United States Court of Appeals
For the First Circuit
No. 16-1492
MARK W. EVES,
Plaintiff, Appellant,
v.
PAUL R. LEPAGE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Stahl, and Thompson,
Circuit Judges.
David G. Webbert, with whom Carol J. Garvan and Johnson,
Webbert & Young, LLP were on brief, for appellant.
Patrick Strawbridge, with whom Bryan K. Weir and Consovoy
McCarthy Park PLLC were on brief, for appellee.
November 22, 2016
LYNCH, Circuit Judge. Paul LePage, the Republican
Governor of Maine, has had deep political disagreements with
members of the Maine Legislature, particularly those who are
Democrats -- including the Speaker of the House, plaintiff Mark
Eves. The Speaker, who is term-limited, obtained a contract of
employment with Good Will-Hinckley ("GWH"), a Maine nonprofit that
operates the MeANS charter school for at-risk children, which is
largely funded by biennial grants from the state. Whether to
disburse that grant money to GWH was left by the legislature to
the discretion of the governor.
Governor LePage conveyed to GWH his displeasure at the
organization's decision to hire the Speaker and threatened to
withhold GWH's discretionary funding when payment would ordinarily
be due, assuming passage of Maine's budget for Fiscal Years ("FY")
2016 and 2017. Faced with the prospect of losing funding on which
it depended, GWH terminated the Speaker's employment contract.
The Speaker sued the Governor in federal court for
damages and injunctive relief, asserting that the Governor, in
violation of the U.S. Constitution, had retaliated against the
Speaker's exercise of his First Amendment rights. The Speaker
also sought relief under state tort law. The U.S. District Court
for the District of Maine dismissed all claims. Eves v. LePage,
No. 1:15-cv-300-GZS, 2016 WL 1948869 (D. Me. May 3, 2016).
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We affirm dismissal with prejudice of the Speaker's
federal claims, on qualified immunity grounds. As for his state
claim, we vacate, and direct the district court to dismiss it
without prejudice.
I.
Background
The issues in this case are ultimately issues of law,
which receive de novo review. See United States v. Baird, 712
F.3d 623, 628 (1st Cir. 2013). Like the district court, we
"assume[] the truth of the complaint's well-pleaded facts and
draw[] all reasonable inferences in [Speaker Eves's] favor."
Eves, 2016 WL 1948869, at *1 (citing Schatz v. Republican State
Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)).
A. Maine's Government and Budget Process
We begin with background information that is helpful in
understanding the issues in this case.
Serving in the Maine Legislature is not a full-time job
for most representatives. The legislature typically sits twice
during each two-year session: once from December to June in year
one, and then again from January to April in year two. See Me.
Rev. Stat. Ann. ("M.R.S.A.") tit. 3, § 2. A legislator's salary
is $24,056, spread across the two years, plus a $38 per diem, when
the legislature is active, "for housing or mileage and tolls."
Eves, 2016 WL 1948869, at *2. Most legislators have at least one
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other source of income, often in the private sector. Id. In
fact, legislators from both parties agree that "[n]early all
legislators depend on a career outside of the State House to
provide for their families." Id. at *5 (relaying statement by
Maine Senate President Mike Thibodeau, a Republican).
Maine's biennial budget process starts when the
Department of Administrative and Financial Services, after
considering submissions from various agencies and policy
committees, "prepare[s] and submit[s] . . . a state budget
document" to the governor. M.R.S.A. tit. 5, § 1662. The governor
reviews the draft budget, alters it, and then sends it to the
legislature before the statutory deadline "in January of the first
regular legislative session." Id. § 1666. The legislature must
"enact a budget no later than 30 days prior to the date of
adjournment prescribed" by law. Id. § 1666-A. The legislature's
budget then returns to the governor, who has line-item veto power,
permitting him to reduce "any dollar amount" in the budget. Me.
Const. art. IV, pt. 3, § 2-A. The legislature can override any
line-item veto with a simple majority of both the House and the
Senate. Id. The governor can also veto the entire budget, like
any other piece of legislation, in which case a 2/3 majority of
both the House and the Senate is necessary to override the veto.
Id. art. IV, pt. 3, § 2.
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The facts of this case, which occurred mostly in June 2015,
arose in the midst of the biennial budget process and involved
serious political conflict between Governor LePage and the
legislature. In a press conference on May 29, 2015, the Governor
stated that he planned to veto "every bill sponsored by a Democrat"
for the rest of his term in office "unless the Legislature agreed
to support his plan to have a referendum vote on eliminating
Maine's income tax." Eves, 2016 WL 1948869, at *4. The Governor
did, in fact, veto ten bills on June 8, 2015, stating that he had
done so purely because of their Democratic sponsorship. After the
legislature passed a budget on June 17, 2015, the Governor issued
sixty-four line-item vetoes, each of which the legislature
overrode on June 18 and 19, 2015.
On June 29, 2015, the Governor vetoed the entire budget.
The legislature also overrode that veto, on June 30, and enacted
the budget for FY2016 and FY2017 into law. That budget included
discretionary funding for GWH.
B. Good Will-Hinckley and Speaker Eves
GWH is a private nonprofit organization, located in
Fairfield, Maine, which aims to provide services to at-risk
children throughout the state. Founded in 1889 as a "farm, school
and home for needy boys," GWH now has a broader mission and
portfolio encompassing a "college step-up program," a "Learning
Center for youth with emotional or behavioral challenges," a
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nutrition program, a library, and a museum. Id. at *2. The
organization has long depended on both private donations and
government grants.
