63 F.4th 61
1st Cir.2023Background
- Diane Lawless was Town of Freetown Treasurer under a three‑year, for‑cause contract; the Board of Selectmen placed her on leave and held a three‑day termination hearing.
- At the hearing Lawless had counsel, cross‑examined witnesses, called no live witnesses of her own, and addressed the Board; the Board voted to terminate immediately and did not deliberate.
- Board members made prehearing remarks that could be read as biased or prejudging the outcome; the town provided no separate post‑termination proceeding.
- Lawless sued in state court under 42 U.S.C. § 1983 for deprivation of procedural due process; defendants removed to federal court.
- The individual board members did not assert qualified immunity in their answer; they raised it for the first time in a joint summary judgment motion and the district court addressed the defense on the merits (not waiver), denying qualified immunity.
- On interlocutory appeal the First Circuit reviewed the legal question whether clearly established law foreclosed qualified immunity and reversed the denial of qualified immunity as to the individual board members, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver/forfeiture of qualified immunity because it was not pled in the answer | Lawless: defendants waived the defense by failing to plead it and by not responding to the waiver argument | Defendants: could raise qualified immunity in a summary judgment motion after discovery | Court: district court could have deemed the defense forfeited, but it did not; Lawless did not press prejudice on appeal, so the Court reached the merits |
| Whether presiding over a Loudermill pretermination hearing while biased violates due process | Lawless: bias rendered the hearing a "sham" so the Loudermill protections were hollow | Defendants: they provided the Loudermill minimum (notice, explanation of evidence, opportunity to respond) and reasonable officials would not have known bias alone made process unconstitutional | Court: not clearly established that bias of this sort (predisposition to terminate) made the pretermination process constitutionally deficient; qualified immunity applies |
| Whether the hearing here satisfied Loudermill (notice, explanation of evidence, opportunity to respond) | Lawless: although formal Loudermill elements were present, bias prevented the Board from actually hearing her | Defendants: the hearing met Loudermill’s core elements and thus satisfied due process | Court: record shows Loudermill elements were provided; bias allegations do not alone show clearly established constitutional violation |
| Whether availability of state postdeprivation remedies compels a neutral post‑termination hearing or alters qualified immunity analysis | Lawless: if pretermination hearing was infected by bias, officials should have provided or arranged a neutral postdeprivation forum | Defendants: state remedies can provide adequate postdeprivation process; there is no clearly established rule forcing a post‑deprivation neutral hearing here | Court: no clearly established federal rule requiring a municipal board to provide a neutral postdeprivation hearing when Loudermill requirements were satisfied; state remedies may suffice and the law was not "beyond debate" |
Key Cases Cited
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (procedural due process requires notice, explanation of evidence, and opportunity to respond before removal of certain public employees)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity framework; courts may address either prong)
- Chmielinski v. Massachusetts, 513 F.3d 309 (no absolute requirement of an impartial decisionmaker in public‑employment pretermination hearings)
- Acosta‑Sepulveda v. Hernandez‑Purcell, 889 F.2d 9 (same principle: Loudermill does not require neutrality of hearing officer)
- Withrow v. Larkin, 421 U.S. 35 (circumstances in which adjudicator bias is constitutionally intolerable)
- Schweiker v. McClure, 456 U.S. 188 (due process demands impartiality in judicial and quasi‑judicial roles)
- Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222 (affirmative defenses under Rule 8(c) generally must be pled to avoid surprise)
- Davignon v. Clemmey, 322 F.3d 1 (circumstances permitting district courts to excuse failure to plead an affirmative defense)
- Williams v. Ashland Eng’g Co., Inc., 45 F.3d 588 (practical, totality‑of‑circumstances test for prejudice when an affirmative defense is raised late)
- McCue v. City of Bangor, 838 F.3d 55 (appellate review of denial of qualified immunity limited to legal issues)