Whalen v. Massachusetts Trial Court

United States Court of Appeals
For the First Circuit

No. 04-1976

JAMES M. WHALEN,

Plaintiff, Appellant,

v.

MASSACHUSETTS TRIAL COURT; WILLIAM W. TEAHAN, JR.,
ROBERT F. KUMOR, BARBARA A. DORTCH-OKARA; ROBERT E. FEIN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges.

Harvey A. Schwartz with whom Laurie Frankl and Rodgers, Powers
& Schwartz LLP were on brief for appellant.
Charles M. Wyzanski, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief for appellees.

February 4, 2005
 COFFIN, Senior Circuit Judge. In September 2002, the

Springfield (Massachusetts) District Court was obliged to lay off

three of its nine assistant clerks because of a budget deficit.

Appellant James Whalen, who had held his position since 1989, was

one of the clerks chosen for layoff. He subsequently brought a

federal civil rights suit against the Massachusetts Trial Court and

four individuals, claiming that his procedural due process rights

had been violated because he was given no opportunity to contest

his selection for layoff. See 42 U.S.C. § 1983.1 He sought

damages against the individual defendants and injunctive relief

against the Trial Court. The district court dismissed the case

against the individual defendants based on qualified immunity and,

after Whalen was reinstated to his position, dismissed the case

against the Trial Court as moot. Whalen appeals both decisions.

In two respects, Whalen's claims require us to look beyond

basic principles, first in considering the procedural due process

rights associated with a budgetary termination, and second in

considering the nature of the injunctive relief permitted against

a state under Ex Parte Young, 209 U.S. 123 (1908). After careful

review, we conclude that Whalen suffered a due process injury, but

that the individual defendants properly were granted immunity

because the law was not clearly established that he was entitled to

1
The complaint also alleged a substantive due process
violation, but that claim has not been pursued on appeal.

-2-
a pre-termination hearing. Because we also conclude that the

Eleventh Amendment bars a federal court from ordering the

injunctive relief Whalen seeks, we agree with the district court

that the remainder of the case should be dismissed as moot.

I. Background

After implementing a series of voluntary cost-saving measures

in the summer of 2002, including reduced work weeks and extended

leaves of absence, administrators for the Massachusetts Trial Court

determined that their anticipated budget shortfall also required a

number of involuntary layoffs. In the Springfield District Court,

the "[i]nvoluntary personnel reductions" affected a total of twelve

employees, including three of the then-nine assistant clerks. In

an affidavit, the Trial Court's Personnel Administrator stated that

the Chief Justice for Administration and Management ("CJAM"),

Barbara A. Dortch-Okara, had "determined that managers had the

discretion to consider such factors as prior discipline,

attendance, work product and other relevant factors" in selecting

the employees to be laid off.

Appellant Whalen received a letter from Dortch-Okara dated

August 29 notifying him that, as a result of a budget shortfall, he

had been selected for layoff effective September 13. The letter

gave no reasons for his selection. It was accompanied by materials

explaining the continuation of his health insurance benefits and

the procedures for applying for unemployment compensation. At

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least two of the assistant clerks retained by the court had less

seniority in the position than appellant. Before the layoff went

into effect, additional funding became available and one of the

other assistant clerks selected for layoff was retained. That

employee had held his job for less than three years.

The tenure and termination of assistant clerks is addressed by

two Massachusetts statutes. Under Mass. Gen. Laws Ann. ch. 218, §

10, an assistant clerk who has held his position for three years

before the effective date of the act "shall hold office during good

behavior," subject to applicable retirement laws. The provision

goes on to state that such an employee may be removed from office

under procedures authorized by Mass. Gen. Laws Ann. ch. 211B, § 8.

Section 8 provides that an employee covered by the provision "may

be removed for cause." Such a removal must be reviewed by the

advisory committee on personnel standards and is not final until

approved by the committee. Covered employees who have served three

full years in a position have the right to appear personally before

the committee before it renders a decision.

In his complaint, Whalen contended that these provisions gave

him a protected property interest in his job and that the

Fourteenth Amendment's guarantee of due process thus entitled him

to notice of the reasons why he was selected for layoff and a pre-

termination opportunity to respond to the reasons given. See,

e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

-4-
(1985); Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 101-02

(lst Cir. 2002).2 He sought monetary damages from four individuals

– two justices of the Springfield District Court, the clerk of that

court, and CJAM Dortch-Okara – and an injunction ordering the court

to reinstate him with back pay and benefits.

