Blankenship v. Manchin ( 2006 )


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  •                             PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    DON BLANKENSHIP,                         
    Plaintiff-Appellee,
    v.
    JOE MANCHIN, III, in his individual               No. 06-1249
    capacity and in his official capacity
    as Governor of the State of West
    Virginia,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Southern District of West Virginia, at Charleston.
    John T. Copenhaver, Jr., District Judge.
    (2:05-cv-00606)
    Argued: October 24, 2006
    Decided: December 20, 2006
    Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and
    James R. SPENCER, Chief United States District Judge
    for the Eastern District of Virginia, sitting by designation.
    Affirmed by published opinion. Judge Gregory wrote the opinion, in
    which Judge Spencer joined. Chief Judge Wilkins wrote a separate
    opinion concurring in the judgment.
    COUNSEL
    ARGUED: Mitchell Eliot Zamoff, HOGAN & HARTSON, L.L.P.,
    Washington, D.C., for Appellant. Robert D. Luskin, PATTON
    2                      BLANKENSHIP v. MANCHIN
    BOGGS, L.L.P., Washington, D.C., for Appellee. ON BRIEF:
    Charles R. Bailey, Vaughn Sizemore, BAILEY & WYANT, P.L.L.C.,
    Charleston, West Virginia; Barbara H. Allen, OFFICE OF THE
    ATTORNEY GENERAL, Charleston, West Virginia; Adam K.
    Levin, HOGAN & HARTSON, L.L.P., Washington, D.C., for Appel-
    lant. Patrick J. Slevin, PATTON BOGGS, L.L.P., Washington, D.C.,
    for Appellee.
    OPINION
    GREGORY, Circuit Judge:
    This appeal requires us to determine whether a sitting governor is
    entitled to qualified immunity for allegedly threatening a political
    rival and prominent businessman during a press conference concern-
    ing a bond issue before West Virginia voters. Because we find that
    the facts as alleged establish that the governor threatened imminent
    adverse regulatory action and that a reasonable public official in his
    position would know that such a threat is unlawful, we hold that the
    governor is not entitled to immunity from this suit at the motion-to-
    dismiss stage. Accordingly, we affirm the ruling of the district court.
    I.
    This case arises from the controversy surrounding a proposed bond
    amendment to the West Virginia Constitution, supported by Governor
    Joe Manchin III ("Manchin" or "the Governor" or "Appellant") and
    opposed by Don Blankenship ("Blankenship" or "Appellee"). Because
    this case is on appeal at the motion-to-dismiss stage, the facts are pre-
    sented largely from Appellee’s complaint, with inferences drawn in
    his favor. See Ridpath v. Bd. of Governors Marshall Univ., 
    447 F.3d 292
    , 300 n.3 (4th Cir. 2006).
    A.
    Blankenship is the President of Massey Energy, one of the largest
    coal companies in the nation and the largest in West Virginia. In addi-
    tion to his corporate employment, Blankenship is an active participant
    BLANKENSHIP v. MANCHIN                          3
    in West Virginia politics. In 2004, Blankenship campaigned against
    the reelection of West Virginia Supreme Court Chief Justice Warren
    McGraw. In early 2005, Blankenship publicly opposed legislation
    proposed by Manchin that would have increased the coal severance
    tax and funded workers’ compensation benefit plans.
    In February 2005, the West Virginia legislature passed a bond
    amendment to the state constitution. If approved by voters, the
    amendment would have permitted the sale of over five billion dollars
    worth of state general-obligation bonds to fund underfunded pension
    and disability plans for teachers, judges, and other public employees.
    The amendment was placed before the voters in a special election on
    June 25, 2005. Blankenship opposed the amendment and began to
    publicize his opposition through interviews and the financing of tele-
    vision, radio, and direct-mail advertising. The Governor publicly
    campaigned in support of the amendment, including, according to the
    complaint, running negative advertisements portraying Blankenship
    as an outsider and using staff to ask the West Virginia Secretary of
    State about Blankenship’s residence.
    On June 17, 2005, the Governor appeared at an American Electric
    Power plant in Putnam County, West Virginia, in part to promote the
    bond amendment. After his speech, the Governor took media ques-
    tions. Blankenship alleges that some of the Governor’s answers
    "threatened [Blankenship] by warning that the government would
    scrutinize the affairs of [Blankenship] and Massey even more closely
    in light of [Blankenship’s] decision to participate in the public debate
    over the pension bond amendment." Compl. ¶ 16. The Governor is
    quoted as remarking, "I think that [additional scrutiny] is justified
    now, since [Blankenship] has jumped in there [the bond debate] with
    his personal wealth trying to direct public policy." Compl. ¶ 16 (quot-
    ing Ken Ward Jr., Manchin Still Sparring Over Pension Bond Bid,
    Charleston (W.V.) Gazette, June 18, 2005 at 6C).
