Eves v. LePage , 927 F.3d 575 ( 2019 )

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
Howard, Chief Judge,
Torruella, Stahl, Lynch, Thompson, Kayatta, and Barron,
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, Caroline A.
Cook, and Consovoy McCarthy Park PLLC were on brief, for appellee.
Opinion En Banc
June 19, 2019

Judge Kayatta is recused and did not participate in
consideration of this matter.
LYNCH, Circuit Judge. This court took this case en
banc, which then caused the withdrawal of the panel opinion, Eves
v. LePage, 842 F.3d 133 (1st Cir. 2016), while we reconsidered the
case. A divided panel there had affirmed the district court's
dismissal of this First Amendment retaliation suit brought by the
then-Speaker of Maine's House of Representatives, Mark Eves,
against the then-Governor of Maine, Paul LePage.1 Eves alleged
that, while governor, LePage leveraged discretionary state
funding, in a yet unpassed state budget, to coerce an organization,
Good Will-Hinckley ("GWH"), to terminate Eves's upcoming
employment as its President.
In his en banc petition, Eves has narrowed his legal
claims by dropping all damages claims for the alleged violation of
his free speech rights by LePage. Eves continues to pursue damages
against LePage for his claim of political affiliation
discrimination, which is now the only damages claim before us.
The en banc court holds that LePage, on these unique
facts, is entitled to qualified immunity because a reasonable
governor in LePage's situation could have believed Eves's position
as the new President of GWH to be a policymaking position for which
political affiliation was relevant. We do not reach LePage's
1 LePage left office on January 2, 2019, and Eves left
office on December 2, 2016. We nonetheless generally refer to
them as Governor LePage and Speaker Eves.
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arguments that he is also entitled to immunity on other grounds.
We also reinstate in part our prior panel opinion and affirm the
dismissal of this action.
I.
Background
The qualified immunity issues presented in this case are
ultimately issues of law, which receive de novo review. Elder v.
Holloway, 510 U.S. 510, 516 (1994). Like the district court, we
assume the truth of the complaint's well-pleaded facts and draw
all reasonable inferences in Eves's favor.2 See Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009); Feliciano-Hernández v. Pereira-
Castillo, 663 F.3d 527, 532 (1st Cir. 2011) (quoting New York v.
Amgen Inc., 652 F.3d 103, 109 (1st Cir. 2011)).
A. Maine's Government and Budget Process
We begin with background information on Maine law as of
June 2015, the time of the events in this case, and other facts as
found by the district court.
2 We consider Eves's Second Amended complaint ("the
complaint"), documents annexed to it, materials fairly
incorporated within the complaint, and Maine state law, which is
subject to judicial notice. See Rodi v. S. New Eng. Sch. of Law,
389 F.3d 5, 12 (1st Cir. 2004). We do not consider materials not
in the complaint, which the district court held could not be
properly considered. Eves has not appealed from that portion of
the district court's decision and has waived any argument on the
issue.
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Serving in the Maine Legislature is not a full-time job
for most representatives. The legislature typically sits twice
in each session: once from December to June in year one, 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 was $24,056,
spread over the two years, plus a $38 per diem, when the
legislature was active, "for housing or mileage and tolls." Eves
v. LePage, No. 1:15-cv-300, 2016 WL 1948869, at *2 (D. Me. May 3,
2016). Most legislators have at least one other source of income,
often in the private sector. Id. In fact, "[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).
Maine's biennial budget process starts when the
Department of Administrative and Financial Services "prepare[s]
and submit[s] . . . a state budget document" to the governor,
having considered submissions from various agencies and policy
committees. M.R.S.A. tit. 5, § 1662. The governor then reviews
the draft budget, alters it, and 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 proposed budget then
returns to the governor, who has line-item veto power, permitting
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him to reduce "any dollar amount" in the budget. Me. Const. art.
IV, pt. 3, § 2-A. The legislature can override any such line-item
vetoes 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 two-thirds majority of both
the House and Senate is necessary to override the veto. Id. art.
IV, pt. 3, § 2.
The events in 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. The complaint sets forth reports from others
about statements LePage made about Speaker Eves. Those
statements, which are at the heart of this case, occurred on June
5, June 8, and June 9, before the legislature had passed any
budget. The complaint also sets forth allegations about later
statements by LePage on June 29, July 7, and July 30 as to his
reasons for his actions.
In a press conference on May 29, 2015, LePage 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. LePage did, in fact,
veto ten bills on June 8, 2015, stating that he had done so purely
because of their Democratic sponsorship.
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After the legislature passed a budget on June 17, 2015,
LePage issued sixty-four line-item vetoes, each of which the
legislature overrode on June 18 and 19, 2015. On June 29, 2015,
LePage vetoed the entire budget. The legislature also overrode
that veto on June 30, enacting the budget for fiscal years 2016
and 2017 into law. The enacted budget included discretionary
funding for GWH, which was disbursed to GWH after Speaker Eves's
contract with GWH was terminated.
B. Good Will-Hinckley, The Center of Excellence for At-risk
Students ("the Center"), and The Maine Academy of Natural
Sciences ("MeANS")
GWH is a nonprofit charitable organization, which serves
a public purpose, located in Fairfield, Maine. The nonprofit 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 a portfolio encompassing a "college
step-up program," a "Learning Center for youth with emotional or
behavioral challenges," a nutrition program, a library, and a
museum. Id. at *2. The organization has long depended on both
private donations and government grants.
GWH was designated by the Maine Legislature in 2009 "to
serve as the nonprofit charitable corporation with a public purpose
to implement the Center of Excellence for At-risk Students," a
statutorily-established public entity. Id. at *3; see 2009 Me.
Legis. Serv. Ch. 296 (West) (codified at M.R.S.A. tit. 20-A,
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§§ 6951-54). The legislature gave the governor discretion to fund
the Center. See M.R.S.A. tit. 20-A, § 15689-A.20. In order to
implement the Center, GWH opened a charter school in 2012, called
the Maine Academy of Natural Sciences ("MeANS"), which it continues
to operate. Eves's counsel conceded at oral argument that the
operation of MeANS is the only way in which the Center has been
implemented.
The complaint is silent as to whether MeANS is considered
a "public" charter school and whether state funding intended for
MeANS is simply passed on from GWH to MeANS as such. The complaint
contains no allegations as to the exact legal relationship between
the Center, MeANS, and GWH, and no allegations as to any contracts
between them. Nor has Eves appended to the complaint any such
contracts, nor quoted from them. However, three things are clear:
(1) although MeANS has its own board and principal, the school
relies on "discretionary state funding pursuant to its [statutory]
designation as 'the Center for Excellence for At-risk Students,'"
Eves, 2016 WL 1948869, at *3 (citing M.R.S.A. tit. 20-A, § 15689-
A.20); (2) GWH fulfills its public function of implementing the
Center only by administering MeANS, see 2009 Me. Legis. Serv. Ch.
296, § 2; and (3) the Center is, by legislative designation, a
public entity, see id.
The Maine state budget for fiscal years 2014 and 2015
-- which covered the period from July 1, 2013 to June 30, 2015 --
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had allocated $1,060,000 in discretionary funding to GWH for the
purpose of operating MeANS. Governor LePage disbursed all of the
discretionary funding in that period; however, during that period,
GWH was under a different President: first, Glenn Cummings, who
was himself a former Speaker of the Maine House and a Democrat,
and then under an interim President, Richard Abramson. The 2015–
2017 budget under debate in spring 2015 contained a discretionary
appropriation of $1,060,000 to GWH to be paid in quarterly
installments, as in previous years.