Since 2009, GWH has been designated by Maine "to serve as
the nonprofit charitable corporation with a public purpose
to implement the Center of Excellence for At-risk Students."
Id. at *3; see M.R.S.A. tit. 20-A, § 6951. Fulfilling this
responsibility, GWH opened a charter school in 2012, called the
Maine Academy of Natural Sciences ("MeANS"). MeANS has its own
board and its own principal; it also relies in large part on
discretionary state funding.
The Maine state budget for FY2014 and FY2015 -- which
covered the period from July 1, 2013 to June 30, 2015 -- allocated
$1,060,000 in discretionary funding to GWH for the purpose
of operating MeANS. In that period of time, the LePage
Administration chose to disburse all of that money. The proposed
budget for FY2016 and FY2017, under debate in spring 2015,
contained an identical appropriation of $1,060,000, to be paid to
GWH in quarterly installments, as in previous years.
Glenn Cummings, formerly a Speaker of the Maine House of
Representatives, resigned as president of GWH in September 2014,
having served for approximately four years. GWH began searching
for a successor, and plaintiff Mark Eves was one of nineteen
applicants. Eves, Maine's current Speaker, has served in that
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role since 2012 and as a representative since 2008. Because he
is term-limited, see M.R.S.A. tit. 21-A, § 553(2), he must leave
the House entirely in December 2016, when his fourth term expires.
Speaker Eves also has fifteen years of professional experience as
a marriage and family therapist. Since moving from California to
Maine in 2003, the Speaker has worked in that field, even while
serving in the legislature.
GWH's eight-member search committee interviewed Speaker
Eves on April 24, 2015. He visited the campus as one of three
finalists, and on April 30, the GWH Senior Leadership Team
unanimously recommended him as the best of the three. The Team's
memo "cited his 'extensive clinical experience,' his 'balance of
executive administration and fundraising experience,' and his
'leadership style and polished approach' as reasons for their
conclusion." Eves, 2016 WL 1948869, at *3. After Speaker Eves
interviewed with the full boards of GWH and MeANS on May 15, both
voted unanimously to offer him the job of GWH President.
On June 5, 2015, Speaker Eves and GWH entered into a
two-year employment agreement, which contained a "for-cause
termination provision" and "no conditions or contingencies"
related to any actions or funding decisions by the State. Id. at
*4. GWH announced the Speaker as its new President on June 9.
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C. Governor LePage's Intervention
On June 5, 2015, Governor LePage learned that GWH had
decided to hire Speaker Eves. The Governor promptly called GWH's
Interim President, stating "that he was extremely upset" about the
news and "us[ing] profanity to describe [Speaker Eves] and his
work." Id. That same day or "soon after," LePage sent a
handwritten note to GWH's Board Chair, which "referred very
negatively to Eves" and called the Speaker a "hack." Id. The
Board Chair's belief, after reading the note, was "that GWH would
lose $1,060,000 in state funding if it retained Eves as its new
President." Id.
On June 8, Governor LePage sent a public letter to the
Board Chairs of GWH and MeANS, "urging that they reconsider." Id.
The letter characterized Speaker Eves as "a longtime opponent of
public charter schools" who had fought against "every effort to
reform Maine's government." Id. The GWH Board, "which includes
people of various political affiliations," discussed the letter
and "agreed that their selection of Speaker Eves [had been] well-
supported and . . . not based on political considerations." Id.
Also on June 8, the Governor received a call from Gregory
Powell, the Board Chair of the Harold Alfond Foundation ("the
Foundation"), who was responding to a June 5 voicemail from the
Governor. During their conversation, Powell learned that the
Governor was "withdrawing all support, including financial
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support, from GWH as long as Eves remained as President of the
organization." Id. Responding to that news, Powell sent a letter
to GWH's Board on June 18, warning them that the Foundation had
"serious concern[s] . . . regarding [GWH's] future financial
viability" if the Governor were to follow through on his threat to
withhold the $1,060,000 of state funding. Id. Those concerns,
he further warned, made the Foundation uneasy about committing to
a $2,750,000 grant that the Foundation had been planning to give
to GWH.
On or about June 9, Governor LePage told the Acting
Commissioner of the Department of Education not to send any more
payments to GWH that were not required by law. The Commissioner
duly froze $132,500 in discretionary funds scheduled to be sent to
GWH for the next quarter (beginning on July 1). At that point,
having passed no new budget, the legislature had not yet
appropriated any quarterly payments for GWH beyond what GWH had
already received.
The lawyers representing Speaker Eves and Governor
LePage, respectively, conferred on June 22. The Speaker's lawyer
asked the Governor to withdraw his threats, but the Governor
refused to change his stance. He also took no further steps "to
reduce or eliminate the $1,060,000 in discretionary funds allotted
in the proposed state budget for GWH." Id. at *5.
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After that conversation between the attorneys, GWH
terminated Speaker Eves's employment contract on June 24, one week
before his planned July 1 start date. The Speaker immediately
stated publicly that "his firing was caused by LePage's threat to
withhold funding." Id. Several GWH leaders emailed Speaker Eves,
opining that he "would have been a wonderful fit" for the
organization. Id. Months later, on October 15, GWH's Board Chair
stated in a legislative hearing that Eves would not have been fired
but for Governor LePage's intervention. Some of the Speaker's
colleagues in the legislature also spoke out. State Senate
President Mike Thibodeau, a Republican, publicly called himself
"very saddened by this situation and shocked by what is being
alleged. Nearly all legislators depend on a career outside of the
State House to provide for their families." Id.