    The following day, the Governor’s remarks were reported in the
    Charleston Gazette.1 The article ("the Gazette Article"), headlined
    1
    Blankenship did not attach the Gazette article to his complaint. None-
    theless, we may consider the article even at the Rule 12(b)(6) stage, as
    4                       BLANKENSHIP v. MANCHIN
    "Manchin Still Sparring Over Pension Bond Bid," reported, in rele-
    vant part:
    Gov. Joe Manchin continued Friday to spar with Massey
    Energy President Don Blankenship over the Governor’s
    multimillion-dollar pension bond proposal. The Governor
    said Blankenship, who has launched a personal campaign
    against the bond plan, should expect tougher scrutiny of his
    business affairs.
    "I think that is justified now, since Don has jumped in there
    with his personal wealth trying to direct public policy,"
    Manchin said.
    ...
    After his brief speech . . . Manchin was quizzed repeatedly
    by reporters about his pension bond battle with Blankenship.
    In a later interview, Manchin declined to say if he thought
    Blankenship was "a good corporate citizen."
    "I’m not going to sit here and try to rag on anyone,"
    Manchin said.
    "I truly appreciate and value every business person who
    creates jobs in our state," the Governor said. "[But] I want
    Don to use his creative energies in a good, positive manner."
    Manchin said he was puzzled that Blankenship would not
    agree to serve on a pension bond advisory committee before
    launching his campaign against the Governor’s proposal.
    (1) it was attached to Manchin’s motion to dismiss, and is clearly integral
    to, and was relied upon in, Blankenship’s complaint; and (2) Blankenship
    does not dispute its authenticity. Am. Chiropractic Ass’n v. Trigon
    Healthcare, Inc., 
    367 F.3d 212
    , 234 (4th Cir. 2004) (quoting Phillips v.
    LCI Int’l Inc., 
    190 F.3d 609
    , 618 (4th Cir. 1999)).
    BLANKENSHIP v. MANCHIN                          5
    "The most frustrating thing going on is that there’s a person
    who has been very successful financially in the business
    world, and when someone asked him to be a part of a posi-
    tive movement in West Virginia, he said, ‘No.’"
    When asked, Manchin said that Blankenship’s campaign
    against the pension bonds should and will prompt even more
    scrutiny of Blankenship, who is arguably already the state’s
    highest-profile coal executive.
    "If you want to throw yourself into public policy, your
    record is open," the Governor said.
    Manchin declined to personally offer any specific criticisms
    of the way Massey or Blankenship has operated, except to
    note that the company has had numerous run-ins with state
    environmental regulators.
    "I think there have been many violations that hopefully
    they’ve been able to correct," the Governor said.
    Ward Jr., supra. On June 25, 2005, voters rejected the bond amend-
    ment.
    Blankenship alleges that in retaliation for his campaign against the
    amendment, Manchin "used state government resources to reinforce
    his threat against [Blankenship] and Massey." Compl. ¶ 19. On June
    30, 2005, the West Virginia Department of Environmental Protection
    ("DEP") approved a Massey permit application to build a coal silo in
    Raleigh County, West Virginia. Despite the approval, Manchin alleg-
    edly ordered members of his staff to meet with DEP and other regula-
    tory officials to investigate possible safety concerns with regard to the
    silo site. Blankenship maintains that the Governor ignored these
    safety concerns when other groups raised them previously and initi-
    ated the investigation "not out of concern for the safety of residents,
    but instead, in retaliation for [Blankenship’s] campaign against the
    bond amendment." Compl. ¶ 19.
    6                       BLANKENSHIP v. MANCHIN
    B.
    On July 26, 2005, Blankenship commenced this action against
    Manchin, in his official and individual capacities, alleging that
    Manchin violated 
    42 U.S.C. § 1983
     by unconstitutionally retaliating
    against Blankenship. The complaint sought declaratory, injunctive,
    and compensatory relief, as well as attorneys’ fees pursuant to 
    42 U.S.C. § 1988
    . In response, Manchin filed a motion to dismiss, alleg-
    ing that Blankenship’s complaint fails to state a claim of retaliatory
    action in violation of the Constitution; that Blankenship lacks stand-
    ing to assert the claim; that the claims are barred by qualified immu-
    nity; that monetary damages based in Manchin’s official capacity are
    barred by the Eleventh Amendment; and that injunctive relief is inappro-
    priate.2 On January 18, 2006, the district court denied the motion in
    all respects, except for dismissing the compensatory damages claim
    against Manchin in his official capacity.
    Rejecting Manchin’s qualified immunity argument, the district
    court began by noting that First Amendment retaliation claims are
    governed by this Court’s decision in Suarez Corp. Indus. v. McGraw,
    