C. Selection of Speaker Eves as President of GWH
GWH began searching for a successor after Glenn Cummings
resigned as President of GWH in September 2014. Eves, who was
then Speaker of the Maine House, was one of the nineteen
applicants.3
GWH's eight-member search committee interviewed 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
3 Eves had served as a representative in the House since
2008, and was Speaker for four terms from 2012 to 2016. Eves also
had fifteen years of professional experience in behavioral health
and family therapy, in both clinical and administrative roles.
Since moving from Kentucky to Maine in 2003, Eves worked in that
field, even while serving in the legislature.
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style and polished approach' as reasons" for their conclusion.
Eves, 2016 WL 1948869, at *3. After Eves interviewed with the
full boards of GWH and MeANS on May 15, GWH's Board voted
unanimously to offer him the job of GWH President.
On June 5, 2015, Eves, who was then still the Speaker of
the Maine House, entered into a two-year employment agreement with
GWH, beginning on July 1, 2015. Id. at *4. That agreement
contained a "for-cause termination provision," and "no conditions
or contingencies" related to any actions or funding decisions by
the State. Id. Most of Eves's employment at GWH would overlap
with his final term as Speaker. GWH announced Eves as its new
President on June 9.
D. Governor LePage's Intervention
On June 5, Governor LePage learned that GWH had decided
to hire Speaker Eves and promptly called GWH's interim President.
Id. According to the complaint, LePage stated "that he was
extremely upset" about the news and "used profanity to describe
[Speaker Eves] and his work." That same day or "soon after,"
LePage also sent a handwritten note to GWH's Board Chair, which,
as characterized in the complaint, "referred very negatively to
Speaker Eves" and called him a "hack." This note was not appended
to the complaint. The Board Chair's belief, after reading the
note, was "that GWH would lose $1,060,000 in [discretionary] state
funding if it retained Eves as its new President." Id.
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On June 8, Governor LePage "sent a public letter to the
Board Chairs of GWH and MeANS, urging that they reconsider." Id.
According to the complaint, the letter characterized Eves as "a
longtime opponent of public charter schools" who had fought against
"every effort to reform Maine's government." Id. This letter was
also not appended to the complaint.
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.
On June 8, LePage also received a call from Gregory
Powell, the Chairman of the Board of Trustees of the Harold Alfond
Foundation ("the Foundation"), who was responding to a June 5
voicemail from LePage. The complaint alleges Powell was left with
the impression that LePage was "withdrawing all support,"
including financial support, from GWH as long as Eves remained as
President of the organization. The complaint alleges that Powell
responded to the news by sending 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 LePage were
to follow through on his threat to withhold the $1,060,000 in
discretionary state funding. Those concerns, Powell further
warned, made the Foundation uneasy about committing to a $2,750,000
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grant that the Foundation had been planning to give to GWH.
Powell's letter was not appended to the complaint.
On or about June 9, the complaint alleges 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, in response, froze $132,500 in discretionary
funding that was scheduled to be sent to GWH at the beginning of
the next quarter (on July 1), assuming the enacted budget contained
an appropriation of those funds. As of June 9, the legislature
had not yet passed the budget or appropriated any funding for GWH.
It would have been a violation of Maine law to have sent the
$132,500 to GWH before the budget was final and enacted. See
M.R.S.A. tit. 5, § 1543.
The lawyers for Eves and Governor LePage spoke on June
22. Eves's lawyer asked LePage to withdraw his threats, but LePage
refused to change his stance. However, LePage took no further
steps "to reduce or eliminate the $1,060,000 in discretionary funds
allotted in the proposed state budget for GWH." Eves, 2016 WL
1948869, at *5.
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. Eves was Speaker of the
Maine House at the time. Eves immediately stated publicly that
"his firing was caused by LePage's threat to withhold funding."
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Id. Months later, on October 15, GWH's Board Chair stated in a
legislative hearing that Eves's employment would not have been
terminated but for Governor LePage's intervention. Some of Eves's
colleagues in the legislature also spoke out. State Senate
President Mike Thibodeau, a Republican, publicly stated that he
was "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
that he had made any statement to influence GWH's decision-making
process. However, as the complaint alleges, when local reporters
interviewed LePage on June 29 and asked whether he had "threatened
to withhold money" from GWH, 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, LePage further explained:
[Eves] worked his entire political career to oppose and
threaten charter schools in Maine. He is the mouthpiece
for the Maine Education Association. Giving taxpayers'
money to a person who has fought so hard against charter
schools would be unconscionable.
And in another interview on July 30, LePage called Eves "a plant
by the unions to destroy charter schools." LePage drew an analogy:
"[O]ne time I stepped in . . . when a man was beating his wife.
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Should I have stepped in? Legally, no. But I did. And I'm not
embarrassed about doing it."
E. Procedural History of This Litigation
Eves filed this lawsuit on July 30, 2015, and then filed
a First Amended Complaint on December 18, 2015. Governor LePage
moved to dismiss the suit on January 5, 2016, arguing in his
supporting memo that the complaint failed to state any claim and
that the subject matter of the lawsuit was "a political dispute
that does not belong in court." He explicitly asserted, inter
alia, that his actions as to Eves were protected by both absolute
and qualified immunity. On April 13, 2016, Eves was granted leave
(without opposition) to file a Second Amended Complaint.4
On May 3, 2016, the district court issued an opinion
granting Governor LePage's motion to dismiss. Eves, 2016 WL
1948869, at *1. The court entered judgment for LePage the next
day, and Eves filed a notice of appeal that same day.
4 The Second Amended Complaint contained five claims
against Governor LePage: four federal law counts under 42 U.S.C.
§ 1983 for violations of Eves's rights to political affiliation,
free speech, freedom of association, and procedural due process,
and a fifth claim under state law for intentional interference
with contract. As relief, Eves 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.
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On November 22, 2016, a divided panel of this court
affirmed the district court's dismissal of Eves's equitable
claims, and dismissed his § 1983 damages claims on the basis of
qualified immunity. Eves, 842 F.3d at 144-45. It also directed
the district court to dismiss Eves's state law claim without
prejudice. Id. at 146. Eves petitioned for rehearing en banc,
and his petition was granted on January 19, 2018.
Eves has narrowed his claims for en banc review. The
conduct by Governor LePage he is now challenging is limited to
LePage's alleged threat to withhold discretionary funding, and the
stop order that was placed, before the budget was finalized, on
GWH's first quarterly payment for fiscal year 2015. Eves is no
longer pursuing damages for his free speech claim, but continues
to pursue damages for political affiliation discrimination. Eves
is also still pursuing equitable relief, especially declaratory
relief.
II.
We Hold that Qualified Immunity Bars Eves's Claim for Damages
for Political Affiliation Discrimination
A. Qualified Immunity Framework
The Supreme Court has long established that, when sued
in their official capacities, government officials are immune from
damages claims unless "(1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct
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was 'clearly established at the time.'" District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566
U.S. 658, 664 (2012)). The second step of the qualified immunity
inquiry, in turn, involves several factors.
