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McCue v. Bradstreet

United States Court of Appeals, First Circuit

July 16, 2015

CARL D. McCUE, Plaintiff, Appellant,
SETH BRADSTREET, III, Defendant, Appellee

Page 335


David G. Webbert, with whom Max R. Katler and Johnson, Webbert & Young, LLP, were on brief, for appellant.

Janet T. Mills, Attorney General, with whom Christopher C. Taub and Susan P. Herman, Assistant Attorneys General, were on brief, for appellee.

Before Barron, Circuit Judge, and Souter,[*] Associate Justice.[**]


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BARRON, Circuit Judge.

In this appeal, a Maine dairy farmer seeks to reverse a summary judgment ruling that rejected his First Amendment retaliation claim against the former Commissioner of the Maine Department of Agriculture. The suit alleges that, while in office, the Commissioner used the state's regulatory apparatus to retaliate for the First Amendment-protected conduct that the farmer engaged in to resolve an earlier business dispute between the two men.

Complicating the dairy farmer's claim, though, are not only long-standing concerns that his farm had failed to comply with state agricultural and environmental regulations, but also the Commissioner's decision soon after taking office to recuse himself from regulatory matters involving the farmer. The District Court noted each of these aspects of the case in awarding summary judgment against the farmer. And we agree with the District Court that, in consequence of those features of the case, the farmer failed to make a sufficient showing to survive summary judgment with respect to the three adverse regulatory actions that the Department was alleged to have taken after the Commissioner's purported recusal.

Unlike the District Court, however, we conclude that there is a genuine issue of material fact with respect to whether the Commissioner's retaliatory intent was a substantial or motivating factor in the one alleged adverse action that occurred prior to the recusal -- namely, the alleged decision by the Department of Agriculture to allow the state Department of Environmental Protection to exercise regulatory power against the farmer. We reach this conclusion because the District Court failed to provide a sufficient ground for its conclusion that, even though the record provided a basis from which a reasonable jury could conclude that the Commissioner's retaliatory intent was a substantial or motivating factor in bringing about that particular change in the Department of Agriculture's enforcement posture in May 2006, the Department was sure to have made that decision then anyway. And the Commissioner has not identified any other basis for affirming the District Court on that point.

That said, it is not clear what damages, if any, follow from this one discrete respect in which we hold that a jury could reasonably infer that a First Amendment violation occurred. And that is particularly

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true given that we conclude that the Commissioner's retaliatory intent was not a substantial or motivating factor in the three separate regulatory actions the Department took against the farmer in the months that followed. But as the parties do not address whether any damages may be attributed to that single, earlier adverse regulatory action, we do not hazard to resolve the damages issue on our own. We thus reverse the grant of summary judgment in part and remand for further proceedings.


Carl McCue is the dairy farmer who brings the suit. He is also the appellant. He had a long history of alleged violations of Maine agricultural and environmental regulations, which we briefly recap.

According to government inspectors and public complaints, McCue would overfill his manure storage pits, which would then sometimes leak. He would also spread too much manure -- sometimes up to six inches deep -- on fields sloping to a nearby protected waterway. Waterlogged manure runoff was sometimes so great that it would cause visible discoloration in the nearby stream. One inspection of his farm by authorities also found thirteen dead cows lying in one of McCue's fields.

Seth Bradstreet, III, is a potato farmer and McCue's neighbor. He is the appellee. He was, at the time that McCue contends is critical, the state's Commissioner of Agriculture and thus the head of the Maine Department of Agriculture (DOA).

The origins of the tensions between the two men may be traced to at least October 2004. At the time, the two were not in contact with one another as regulator and regulated party. Bradstreet was not even then in the Maine state government. The two men were instead parties to a private business deal. Specifically, McCue had leased land from Bradstreet to grow corn for his cows, as McCue ran a very large dairy farm and Bradstreet had farm land available to lease for such a purpose.

The troubles between the two men began a year later, in October 2005. That was when a dispute broke out between them in connection with that lease. McCue told Bradstreet that he was claiming a crop subsidy from the United States Department of Agriculture (USDA) related to crops that were grown on the leased land. Bradstreet, however, also intended to claim the subsidy on the basis of his ownership of the land. And it appears that the subsidy could not be claimed by both Bradstreet and McCue. The record indicates that, in the event of a dispute over a crop subsidy, a local committee set up to administer the USDA's crop subsidy program makes the initial award determination. The disappointed party then may appeal up to the USDA.

Bradstreet admits that, upon learning of McCue's intention to pursue the subsidy, he became " very upset." In particular, Bradstreet admits that, in a phone conversation with McCue, he threatened to " ruin" and " bury" McCue and " put [him] out of business" in consequence of McCue's pursuit of the subsidy. Bradstreet, who the complaint alleges was also the chairperson of the local committee that would adjudicate the subsidy dispute in the first instance, admits that he continued by saying: " Go to the state committee. Do what you got to do. Appeal it. Damn it. Actions like that, you shouldn't be in business."

In December 2005, the local committee awarded Bradstreet the subsidy. McCue then appealed that determination up the line within the USDA. McCue did so in hopes of securing the subsidy for himself.