    202 F.3d 676
    , 685 (4th Cir. 2000), where we elucidated a three-part
    test for evaluating First Amendment retaliation claims against a pub-
    lic official. The district court characterized the relationship between
    Manchin and Blankenship as "best exhibited by the fact that the
    industry in which the [Appellee] finds himself is also one over which
    the state exercises robust oversight powers." Blankenship v. Manchin,
    
    410 F. Supp. 2d 483
    , 492 (S.D. W. Va. 2006).
    The district court then concluded that the complaint adequately
    alleged threats suggesting imminent adverse regulatory action
    because of Manchin’s remarks that Blankenship justifiably should
    expect tougher scrutiny of his business affairs. In addition, the district
    court noted that discovery would reveal whether Manchin’s actions in
    ordering his staff to meet with DEP officials was an accompanying
    act of retaliation against Appellee. Taking these factors together, the
    2
    In addition, in his reply memorandum in support of his motion to dis-
    miss, Manchin argued that the district court should abstain under the doc-
    trine announced in Younger v. Harris, 
    401 U.S. 37
     (1971). This issue is
    not before this Court at the present time.
    BLANKENSHIP v. MANCHIN                           7
    district court held that the alleged threats and retaliatory conduct
    would deter a person of ordinary firmness from exercising her First
    Amendment rights.
    Further, relying on this Court’s decisions in Trulock v. Freeh, 
    275 F.3d 391
    , 405 (4th Cir. 2001), and Suarez, the district court held that
    a reasonable governor would have known that Manchin’s alleged
    actions violated clearly established law. Finding a constitutional vio-
    lation of a clearly established right, the district court denied the appli-
    cation of qualified immunity. This appeal followed.
    II.
    This Court has appellate jurisdiction to consider the district court’s
    denial of qualified immunity "to the extent that the [Appellant] main-
    tains that [his] conduct did not violate clearly established law." Win-
    field v. Bass, 
    106 F.3d 525
    , 529 (4th Cir. 1997) (en banc). We review
    a district court denial of a motion to dismiss on the basis of qualified
    immunity de novo, "accepting as true the facts alleged in the com-
    plaint and viewing them in the light most favorable to the plaintiff."
    Ridpath, 
    447 F.3d at 306
    ; Jenkins v. Medford, 
    119 F.3d 1156
    , 1159-
    60 (4th Cir. 1997) (en banc).
    The inquiry into whether a defendant can assert qualified immunity
    proceeds in two steps. First, the court must determine if the pleaded
    facts demonstrate that the defendant’s conduct violated a constitu-
    tional right. Ridpath, 
    447 F.3d at 306
    . If the facts do not establish the
    violation of a right, qualified immunity will apply, and the motion to
    dismiss on that basis should be granted. If a violation is established,
    "the next, sequential step is to ask whether the right was clearly estab-
    lished." Saucier v. Katz, 
    533 U.S. 194
    , 201 (2001).
    A.
    We first turn to the issue of whether Blankenship has properly
    alleged a constitutional violation. This Court set forth the three-part
    standard for pleading a First Amendment § 1983 retaliation claim in
    Suarez. 
    202 F.3d at 686
    . First, the plaintiff must demonstrate that his
    speech is protected. 
    Id.
     Next, "the plaintiff must demonstrate that the
    8                       BLANKENSHIP v. MANCHIN
    defendant’s alleged retaliatory conduct adversely affected the plain-
    tiff’s constitutionally protected speech." 
    Id.
     Finally, the plaintiff must
    show "a causal relationship . . . between its speech and the defen-
    dant’s retaliatory action." 
    Id.
    In this case, the first and third elements are not in dispute.3 Rather,
    because the alleged retaliation is in the nature of speech,4 we must
    first determine whether Manchin’s remarks were "threatening, coer-
    cive, or intimidating so as to intimate that punishment, sanction, or
    adverse regulatory action will imminently follow." 
    Id. at 689
    . Given
    the procedural posture of this case, in order for us to conclude that
    Manchin did not violate Blankenship’s rights, we must conclude that
    Blankenship could prove no set of facts to support his claim that
    Manchin threatened imminent adverse regulatory action under Suarez.
    See Ridpath, 
    447 F.3d at 317
    . The available evidence, including the
    account of the Governor’s remarks in the Gazette Article, does not
    allow us to reach such a conclusion.
    To begin, we note that the Gazette Article is only one account of
    Manchin’s remarks on June 17, 2005. Thus, even if Manchin’s quoted
    remarks did not amount to a threat of imminent adverse regulatory
    action, Blankenship could still prove that Manchin made threats at the
    press conference that went unquoted in the Gazette Article and avoid
    dismissal at the 12(b)(6) stage. Because we find that Manchin’s
    3
    We agree with Appellant regarding the portions of the complaint that
    discuss the Governor’s ordering his staff to meet with DEP officials
    regarding Massey permits. These incidents are not separate instances of
    retaliation, but rather are encompassed within the alleged threat of the
    Governor to scrutinize the Appellee’s business affairs. In other words,
    these claims are not viable independent of the Governor’s alleged threats.
    We may, however, consider these incidents in our determination of
    whether the Governor’s remarks constituted a threat of imminent adverse
    regulatory action. Because we do not view Manchin’s actions with
    regard to the DEP investigation as the basis for an independent § 1983
    claim, we need not address whether the heightened pleading standard
    announced in Hartman v. Moore, 
    126 S. Ct. 1695
     (2006), would apply
    to such a claim.
    4
    The Suarez rule does not apply where the retaliatory speech discloses
    private or damaging information about the plaintiff. See Suarez, 
    202 F.3d at 688
    .
    BLANKENSHIP v. MANCHIN                          9
    quoted remarks in the Gazette Article did threaten imminent adverse
    regulatory action, we need not analyze Blankenship’s allegations
    without the aide of the Gazette Article.
    Appellant urges this Court to consider the full context of the Gov-
    ernor’s remarks, especially the placement of the article at page C6 of
    the newspaper, in determining whether the remarks threatened immi-
    nent adverse regulatory action under Suarez. While we must examine
    the full context of the newspaper article in which Appellant’s state-
    ments appeared, we read the statements in the light most favorable to
    Appellee and draw any reasonable inferences in his favor. See Rid-
    path, 
    447 F.3d at
    315 n.23. We must accept the allegations in the
    complaint regarding the implication of Manchin’s statements, unless
    they represent "unwarranted inferences, unreasonable conclusions, or
    arguments," E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 
    213 F.3d 175
    , 180 (4th Cir. 2000), or "contradict matters properly subject to
    judicial notice or by exhibit," Veney v. Wyche, 
    293 F.3d 726
    , 730 (4th
    Cir. 2002). We follow this approach not because we read the Gazette
    Article with a "cynical eye," as the Appellant alleges, but because this
    approach is proper under Rule 12(b)(6).
    We cannot draw the inference from the placement of the article in
    the Gazette that the Governor’s remarks were not threats. To begin,
    this case is not one for defamation, where the newspaper article itself