The defendants initially argued that Whalen did not have the

requisite three years of service to qualify for section 10's tenure

protection,3 but abandoned that argument and conceded that

"plaintiff's length of service was sufficient to qualify him" under

the statute. They maintained, however, that he was not entitled to

the procedures outlined in section 8 of chapter 211B because the

provision applies only to removal for cause and not layoff.

Moreover, the individual defendants claimed the shield of qualified

immunity, arguing that Whalen did not have a clearly established

constitutional right to a hearing before a budget-driven

termination of his position – and, indeed, had no right to such a

hearing at all.

2
He also claimed that his rights were violated because the
statutory procedures were not followed. As we note below, a
plaintiff is not necessarily entitled, as a matter of federal due
process, to all of the procedures provided by state law. See infra
at p. 13 n.6; see also Bellville v. Town of Northboro, 375 F.3d 25,
31 (1st Cir. 2004) ("The states, of course, are free to accord
their citizens rights beyond those guaranteed by federal law.").
3
They asserted that the statute covered only employees who
had been in the position for three years at the time the Court
Reorganization Act was passed in 1978.

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 Without articulating its reasons, the district court granted

immunity to the individual defendants. It then certified to the

Massachusetts Supreme Judicial Court the question whether section

8's procedural requirements apply to an assistant clerk who is

terminated when the court reduces the total number of such

positions for budgetary reasons. In March 2004, while that

question was pending before the SJC, Whalen was reinstated. In

June, the defendants moved to dismiss the remainder of the case,

which involved only injunctive relief, as moot. The district court

granted the motion over Whalen's objection and ordered the

certification question to be withdrawn from the SJC.

On appeal, Whalen challenges both the grant of qualified

immunity to the individual defendants and the mootness ruling. He

claims that his constitutional right to some kind of pre-

termination process was clearly established, and that reasonable

court officials would have understood that the property right he

held in his position entitled him to notice of the reasons he was

selected for layoff and an opportunity to respond. See Harlow v.

Fitzgerald, 457 U.S. 800, 818-19 (1982) (explaining qualified

immunity inquiry); Mihos v. Swift, 358 F.3d 91, 102 (1st Cir. 2004)

(same). He further maintains that his demand for injunctive relief

did not become moot upon his reinstatement because he still seeks

restoration of credit toward his retirement and pension benefits

for the time he was out of work.

-6-
 We consider each of these issues in turn.

II. Qualified Immunity

Guided by Supreme Court precedent, we have consistently

applied a three-part test for evaluating an official's claim to

qualified immunity. Riverdale Mills Corp. v. Pimpare, 392 F.3d 55,

60-61 (1st Cir. 2004); Mihos, 358 F.3d at 102; Suboh v. Dist.

Attorney's Office, 298 F.3d 81, 90 (1st Cir. 2002); see also Hope

v. Pelzer, 536 U.S. 730, 735-36 (2002); Harlow, 457 U.S. at 818-19.

We first consider whether the plaintiff's allegations, if true,

establish a constitutional violation. Hope, 536 U.S. at 736;

Mihos, 358 F.3d at 102. The second question is whether the right

was clearly established at the time of the alleged violation.

Suboh, 298 F.3d at 90. Finally, we ask whether a similarly

situated reasonable official would have understood that the

challenged action violated that right. Mihos, 358 F.3d at 102;

Suboh, 298 F.3d at 90. We review qualified immunity determinations

de novo, at least to the extent they turn on issues of law. Mihos,

358 F.3d at 102; see also Mitchell v. Forsyth, 472 U.S. 511, 528-30

(1985).4

A. Do the allegations add up to a constitutional violation?

Whalen contends that he had a property right in continued

employment that was created by state law and that, consequently, he

4
Where, as here, the district court offered no rationale for
its decision, our review obviously must be plenary.

-7-
had a right to procedural due process that was violated when he was

given neither notice of the specific reasons for his layoff nor

opportunity to respond. We agree that these allegations generally

describe a constitutional injury and conclude, for reasons we shall

explain, that the constitutional claim remains viable even when

examined more particularly.

Our court consistently has held that an employee who under

state law can be terminated only for "just cause" has a

constitutionally protected property interest in his employment.