Initially, Governor LePage declined to confirm or deny
any interference with GWH's decision-making process. However, on
June 29, local reporters interviewed the Governor and asked whether
he had "threatened to withhold money" from GWH, and he responded:
Yeah, I did! If I could, I would! Absolutely; why
wouldn't I? Tell me why I wouldn't take the taxpayer
money, to prevent somebody to go into a school and
destroy it. Because his heart's not into doing the
right thing for Maine people.
In a radio address on July 7, the Governor further explained:
[The Speaker] worked his entire political career to
oppose and threaten charter schools in Maine. He is the
mouthpiece for the Maine Education Association. Giving
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taxpayers' money to a person who has fought so hard
against charter schools would be unconscionable.
. . . [F]ormer legislators used their political
positions to land cushy, high-paying jobs in which they
were trusted to use taxpayer money to improve the lives
of Mainers. They abused that trust and had to face the
consequences of their actions. The same is true of Mark
Eves.
And in another interview, on July 30, the Governor called Speaker
Eves "a plant by the unions to destroy charter schools." The
Governor drew an analogy: "One time I stepped in . . . when a man
was beating his wife. . . . Should I have stepped in? Legally,
no. But I did. And I'm not embarrassed about doing it."
D. U.S. District Court Proceedings
Speaker Eves filed this lawsuit on July 30, 2015 and
then filed a First Amended Complaint on December 18, 2015.
Governor LePage moved to dismiss on January 5, 2016, arguing that
the complaint failed to state a claim, see Fed. R. Civ. P.
12(b)(6), and that the subject matter of the lawsuit was "a
political dispute that does not belong in court." On April 13,
2016, the day of oral argument on the Governor's 12(b)(6) motion,
the Speaker was granted leave (without opposition) to file a Second
Amended Complaint.
The Second Amended Complaint contained five claims
against Governor LePage: four federal law claims under 42 U.S.C.
§ 1983 for violations of Speaker Eves's rights to political
affiliation, free speech, freedom of association, and procedural
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due process, as well as a fifth claim under state law for
intentional interference with contract. As relief, the Speaker
requested (1) a declaratory judgment; (2) an injunction compelling
Governor LePage to "permanently withdraw his illegal threat" to
GWH and "cease using his authority to illegally retaliate against
Eves or private organizations that are prospective employers or
employers of Eves"; and (3) damages.
On May 3, 2016, the district court issued an opinion,
which granted Governor LePage's motion to dismiss. Eves, 2016 WL
1948869, at *1. The court entered judgment for the Governor the
next day, and Speaker Eves filed a notice of appeal that same day.
II.
Damages Claims
Speaker Eves continues to seek damages under § 1983, for
alleged violations of his First Amendment rights of political
affiliation and freedom of association, as well as injunctive
relief.1 Governor LePage argues in response that either absolute
or qualified immunity shields him from any personal liability for
damages under § 1983, and that there is no legal basis for
injunctive relief.
1 On appeal, Speaker Eves has abandoned his § 1983 damages
claims arising from free speech and due process violations. He
continues to press those alleged violations in his pursuit of
equitable relief.
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The facts and the parties' arguments touch upon a host
of nuanced First Amendment questions. We leave them for another
day and affirm dismissal of the damages claims on narrow grounds:
Governor LePage is entitled to qualified immunity, because Speaker
Eves has not shown that it was beyond debate that the Governor's
discretionary actions amounted to unconstitutional retaliation
against the Speaker.2 See Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011).
A. Qualified Immunity Framework
Qualified immunity analysis, which forecloses Speaker
Eves's damages claims, encompasses two inquiries. The first is
"whether the facts alleged or shown by the plaintiff make out a
violation of a constitutional right," and the second is "whether
the right was 'clearly established' at the time of the defendant's
2 Because we affirm the district court's judgment on these
qualified immunity grounds, we express no view on whether Governor
LePage could reasonably have believed that his own First Amendment
rights and the government speech doctrine protected these
communications from suit. See Eves, 2016 WL 1948869, at *13–15;
see also Walker v. Texas Div., Sons of Confederate Veterans, Inc.,
135 S. Ct. 2239 (2015); Pleasant Grove City v. Summum, 555 U.S.
460 (2009). We also do not reach the Governor's absolute immunity
defense, or the question of whether Speaker Eves's position as
President of GWH, an organization receiving state funding and
overseeing Maine's first public charter school, made him a
"policymaker" who could be terminated without offending the First
Amendment. See, e.g., O'Connell v. Marrero-Recio, 724 F.3d 117,
126 (1st Cir. 2013); Prisma Zona Exploratoria de P.R., Inc. v.
Calderon, 310 F.3d 1, 7–8 (1st Cir. 2002).
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alleged violation." Stamps v. Town of Framingham, 813 F.3d 27,
34 (1st Cir. 2016) (quoting Mlodzinski v. Lewis, 648 F.3d 24, 32
(1st Cir. 2011)). The second prong, in turn, contains two
subparts: "(a) whether the legal contours of the right in question
were sufficiently clear that a reasonable [official] would have
understood that what he was doing violated the right, and
(b) whether in the particular factual context of the case, a
reasonable [official] would have understood that his conduct
violated the right." Id. (quoting Mlodzinski, 648 F.3d at 32–33).
