MARK W. EVES, Plaintiff, Appellant,
PAUL R. LEPAGE, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE HON. GEORGE Z. SINGAL, U.S. DISTRICT JUDGE.
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
Howard, Chief Judge, Torruella, Stahl, Lynch, Thompson,
Kayatta [*] ,
and Barron, Circuit Judges.
OPINION EN BANC
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. 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.
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
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 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.
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. 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)).
Maine's Government and Budget Process
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.
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).
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 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.
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.
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.
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.
Good Will-Hinckley, The Center of Excellence for At-risk
Students ("the Center"), and The Maine Academy of
Natural Sciences ("MeANS")
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.
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,
§§ 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.
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.
Maine state budget for fiscal years 2014 and 2015 -- which
covered the period from July 1, 2013 to June 30, 2015 -- 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
Selection of Speaker Eves as President of 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
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 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
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
Governor LePage's Intervention
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
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.
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
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 grant
that the Foundation had been planning to give to GWH.
Powell's letter was not appended to the complaint.
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.
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.
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." 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
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
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.
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.
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. Should I have stepped in? Legally,
no. But I did. And I'm not embarrassed about doing
Procedural History of This Litigation
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.
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.
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.
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.
Hold that Qualified Immunity Bars Eves's Claim for
Damages for Political Affiliation Discrimination
Qualified Immunity Framework
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 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.
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 Ashcroftv.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 ...