See, e.g., Wojcik, 300 F.3d at 102; Cronin v. Town of Amesbury, 81

F.3d 257, 260 n.2 (lst Cir. 1996); Perkins v. Bd. of Dirs., 686

F.2d 49, 51 (lst Cir. 1982); see also Gilbert v. Homar, 520 U.S.

924, 928-29 (1997) ("[W]e have previously held that public

employees who can be discharged only for cause have a

constitutionally protected property interest in their tenure and

cannot be fired without due process."); Loudermill, 470 U.S. at

538-39 (property right to continued employment created by statute

that gave "'classified civil service employees'" the right "to

retain their positions 'during good behavior and efficient

service,'" with dismissal conditioned on "'misfeasance,

malfeasance, or nonfeasance in office'"). The two Massachusetts

statutes at issue here, certainly when taken together, fit this

model, specifying that an assistant court clerk has the right to

retain his position "during good behavior" and to be removed only

-8-
"for cause." See supra p. 4 (discussing Mass. Gen. Laws Ann. ch.

218, § 10 and ch. 211B, § 8).

Relying on the Supreme Court's decision in Bishop v. Wood, 426

U.S. 341 (1976), defendants assert that the Massachusetts statutes,

rather than creating an enforceable expectation of continued

employment, simply set out procedures to govern removal of

employees. In Bishop, the Supreme Court accepted the

interpretation of a local ordinance by a North Carolina judge who

had concluded that an employee was terminable at will, even though

the applicable ordinance "[o]n its face . . . may fairly be read as

conferring . . . a guarantee" to continued employment. See id. at

345. The Court noted that it had in the past accepted an

interpretation of state law in similar circumstances "even if an

examination of the state-law issue without such guidance might have

justified a different conclusion." Id. at 346.

No such contrary interpretation of the Massachusetts statutes

has been cited by defendants in this case, and their reliance on

Bishop is therefore misplaced. We see no basis upon which to

depart here from our ordinary conclusion that a guarantee of tenure

in the absence of "good cause" for removal creates a

constitutionally protected property interest. Whalen thus had a

property right to continued employment as an assistant clerk.

Whether that property interest gave rise to a right to

procedural due process, however, is another matter. Although a

-9-
property right and procedural due process typically go hand-in-hand

– triggering a requirement for "some kind of a hearing" before

discharge, Bd. of Regents v. Roth, 408 U.S. 564, 569-70 & n.7

(1972) – we have recognized a limited "reorganization exception"

to due process that eliminates the need for a hearing where a

reorganization or other cost-cutting measure results in the

dismissal of an employee. See Duffy v. Sarault, 892 F.2d 139, 147

(lst Cir. 1989); see also Misek v. City of Chicago, 783 F.2d 98,

100-01 (7th Cir. 1986); Hartman v. City of Providence, 636 F. Supp.

1395, 1409-10 (D.R.I. 1986) (Selya, J.); cf. Milne v. Sch. Comm. of

Manchester, 381 Mass. 581, 582-83 & n.3 (1980) (statutory notice

and hearing requirements inapplicable to dismissal of tenured

teacher due to decline in enrollment).5 Defendants assert that,

even if Whalen has a property right, this precedent establishes

that no constitutional violation occurred. Additionally,

defendants contend that Whalen was not "removed" from his job for

cause, but merely laid off, and so the due process procedures were

not triggered.

Defendants' arguments would have considerable force if an

entirely neutral layoff were at issue, i.e., if the layoff decision

were unrelated to individual qualifications. The case law that

5
A plausible claim that the asserted reorganization was
pretextual would warrant further inquiry. See Misek, 783 F.2d at
100-01; Hartman, 636 F. Supp. at 1416-17; see also Duffy, 892 F.2d
at 147; cf. Milne, 381 Mass. at 583 n.3.

-10-
requires a pre-termination hearing for an employee with a state-

protected property interest in his job reflects "a balancing of the

competing interests at stake" when an employee with a legitimate

claim to permanence faces a "for cause" loss of his position. See

Loudermill, 470 U.S. at 542. The government's interests in "the

expeditious removal of unsatisfactory employees and the avoidance

of administrative burdens" are countered not only by the employee's

significant interest in retaining employment but also by the

interest in avoiding an erroneous termination. Id. at 542-43.

