Hawkins v. Rhode Island Lottery Commission

United States Court of Appeals
For the First Circuit

Nos. 00-1398
00-1660

JOHN P. HAWKINS,

Plaintiff, Appellant,

v.

RHODE ISLAND LOTTERY COMMISSION;
LINCOLN ALMOND, GOVERNOR; PAUL S. KELLY, SENATOR;
JOHN B. HARWOOD, REPRESENTATIVE; DONALD W. WYATT, MEMBER,
RHODE ISLAND LOTTERY COMMISSION; CHRISTINE H. CALLAHAN,
MEMBER, RHODE ISLAND LOTTERY COMMISSION; MICHAEL R. DEBATT,
MEMBER,
RHODE ISLAND LOTTERY COMMISSION; DOMENIC A. DISANDRO, III,
MEMBER, RHODE ISLAND LOTTERY COMMISSION; FRANK A. MONTANARO,
MEMBER, RHODE ISLAND LOTTERY COMMISSION; EDWARD J. LAWRENCE,
MEMBER, RHODE ISLAND LOTTERY COMMISSION; ROBERT E. FLAHERTY,
MEMBER, RHODE ISLAND LOTTERY COMMISSION; ROBERT L. CARL, IN
HIS CAPACITY AS DIRECTOR OF THE RHODE ISLAND DEPARTMENT OF
ADMINISTRATION; RHODE ISLAND PERSONNEL APPEALS BOARD; MORRIS
WEINTRAUB, CHAIRPERSON, PERSONNEL APPEALS BOARD; WILLIAM
PEARSON, VICE CHAIRPERSON, PERSONNEL APPEALS BOARD; AND DIANE
MOONEY, MEMBER, PERSONAL APPEALS BOARD,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
 Keven A. McKenna for appellant.
Stephen A. Izzi, with whom William P. Devereaux was on
brief, for appellees Rhode Island Lottery Commission, Donald W.
Wyatt, Christine H. Callahan, Michael R. Debatt, Domenic A.
Disandro, III, Frank A. Montanaro, Edward J. Lawrence and Robert
E. Flaherty.
Claire Richards, Deputy Executive Counsel, with whom Joseph
S. Larisa Jr. was on brief, for appellees Lincoln Almond and
Robert L. Carl.
John A. Tarantino, with whom Patricia K. Rocha and Joseph
Avanzato were on brief, for appellee John B. Harwood.
Joseph J. McGair for appellee Paul S. Kelly.
 COFFIN, Senior Circuit Judge. Appellant John P. Hawkins was

terminated by the Rhode Island Lottery Commission from his

position as its director after a flurry of negative publicity in

which his conduct in office was criticized, primarily by the

state's governor, defendant Lincoln Almond. Hawkins claims that

the discharge violated a variety of state and federal laws, and

he filed this lawsuit against Almond and a number of other state

officials seeking a hearing, damages and reinstatement. The

district court, in a lengthy and thoughtful opinion, rejected

all of his claims. We agree with its result and, for most of

the claims, adopt its reasoning without further discussion. On

two issues, we add brief analysis of our own. We also affirm

the district court's award of attorney's fees to defendants.

Although we do not grant defendants' request for fees on appeal,

we assess double costs because of appellant's prolix and

consequently burdensome briefing, particularly on unworthy state

law issues.1

1
We note that all of appellant’s claims in this case, with
the exception of an age discrimination cause of action,
previously were brought in state court. Hawkins filed the
federal case after the state court denied his request for
injunctive relief, ruling that most of the claims failed as a
matter of law. The state court subsequently granted summary
judgment for defendants on all but a Rhode Island Open Meetings
Act claim that is not before this court.

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 (1) Violation of Rhode Island Merit System Act. Appellant

argues that he was entitled to tenure protection and thus a

pretermination hearing because he had served enough time in

state government to qualify for statutory "full status" and had

received two certificates attesting to that status. See R.I.

Gen. Laws § 36-4-59(a). He maintains that the exception to the

tenure provision, which excludes employees whose "method of

appointment and salary and term of office is specified by

statute," id. at 36-4-59(a)(2)(iii), is inapplicable to him

because the statute creating the Lottery Director position is

not sufficiently specific on those matters. Rather than setting

a precise term of office or salary, the provision states that

[t]he director . . . shall serve at the pleasure of
the commission. . . . He or she shall receive such
salary as the commission shall determine and shall be
in the unclassified service.

R.I. Gen. Laws § 42-61-3.

Our reading of the pertinent Rhode Island precedent,

however, persuades us that an at-will term of employment

designated by statute will prevail, no less than a precisely

defined term of years, over the general tenure provision

protecting long-term unclassified employees. In Donnelly v.

