Eves v. LePage

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

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"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.

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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 -