[S]ome opportunity for the employee to present his side
of the case is recurringly of obvious value in reaching
an accurate decision. Dismissals for cause will often
involve factual disputes. . . . Even where the facts are
clear, the appropriateness or necessity of the discharge
may not be; in such cases, the only meaningful
opportunity to invoke the discretion of the decisionmaker
is likely to be before the termination takes effect.

Id. at 543.

When the termination at issue is "in good faith directed at

positions rather than individuals," Hartman, 636 F. Supp. at 1409,

however, the hearing contemplated by the Supreme Court's due

process precedent loses its relevance. "In such cases, since there

are no charges against the employee . . . involved, there would be

no occasion for a hearing, and it would be idle to hold one."

Kusza v. Maximonis, 363 Pa. 479, 482-83, 70 A.2d 329, 331 (1950)

(quoted in Hartman, 636 F. Supp. at 1411). In addition, because

reorganizations often affect numerous employees, the governmental

interest in efficient administration may weigh more heavily in such

-11-
circumstances. See, e.g., Mayfield v. Kelly, 801 F. Supp. 795, 798

(D.D.C. 1992) ("A RIF [reduction-in-force] involves a large number

of employees . . . for whom it is impossible to have pre-

termination hearings.") (quoted in Wash. Teachers' Union Local #6

v. D.C. Bd. of Ed., 109 F.3d 774, 780 (D.C. Cir. 1997)).

Under this precedent, if the Trial Court had in good faith

eliminated the position of assistant clerk, Whalen clearly would

have no constitutional claim. Similarly, if the three assistant

clerks originally selected for layoff had been chosen entirely

based on factors unrelated to personal performance – for example,

seniority or job location – the "reorganization exception" case law

would be on point. Likewise, the distinction that defendants draw

between a "removal for cause" and a "layoff" – the latter connoting

an absence of performance factors – would be pertinent if Whalen's

selection had been directed solely at his position rather than at

him. See Mass. Gen. Laws Ann. ch. 31, § 1 (a "layoff" is "a

temporary discontinuance of employment for lack of work or lack of

money").

Here, however, the record indicates that performance factors

played a role in Whalen's selection for layoff. As noted above,

CJAM Dortch-Okara authorized managers to take into account a

variety of qualitative factors in choosing which three assistant

clerks to lay off. Those individualized considerations took on

even greater significance for Whalen when funds became available to

-12-
retain one of the three clerks initially selected for termination,

and he was passed over in favor of someone with considerably less

experience who even lacked sufficient tenure to claim a property

interest in his job. On these facts, it seems inescapable that

Whalen's job performance was a deciding factor in his selection.

And certainly, for purposes of considering the legal questions

before us, we must presume that that was so.

Consequently, we conclude that Whalen had a right to the

minimal procedural protections of notice and an opportunity to

respond. As the Supreme Court has observed, the requisite

procedures "need not be elaborate," Loudermill, 470 U.S. at 545,

and the opportunity to hear and respond to the employer's reasons

could be accomplished either in writing or in an informal face-to-

face meeting, id. at 546.6 It is "fundamental," id., however, that

6
As a matter of federal due process, Whalen is not
necessarily entitled to the procedures spelled out in Mass. Gen.
Laws Ann. ch. 211B, § 8. Although a property right in employment
must arise from state law, what process is due is a question of
federal law. Loudermill, 470 U.S. at 541. We need not, and do
not, consider the remedy available for violation of his statutory
procedural rights. See O'Neill v. Baker, 210 F.3d 41, 49 n.9 (lst
Cir. 2000) (noting that "claims[] involving state procedural
guarantees that are above and beyond constitutional due process
requirements" are not properly before a court examining an alleged
deprivation of a plaintiff's federal due process rights).
We also do not address in this opinion whether due process may
in some instances "require more than a simple opportunity to argue
or deny" the employer's reasons for dismissal, Loudermill, 470 U.S.
at 552 (opinion of Brennan, J., concurring in part and dissenting
in part). See Gilbert v. Homar, 520 U.S. 924, 930 (1997) ("'[D]ue
process is flexible and calls for such procedural protections as
the particular situation demands.'") (quoting Morrissey v. Brewer,
408 U.S. 471, 481 (1972)).