The plaintiff must demonstrate that "the law was
'"sufficiently clear" [such] that every "reasonable official would
understand that what he is doing" is unlawful.'" Id. at 589
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The
Supreme Court has "repeatedly told courts" not to define the
qualified immunity inquiry "at a high level of generality." City
& Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015) (quoting
al-Kidd, 563 U.S. at 742). Rather, clearly established law must
define "the right allegedly violated . . . in a 'particularized'
sense so that the 'contours' of the right are clear to a reasonable
official." Reichle, 566 U.S. at 665 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
Qualified immunity, the Court has reinforced, is
intended to "protect[] 'all but the plainly incompetent or those
who knowingly violate the law.'" White v. Pauly, 137 S. Ct. 548,
551 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).
Accordingly, although there need not be "a case directly on
point, . . . existing precedent must have placed the statutory or
constitutional question beyond debate." al-Kidd, 563 U.S. at 741.
The Supreme Court has "not yet decided what precedents -- other
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than [its] own -- qualify as controlling authority." Wesby, 138
S. Ct. at 591 n.8. It is enough "for qualified immunity purposes"
though that under existing Supreme Court case law, it is "at least
arguable" that LePage's actions were constitutional. Reichle, 566
U.S. at 669.
The Supreme Court has also repeatedly emphasized that
the qualified immunity inquiry "focus[es] on 'the objective legal
reasonableness of an official's acts.'" Crawford-El v. Britton,
523 U.S. 574, 590 (1998) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 819 (1982)). "Evidence concerning the defendant's subjective
intent is simply irrelevant" to the second step of the inquiry.
Id. at 588. As such, if an objectively reasonable official in
Governor LePage's shoes "might not have known for certain that
[his] conduct was unlawful," then LePage "is immune from
liability." Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017). A
decision of qualified immunity on a motion to dismiss is
appropriate here.5
5 We reject Eves's contention that qualified immunity
should be decided at a later stage of litigation, not on a motion
to dismiss. That would turn well-settled precedent on its head.
The Supreme Court has repeatedly "stressed the importance of
resolving immunity questions at the earliest possible stage [of
the] litigation." Wood v. Moss, 572 U.S. 744, 755 n.4 (2014)
(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
The Court has affirmed the dismissal of multiple First Amendment
claims on the basis of qualified immunity. See, e.g., Ziglar, 137
S. Ct. at 1869; Wood, 572 U.S. at 756-64; Iqbal, 556 U.S. at 686.
We have as well. See, e.g., Air Sunshine, Inc. v. Carl, 663 F.3d
27, 32-37 (1st Cir. 2011); Decotiis v. Whittemore, 635 F.3d 22,
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B. Qualified Immunity Analysis
We move directly to the second step of the qualified
immunity analysis and ask whether Governor LePage's alleged
conduct violated "clearly established" federal law as to political
affiliation discrimination. Applying this objective test, we
conclude that the law on which Eves relies was not clearly
established such that a reasonable governor in LePage's situation
would have concluded that the constitutional question and the
policymaker exception was placed beyond doubt in Eves's favor.6
There was no "controlling authority" or even a "consensus of cases
of persuasive authority," Wilson v. Layne, 526 U.S. 603, 617
(1999), that would lead to the conclusion that Governor LePage can
be denied immunity.
Even if we were to assume that Governor LePage induced
GWH to remove Eves solely because Eves was a Democrat -- and not,
even in part, because of LePage's view of Eves's policy positions7
36-38 (1st Cir. 2011); Torres-Rivera v. Calderón-Serra, 412 F.3d
205, 214-15 (1st Cir. 2005).
6 Eves argues that because political discrimination cases
often involve "a calculated decision," and not a split-second
judgment call as in some Fourth Amendment cases, a less-protective
standard of qualified immunity should apply. He cites no law to
that effect, and we know of none. As a matter of fact, the
inferences from the complaint are that LePage was under some time
pressure to act (if not a split-second decision), and there were
at least two reasons for that: (1) the budget was in the process
of being decided on within days, and (2) the date of Eves's
appointment was looming.
7 We reiterate that the complaint expressly alleges that
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-- for the reasons that follow, LePage could have reasonably
believed that the President of GWH was a "policymaker" who could
be lawfully discharged on the basis of his political affiliation.8
The Supreme Court has long held, beginning with Elrod v.
Burns, 427 U.S. 347 (1976) (plurality opinion), and Branti v.
Finkel, 445 U.S. 507 (1980), that there is no right to protection
on the grounds of political affiliation where political
affiliation is legitimately relevant to the employee's job. This
court has extended the "policymaker exception," in certain
circumstances, beyond public offices to nongovernment employees.
See Ramírez v. Arlequín, 447 F.3d 19, 23 (1st Cir. 2006); Prisma
Zona Exploratoria de Puerto Rico, Inc. v. Calderón, 310 F.3d 1, 3,
8 (1st Cir. 2002).
In Elrod, a plurality of the Supreme Court specifically
noted that consideration of political affiliation for policymaking
positions is justified to prevent "representative government" from
being "undercut by tactics obstructing the implementation of
LePage communicated his intent to oppose further discretionary
funding for GWH unless it removed Eves, because Eves was thought
by LePage to be beholden to unions, to oppose charter schools, and
to seek to undercut the mission of MeANS.
8 LePage did not waive the argument that he is entitled to
qualified immunity even if he committed a reasonable mistake of
law. "The purpose of qualified immunity is to protect reasonable,
if mistaken, decision making by government officials" when the law
is unclear. López-Quiñones v. P.R. Nat'l Guard, 526 F.3d 23, 27
(1st Cir. 2008) (citation omitted). As such, it is sufficient
that LePage argued the law was not clearly established as to
whether the President of GWH is a policymaking position.
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policies of the . . . administration, policies presumably
sanctioned by the electorate." 427 U.S. at 367. Elrod also
recognized that "[n]o clear line can be drawn between policymaking
and nonpolicymaking positions." Id. Rather, "[t]he nature of
the responsibilities [of the position] is critical." Id.Branti reaffirmed that consideration of political
affiliation is permissible where "affiliation is an appropriate
requirement for the effective performance of the public office
involved."9 445 U.S. at 518 (emphasis added). There, the Court
held that two county assistant public defenders, who the lower
courts had found were terminated solely because they were
Republicans, had a viable First Amendment claim against the newly
elected public defender. Branti, 445 U.S. at 520. Quoting Elrod
in part, the Court reasoned that the assistant public defenders
were not policymakers subject to political discharge because they
had "'very limited, if any, responsibility' with respect to the
overall operation of the public defender's office.' They [also]
did not 'act as advisors or formulate plans for the implementation
of the broad goals of the office.'" Id. at 511 (quoting Finkel
v. Branti, 457 F. Supp. 1284, 1291 (S.D.N.Y. 1978)).
9 A later case extended Branti and Elrod's protections to
employment decisions other than discharge for what were low-level
employees. See Rutan v. Republican Party of Ill., 497 U.S. 62,
79 (1990). Rutan would not have provided any notice to LePage
that his actions were unconstitutional. No claim was made there
that such employees held policymaking positions.
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Here, the President of GWH can be reasonably understood
to be a policymaker given GWH's statutory mandate to administer a
public entity, the Center for Excellence of At-risk Students, and
its choice to do so solely through MeANS. President was the
highest position at GWH. Further, the job description, as set
forth in the complaint, could lead a reasonable governor to
conclude that the position involved "act[ing] as an adviser" and
"formulat[ing] plans for the implementation" of the Center.