    represents the alleged tort. Thus, although the article is helpful insofar
    as it provides one account of Manchin’s remarks, which we may con-
    sider in determining whether those remarks satisfy Suarez, it is not the
    sole focus of our inquiry, as noted above. Second, while we may take
    judicial notice of the general proposition that newspapers tend to
    place important stories on their front pages, there is no evidence in the
    record indicating why the Gazette Article was placed at page C6.
    Such a matter is one that can be inquired into during discovery, but
    is not proper at this stage of the proceedings, especially because it
    would require us to draw an inference against the Appellee, contrary
    to our standard of review.
    Appellant’s explanation for his remarks is that they were a predic-
    tion and an opinion that Blankenship’s public involvement in the
    bond amendment election would invite increased scrutiny from the
    media and the public. This explanation fails. It is a reasonable reading
    10                     BLANKENSHIP v. MANCHIN
    of Manchin’s remarks to view them as a threat of imminent adverse
    regulatory action against Massey, rather than a prediction about how
    the media and the public would view Blankenship’s affairs. For
    example, at the time of the Governor’s alleged remarks, Blankenship
    was not a political novice, having spent upwards of two million dol-
    lars to defeat a state Supreme Court Justice in 2004 and having fought
    a campaign against Manchin’s 2005 worker’s compensation reform
    legislation. Because Blankenship was a veteran of West Virginia poli-
    tics and had already participated in two contentious campaigns, it is
    unreasonable to conclude that the only reading of Manchin’s remarks
    is that they were a warning to Blankenship that his opposition of the
    bond referendum would result in increased scrutiny by the public and
    the media.
    Furthermore, the actual regulatory scrutiny that Massey experi-
    enced shortly after the article appeared strongly supports interpreting
    Manchin’s remarks as a threat of increased regulatory scrutiny. That
    Manchin activated the "punitive machinery of the government"
    against Massey supports our reading the Governor’s remarks as
    threats, rather than predictions. Garcia v. City of Trenton, 
    348 F.3d 726
    , 729 (8th Cir. 2003).
    Unlike a statement of opinion, the Governor’s remarks went
    beyond "reflecting [his] own views and intent." The Balt. Sun Co. v.
    Ehrlich, 
    437 F.3d 410
    , 421 (4th Cir. 2006). The "tougher scrutiny" of
    his business affairs that Manchin said Blankenship should expect and
    that would be "justified," intimated that Massey would receive more
    scrutiny from state regulators than other, similarly situated compa-
    nies. "Given the expertise of agencies in the fields they regulate, a
    presumption of regularity attaches to administrative actions." Cent.
    Elec. Power Co-op., Inc. v. Se. Power Admin., 
    337 F.3d 333
    , 337 (4th
    Cir. 2003); accord Preston Memorial Hosp. v. Palmer, 
    578 S.E.2d 383
    , 387 (W. Va. 2003) ("We proceed . . . to determine whether the
    lower court abused its discretion in reaching a decision which sets
    aside the presumption of regularity generally accorded an administra-
    tive agency’s decision by a reviewing court."). Tougher scrutiny by
    agencies whose actions are afforded a presumption of regularity is
    adverse regulatory action, because it implies harsher, or at least dispa-
    rate, treatment of Massey as a direct result of Blankenship’s political
    speech. Cf. Garcia, 
    348 F.3d at 728
     ("Mayor Whitaker told Ms. Gar-
    BLANKENSHIP v. MANCHIN                         11
    cia that the two-hour [parking] time limit would be enforced against
    her, and that he was taking this action because of her complaints
    about the bicycling ordinance.").
    Because Massey is an industry leader in a heavily regulated indus-
    try, we can draw an inference in favor of the Appellee that Massey
    is subject to near-constant regulatory oversight, and any "additional"
    scrutiny could be applied immediately. Indeed, the Appellee’s com-
    plaint supports this conclusion by alleging the actual investigation
    ordered by the Governor a mere five days after voters rejected the
    bond amendment. Thus, rather than an opinion or prediction,
    Manchin’s remarks are reasonably construed as threats that, as a
    result of Blankenship’s speech, Massey would be subject to greater
    regulation than prior to Blankenship’s remarks, or than its competitors
    faced. Such a threat, directed towards an individual who is the head
    of a company in a highly regulated industry, constitutes an intimation
    of imminent adverse regulatory action and satisfies Suarez.
    B.
    Having found that Manchin’s remarks constituted retaliation under
    Suarez, we undertake an objective inquiry into whether "a similarly
    situated person of ‘ordinary firmness’ reasonably would be chilled by
    the government conduct in light of the circumstances presented in the
    particular case." Baltimore Sun, 
    437 F.3d at
    416 (citing Constantine,
    411 F.3d at 500).
    In Suarez, this Court noted that "determining whether a plaintiff’s
    First Amendment rights were affected by retaliatory conduct is a fact
    intensive inquiry that focuses on the status of the speaker, the rela-
    tionship between the speaker and the retaliator, and the nature of the
    retaliatory acts." 
    202 F.3d at 686
    . This Court has previously charac-
    terized the political arena as "rough and tumble," holding that a politi-
    cal reporter of ordinary firmness would not "be chilled by a
    politician’s refusal to comment or answer questions on account of the
    reporter’s previous reporting." Baltimore Sun, 
    437 F.3d at
    419 (citing
    Eaton v. Meneley, 
    379 F.3d 949
    , 956 (10th Cir. 2004)). Finding the
    restrictions imposed by the Governor in Baltimore Sun to be de
    minimis, this Court noted that "typical reporters . . . are used to curry-
    ing their sources’ favors." 
    Id.
     In sum, we could not "accept that the
    12                     BLANKENSHIP v. MANCHIN
    Governor’s directive . . . created a chilling effect any different from
    or greater than that experienced by The Sun and by all reporters in
    their everyday journalistic activities." Id. at 420.
    In Eaton, the Tenth Circuit noted, "Plaintiffs in public debates are
    expected to cure most misperceptions about themselves through their
    own speech and debate." 
    379 F.3d at 956
    . Finding that a sheriff’s run-
    ning an unauthorized background check on individuals who publicly
    advocated for his recall "was not enough to chill the actions of per-
    sons of ordinary firmness who enter the arena of political debate," the
    Eaton court concluded that "[t]he plaintiffs . . . remained free to talk
    to the media about the sheriff’s use of the [background check] system,
    and they did." 
    Id.
     Similarly, in Mattox v. City of Forest Park, the
    Sixth Circuit noted:
    As an elected public official, Mattox voluntarily placed
    herself open to criticism . . . . A deliberate attempt to dis-
    credit Mattox, especially if initiated in retaliation for her
    actions in investigating the fire department, is perhaps an
    inappropriate and unfortunate occurrence, but . . . it is not
    the type of "adverse action" against which the First Amend-
    ment protects. . . . We do not think it would deter a public
    official of ordinary firmness from exercising his or her right
    to speak under the First Amendment. Public officials may
    need to have thicker skin than the ordinary citizen when it
    comes to attacks on their views.
    