-13-
some process is due when an employee with a protected property

interest in his job is terminated in a "person-directed rather than

position-directed personnel action[]," Hartman, 636 F. Supp. at

1412.7

We thus conclude that Whalen satisfied the first prong of the

qualified immunity inquiry by stating a constitutional due process

violation.

7
The DC Circuit reached a seemingly contrary conclusion in
Wash. Teachers' Union Local #6, 109 F.3d at 774, where it held that
due process did not require pre-termination hearings for more than
400 teachers who lost their jobs in a reduction-in-force ("RIF")
even though the teachers were ranked in part by their principals
based on performance. The court highlighted the burden that would
be imposed on the school district by pre-termination proceedings
for so many individuals, id. at 781, and minimized the value of
giving teachers an opportunity to respond to the principals'
rankings because "principals enjoyed near-total discretion in
ranking their teachers and because the record contains no evidence
that factual errors occurred," id. at 780.
Union Local #6 may be factually distinguishable. The court's
opinion does not indicate how the 400 layoffs were distributed
among the district's schools and whether some principals faced
substantial staff reductions. Here, it appears that the supervisor
who selected the assistant clerks for layoff would have needed to
meet briefly with only three employees. We are unpersuaded that
this minimal process would have been unduly burdensome. Moreover,
Whalen was given no explanation for his selection; the teachers in
Union Local #6 had been given an opportunity to review and sign the
ranking forms used to effectuate their RIF. See id. at 777-78.
To the extent the D.C. Circuit relied on the discretionary
nature of the teachers' rankings to discount the need for pre-
termination process, we disagree. We note that the Supreme Court
has recognized that a pre-termination "opportunity to invoke the
discretion of the decisionmaker" can be of value even in the
absence of factual errors. See Loudermill, 470 U.S. at 543.

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 B. The "Clearly Established Right" and "Reasonableness"

It is beyond debate that, as a general matter, the

constitutional right to due process claimed by Whalen was clearly

established at the time he was laid off. As we have discussed, the

law was unequivocal in 2002 that an employee with a property

interest in his employment was entitled to pre-termination notice

of the reasons for his performance-based discharge and an

opportunity to respond.

But the inquiry into whether a right is clearly established

"'"must be undertaken in light of the specific context of the case,

not as a broad general proposition,"'" Mihos, 358 F.3d at 109

(quoting Suboh, 298 F.3d at 93 (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001))); see also Brosseau v. Haugen, 125 S. Ct. 596, 599

(2004); Riverdale Mills Corp., 392 F.3d at 65-66, and this is not

a standard performance-based dismissal case. At the threshold

level, the motivation behind Whalen's termination was budgetary.

It is undisputed that, without the fiscal crisis, Whalen would not

have been targeted for dismissal, and, indeed, once the crisis

passed he was reinstated. As the defendants have pointed out, this

was not a termination intended to sever an employment relationship

but a layoff accompanied by recall rights in the event fiscal

conditions improved. In these circumstances, there is at least

some merit to the defendants' argument that the procedural

protections outlined in section 8 (of chapter 211B) for a removal

-15-
"for cause" are inapplicable. Indeed, before it dismissed the case

as moot, the district court certified that issue to the

Massachusetts Supreme Judicial Court.8

Although the applicability of the procedural protections

specified in section 8 does not determine Whalen's federal due

process rights, the uncertainty reflected by the certification is

relevant to our inquiry. The statute, in conjunction with ch. 218,

§ 10, appears to confer procedural protections on the same group of

assistant clerks who possess a federal constitutional right to due

process, i.e., those who have held their jobs for at least three

years. If we cannot say with assurance that the statutory

procedures are intended to apply in Whalen's circumstances – and,

like the district court, we cannot – it would be a stretch to

conclude that Whalen had a clearly established right to the notice

and hearing afforded by the Fourteenth Amendment. The differences

we have noted between the circumstances here and the typical

termination-for-cause complicate matters in both settings.

But whether or not we proclaim the right clearly established

in the specific context of this case, the outcome of our immunity

8
The court asked the following question of law in its
certification order: "When a Massachusetts District Court reduces
the total number of assistant clerks for budgetary reasons, must
the termination of a District Court assistant clerk who has held
his position for more than three years since the enactment of
M.G.L. c. 218 § 10 be done in accordance with the procedures of
M.G.L. c. 211B § 8?" This formulation of the question was proposed
by Whalen.