Qualified immunity ultimately shields "all but the plainly
incompetent or those who knowingly violate the law." Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)).
We jump directly to the second prong3 and ask whether
Speaker Eves has met his burden to show that Governor LePage
violated "clearly established" federal law. See, e.g., Lopera v.
Town of Coventry, 640 F.3d 388, 396 (1st Cir. 2011) (exercising
the Pearson option and beginning with prong two). In doing so,
we heed the Supreme Court's oft-repeated warning "not to define
clearly established law at a high level of generality." E.g.,
3 In Pearson v. Callahan, the Supreme Court instructed
lower courts "to exercise their sound discretion in deciding which
of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances of the particular
case at hand." 555 U.S. 223, 236 (2009).
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Mullenix, 136 S. Ct. at 308; Plumhoff v. Rickard, 134 S. Ct. 2012,
2023 (2014); al-Kidd, 563 U.S. at 742; Stamps, 813 F.3d at 39.
Although Speaker Eves need not produce "a case directly on point"
to overcome Governor LePage's qualified immunity defense,
"existing precedent must have placed the . . . constitutional
question beyond debate." al-Kidd, 563 U.S. at 741.
B. Analysis of Qualified Immunity Defense
The specific question we must consider is whether a
reasonable governor objectively could have been uncertain about
either the contours of the legal landscape or the constitutionality
of this particular series of actions. See Stamps, 813 F.3d at 34.
Speaker Eves bears the burden of proof, see Rivera-Corraliza v.
Morales, 794 F.3d 208, 215, 219 (1st Cir. 2015), and he must place
it beyond debate that Governor LePage unlawfully infringed upon
the Speaker's First Amendment interests.
Speaker Eves has not done so. On these facts, a
reasonable governor could have been uncertain whether the attempts
to influence GWH would infringe upon the Speaker's constitutional
rights -- even if the attempts were successful. No Supreme Court
case or circuit case clearly forbade Governor LePage from informing
a potential recipient of a government grant of his intention to
exercise funding discretion, afforded him by the state
legislature, if the potential recipient chose to persist with a
course of action that the Governor disfavored. The decision that
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actually affected the Speaker was made by third parties -- and
private parties, at that. See Zaloga v. Borough of Moosic, No.
15-2723, 2016 WL 6156003, at *5 (3d Cir. Oct. 24, 2016) (affording
qualified immunity to elected official, for lack of clearly
established law, in part because "it has never been established
that a governmental official who does not himself retaliate but
instead pressures another individual to retaliate . . . can be
held personally liable").
Speaker Eves articulates the alleged § 1983 violation as
Governor LePage "us[ing] his control over public funds to coerce
a private employer into firing the leader of the opposing political
party in retaliation for that leader's exercise of First Amendment
rights." At the highest level of generality, denying a
governmental benefit "on a basis that infringes [a plaintiff's]
constitutionally protected interests" amounts to a cognizable
§ 1983 claim. Perry v. Sindermann, 408 U.S. 593, 597 (1972).
In our view, however, Speaker Eves "cannot plausibly
urge that [Governor LePage] had no valid . . . reason" for
interfering with GWH's hiring decisions, in the specific context
of this case. Wood v. Moss, 134 S. Ct. 2056, 2070 (2014). The
qualified immunity test for government officials is objective,
rather than subjective; we focus on what a reasonable governor
could have believed, not on allegations about what Governor LePage
actually believed. See Messerschmidt v. Millender, 132 S. Ct.
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1235, 1245 (2012); Harlow v. Fitzgerald, 457 U.S. 800, 817–19
(1982) (holding that mere allegations of bad faith or pretext do
not suffice without allegations of objectively and clearly
wrongful conduct, and thereby abrogating Scheuer v. Rhodes, 416
U.S. 232 (1974)); Matalon v. Hynnes, 806 F.3d 627, 633 (1st Cir.
2015); Floyd v. Farrell, 765 F.2d 1, 4–6 (1st Cir. 1985). The
Governor reasonably could have believed that his threats and
criticisms pertained to subjects within his political ken and broad
discretionary authority as governor, and that he was acting
lawfully by criticizing and commenting upon GWH's plan to employ
a president with a track record of opposition to Governor LePage's
priorities with respect to education policy.
To avoid this conclusion, Speaker Eves must identify
"existing precedent . . . [that] placed the statutory or
constitutional question beyond debate." Taylor v. Barkes, 135
S. Ct. 2042, 2044 (2015) (per curiam) (quoting al-Kidd, 563 U.S.
at 741). He cites several circuit cases and says that they put
Governor LePage on notice that the Governor's communications with
a third party -- that is, GWH -- violated the Speaker's rights.
Of the cases the Speaker identifies, we discuss three, each of
which involved a governor as defendant: Mihos v. Swift, 358 F.3d
91 (1st Cir. 2004); El Dia, Inc. v. Rossello, 165 F.3d 106 (1st
Cir. 1999); and Blankenship v. Manchin, 471 F.3d 523 (4th Cir.
2006). None of the three placed it "beyond debate," in June 2015,
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that the Governor's actions violated the Speaker's constitutional
rights.