    183 F.3d 515
    , 522 (6th Cir. 1999).
    By contrast, in Garcia, a shop owner, Carolyn Garcia ("Garcia"),
    complained to public officials about lax enforcement of an ordinance
    prohibiting bike riding on the sidewalk. 
    348 F.3d at 727-28
    . Because
    of her complaints, the mayor told Garcia that he would have police
    ticket her car when she parked in violation of a two-hour parking limit
    that had not previously been enforced against her or others. Within
    hours of the threat, Garcia received her first traffic ticket, which was
    followed by three more over the next two months. Reinstating a jury
    verdict for Garcia, the Eighth Circuit distinguished Naucke v. City of
    Park Hills, 
    284 F.3d 923
     (8th Cir. 2002), a § 1983 case where "plain-
    tiff charged that the defendants had made harassing, derogatory, and
    BLANKENSHIP v. MANCHIN                         13
    humiliating comments about her," and noted that "in contrast to
    Naucke, [here] defendant’s conduct went beyond mere speech, how-
    ever offensive. Defendant, in his capacity as Mayor, engaged the
    punitive machinery of the government in order to punish . . . Garcia
    for speaking out." 
    348 F.3d at 729
    .
    Given Suarez’s command that we focus "on the status of the
    speaker, the relationship between the speaker and the retaliator, and
    the nature of the retaliatory acts," 
    202 F.3d at 686
    , in determining the
    effect on a plaintiff’s First Amendment rights and the similar, but
    objective, test applied in Baltimore Sun, we begin by viewing
    Blankenship as a citizen who has "entered the political debate,"
    Eaton, 
    379 F.3d at 956
    . The crux of Blankenship’s claim is that
    Manchin threatened retaliation against Blankenship’s company,
    which operates in a highly regulated industry. Thus, the person of
    ordinary firmness we consider should be one who is president of a
    company in a highly regulated industry. Cf. Baltimore Sun, 
    437 F.3d at 419
     (considering "reporters of ordinary firmness" in the inquiry).
    In sum, our inquiry is whether Manchin’s alleged conduct would chill
    the free speech rights of an ordinarily firm owner of a regulated busi-
    ness who has entered the political arena.
    The typical reporter, as recounted in Baltimore Sun, is accustomed
    to politicians’ refusing to comment and having to curry favor for
    access, so that the Governor’s ban on commenting to certain reporters
    in that case did not sufficiently impair the status quo as to chill
    speech. See 
    437 F.3d at 419
    . Unlike a reporter, the typical citizen
    involved in politics does not contend with the retaliatory conduct of
    state officials as a "cost" of entering the political arena. While a citi-
    zen who voluntarily enters public debate may suffer some
    hardships—the public figure standard for libel, for example, may
    apply to statements made about them—threats of adverse regulatory
    action are not properly among these hardships. Cf. Gertz v. Robert
    Welch, Inc., 
    418 U.S. 323
    , 347-50 (discussing the differing liability
    standards for libel of public versus private figures); Wells v. Liddy,
    