-16-
inquiry would be the same because defendants inevitably would

prevail at the third step of the analysis.9 We believe an

objectively reasonable Massachusetts official could have drawn the

conclusion – albeit incorrectly – that a budget-driven layoff

effectuated by reference to performance is nonetheless a budget-

driven layoff, and thus exempt from the procedural requirements

applicable to terminations for cause. Although we have now

clarified that due process requires that an employee who holds a

property right in his job be given notice and opportunity to

respond whenever he is terminated in a "person-directed rather than

position-directed personnel action[]," Hartman, 636 F. Supp. at

1412, a reasonable official could have taken into account the

possibly (and ultimately) temporary nature of Whalen's termination

and the financial crisis that triggered it to conclude that the

Loudermill line of cases was not implicated.

Certainly, in terms of future employment, a budgetary layoff

is likely to have less drastic consequences than a classic

termination-for-cause; an official focusing on the "layoff" label

and the nature of the harm, against the backdrop of the

"reorganization exception," reasonably may have miscalculated in

weighing the competing interests. See Gilbert, 520 U.S. at 932

9
We note that, on occasion, we have combined the second and
third prongs of the qualified immunity analysis into a single step.
Riverdale Mills Corp., 392 F.3d at 60 n.5 (citing Tremblay v.
McClellan, 350 F.3d 195, 199-200) (1st Cir. 2003)).

-17-
("[W]hile our opinions have recognized the severity of depriving

someone of the means of his livelihood, . . . they have also

emphasized that in determining what process is due, account must be

taken of 'the length' and 'finality of the deprivation.'")

(citations omitted). In sum, because we believe an objectively

reasonable official in the defendants' position would not

necessarily have understood that his action violated the

plaintiff's rights, we hold that the district court properly

granted qualified immunity to the individual defendants.10

III. Mootness

Whalen also disputes the district court's ruling that his case

became moot once he was reinstated to his position in March 2004,

arguing that he remained entitled to pursue injunctive relief to

restore his pension and retirement credit for the approximately

eighteen months he was out of work. Defendants argue that such

relief is prohibited by the Eleventh Amendment, which generally

bars suits in federal court against unconsenting states. See Rosie

D. ex rel. John D. v. Swift, 310 F.3d 230, 234 (1st Cir. 2002).

10
We wish to emphasize that the factors distinguishing
Whalen's circumstances from a typical budgetary layoff – while
perhaps leading a reasonable official astray – do not in this case
lead to a different balance of the competing interests identified
in Loudermill. As we have noted, the administrative burden in
providing explanation to the affected assistant clerks would have
been slight, and there was no need for the "expeditious removal" of
an unsatisfactory employee. On the other hand, the employee's
interest in retaining employment and the joint interest in avoiding
erroneous decisions remain high.

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The prohibition extends to suits against state officials acting in

their official capacities, id., and it is for that reason that

Whalen sought back pay and other monetary relief only from the

court officials in their individual capacities.11

In Ex Parte Young, however, the Supreme Court carved out an

exception to Eleventh Amendment state immunity that allows federal

courts to "enjoin state officials to conform their future conduct

to the requirements of federal law," Quern v. Jordan, 440 U.S. 332,

337 (1979). See also Green v. Mansour, 474 U.S. 64, 68 (1985);

Edelman v. Jordan, 415 U.S. 651, 664 (1974). The Court has

described the difference between permissible and impermissible

relief as "the difference between prospective relief on one hand

and retrospective relief on the other." Quern, 440 U.S. at 337.

Whalen suggests that restoration of his service credit

qualifies as prospective injunctive relief because he seeks only

future recognition of his length of tenure to establish his

retirement eligibility and pension benefits. We disagree that this

meets the Ex Parte Young standard.

Before we explain that conclusion, we sidestep briefly to note

that the Eleventh Amendment may not be the only barrier Whalen

faced. A plaintiff's entitlement to more than nominal damages in

a procedural due process case turns on whether the constitutional

11
Our holding in Section II that the individuals are entitled
to qualified immunity eliminates that avenue of relief.

-19-
violation – the failure to provide a pre-termination opportunity to

contest termination – did in fact cause the harm asserted – the

loss of the job and related benefits. If Whalen would have been

terminated even after a proper hearing, he would not be eligible

for either reinstatement or damages flowing from his unemployment.