The decision in Mihos does not support denial of
qualified immunity for at least two reasons. First, Mihos is
factually dissimilar: the court denied pretrial qualified immunity
to a governor who had directly terminated a plaintiff's appointment
to a public-service position with a fixed term. In 1999, the
Governor of Massachusetts, Paul Cellucci, reappointed plaintiff
Christy Mihos to the Massachusetts Turnpike Authority, a "public
instrumentality," for an eight-year term to expire in 2007.
Mihos, 358 F.3d at 96. In 2001, Mihos and a colleague voted to
delay an increase in Turnpike tolls beyond the date preferred by
Cellucci's successor, Governor Swift. Id. at 96–97. Governor
Swift responded by removing them from office, citing "the fiscal
irresponsibility of their votes" on the toll increase. Id. at 97.
The Mihos court "articulate[d] the First Amendment right at stake
. . . as the right of a public official to vote on a matter of
public concern . . . without suffering retaliation from the
appointing authority for reasons unrelated to legitimate
governmental interests," and found that the right was clearly
established. Id. at 109.
Mihos's precise holding, however, was that "[n]o
reasonable public official could have failed to realize that a
member of a public instrumentality cannot be terminated on such
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grounds for voting on matters of public concern within his
authority." Id. at 110. Because Governor LePage did not directly
terminate Speaker Eves's employment, but rather (taking the
Speaker's allegations as true) used discretionary state funding as
leverage to influence a private organization, Mihos did not
indisputably put Governor LePage on notice that his particular
conduct amounted to clearly unlawful retaliation in violation of
the Speaker's constitutional rights.4
Even if Mihos were on all fours with this case, it would
fail to undermine Governor LePage's qualified immunity defense for
a second reason: the Governor could reasonably have concluded that
Mihos's reasoning had been undermined by Garcetti v. Ceballos, 547
U.S. 410 (2006). Mihos applied the familiar Pickering test and
weighed Mihos's First Amendment interests against "the interest of
the State, as an employer, in promoting the efficiency of the
public services it performs through its employees." Mihos, 358
F.3d at 103 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568
4 The Speaker also cites Blankenship, which also involved
threats of adverse regulatory action directly against the
plaintiff. See Blankenship, 471 F.3d 523. The Fourth Circuit
denied immunity at the 12(b)(6) stage to Joe Manchin III, then
Governor of West Virginia, who had allegedly reacted to political
criticism from plaintiff Blankenship by directing state regulators
to apply "tougher scrutiny" to Blankenship's business affairs and
work sites. Id. at 525–26. The case is distinguishable for that
reason.
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(1968)). But two years later, the Supreme Court squarely rejected
"the notion that the First Amendment shields from discipline the
expressions employees make pursuant to their professional duties."
Garcetti, 547 U.S. at 426. That rejected notion is central to
Mihos's reasoning.
Other courts, in granting qualified immunity, have
observed that Garcetti has caused "substantial disagreement" among
lower courts with respect to the scope of retaliation claims by
public employees. Werkheiser v. Pocono Twp., 780 F.3d 172, 180
(3d Cir. 2015). The Third Circuit, for example, granted qualified
immunity last year to two elected officials who were subjected to
a retaliation lawsuit by a third elected official, plaintiff
Werkheiser, after the defendants denied Werkheiser reappointment
to a position in local government. Id. at 174–75. The court held
that it was not clearly established whether elected officials --
like Werkheiser, or someone like Speaker Eves in the instant case
-- are "public employees," nor what speech by elected officials
should be categorized as "pursuant to their official duties." See
id. at 177-81 (collecting cases and discussing "the unsettled
nature of the law," after Garcetti, "amongst both the circuit
courts and the district courts"). Because of the uncertainty in
this doctrinal area in the wake of Garcetti, a reasonable official
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in Governor LePage's position could also have viewed Mihos as a
case of uncertain precedential value.5
In El Dia, the issue was whether the Governor of Puerto
Rico, Pedro Rossello, was entitled to qualified immunity for his
alleged termination of advertising contracts between government
agencies and the plaintiff newspaper, which had "published a series
of articles alleging patterns of fraud and waste in the Rossello
Administration." 165 F.3d at 108. This court acknowledged that
"[c]learly established law prohibits the government from
conditioning the revocation of benefits on a basis that infringes
constitutionally protected interests." Id. at 110 (citing Perry,
408 U.S. at 597). But in El Dia, "the very action in question
ha[d] previously been held unlawful" by decisions in the Third and
5 We acknowledge that Garcetti addresses mostly free
speech claims, as opposed to political affiliation or freedom of
association claims. But Garcetti's concerns about the "delicate
balancing" of public-employee rights and government flexibility,
as well as its anxiety about "judicial intervention in the conduct
of governmental operations," are not applicable only in the free
speech context. 547 U.S. at 423. Those concerns, for example,
also underlie the so-called policymaker exception: the principle
that political affiliation, for certain public employees, is an
"appropriate requirement for continued tenure." O'Connell, 724
F.3d at 126 (quoting Rosenberg v. City of Everett, 328 F.3d 12, 18
(1st Cir. 2003)); see also Maymí v. P.R. Ports Auth., 515 F.3d 20,
27 (1st Cir. 2008) (recognizing that both an official's political
affiliation and her "substantive views on agency matters" are
permissible justifications for firing or demotion when she
occupies a policymaking role (citing Flynn v. City of Boston, 140
F.3d 42, 47 (1st Cir. 1998))).