Branti, 445 U.S. at 511. The job qualifications emphasized
"administrative experience in strategic planning . . . and
experience working with legislators, state policy makers, and
governmental agencies." (Emphasis added.)
Indeed, the complaint itself alleges that Eves was
selected specifically for his "statewide policy and leadership
experience as Speaker of the Maine House of Representatives."
Coupled with the fact that the previous GWH President had also
been the Speaker of the Maine House, this could lead a reasonable
governor to conclude that policymaking, including working with
elected policymakers, was an important aspect of the GWH
President's job.
A reasonable governor could also conclude that the
President of GWH was "in a position to thwart" the policy
objectives of "the in-party." Elrod, 427 U.S. at 367. In
carrying out its public function, GWH is mandated by statute to
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"collaborate with the department [of education], public school
administrators and other public and private organizations with an
interest in the support and education of at-risk students."
M.R.S.A. tit. 20-A, § 6952. Given that there is clearly room for
principled and partisan disagreement about how best to administer
MeANS and collaborate with various stakeholders, a reasonable
governor could conclude that "[political] affiliation is an
appropriate requirement" for the position of GWH President.
Branti, 445 U.S. at 518. In fact, Governor LePage articulated
this exact concern, as evidenced by allegations in the complaint
that LePage stated Eves would use his office to oppose LePage's
agenda of promoting charter schools and to promote policies favored
by the teachers' union.
Further, the fact that GWH’s funding for MeANS is left
entirely to the governor's discretion is yet another reason why a
reasonable governor could have believed that the President of GWH
was an important policymaking position. The legislature specified
that the discretionary state funding GWH receives to implement the
Center is expressly subject to the satisfaction of the Commissioner
of Education (and by extension, the governor). See M.R.S.A. tit.
20-A, § 15689-A.20. This suggests that the operation of MeANS is
a public function closely tied to the "implementation of policies
of [LePage's] administration." Elrod, 427 U.S. at 367. And a
reasonable governor could have believed that a significant reason
- 21 -
the funding of the Center was left to whoever was the occupant of
the governor's job was to ensure that, in implementing the Center,
GWH would follow that administration's educational policy
directives.
Turning to First Circuit law interpreting the
policymaker exception, we reach the same qualified immunity
outcome. Our circuit precedent has consistently held that
positions of far less responsibility and significance than that of
the President of GWH were policymaking positions. See O'Connell
v. Marrero-Recio, 724 F.3d 117, 120 (1st Cir. 2013) (human
resources director of agency); Uphoff Figueroa v. Alejandro, 597
F.3d 423, 426 (1st Cir. 2010) (administrator of agency's legal
office); Flynn v. City of Bos., 140 F.3d 42, 45 (1st Cir. 1998)
("the regional director of an administrative agency, the municipal
secretary in a mayor's office, an officer in charge of human
resources, a director of public relations, a superintendent of
public works, a director of a city's federal programs office, and
a director of a satellite office of the Massachusetts Secretary of
State" (citations omitted)); Roman Melendez v. Inclan, 826 F.2d
130, 133-34 (1st Cir. 1987) (regional director of agency in charge
of maintaining public buildings).10 Further, we have held that
10 Roman Melendez in turn cited to eight First Circuit
cases:
[I]n every case concerning regional directors
of government agencies in Puerto Rico, we have
- 22 -
"the government's policymaking interest [can] override the First
Amendment protection against political discrimination, even where
the plaintiff [is] not a government employee." Ramírez, 447 F.3d
at 23.
A governor could reasonably have thought that the
President of GWH was a position to which the policymaker exception
applied based on our decision in Prisma Zona, 310 F.3d 1. There,
this court applied the policymaker exception to a private
organization to dismiss its First Amendment claim on the merits.
concluded, at least for purposes of granting
qualified immunity, that a regional director
was, in fact, a policymaker. See Echevarria
v. Gracia-Anselmi, 823 F.2d 696 (1st Cir.
1987) (regional director of the Right to
Employment Administration); Perez Quintana v.
Gracia Anselmi, 817 F.2d 891 (1st Cir. 1987)
(regional director of the Right to Employment
Administration); Rafucci Alvarado v. Zayas,
816 F.2d 818 (1st Cir. 1987) (regional
director of the Department of Social
Services); Alicea Rosado v. Zayas, 813 F.2d
1263 (1st Cir. 1987) (regional director of the
Department of Social Services); Monge Vazquez
v. Rohena Betancourt, 813 F.2d 22 (1st Cir.
1987) (regional director of the Department of
Natural Resources); Collazo Rivera v. Torres
Gaztambide, 812 F.2d 258 (1st Cir. 1987)
(regional director of the Rural Housing
Administration); Rodriguez v. Munoz, 808 F.2d
138 (1st Cir. 1986) (regional director of the
Right to Employment Administration); Jimenez
Fuentes v. Torres Gaztambide, 807 F.2d 236(1st Cir. 1986) (regional directors of the
Urban Renewal and Housing Corporation).
826 F.2d at 134.
- 23 -
See id. at 3, 8. The plaintiff in Prisma Zona was slated to
receive state funding "to take over the construction, ownership,
and operation" of a children's museum in Puerto Rico. Id. at 3.
After a gubernatorial election, the new administration reneged on
awarding the plaintiff the funding because of its ties to the
outgoing governor and his political party. See id. at 4. This
court held that the plaintiff "[did] not set forth a First
Amendment violation even if the facts [were] as alleged" because
consideration of the recipient's political affiliation was
permissible. Id. at 8. Specifically, we reasoned:
Even in core cases involving politically
motivated hirings and firings, the Supreme
Court has itself recognized that a wholly
antiseptic application of the [policymaker]
principle is unrealistic. Instead, party
affiliation is an appropriate consideration in
hiring and firing decisions with respect to
government positions that may be characterized
as "policymaking" or "confidential."
Here, Prisma [Zona] seeks to attack a set of
decisions related to the possible
privatization (whether to do so and through
whom) of the operation of a children's museum
and directing to it millions of dollars of
public monies. Where policy choices of this
magnitude are presented, courts ought not be
second-guessing how much party politics in the
narrower sense may also have played a role.
If political considerations are permissible in
the hiring and firing of upper-level
government employees, surely they are also
appropriate in a case like this one. . . .
Firing a street sweeper who voted for the
loser is one thing; turning over a publicly
- 24 -
funded $70 million museum to the opposition
party is quite another.
Id. at 7-8 (citations omitted).
Prisma Zona makes clear that when private organizations
take public funding to administer public entities without specific
requirements, they become policymakers and may have that funding
terminated for political reasons. See id. at 7. Because Eves's
complaint describes nothing more than that very scenario, it cannot
survive a motion to dismiss.
But even if we looked to the Maine statutory scheme, the
result of the qualified immunity analysis would be the same. Just
as the political affiliation of the recipient of government funding
was relevant in Prisma Zona, so too a reasonable governor could
have thought it relevant here. The President of GWH, like Prisma
Zona, was in charge of administering a large sum of "public monies"
to run a public entity. Id. at 7. In fact, GWH was charged by
statute to "administer[]" the Center of Excellence for At-risk
Students, which it has done by using the discretionary state
funding to operate MeANS. See M.R.S.A. tit. 20-A, §§ 6951, 15689-
A.20; 2009 Me. Legis. Serv. ch. 296, § 2. Although MeANS has its
own principal and board of directors for day-to-day operations,
GWH, as the administrator of the Center, is ultimately responsible
for MeANS's compliance with its unique charter school obligations
to the state. See id.