See Carey v. Piphus, 435 U.S. 247, 260 (1978); Brewer v. Chauvin,

938 F.2d 860, 862-64 (8th Cir. 1991) (en banc); Knudson v. City of

Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987); Rodriguez de

Quinonez v. Perez, 596 F.2d 486, 491 (1st Cir. 1979).

We need not consider the issue of cause, however, because even

if Whalen would have avoided layoff if he had had an opportunity to

address the reasons for his selection, all available remedies are

foreclosed in this case by the combined force of the Eleventh

Amendment and principles of qualified immunity. As we have

explained, the Eleventh Amendment bars monetary awards against the

Trial Court itself, and the individuals are likewise protected from

money damages by qualified immunity. Reinstatement already has

occurred outside the litigation.

We can understand why Whalen insists that the remaining remedy

– restoration of credit for his time out of work – falls into the

category of prospective relief. He seeks no monetary reward, and

his request would have only future impact on the state. But timing

is not the sole inquiry under Ex Parte Young. The pivotal question

is whether the relief "serves directly to bring an end to a present

-20-
violation of federal law." Papasan v. Allain, 478 U.S. 265, 278

(1986); see also id. at 277-78 ("Young has been focused on cases in

which a violation of federal law by a state official is ongoing as

opposed to cases in which federal law has been violated at one time

or over a period of time in the past . . . ."). Relief that is

"tantamount to an award of damages for a past violation of federal

law, even though styled as something else," is barred. Id. at 278.

The difference is not always obvious. "As in most areas of

the law, the difference between the type of relief barred by the

Eleventh Amendment and that permitted under Ex Parte Young will not

in many instances be that between day and night." Edelman, 415

U.S. at 667; see also Papasan, 478 U.S. at 278 ("For Eleventh

Amendment purposes, the line between permitted and prohibited suits

will often be indistinct[.]"); cf. Florida v. Long, 487 U.S. 223,

238 (1988) ("The distinction between retroactive and prospective

relief is not always self-evident.").

We are persuaded that, despite the forward-looking nature of

Whalen's request for service credit, such relief would "in essence

serve[] to compensate" him for past injury, Papasan, 478 U.S. at

278. Even as a matter of vocabulary, the "restoration" of credit

is designed to give him back something he lost when he was

terminated unlawfully. Although reinstatement, too, involves a

"restoration" of rights, it differs because termination without due

process is the very unlawful act at issue; reinstatement pending a

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hearing thus "serves directly to bring an end to a present

violation of federal law," id. By contrast, restoring credit for

time lost due to a past termination has no impact on an ongoing

violation.

We therefore conclude that the Eleventh Amendment bars a

federal court from ordering restoration of Whalen's service credit.

See Mansour, 474 U.S. at 71 ("Because there is no continuing

violation of federal law to enjoin in this case, an injunction is

not available."). Because no further relief was available, the

district properly dismissed the case as moot.

Affirmed.

Dissent follows.

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 STAHL, Senior Circuit Judge (Dissenting). At the time

Whalen was targeted for layoff based on performance-related

factors, the law was such that a reasonable officer, when selecting

an employee for removal based on such factors, was on notice that

such an employee was entitled to due process. The fact that

budgetary constraints prompted the officials to evaluate Whalen's

performance is irrelevant--even in this "novel factual

circumstance[]," the "officials [were] still on notice" that Whalen

was entitled to some form of due process as soon as factors other

than seniority were considered in his being selected for removal.

See Hope v. Pelzer, 536 U.S. 730, 741 (2002).

In their search through our precedent for a perfect

factual match to the facts of this case, my brethren ignore the

Supreme Court's clear direction in Hope v. Pelzer that "[a]lthough

earlier cases involving 'fundamentally similar' facts can provide

especially strong support for a conclusion that the law is clearly

established, they are not necessary to such a finding." Id.

Indeed, this same error was made by four members of this court

sitting en banc in Savard v. Rhode Island, 338 F.3d 23 (1st Cir.

2003) (en banc) (opinion of Selya, J.), when this Court evenly

divided over the propriety of such a search for the perfect

precedential match. The proper inquiry is "whether the state of

the law [at the time of the action] gave [Appellees] fair warning

that their alleged treatment of [Whalen] was unconstitutional."

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See Hope, 536 U.S. at 741. And here, the answer is unequivocally

yes.

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