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Fifth Circuits. Id. (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). Although El Dia involved alleged retaliation by
means of withholding discretionary benefits, and not by means of
affirmative regulatory action, the case does not speak directly to
the actions Governor LePage took and therefore did not put him on
notice that his conduct was unlawful. Even more importantly, El
Dia involved intrusion by a governor into the operations of a
newspaper and the freedom of the press -- factors not present
here.6
By way of conclusion, we reiterate that we have no need
to address the constitutionality vel non of Governor LePage's
conduct. We hold only that an official in the Governor's position
reasonably could have been uncertain whether this particular
series of actions, falling within broad discretion given by the
6 Speaker Eves cites several other decisions from our
sister circuits. Those cases also fail to render it beyond debate
that Governor LePage's conduct violated the Speaker's First
Amendment rights. In the absence of "controlling authority" from
the Supreme Court or this court, the Speaker's burden is to
identify "a consensus of cases of persuasive authority" from our
sister circuits. Wilson v. Layne, 526 U.S. 603, 617 (1999); see
also El Dia, 165 F.3d at 110 n.3 (recognizing that, "[a]mong other
factors, the location and level of the precedent," as well as its
age, are important factors in a qualified immunity analysis).
Speaker Eves has not met that burden: the out-of-circuit cases
that are not factually distinguishable predate key Supreme Court
precedent or are inconsistent with intervening precedent from our
circuit. Even collectively, these cases fall short of a
"consensus."
- 22 -
legislature and pertaining to funds not yet formally appropriated,
amounted to a violation of Speaker Eves's constitutional rights.
Our holding is consistent with a long line of Supreme Court cases
applying immunity as a shield for public officials who must
exercise broad discretion in the discharge of their public duties.
See, e.g., Mullenix, 136 S. Ct. at 310-12; Wood, 134 S. Ct. at
2067 (discussing broad discretion inherent to Secret Service
roles); al-Kidd, 563 U.S. at 741–43 (affording qualified immunity
to former U.S. Attorney General); Harlow, 457 U.S. at 815-19; Nixon
v. Fitzgerald, 457 U.S. 731, 749-58 (1982) (affording absolute
immunity to former U.S. President, as "a functionally mandated
incident of the President's unique office").
III.
Injunctive and Declaratory Relief
Speaker Eves seeks, in addition to damages, injunctive
relief preventing Governor LePage from threatening GWH again or
"using his authority" to interfere with the Speaker's employment
in the private sector. Speaker Eves also seeks a declaratory
judgment and an order compelling the Governor to complete
"effective civil rights training." Qualified immunity, of course,
cannot shield the Governor from these requests for equitable
relief. See Battista v. Clarke, 645 F.3d 449, 452 (1st Cir. 2011).
The district court suggested that Speaker Eves's
equitable claims are moot. Eves, 2016 WL 1948869, at *21. We
- 23 -
agree that the request for injunctive relief is moot insofar as it
relates to ongoing interference with GWH. The Speaker conceded
at oral argument, as a factual matter, that he has obtained a new
private-sector job and that GWH has a new president. There appears
to be "no ongoing conduct left for the court to enjoin." ACLU of
Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 53 (1st
Cir. 2013).
As to Speaker Eves's other requests for prospective
injunctive relief, the district court feared that the Speaker's
desired injunction would have "extraordinary" breadth and would
attempt to "compel [Governor LePage] to conform his behavior to
some preferred standard of decorum." Eves, 2016 WL 1948869, at
*22. We perceive the same problem, but it strikes us as sounding
more in standing doctrine than in mootness. The Governor, as the
party invoking mootness, bears a "formidable burden" in attempting
to show that his "allegedly wrongful behavior could not reasonably
be expected to recur." Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). Even so,
projected future harm can be "too speculative to support standing,"
even if it is "not too speculative to overcome mootness." Id.
Speaker Eves has not "credibly allege[d] . . . a
realistic threat" of future retaliation from Governor LePage. Id.
And the Supreme Court has been reluctant to afford private citizens
standing to enjoin hypothetical future government conduct. See,
- 24 -
e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 105–06, 110 (1983)
(finding no standing for plaintiff seeking to enjoin police
department's future use of choke holds, because he had failed to
"indicate why [he] might be realistically threatened" by the use
of such choke holds in the future). The Speaker's "subjective
fears . . . are generic, speculative, and fail to demonstrate a
'real and immediate threat' of likely future violations."
Asociación de Periodistas de P.R. v. Mueller, 680 F.3d 70, 85 (1st
Cir. 2012) (quoting Lyons, 461 U.S. at 105).
There is another reason to affirm dismissal of these
claims: Speaker Eves has not pleaded facts sufficient to prove his
entitlement to an injunction. He has not demonstrated that any
injury he has suffered was "irreparable," nor that "the public
interest would not be disserved by a permanent injunction." eBay
Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). "The
decision to grant or deny permanent injunctive relief is an act of
equitable discretion by the district court," id., and the district
court did not abuse its discretion in this instance.
IV.
State Law Claim
Speaker Eves also raises a pendent state claim under the
Maine Tort Claims Act ("MTCA") for intentional interference with
contract. Governor LePage argues that he is immune, as a matter
of state law, because Maine grants absolute personal immunity to
- 25 -
"employees of governmental entities" for "[p]erforming or failing
to perform any discretionary function or duty, whether or not the
discretion is abused." M.R.S.A. tit. 14, § 8111(1), (1)(C).
Having properly dismissed the § 1983 claims on which
federal jurisdiction relied, the district court exercised
supplemental jurisdiction and dismissed the pendent MTCA claim on
immunity grounds. In our view, the district court should have
declined to exercise supplemental jurisdiction.