- 25 -
In evaluating whether a position qualifies under the
policymaker exception, our precedent asks whether:
(1) "the discharging agency's functions entail
'decisionmaking on issues where there is room
for political disagreement on goals or their
implementation,'" and (2) "'the particular
responsibilities of the plaintiff's position
resemble those of a policymaker, privy to
confidential information, a communicator, or
some other office holder whose function is
such that party affiliation is an equally
appropriate requirement for continued
tenure.'"
Rosenberg v. City of Everett, 328 F.3d 12, 18 (1st Cir. 2003)
(quoting Roldán-Plumey v. Cerezo-Suárez, 115 F.3d 58, 61-62 (1st
Cir. 1997)).
A governor could have reasonably understood Eves's new
position as President of GWH to entail "decisionmaking on issues
where there is room for political disagreement." Id. In this
case, there are multiple ways the President of GWH can achieve the
organization's ultimate goal of promoting education for at-risk
youth. Moreover, "an issue of special political significance" is
at stake, Roman Melendez, 826 F.2d at 133: the success of GWH in
implementing Governor LePage's education policies through the
operation of MeANS.11
11 LePage also argues that out-of-circuit precedent
supports granting qualified immunity. The Fifth Circuit held in
Kinsey v. Salado Independent School District, 950 F.2d 988 (5th
Cir. 1992) (en banc), that the superintendent of a school district
was a policymaking position, such that the superintendent's claim
for political affiliation discrimination failed on the merits.
- 26 -
Against this legal backdrop, and faced with these facts
particular to MeANS, GWH, and the state of Maine, a reasonable
governor could have thought that Eves's political affiliation was
relevant to his performance as President of GWH and that the
policymaker exception applied to the position. At the time of
these events, LePage could have concluded that no law clearly
established that his communications with GWH rose to the level of
unlawful First Amendment retaliation against Speaker Eves.
But even if Governor LePage were mistaken as a matter of
law about whether Eves's position was encompassed by the
policymaking exception, any such mistake was reasonable, and a
reasonable mistake of law does not defeat qualified immunity. See
al-Kidd, 563 U.S. at 743 ("Qualified immunity gives government
officials breathing room to make reasonable but mistaken judgments
about open legal questions."); see also López-Quiñones, 526 F.3d
at 27-28 ("[A]s the law stood when the decision was made a
reasonable official could (albeit mistakenly) have deemed
[plaintiff] outside Elrod/Branti's protection.").
Id. at 996. The majority reasoned that the superintendent was
removable for political reasons because the occupant of the
position possessed the power to "thwart" the School Board's goals.
Id. Judge Higginbotham also stressed in his concurrence that
nothing in the First Amendment obligated the Board to retain a
Superintendent who did not share its policy views. See id. at 998
(Higginbotham, J., concurring). The federal district court for
the Eastern District of Michigan held the same with respect to the
president of a community college. See Heath v. Highland Park Sch.
Dist., 800 F. Supp. 1470, 1477 (E.D. Mich. 1992).
- 27 -
Eves next turns to the Supreme Court cases Board of
County Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S.
668 (1996), and O'Hare Truck Service, Inc. v. City of Northlake,
518 U.S. 712 (1996), to argue that LePage violated Eves's political
affiliation rights. But these cases do not clearly prohibit
Governor LePage's actions "in light of the specific context of
[this] case." Mullenix, 136 S. Ct. at 308 (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (per curiam)).
Umbehr and O'Hare do not help Eves because they did not
involve the application of the policymaker exception, nor could
they have, given their facts. They involved the termination of a
binding commercial agreement with a contractor. In Umbehr, the
defendant Board terminated an automatically renewing contract with
the plaintiff's trash-hauling company in retaliation for the
plaintiff's criticisms of a Board member. See 518 U.S. at 671.
In O'Hare, the defendant mayor removed the plaintiff's company
from a rotation of the city's tow truck services because the
plaintiff refused to donate to the mayor's campaign and instead
supported his opponent. See 518 U.S. at 715-16. It was never
argued, unlike here, that the plaintiffs in these cases were
policymakers whose exercise of First Amendment rights was relevant
to their positions as independent contractors.12
12 In addition to this crucial difference, a reasonable
governor still could have believed that his actions were
- 28 -
Eves also cites Agency for International Development v.
Alliance for Open Society International, Inc., 570 U.S. 205 (2013)
(AID). But his en banc briefing only makes an unadorned reference
to AID's applicability to his political affiliation claim. Even
if we were to consider Eves's argument, however, AID is far from
being on all fours with this case and would not have provided
LePage the requisite notice to defeat qualified immunity. In AID,
the Supreme Court held that Congress's policy requirement
"mandat[ing] that recipients of [statutory] funds explicitly agree
with the Government's policy to oppose prostitution and sex
trafficking," by signing an agreement to that effect, violated the
First Amendment because "freedom of speech prohibits the
government from telling people what they must say." Id. at 213(quoting Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547
U.S. 47, 61 (2006)). But Eves is the plaintiff here, not GWH.
And AID would not inform a governor in LePage's situation that
this was not a policymaking position.
Finally, Eves contends that El Dia, Inc. v. Rossello,
165 F.3d 106, 108 (1st Cir. 1999), which held that it was
constitutional because unlike in Umbehr and O'Hare, the funds at
issue here were left entirely to his discretion by statute. That
the legislature chose to condition GWH's funding upon GWH meeting
its state-mandated objectives as to MeANS only reinforces the
importance of GWH's public function and the reasonableness of
Governor LePage's belief that the President of GWH was a
policymaking position. His en banc briefing explicitly raised
this defense.
- 29 -
unconstitutional for a governor to leverage discretionary
government advertising to a newspaper to express displeasure over
the paper's critical coverage and to obtain favorable treatment,
controls. But that case is "simply too factually distinct to
speak clearly to the specific circumstances here." Mullenix, 136
S. Ct. at 312. El Dia simply did not implicate the policymaker
exception. Accordingly, a reasonable governor in LePage's shoes
would not have thought that El Dia governed his conduct in this
matter.13
* * *
Governor LePage, for all of these reasons, was entitled
to qualified immunity. Accordingly, we dismiss the damages claims
against him.
III.
We Hold that There Are No Remaining Equitable or State Law
Claims
We reinstate Parts III and IV of our prior panel opinion
and hold again that Eves's claims for equitable relief and his
state law claim must be dismissed. See SEC v. Tambone, 597 F.3d
13 As to the out-of-circuit cases that Eves cites, they are
factually distinguishable, and some were, in any event, published
after LePage's conduct at issue, see Backpage.com, LLC v. Dart,
807 F.3d 229 (7th Cir. 2015). At the very least, the Supreme
Court has underscored that "[w]hen the courts are divided . . . a
reasonable official lacks the notice required before imposing
liability." Ziglar, 137 S. Ct. at 1868.
- 30 -
436, 450 (1st Cir. 2010) (en banc) (reinstating portions of
withdrawn panel opinion); United States v. Vega-Santiago, 519 F.3d
1, 6 (1st Cir. 2008) (en banc) (same).