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A few months later, on March 27, 2006, while McCue's USDA appeal was still pending, Bradstreet became the Maine Commissioner of Agriculture and the head of the DOA. Shortly thereafter, in April of 2006, McCue prevailed in his USDA appeal. As a result, on April 26, 2006 -- only a month after Bradstreet had taken the reins at the DOA -- the USDA demanded that Bradstreet repay approximately $7,000 in crop subsidies.

According to McCue, over the next several months, the DOA -- with Bradstreet at the helm -- took four adverse regulatory actions that sprang from Bradstreet's earlier-expressed desire to take action against McCue for McCue having availed himself of the USDA's appeals process. Specifically, McCue contends that:

(1) In early May 2006, the DOA decided to stop protecting McCue from the regulatory authority of the Maine Department of Environmental Protection (DEP), as the DOA allegedly had been doing for a number of years despite concerns about McCue's failure over that time to comply with statutory and regulatory requirements for which the DEP had licensing and enforcement power.

(2) On June 27, 2006, DOA and DEP officials informed McCue that his farm was being placed under " strict scrutiny."

(3) In November and December 2006, the DOA revoked McCue's provisional Livestock Operations Permit, which he needed under state law to operate his dairy farm. See Me. Rev. Stat. tit. 7, § 4205; 01-001 Me. Code R. ch. 565, § 8(1).

(4) And, finally, in December 2006, the DOA denied McCue's request for a variance that would have enabled him to spread manure from his cows on his fields during the winter months. See Me. Rev. Stat. tit. 7, § 4207 ( prohibiting spreading absent a variance).

In the wake of these actions, the DEP licensed McCue, inspected his property, and issued several notices of violation of his license conditions. The DEP sent copies of those notices to the federal Environmental Protection Agency (EPA). The EPA, citing the DEP's licensing, inspection, and enforcement actions, then began administrative and judicial proceedings against McCue in December 2006 and January 2007. Those EPA proceedings resulted in McCue losing his farm.

In response to the four alleged adverse actions, McCue brought this suit for damages against Bradstreet in federal district court in Maine under 42 U.S.C. § 1983.[1] He claimed Bradstreet had violated his First Amendment rights through the adverse actions the DOA took.

To win on that First Amendment damages action, McCue was required to show " that [he] engaged in constitutionally protected conduct, and that this conduct was a substantial or motivating factor for the adverse . . . decision." Padilla-García v. Rodríguez, 212 F.3d 69, 74 (1st Cir. 2000). Even assuming McCue could succeed in making that showing, however, he still would not necessarily win. And that is because Bradstreet would then have " the opportunity to establish that [the DOA] would have taken the same action regardless of the plaintiff's [protected conduct] -- commonly referred to as the Mt. Healthy

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defense." Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)); [2] see also Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993) (stating that " the burden of persuasion itself passes to the defendant[]" to make out the Mt. Healthy defense " once the plaintiff produces sufficient evidence from which the fact finder reasonably can infer that the plaintiff's protected conduct was a 'substantial' or 'motivating' factor behind [the adverse action]" (emphasis removed)).

Before the case went to trial, Bradstreet moved for summary judgment. In ruling on that motion, the District Court accepted the parties' stipulation that McCue's appeal to the USDA of the subsidy determination was constitutionally protected speech. The District Court thus ruled that McCue had met one element of a retaliation claim by showing that he had engaged in " protected conduct." Acevedo-Diaz, 1 F.3d at 66-67. The District Court also concluded that McCue satisfied another of the elements of such a claim. That was because the District Court ruled that all four of the DOA's actions about which McCue complains qualified as " adverse" actions because they would " deter a reasonably hardy individual from exercising his constitutional rights." Barton v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011) (original alterations and quotation marks omitted).

The District Court then proceeded to address the only point of dispute that is before us in this appeal: the role, if any, that Bradstreet's purported desire to retaliate for McCue's protected conduct played in the alleged adverse actions against McCue. To that end, the District Court first considered whether McCue had raised a genuine issue of material fact with regard to whether retaliation for McCue's protected conduct was a substantial or motivating factor in any of the four adverse regulatory actions to which McCue claims the DOA subjected him. The District Court then considered whether, even if McCue could make that showing, Bradstreet could nonetheless conclusively make out the Mt. Healthy defense in response by showing that a reasonable jury would be required to conclude from the record that those actions would have occurred even if McCue had not engaged in protected conduct. In performing this two-step analysis, the District Court decided to examine each of the four alleged adverse regulatory actions independently.

As to the first of the four alleged adverse actions, the District Court began its analysis as follows. The District Court concluded that there was a genuine issue of material fact as to whether retaliation for McCue's protected conduct was a substantial or motivating factor in the DOA's alleged decision in May 2006 to allow the DEP to exercise regulatory power against McCue. In so ruling, the District Court pointed to the fact that the DOA's decision to let the DEP exercise such authority was made very soon after Bradstreet had taken office and had learned that McCue had successfully appealed the USDA's initial decision to award the subsidy to Bradstreet. The District Court found that this timing, coupled with Bradstreet's earlier statements promising to " ruin" McCue and the fact ...

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