    186 F.3d 505
     (4th Cir. 1999) (same); Wilson v. Daily Gazette Co.,
    
    588 S.E.2d 197
     (W. Va. 2003) (same).
    Eaton is also inapposite to the case at bar. While Blankenship is
    fully able to respond to Manchin’s criticisms through the media—for
    14                     BLANKENSHIP v. MANCHIN
    example, countering the accusations about Massey’s safety record—
    he cannot utilize the marketplace of ideas to shield himself against
    adverse regulatory action. Cf. McCreary County, Ky. v. Am. Civil Lib-
    erties Union of Ky., 
    125 S. Ct. 2722
    , 2747 (2005) (O’Connor, J., con-
    curring) ("In the marketplace of ideas, the government has vast
    resources and special status."); Finzer v. Barry, 
    798 F.2d 1450
    , 1493
    (D.C. Cir. 1986) (Wald, J., dissenting) ("The driving concept of the
    first amendment to promote a marketplace of ideas is twisted out of
    shape when, through governmental action, only one side of the debate
    is permitted access to the premium selling booth."), aff’d in part,
    rev’d in part sub nom. Boos v. Barry, 
    485 U.S. 312
     (1988). Blanken-
    ship "remained free" to accuse the Governor of targeting his com-
    pany, but that would do little to minimize the damage from any actual
    adverse action taken against Massey. Unlike in Eaton, where the
    background check conducted by the sheriff had no potential of pro-
    spective harm, the threat of continued and heightened regulatory scru-
    tiny of Massey loomed large, serving its function as a constant
    "warning" to Blankenship about speaking out on political issues.
    Similarly, this case is unlike Mattox, where there was an attempt
    to discredit a public official based on his views. While Manchin was
    trying to discredit Blankenship, his attempts crossed the line into
    threats against Massey. As the Eighth Circuit noted in Garcia, there
    is a clear difference between speech that is a "deliberate attempt to
    discredit" and speech that threatens to "engage[ ] the punitive
    machinery of the government in order to punish" someone for speak-
    ing out. 
    348 F.3d at 729
    .
    Blankenship’s actions, although not dispositive, are relevant to the
    ordinary firmness inquiry. Constantine, 411 F.3d at 500. Appellant
    argues that Blankenship has continued actively to participate in West
    Virginia politics. Though Blankenship continues to be politically
    active, he claims that his speech has been chilled and until contrary
    evidence is presented, that claim must be accepted. A chilling effect
    need not result in a total freeze of the targeted party’s speech. See id.
    ("The cause of action targets conduct that tends to chill such activity,
    not just conduct that freezes it completely.") Unlike in Baltimore Sun,
    Blankenship did not deny that he has been chilled or evade the ques-
    tion at oral argument; rather, he continues to allege that his speech
    rights have been chilled. Cf. 
    437 F.3d at
    420 n.1. The fact that
    BLANKENSHIP v. MANCHIN                         15
    Blankenship continues to speak is informative to our ordinary firm-
    ness inquiry, but, at this stage, not dispositive. Appellant may demon-
    strate that Blankenship has, as a matter of law, not been chilled in any
    respect; that opportunity, however, must be undertaken with the aid
    of discovery and not at the motion-to-dismiss stage.
    III.
    Having found that the facts as set forth in Blankenship’s complaint,
    when viewed in the light most favorable to him, establish the viola-
    tion of a constitutional right, we must address whether this right was
    clearly established. See Saucier, 533 U.S. at 201. We undertake this
    inquiry "in light of the specific context of the case, not as a broad gen-
    eral proposition." In Saucier, the Supreme Court made clear that
    "[t]he relevant, dispositive inquiry in determining whether a right is
    clearly established is whether it would be clear to a reasonable officer
    that his conduct was unlawful in the situation he confronted." Id. at
    201-02. In this case, in determining "[w]hether a right has been spe-
    cifically adjudicated or is manifestly apparent from broader applica-
    tions of the constitutional premise in question," we may consider
    decisions of the Supreme Court, this Court, and the Supreme Court
    of Appeals of West Virginia. Owens ex rel. Owens v. Lott, 
    372 F.3d 267
    , 279 (4th Cir. 2004).
    This Court has held that "[i]t is well established that a public offi-
    cial may not misuse his power to retaliate against an individual for the
    exercise of a valid constitutional right." Trulock, 
    275 F.3d at 405
     (cit-
    ing Suarez, 
    202 F.3d at 685
    ). In the specific context at issue here, it
    is clearly established that "the First Amendment prohibits an officer
    from retaliating against an individual for speaking critically of the
    government." Id. at 406.
    Appellant acknowledges that in Suarez, this Court held that a pub-
    lic official’s retaliatory action in the nature of speech that threatens,
    coerces, or intimidates, intimating that punishment, sanction, or
    adverse regulatory action will imminently follow, establishes a viola-
    tion of an individual’s First Amendment rights. 
    202 F.3d at 687
    .
    Appellant, however, argues that Suarez did not put forth a bright line
    test because it was based on a balancing of the First Amendment
    rights of citizens and public officials. Although Suarez did concern