A district court "may decline to exercise supplemental
jurisdiction" if the court "has dismissed all claims over which it
has original jurisdiction." 28 U.S.C. § 1367(c)(3). The Supreme
Court has explained that district courts must weigh several factors
when deciding whether to exercise jurisdiction over pendent state
law claims: assuming jurisdiction might promote "judicial economy"
and "convenience," but declining jurisdiction might promote
"comity" or afford the parties a "surer-footed reading of
applicable law" from state courts. United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966).
Here, the balance of Gibbs factors tips heavily toward
a federal court declining to exercise its supplemental
jurisdiction. Admittedly, the state law claim does not
predominate in Speaker Eves's lawsuit, see id. at 727–28, and his
claims all "derive from a common nucleus of operative fact," id.
at 725. Still, in this circuit, it is well settled "that in the
- 26 -
usual case in which all federal-law claims are eliminated before
trial, the balance of factors [from Gibbs] will point toward
declining to exercise jurisdiction over the remaining state-law
claims." Rivera-Díaz v. Humana Ins. of P.R., Inc., 748 F.3d 387,
392 (1st Cir. 2014) (quoting Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988)). Most importantly, comity concerns loom
especially large when a case broaches questions about the authority
of a state's governor and the separation of powers within the state
government. We take no position on whether the district court's
interpretation of Maine law was correct; for the foregoing reasons,
the matter is best left to the Maine courts.
To that end, the district court's dismissal of Speaker
Eves's MTCA claim on the merits is vacated. We remand with
instructions to dismiss the claim without prejudice.
V.
Conclusion
The district court's judgment is affirmed with respect
to the dismissal of Speaker Eves's federal claims, and vacated
with respect to the dismissal with prejudice of Speaker Eves's
MTCA claim, which is remanded to the district court for a dismissal
without prejudice. No costs are awarded.
-Dissenting Opinion Follows-
- 27 -
THOMPSON, Circuit Judge, dissenting.
Mark Eves is qualified to lead Good Will-
Hinckley. This really goes beyond the
political. This is personal and vindictive.
I often disagree with Speaker Eves, but he's
a fine and honest man. More importantly, he's
a husband and a father of three beautiful kids
who is trying to support his family.
Political battles are one thing, but trying to
ruin someone economically is quite another.
Roger Katz, a Maine
Republican state senator7
Let what happened here sink in for a moment: As part of
his 2015 scorched-earth campaign against Democrats, Republican
Governor LePage threatened to put GWH — a century-old social-
service organization for at-risk children — out of business by
withholding over a cool mil in state funding unless GWH canned
Democratic House Speaker Eves as its president. That's the story
underlying Speaker Eves's complaint. And it's the one we must
take as true given the pleading-stage nature of this controversy.
See, e.g., Morales–Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st
Cir. 2012).
Anyway, zeroing in on the second prong of the qualified-
immunity analysis (the clearly-established-right prong), my
colleagues basically believe a governor back then could've
reasonably thought it perfectly legal to do what Governor LePage
did, because, they say, no prior case "forbade" the precise conduct
7 A quote lifted from Speaker Eves's operative complaint.
- 28 -
that Speaker Eves complains of. Take a second and reread the
majority's holding (fyi, I've added bracketed letters for ease of
reference): arguing that [a] no case holds a government official
liable for pressuring a "private" "third party" to retaliate
against another, the majority writes that
an official in the Governor's position reasonably could
have been uncertain whether this particular series of
actions, [b] falling within broad discretion given by
the legislature and [c] pertaining to funds not yet
formally appropriated, amounted to a violation of
Speaker Eves's constitutional rights.
On top of that, my colleagues insist that [d] the Governor
"reasonably could have believed . . . that he was acting lawfully
by criticizing and commenting upon GWH's plan to employ a president
with a track record of opposition to [his] priorities with respect
to education policy." Convinced that the majority's qualified-
immunity analysis is off the mark, I write these words of protest.
The qualified-immunity defense hardly gives an official
carte blanche to trash a citizen's constitutional rights simply
because the fact pattern of the case doesn't precisely match the
fact pattern of earlier cases. See, e.g., Hope v. Pelzer, 536
U.S. 730, 739, 741 (2002) (explaining that "officials can still be
on notice that their conduct violates established law even in novel
factual circumstances," and adding that "[f]or a constitutional
right to be clearly established, its contours 'must be sufficiently
clear that a reasonable official would understand that what he is
- 29 -
doing violates that right'" (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987))); Marrero-Méndez v. Calixto-Rodríguez, 830
F.3d 38, 46 (1st Cir. 2016); Mlodzinski v. Lewis, 648 F.3d 24, 38
(1st Cir. 2011). That makes sense, because
[t]he easiest cases don't even arise. There has never
been a section 1983 case accusing welfare officials of
selling foster children into slavery; it does not follow
that if such a case arose, the officials would be immune
from damages liability because no previous case had
found liability in those circumstances.