Eves argues that we did not especially discuss his claim
for declaratory relief in our prior opinion. We do so below and
hold that the district court correctly dismissed his request for
declaratory relief as moot.
"[T]o warrant the issuance of a declaratory judgment,"
Eves must demonstrate that there remains "a substantial
controversy . . . of sufficient immediacy and reality." Unión de
Empleados de Muelles de P.R., Inc. v. Int'l Longshoremen's Ass'n,
884 F.3d 48, 58 (1st Cir. 2018) (quoting Am. Civil Liberties Union
of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 54
(1st Cir. 2013) (ACLUM)). He cannot do so. As such,
"pronouncing" whether LePage's "past actions . . . were right or
wrong," would be "merely advisory." ACLUM, 705 F.3d at 53 (quoting
Spencer v. Kemna, 523 U.S. 1, 18 (1998)). Federal courts should
not issue such advisory opinions. Id.IV.
Conclusion
Our holding today is narrow and fact-bound: LePage is
entitled to qualified immunity on Eves's political affiliation
discrimination claim under the policymaker exception.
- 31 -
The district court's judgment is affirmed with respect
to the dismissal of Eves's federal and state law claims.
— Concurring Opinion Follows —
- 32 -
THOMPSON, Circuit Judge, with whom TORRUELLA and BARRON,
Circuit Judges, join, concurring.
According to Eves's complaint (whose well-pled
allegations we must accept), Governor LePage pressured GWH into
firing Eves by threatening to cut off GWH's state funding —
pressure LePage applied principally because he views Eves as a
political enemy.14 To get anywhere, though, Eves must overcome
the hurdle of qualified immunity. See District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018). Which means he must demonstrate
that (1) LePage's conduct violated the First Amendment and that
(2) clearly-established law showed as much. See id. If Eves
stumbles at either step, his lawsuit is over. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
The en banc opinion starts and stops at step (2) — i.e.,
the decision assumes that even if Governor LePage got Eves fired
because of Eves's political leanings, no clearly-established law
prevented LePage from thinking Eves held the kind of policymaking
job at GWH for which political affiliation was a legitimate
credential. And given the unique relationship that existed
between GWH, the Center, and MeANS, I'm fully on board with the
opinion's policymaker-driven conclusion.
14 Following the en banc opinion's lead, I sometimes refer to
LePage and Eves as Governor LePage and Speaker Eves — even though
LePage left office in January 2019 and Eves left office in December
2016.
- 33 -
Take note, however: if the policymaker exception hadn't
been in play, I'd have no trouble concluding that in the
circumstances of this case, Eves sufficiently pled a violation of
his constitutional right. Allow me to explain.
I
In qualified-immunity cases, courts can (as intimated
above) jettison a constitutional claim for either of two reasons
— because the claimed constitutional right doesn't exist, step
(1); or because the constitutional right wasn't clearly
established when the alleged misconduct occurred, step (2). Id.Admittedly, courts may address the two steps of the qualified-
immunity inquiry in any order. Id. But reflexively granting
qualified immunity without first deciding whether the complained-
of conduct offends the Constitution (i.e., resolving cases solely
at step (2)) results in fewer and fewer courts establishing
"constitutional precedent," let alone the kind of clearly-
established precedent needed to overcome a qualified-immunity
claim — a phenomenon known as "constitutional stagnation." See
id. at 232. And this phenomenon can put plaintiffs like Eves in
a vicious cycle: they "must produce precedent even as fewer courts
are producing precedent"; "[i]mportant constitutional questions go
unanswered precisely because those questions are yet unanswered";
and "[c]ourts then rely on that judicial silence to conclude
there's no equivalent case on the books" and thus no violation of
- 34 -
clearly-established law. See Zadeh v. Robinson, 902 F.3d 483, 499
(5th Cir. 2018) (Willett, J., concurring dubitante).
What can break the cycle, however, is starting with step
(1) — the constitutional-violation step, an approach courts should
take in cases involving a recurring fact pattern where (a) help on
the constitutionality of the contested practice is needed and
(b) the practice is likely to be contested only in the qualified-
immunity context. See Camreta v. Greene, 563 U.S. 692, 705-06,
706 n.5 (2011).15 And having thought about this case a lot, I
believe deciding whether LePage infracted the Constitution would
advance the law's development: if not resolved, the First
Amendment issues pressed here could arise again and again — indeed,
it's clear LePage's briefs suggest public officials think they are
freer to keep funds from private entities than the First Amendment
actually allows. See Pearson, 555 U.S. at 237 (noting that
15 Conversely, judges should resolve a case exclusively at
step (2) — the clearly-established-law step — where, for example,
the step (1) issue "is so factbound that the decision" on the
constitutional-violation question "provides little guidance for
future cases," Pearson, 555 U.S. at 237; "a higher court" may "soon
. . . decide[]" the issue, id. at 238; "qualified immunity is
asserted at the pleading stage" and "the precise factual basis for
the . . . claim . . . may be hard to identify," id. at 238-39;
dealing with step (1) creates "a risk of bad decisionmaking"
because the briefing is poor, id. at 239; discussing both steps
risks "bad decisionmaking" because the court may believe the law
isn't clearly established and so give scant thought to whether the
constitutional right exists, id.; and "it is plain that a
constitutional right is not clearly established but far from
obvious whether in fact there is such a right," id. at 237.
- 35 -
qualified immunity's step (1) "is intended to further the
development of constitutional precedent").
So on to step (1).
II
A
Eves basically claims Governor LePage promised to put
GWH out of business unless it dumped him as president, all because
LePage didn't like his politics. The en banc opinion mentions
some of the operative complaint's allegations of political
vendetta-ism. Other allegations noted in the complaint but not
the en banc decision include:
 "Governor LePage knew that the unexpected loss of the
$1,060,000 in discretionary state funding for [GWH] would
also jeopardize another $2,750,000 in private funding for
[GWH] from the Harold Alfond Foundation," and he "knew" too
"that the combined loss of the $1,060,000 in state funding
and $2,750,000 in funding from [the] Harold Alfond Foundation
would likely force [GWH] out of existence."
 "Because of LePage's blackmail, [GWH] was forced to fire
[Eves] without cause . . . ."
 "After [GWH] fired Eves, LePage released on schedule all of
the quarterly installments for the $1,060,000 in
discretionary state funds for [GWH] included in the
[relevant] budget."
- 36 -
 "The [GWH] Board Chair testified" before a legislative
oversight committee that "Speaker Eves would be its President
today except for Governor LePage's threats to withhold
$1,060,000 in budgeted state funding unless Speaker Eves was
fired."16
B
Moving from the facts to the law, we've known since the
1970s that the First Amendment protects "nonpolicymaking,
nonconfidential" public employees from suffering adverse
employment consequences because of their "political beliefs." See
Elrod v. Burns, 427 U.S. 347, 375 (1976) (Stewart, J., concurring
in the judgment); see also Branti v. Finkel, 445 U.S. 507, 518
(1980). "Non" is a key qualifier, because (as relevant here) if
the effective performance of a public employee's job requires
"political loyalty" — "either because the job involves the making
of policy and thus the exercise of political judgment . . ., or
because it . . . gives the [job] holder access to . . .
