malice.

The SAC … alleges Gregory had long familiarity with the same body of historical materials; that he persisted in accusing Mastriano of fraud and fabrication despite prior institutional handling of the matter; that he sought release and use of the embargoed dissertation to fuel the campaign; and that he republished the accusations during politically salient moments to maximize damage. Those facts permit the reasonable inference that Gregory was not merely mistaken but acted with knowledge of falsity or reckless disregard….

Of course, at the later summary judgment stage, the plaintiff will have to offer evidence and not just plausible allegations.

Greg Harold Greubel (FIRE) and Robert D. Nelon (Hall Estill-OKC) represent Gregory. Disclosure: I had earlier successfully moved to intervene in the case to unseal certain allegedly libelous material that formed the basis of part of Mastriano’s lawsuit.