    16                      BLANKENSHIP v. MANCHIN
    itself with striking a balance of rights between citizens and public
    officials, the result of that balance was "[t]he requirement that [a]
    public official’s speech include a threat, coercion, or intimidation." 
    Id.
    at 688 n.13. This requirement represents a bright line, one that the
    Governor’s remarks clearly violated.
    In sum, the general proposition that a government official may not
    retaliate against a citizen for the exercise of a constitutional right is
    clearly established law, per Trulock. The specific right at issue here,
    the right to be free of threats of imminent, adverse regulatory action
    due to the exercise of the right to free speech, was clearly established
    by this Court in Suarez.
    IV.
    As Blankenship’s complaint alleges a constitutional violation of a
    clearly established right, qualified immunity does not attach to the
    Governor’s actions. Appellant’s motion to dismiss was properly
    denied, and the ruling of the district court is affirmed.
    AFFIRMED
    WILKINS, Chief Judge, concurring in the judgment:
    I agree that the district court correctly denied the motion to dismiss
    here. Because my reasoning differs slightly from that of the majority,
    however, I write separately.
    As the majority correctly notes, in reviewing the denial of a motion
    to dismiss, we may reverse "only if it appears beyond all doubt that
    the plaintiff can prove no set of facts in support of his claim that
    would entitle him to relief." Ridpath v. Bd. of Governors Marshall
    Univ., 
    447 F.3d 292
    , 317 (2006) (internal quotation marks omitted).
    For the reasons the majority outlines, I agree that it was clearly
    established at the time of the Governor’s remarks that a threat of
    increased government scrutiny, made in retaliation for Blankenship’s
    political speech, violated Blankenship’s First Amendment rights. That
    leaves the questions of whether Blankenship’s complaint demon-
    BLANKENSHIP v. MANCHIN                         17
    strates that Blankenship can prove no set of facts supporting (1) his
    claim that the Governor made such a threat, and (2) the proposition
    that a reasonable person in the Governor’s position would have under-
    stood at the time of his remarks that they constituted such a threat, see
    Saucier v. Katz, 
    533 U.S. 194
    , 202 (2001) (explaining that govern-
    ment official is entitled to qualified immunity unless, at the time of
    the alleged violation, "a reasonable official would understand that
    what he is doing violates" the right in question).
    Blankenship’s complaint alleges that in response to questions about
    the pension bond amendment, "the Governor threatened Plaintiff by
    warning that the government would scrutinize the affairs of Plaintiff
    and Massey even more closely in light of Plaintiff’s decision to par-
    ticipate in the public debate over the pension bond amendment"; that
    "[t]he Governor went on to say, ‘I think that is justified now, since
    [Blankenship] has jumped in there with his personal wealth trying to
    direct public policy’"; and that the Governor claimed that Massey was
    guilty of "‘many violations’" of state environmental regulations. J.A.
    9 (emphasis added).
    The Governor argues that the Gazette article provides the proper
    context for the statements and demonstrates that they were predictions
    of scrutiny by the media and the public rather than threats of addi-
    tional governmental scrutiny. That argument fails to recognize, how-
    ever, that we must accept as true the allegation in the complaint that
    the Governor warned Blankenship that the government would scruti-
    nize him more closely in light of his decision to speak publicly
    regarding the pension bond amendment. The fact remains that even
    if the words quoted in the Gazette article do not comprise such a
    threat themselves, Blankenship may eventually prove such a threat by
    words that were not quoted in the article but that any reasonable offi-
    cial in the Governor’s position would have understood to have been
    a threat.
    The Governor disagrees, observing that Blankenship’s complaint
    plainly states that "the Governor’s threats against Plaintiff were
    reported in the Charleston Gazette." 
    Id.
     But the Governor’s reliance
    on this language is misplaced. The Governor reads the complaint as
    if it alleged that the Governor’s threats against Blankenship were
    quoted in the Gazette. But, the identified language in the complaint
    18                     BLANKENSHIP v. MANCHIN
    may simply refer to the portion of the Gazette article that paraphrased
    the Governor’s words. See 
    id. at 46
     ("The governor said Blankenship,
    who has launched a personal campaign against the bond plan, should
    expect tougher scrutiny of his business affairs."). In fact, not only
    does the complaint not plainly state that it is based only on words
    quoted in the Gazette article, but it actually suggests that it is not so
    limited. See 
    id. at 9
     (alleging that Governor threatened further govern-
    ment scrutiny and then "went on to say" some of the words quoted
    in the Gazette).
    For this reason, the Governor thus has not demonstrated that
    Blankenship cannot prove any set of facts that would entitle him to
    relief, and I therefore concur in the judgment affirming the denial of
    the motion to dismiss.
    