Almond, 695 A.2d 1007, 1008-09 (R.I. 1997), the Rhode Island

Supreme Court considered the wrongful-discharge claims of a

chief deputy sheriff who contended that his position did not

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have a term of office or a salary specified by statute. The

statutory provisions at issue there, R.I. Gen. Laws §§ 42-29-4,

42-29-9, provide that the chief deputy sheriff is appointed by

the sheriff, who "may revoke any deputation by him or her

given." Another provision states that, in the case of a

sheriff's death, his or her deputies shall remain in office

until another sheriff is appointed and sworn. Id. at § 42-29-27.

The court concluded that these provisions sufficed to establish

a statutory term of office exempting a chief deputy sheriff from

the tenure protection, even though they "do not expressly fix a

chief deputy sheriff's term of office," Donnelly, 695 A.2d at

1009.

This case differs somewhat from Donnelly in that the deputy

sheriff's term was linked to the sheriff's term of office, which

is specifically set by statute at ten years, see R.I. Gen. Laws

§ 42-29-1, while no such outer boundary exists in this case.

That factor, however, appeared to play no role in the Supreme

Court's decision; the court focused not on the particulars of

the sheriff's term but on the fact that multiple statutory

provisions addressed the chief deputy sheriff's tenure,

including one providing for revocation at will by the sheriff.

It is evident that the Rhode Island court has construed the

exception to the general tenure provision as excluding any

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unclassified employee whose term of office is addressed in

another statute, whether or not that term was defined by a

specified number of years or in some other way. The statutory

tenure protection is awarded to unclassified employees whose

longevity gives them the benefit their status did not, but it

cannot be awarded to those whose tenure is specifically limited

by statute. See id. at 1009; Casey v. Sundlun, 615 A.2d 481,

483 (R.I. 1992) ("special" provisions prevail over general

provisions).2

(2) 42 U.S.C. § 1983: Stigma-plus. Appellant argues that

defamation by the defendants, together with his termination,

constituted the "stigma plus" injury that is necessary to

establish a claim for deprivation of liberty in violation of the

Due Process Clause of the Fourteenth Amendment. See Siegert v.

Gilley, 500 U.S. 226, 233-34 (1991); Aversa v. United States, 99

F.3d 1200, 1215-16 (lst Cir. 1996). The district court rejected

this claim on the ground that the defamation and the termination

were not coincident; some of the defendants lacked authority to

terminate appellant while others, so far as the record showed,

uttered no defamatory statements. The court relied on case law,

2Appellant argues that the statute providing tenure
protection is the exception to the general scheme of at-will
employment for unclassified employees and that it therefore must
be given effect. The "exception" provision itself has an
exception, however, and the most specific statute must prevail.

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from the United States Supreme Court and this court, holding

that "the defamation had to occur in the course of the

termination of employment," Paul v. Davis, 424 U.S. 693, 710

(1976); see also Pendleton v. City of Haverhill, 156 F.3d 57, 63

(lst Cir. 1998) ("[T]o achieve a sufficient 'plus' in a loss-of-

job context, words spoken must be 'uttered incident to the

termination.'" (quoting Siegert, 500 U.S. at 234)); Silva v.

Worden, 130 F.3d 26, 32-33 (lst Cir. 1997) ("[T]he municipality

terminating the employee must also be responsible for the

dissemination of defamatory charges . . . ."); Aversa, 99 F.3d

at 1216 (plaintiff must allege that "the loss of employment

resulted from some further action by the defendant in addition

to the defamation").

Appellant argues that the district court erred in viewing

the defamation and termination separately, and he asserts that

the actions of the various defendants taken together satisfy the

requirement of "stigma plus." He relies on the close

relationship between, on the one hand, the governor and

defendants Harwood and Kelly — the speaker of the state house of

representatives and the senate majority leader, respectively —

and, on the other hand, the Lottery Commission. The Commission

is comprised of nine members, three of whom are appointed by

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each of those three political leaders.3 Appellant alleges that

Governor Almond, Speaker Harwood and Senator Kelly orchestrated

the termination through their "surrogates" on the Commission,

and, particularly in the case of Almond, also were responsible

for defamatory communications about him. He also relies on Owen

v. City of Independence, 445 U.S. 622 (1980), in which the

Supreme Court allowed a stigma-plus claim even though different

parties were responsible for the defamation and termination at

issue.4

Hawkins' effort to build a stigma-plus claim from the record

in this case falls short of the mark, however. The facts before

us are unlike Owen, where the defendant at issue was not an

individual, but the city, and all of the challenged conduct was

that of city officials acting in their official capacity. As a

result of their collective actions of defamation and

termination, the Supreme Court said the city could be held

3 The senate leader appoints three senate members to the
Commission, only two of whom may belong to the same political
party; the house leader appoints three house members with the
same party limitation, and the governor appoints three members
of the general public. See R.I. Gen. Laws § 42-61-1.
4
In Owen, the plaintiff was discharged by the city manager
and the city council issued a resolution that contained an
allegedly false statement impugning the plaintiff's honesty and
integrity. See 445 U.S. at 628-29 & n.13.