K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990)
(Posner, J., for the court); accord Marrero-Méndez, 830 F.3d at 47
(holding that because the "coerciveness" of the official's actions
is "patently" obvious, "no particular case — and certainly not one
directly on point — need have existed to put a reasonable officer
on notice of its unconstitutionality" (citation and quotations
omitted)). What this means is that a plaintiff can meet his burden
on the clearly-established front either by showing a prior case
factually on all fours with the current one or by showing a
violation so "obvious" that a reasonable person would've known
about it, see Brosseau v. Haugen, 543 U.S. 194, 199 (2004) — note,
please, that a violation fits the so-obvious category if "the
relevant legal rights and obligations" were "particularized
enough" that a sensible public servant could've "extrapolate[d]
from them and conclude[d] that a certain course of conduct [would]
- 30 -
violate the law," see Savard v. Rhode Island, 338 F.3d 23, 28 (1st
Cir. 2003) (en banc) (opinion of Selya, J.).
Viewed against this backdrop, my co-panelists' analysis
doesn't persuade. Take first their comment — point [a] — that no
case has ever put a public official on the liability hook for
pressuring a private third-party entity to ax one of its employees.
Undercutting their position is the fact that the very opinion they
cite to support their position also says that "a public official"
who took "some type of adverse action" impinging the plaintiff's
First Amendment rights may be personally liable if he
"'threaten[ed]' or 'coerce[d]' the third party to act." See
Zaloga v. Borough of Moosic, No. 15-2723, 2016 WL 6156003, at *4
(3d Cir. Oct. 24, 2016) (quoting McLaughlin v. Watson, 271 F.3d
566, 573 (3d Cir. 2001)). And assessing the allegations through
the required plaintiff-friendly prism, I have no trouble
concluding that Governor LePage's bullying — forcing GWH to sack
Speaker Eves on pain of losing more than a million bucks in
expected state funding, knowing as he did that such a loss would
likely kill GWH — is the type of coercion condemned by Zaloga.
As for the majority's talk about Governor LePage's
funding discretion — point [b]: Does anyone think the Governor
would or should get off scot-free if he had browbeat a state-
funds-receiving entity into dumping an employee for religious,
racial, or gender reasons? No way. Anyhow, a case on our books
- 31 -
long before the present fracas flatly contradicts Governor
LePage's view — embraced by the majority — that the First Amendment
doesn't apply to the mere withholding of discretionary state
funding. See El Dia, Inc. v. Rossello, 165 F.3d 106 (1st Cir.
1999). An El Dia-run newspaper published a bunch of unflattering
articles about Puerto Rico's then governor and his administration.
Id. at 108. Retaliating, the governor and other officials had 18
government agencies stop advertising in the paper. Id. El Dia
sued, alleging restriction of its First Amendment rights. Id. A
district judge later granted the defendants' qualified-immunity-
based motion to dismiss. Id. On appeal, the defendants persisted
in arguing that no "'clearly established' First Amendment law"
barred them from pulling gobs of discretionary "government
advertising" from the paper as punishment for its knocking the
administration. Id. But we would have none of it, saying in a
ringing statement that "[i]t would seem obvious that using
government funds" as a stick to punish First Amendment activity
offends the Constitution because "[c]learly established law
prohibits the government from conditioning the revocation of
benefits on a basis that infringes constitutionally protected
interests." Id. at 109-10 (emphasis added) (citing Perry v.
Sindermann, 408 U.S. 593, 597 (1972)).
As I see it, a levelheaded governor could've
extrapolated from El Dia that he couldn't withdraw discretionary
- 32 -
state funding to get back at a political opponent for exercising
First Amendment rights. The majority tries to deflect El Dia's
impact by arguing that "El Dia involved intrusion by a governor
into the operations of a newspaper and the freedom of the press —
factors not present here." But nothing in El Dia's money quote —
that "[c]learly established law prohibits the government from
conditioning the revocation of benefits on a basis that infringes
constitutionally protected interests" — limits its reach to
newspaper/freedom-of-the-press cases. Rather, a fair reading of
the words used there gave Governor LePage fair warning that his
now-challenged actions would cross the constitutional line.
That leads us to my co-panelists' point [c] — that
Governor LePage's actions related to "not yet formally
appropriated" funds. Well, they never explain why that matters.
Regardless, the complaint alleges the Governor understood that
discretionary funds for GWH were "very likely to remain in the
budget when it was enacted." After all (to quote the complaint
again), the $132,500 he had frozen "had already been submitted by"
the department of education to the state controller's office "for
payment" to GWH in the first quarter of the proposed budget — that
the controller was getting ready to make this payment shows how
everyone believed the money would be in the soon-to-be-enacted
- 33 -
budget. And if more were needed, the Governor's threats certainly
presupposed that GWH-related funds would stay in the budget.
And that leaves us with the majority's point [d] — that
Governor LePage can get away with doing what he did because Speaker
Eves opposed his education policy. I see a big problem: by
accepting the Governor's response to Speaker Eves's political-
affiliation-based allegations, they're not taking the complaint's
well-pled allegations as true and reading them in the light most
hospitable to the Speaker — which is a no-no. See generally Wilson
v. HSBC Mortg. Servs., Inc., 744 F.3d 1, 7 (1st Cir. 2014)
(discussing the motion-to-dismiss protocol).
The bottom line: Clearly-established law didn't give
Governor LePage the discretion to infract Speaker Eves's
constitutional rights. And because the majority — though
conscientious — rules otherwise, I respectfully but emphatically
dissent.
- 34 -
Eves v. LePage
Court: Court of Appeals for the First Circuit
Date filed: 2016-11-22
Citations: 842 F.3d 133, 41 I.E.R. Cas. (BNA) 1405, 2016 U.S. App. LEXIS 20941, 2016 WL 6872654
Copy CitationsCombined Opinion