Document Info

Docket Number: 06-1249

Filed Date: 12/20/2006

Precedential Status: Precedential

Modified Date: 9/22/2015

Authorities (24)

Eaton v. Meneley , 379 F.3d 949 ( 2004 )

rodney-winfield-v-gl-bass-kelvin-carlyle-anthony-clatterbuck-james-hicks , 106 F.3d 525 ( 1997 )

suarez-corporation-industries-emerson-sonny-clopper-patricia-clopper , 202 F.3d 676 ( 2000 )

Ida Maxwell Wells v. G. Gordon Liddy, Phillip MacKin ... , 186 F.3d 505 ( 1999 )

american-chiropractic-association-incorporated-a-nonprofit-corporation , 367 F.3d 212 ( 2004 )

eastern-shore-markets-incorporated-v-jd-associates-limited-partnership , 213 F.3d 175 ( 2000 )

Brenda Mattox and Dona Holly v. City of Forest Park Stephen ... , 183 F.3d 515 ( 1999 )

Daniel L. Veney v. T v. Wyche Darnley R. Hodge, ... , 293 F.3d 726 ( 2002 )

lionel-phillips-on-behalf-of-himself-and-all-others-similarly-situated-v , 190 F.3d 609 ( 1999 )

destiny-owens-a-minor-under-the-age-of-fourteen-years-by-and-through-her , 372 F.3d 267 ( 2004 )

notra-trulock-iii-linda-conrad-v-louis-j-freeh-in-his-personal-capacity , 275 F.3d 391 ( 2001 )

b-david-ridpath-v-board-of-governors-marshall-university-dan-angel-f , 447 F.3d 292 ( 2006 )

the-baltimore-sun-company-david-nitkin-michael-olesker-v-robert-l , 437 F.3d 410 ( 2006 )

steven-douglas-jenkins-david-chris-bossard-william-martin-buckner-robert , 119 F.3d 1156 ( 1997 )

R. David Finzer, Father v. Marion S. Barry, Jr., Mayor, ... , 798 F.2d 1450 ( 1986 )

charles-naucke-theresa-naucke-john-duval-v-city-of-park-hills-james-link , 284 F.3d 923 ( 2002 )

carolyn-fay-garcia-v-city-of-trenton-missouri-timothy-whitaker-mayor , 348 F.3d 726 ( 2003 )

Gertz v. Robert Welch, Inc. , 94 S. Ct. 2997 ( 1974 )

Younger v. Harris , 91 S. Ct. 746 ( 1971 )

Boos v. Barry , 108 S. Ct. 1157 ( 1988 )

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