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responsible for a deprivation of liberty without due process.

Id. at 627-29, 633 n.13.

Here, though the defendants are all representatives of the

state, the state is not a party.5 The only specific allegations

of defamation refer to statements by the governor, while the

termination was at the will of the Lottery Commission, which by

law is fiscally and operationally autonomous. See R.I. ACLU v.

Rhode Island Lottery Comm'n, 553 F. Supp. 752, 765 (D.R.I.

1982). The tripartite division of appointing authority

highlights the Commission's independence from any single

political influence. See R.I. Gen. Laws § 42-61-1.6 Although

the governor's rhetoric may have created a political climate

antithetic to Hawkins that affected the Commission's

deliberations, the governor neither spoke for the Commission nor

controlled its actions.7 Particularly where, as here, the

5 The state, of course, could not be sued directly under
section 1983. See Will v. Michigan Dep't of State Police, 491
U.S. 58, 71 (1989). The only defendant sued in his official
capacity was Robert L. Carl, Director of the Department of
Administration, but neither the defamation nor termination was
attributed to him. His official status therefore does not
impact this cause of action. See id. at 71 n.10 (injunctive
relief may be sought under 42 U.S.C. § 1983 in a suit against
a state official acting in his official capacity).
6 We note that Governor Almond is a Republican; Speaker
Howard and Senator Kelly are Democrats.
7 The governor publicly claimed a significant role in
ousting Hawkins, but the record is clear that he had no actual

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alleged defamation occurs in the context of a public clash

between political opponents,8 we are disinclined to exceed the

established limits of constitutional claims of reputation

injury. In this case, the party responsible for the alleged

defamation was not the party responsible for the termination.

authority to accomplish that objective. Indeed, a press release
issued by the governor in December 1995 underscores his lack of
control over the Commission: the statement announced that he
would pursue legislation to abolish the Lottery Commission
because "[t]here is absolutely no need for the Lottery
Commission to be an independent quasi-public agency."
8 The political setting makes it likely that the allegations
against Hawkins would be viewed as "politics as usual,"
diminishing any stigma associated with his termination. From
all that appears, in fact, the Commission's unexplained decision
to terminate Hawkins resulted from the commissioners' desire to
end a political storm rather than from a judgment on Hawkins'
abilities. In a press release issued a few days before the
termination, the three Senate members of the Lottery Commission
and Senate Majority Leader Kelly were quoted as saying that "'it
is time to move forward and select a new Lottery Director.'" The
release, as quoted in a Hawkins affidavit, see App. at 328-29,
continued:

"The Senators said the continuous controversy
surrounding current Executive Director, John
Hawkins[,] is threatening the credibility of the State
Lottery and was diverting law makers' attention from
more pressing state problems."

See also App. at 331 (newspaper article in which Kelly is quoted
as telling Hawkins that "'everything the lottery does is getting
blurred because of the controversy surrounding the director'").

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We thus conclude, like the district court, that Hawkins has

failed to state a viable due process claim.9

Finally, we affirm the district court's decision to award

attorney's fees to certain defendants. Such an award is

appropriate when a court finds that "the plaintiff's action was

frivolous, unreasonable, or without foundation." Tang v. State

of Rhode Island Dep't of Elderly Affairs, 163 F.3d 7, 14 (lst

Cir. 1998) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S.

412, 421 (1978)). This lawsuit was Hawkins' second effort to

recover for essentially the same claims, and we cannot find that

the court abused its discretion in concluding that Hawkins' lack

of success in state court should have alerted him to the legal

flaws in his claims and restrained him from exposing defendants

to repetitive litigation. As for the amount of fees awarded,

the district court's opinion reflected correct application of

the law and a careful, discriminating scrutiny of the attorneys'

time records. It adopted a reasonable hourly rate, based on its

knowledge of the relevant market, and excised hours that were

9 Hawkins' reliance on Colaizzi v. Walker, 542 F.2d 969 (7th
Cir. 1976), is also misplaced. In Colaizzi, the defendant
governor discharged the plaintiffs and "simultaneously issued or
caused to be issued certain press releases" charging the
plaintiffs with "reprehensible conduct," id. at 971, 972.
Unlike Governor Almond, Governor Walker was directly responsible
for both the termination and the alleged defamatory
communication.

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duplicative or otherwise not compensable. The court rejected

entirely defendant Almond's request for fees. We see no error

in these judgments.

Affirmed. Double costs on appeal to appellees.

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