16
In outlining the complaint's allegations, the en banc
opinion repeatedly says that Eves failed to attach certain letters
to his pleading — for instance, the decision notes that LePage
"sent a handwritten note to GWH's Board Chair, which as
characterized in the complaint, 'referred very negatively to
Speaker Eves' and called him a 'hack,'" but adds that Eves did not
"append[]" the note to the complaint. True enough, but
irrelevant. As I understand it, Eves's not attaching these
missives plays no part in the en banc opinion's decisional
calculus. Which makes sense, because the opinion doesn't cite
(and I've not found) any case suggesting (never mind holding) that
he had to include these letters with his pleading.
- 37 -
confidential, politically sensitive thoughts" — then and only then
will the First Amendment permit a political firing. See Riley v.
Blagojevich, 425 F.3d 357, 359 (7th Cir. 2005) (Posner, J.) (citing
Elrod and Branti). This is called the "policymaker" exception to
the rule against political discrimination. See, e.g., Wilbur v.
Mahan, 3 F.3d 214, 217 (7th Cir. 1993) (Posner, J.) (discussing
Elrod and Branti, among other decisions, and noting that the
policymaker exception "reflect[s] a recognition that some
patronage hiring may be essential to democratic government," for
"elected officials cannot implement the policies that they were
elected to carry out, and hence the will of the electorate cannot
be effectuated, unless the officials can [have] their political
allies in the most sensitive jobs").17
Also critically, we've known since the 1990s — thanks to
a pair of contractor-speech cases, O'Hare Truck Service, Inc. v.
City of Northlake, 518 U.S. 712 (1996), and Board of County
Commissioners v. Umbehr, 518 U.S. 668 (1996) — that courts
occasionally treat nonpublic employees like public employees in
applying the rule against political discrimination. See generally
17Don't be fooled by the "policymaker" moniker. Anyone who
leads an organization (be it public or private) is a policymaker
in one sense, since she (supposedly) sets policy for the
organization. But that alone doesn't make her a policymaker for
First Amendment purposes — what counts is whether her duties make
political loyalty a suitable "requirement for the effective
performance" of the job, like they do for a close advisor to a
government official. See Branti, 445 U.S. at 518.
- 38 -
Umbehr, 518 U.S. at 677 (employing the Court's "existing framework
for government employee cases to independent contractors"). Which
means courts occasionally treat certain nonpublic employees like
policymakers too. See Ramírez v. Arlequín, 447 F.3d 19, 23 (1st
Cir. 2006) (citing Prisma Zona Exploratoria de Puerto Rico, Inc.
v. Calderón, 310 F.3d 1 (1st Cir. 2002)).
C
Leaving aside for a moment the relevance of the
policymaker exception, I think Eves's complaint — alleging that
Governor LePage bullied GWH into canning Eves because of Eves's
political affiliation — adequately pleads a constitutional
violation, when viewed through the correct legal lens. And none
of LePage's arguments to the contrary hits home.
1
Yes, the at-issue funds were to go to a private entity
as an exercise of Governor LePage's discretionary grant-making
power — a fact LePage harps on. But that hardly means the First
Amendment places no limits on the exercise of that discretion.
Just consider the contract cases. Neither involved the actual
breach of an existing contract. One involved the government's
discretionary decision not to renew a contract. See Umbehr, 518
U.S. at 671. The other involved the government's discretionary
decision to remove a company from an approved list of contractors.
See O'Hare Truck Serv., 518 U.S. at 714-15. So — and not to put
- 39 -
too fine a point on it — the cases themselves involved
discretionary decisions not to spend government money on certain
vendors. Yet the Supreme Court still thought these discretionary
calls could be sufficiently coercive to ground a political-
discrimination claim. And the Court has never held that
government-imposed conditions on discretionary grant funding —
which is exactly what we have here — are categorically immune from
First Amendment challenges. See generally Agency for Int'l Dev.
v. Alliance for Open Soc'y Int'l, Inc., 570 U.S. 205, 214 (2013)
(stating that "[i]n some cases, a funding condition can result in
an unconstitutional burden on First Amendment rights").18
2
Governor LePage plays up the fact that the funds he
would've impounded hadn't yet been appropriated — what we have, he
emphasizes, is a threatened funding cut-off, rather than an actual
one. But this fact alone doesn't give him carte blanche to base
his funding decisions on the partisan affiliation of the entity's
chosen leader. Take, for example, a case from a sibling circuit
where the governor publicly "threaten[ed] a political rival and
prominent businessman" with greater regulatory scrutiny simply
18
The situation of course might be different in a case where,
unlike here, the government chooses not to grant funds to an entity
that hasn't previously received and relied on a particular funding
source. See Prisma Zona Exploratoria de Puerto Rico, Inc., 310
F.3d at 7 & n.3 (noting that the Supreme Court hasn't spoken
definitively on that issue, and collecting circuit cases).
- 40 -
because the businessman publicly opposed one of his proposals.
See Blankenship v. Manchin, 471 F.3d 523, 525-27 (4th Cir. 2006).
As the circuit court persuasively explained, an official's
threatened use of governmental power may be coercive enough to
support a First Amendment retaliation claim if the threatened
action is sufficiently "imminent." See id. at 533.
And I know no reason why a threat to impound funds must
be deemed inherently noncoercive and thus completely immune from
First Amendment scrutiny just because the threat hasn't been
actualized. A threat to regulate, after all, is accomplished
merely through words. And even if it never takes actual effect,
it can be a powerful means of exercising coercive governmental
power, because of the harm that'll necessarily follow if the
threat's recipient doesn't take it seriously — ultimately it's
coercion that matters for First Amendment purposes, not the
particular means by which coercion is exercised. See Ramírez, 447
F.3d at 22 (holding that a government generally "may not coerce
persons into supporting a political party or punish them for
exercising their right of association").
So if the threatened funding cut-off is similarly likely
to exert undue influence on the funding recipient, then I can't
see why the First Amendment wouldn't limit the grounds on which
the government could base the cut-off. And Eves has alleged that
the threatened cut-off was coercive in just that way, given GWH's
- 41 -
past reliance on the at-issue funds and its dependence on those
funds for its future operations. It's thus reasonable to conclude
— at least under the facts alleged — that LePage made the threat
precisely because of the influence that he thought the threat would
have on GWH.
3
Governor LePage notes how the target of his threats
wasn't the person the funding recipient (GWH) selected as its
president (Eves) but rather the funding recipient itself. That
LePage conditioned his threat on GWH's dumping Eves because of
Eves's party affiliation confirms he based his threat on Eves's
party affiliation — so this fact doesn't show the absence of a
First Amendment violation, despite what LePage thinks. Anyway,
to hold otherwise would simply encourage executives to maneuver
around the constitutional limits the Supreme Court cases establish
— as would our silence on whether such a funding condition is
permissible.19
On to step (2) then, the clearly-established-law step.
19LePage also says that regardless of the First Amendment's
protections, he's safeguarded from suit under the doctrine of
"absolute legislative immunity," see Bogan v. Scott-Harris, 523
U.S. 44, 54 (1998) — an argument not addressed in the en banc
opinion. Sure, LePage made his threats during the new budget's
passage. But his threats concerned the executive action he'd take
after the budget's enactment — i.e., using his disbursement
discretion to not fund GWH. Which is why I agree with the district
court that absolute legislative immunity doesn't apply here.
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III
A
A right is "clearly established" if it's "sufficiently
clear that every reasonable official would have understood that
what he is doing violates that right." Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011) (citation and internal quotation marks
omitted). This is a fair-warning standard — officials are liable
"for violating bright lines, not . . . for making bad guesses in
gray areas." Belsito Commc'ns, Inc. v. Decker, 845 F.3d 13, 23
(1st Cir. 2016) (quoting Rivera-Corraliza v. Morales, 794 F.3d
208, 215 (1st Cir. 2015)); see also al–Kidd, 563 U.S. at 746(Kennedy, J., concurring) (emphasizing that qualified immunity
applies if defendants have no "'fair and clear warning' of what
the Constitution requires" (quoting United States v. Lanier, 520
U.S. 259, 271 (1997))).
A factually on-point precedent certainly helps in
deciding what reasonable officials would know. But it's "not
necessary . . . that the very action in question has previously
been held unlawful." Ziglar v. Abbasi, 137 S. Ct. 1843, 1866
(2017) (citation and internal quotation marks omitted). Rather,
officials lose their qualified immunity, "even in novel factual
circumstances," if they committed a "clear" constitutional
violation, see Hope v. Pelzer, 536 U.S. 730, 738-39, 741 (2002) —
as a case of ours pithily put it, when the "coerciveness" of the
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officials' actions is "patently" obvious, "no particular case"
(let alone a completely-on-point one) must've "existed to put"
reasonable officials "on notice" of the actions'
"unconstitutionality." See Marrero-Méndez v. Calixto-Rodríguez,
830 F.3d 38, 47 (1st Cir. 2016) (citation and internal quotations
marks omitted).
And that's as it should be. "[T]he easiest cases,"
common sense tells us, "don't even arise." See K.H. ex rel. Murphy
v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (Posner, J.). For
example, there's "never been a section 1983 case accusing welfare
officials of selling foster children into slavery." Id. Yet it
doesn't "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." Id.What matters ultimately is whether "the relevant legal
rights and obligations [were] particularized enough that a
reasonable official" could "extrapolate from them and conclude
that a certain course of conduct will violate the law." See Savard
v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003) (en banc) (opinion
of Selya, J., joined by Boudin, C.J., and Lynch and Howard, JJ.).
And to that subject I now turn.
B
From the First Amendment decisions arrayed above (long
on the books when LePage acted) a sensible governor could
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extrapolate that he couldn't use his discretionary-spending power
to intimidate a private entity into firing his political adversary,
just to stick it to his adversary — unless (and to repeat) the
adversary's job was a policymaking position. And a sensible
governor could also surmise as much from a First Circuit opinion
(issued well before the events in question), El Día, Inc. v.
Rosselló, 165 F.3d 106 (1st Cir. 1999).
El Día, Inc. owns and publishes a Spanish-language daily
newspaper called El Nueva Día. Id. at 108. In 1997, El Nueva Día
ran some articles criticizing Puerto Rico's then-governor and his
administration. Id. Not willing to take this lying down, the
governor and other officials ordered nearly two-dozen commonwealth
agencies to stop advertising in El Nueva Día. Id. El Día, Inc.
then sued the responsible officials in federal court, alleging
restriction of its First Amendment rights. Id. Convinced the
defendants' actions, if proven, would violate clearly-established
law, the district judge denied them qualified immunity at the
motion-to-dismiss stage. Id.Asking for a reversal, the defendants insisted that no
"'clearly established' First Amendment law" barred them from
pulling discretionary "government advertising" from the paper as
punishment for its less-than-flattering write-ups. See id. Not
so, we said in 1999 (years before the happenings in Eves's case),
in words that resonate here: "[i]t would seem obvious that using
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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. And for support we cited several
Supreme Court opinions, including Umbehr. Id. at 110.
Again putting aside the policymaker exception, I can't
see how the Governor of Puerto Rico (among other officials) — who
did basically the same thing alleged here (political retaliation
through the withholding of discretionary funds) — could've known
from the caselaw that his conduct crossed a constitutional line
but Governor LePage couldn't have.
IV
The only question left then is whether Eves held a
policymaking job with GWH, thus making his party affiliation
something LePage could rely on in threatening to defund GWH. And
on that highly fact-dependent question, I agree with the en banc
decision on these points (fyi, I've lifted the following quotes
from the en banc decision, though the emphasis is mine):
 Maine's legislature "designated" GWH "the nonprofit
charitable corporation with a public purpose to implement the
Center," "designat[ed]" the Center "a public entity," and
left the governor with "discretion to fund the Center."
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 Also, and of great importance to me, "GWH fulfills its public
function of implementing the Center only by administering
MeANS" — indeed, Eves's counsel candidly (and commendably)
"conceded" at en banc "oral argument that the operation of
MeANS is the only way in which the Center has been
implemented."
 Plus, Eves identifies no clearly-established law that would
deter a reasonable governor from believing the job of GWH
president resembled that of "a policymaker given GWH's
statutory mandate to administer a public entity, the Center
. . ., and its choice to do so solely through MeANS."20
And after much reflection, I agree with the en banc
opinion that in the "unique" circumstances of this case, a
levelheaded governor could've believed, even if wrongly, that the
job of GWH president — the very "highest" post at GWH — resembled
that of a policymaker. Which suffices to secure qualified
immunity for LePage.
20
Given how fact-dependent the policymaker analysis here is,
I agree with the en banc opinion that we — in exercising our sound
discretion — can decide the issue at step (2) of the qualified-
immunity test. See Pearson, 555 U.S. at 236-37.
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V
Circling back to first principles, I close with a
cautionary note — one worth making given all the state-funds-
receiving entities out there.21
The First Amendment typically bars public officials from
threatening to cut off funds to a previously-funded entity unless
the entity picks a leader to their liking — I say "typically,"
because of the policymaker exception to the ban on politically-
based personnel decisions. See, e.g., Elrod, 427 U.S. at 355, 367(stressing that an official's conditioning employment on political
loyalty is tantamount to a system of "coerced belief," and
concluding that "patronage dismissals" are limited under the First
Amendment to "policymaking positions"). And against the legal
backdrop discussed above, Eves's allegations (that Governor LePage
coercively engineered his firing from GWH as political payback)
state a sufficient First Amendment claim — but for the policymaker
exception, which the en banc opinion correctly applies in declaring
LePage qualifiedly immune.
21 As examples, Eves's complaint mentions "the Maine
Association of Substance Abuse Programs, Inc.; the Family Violence
Assistance Project; Bowdoin College; the Lobster Conservancy; the
Maine Island Trail Association; Next Step for Victims of Domestic
Violence[;] and Trout Unlimited"; "Maine Public Radio[;] all of
Maine's hospitals and nursing homes[;] and many of its homeless
shelters, social service providers, and private high schools."
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Let's never forget, though, that the policymaker
exception is exactly what its name implies: an exception — and a
"narrow" one at that — to the clearly-established rule against
politically-motivated firings. See Borzilleri v. Mosby, 874 F.3d
187, 191 (4th Cir. 2017). And in dealing with the First Amendment
— which protects some of our most cherished rights, see Williams
v. Rhodes, 393 U.S. 23, 30-31 (1968) — courts must be ever-vigilant
in ensuring that this limited exception doesn't swallow the rule.
Anything less would deal a serious blow to the fundamental
principles of our democracy.
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