Lead Opinion
Paul LePage, the Republican Governor of Maine, has had deep political disagreements with members of the Maine Legislature, particularly those who are Democrats—including the Speaker of the House, plaintiff Mark Eves. The Speaker, who is
Governor LePage conveyed to GWH his displeasure at the organization’s decision to hire the Speaker and threatened to withhold GWH’s discretionary funding when payment would ordinarily be due, assuming passage of Maine’s budget for Fiscal Years (“FY”) 2016 and 2017. Faced with the prospect of losing funding on which it depended, GWH terminated the Speaker’s employment contract.
The Speaker sued the Governor in federal court for damages and injunctive relief, asserting that the Governor, in violation of the U.S. Constitution, had retaliated against the Speaker’s exercise of his First Amendment rights. The Speaker also sought relief under state tort law. The U.S. District Court for the District of Maine dismissed all claims. Eves v. LePage, No. 1:15-cv-300-GZS,
We affirm dismissal with prejudice of the Speaker’s federal claims, on qualified immunity grounds. As for his state claim, we vacate, and direct the district court to dismiss it without prejudice.
I.
Background
The issues in this case are ultimately issues of law, which receive de novo review. See United States v. Baird,
A. Maine’s Government and Budget Process
We begin with background information that is helpful in understanding the issues in this case.
Serving in the Maine Legislature is not a full-time job for most representatives. The legislature typically sits twice during each two-year session: once from December to June in year one, and 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 is $24,056, spread across the two years, plus a $38 per diem, when the legislature is active, “for housing or mileage and tolls.” Eves,
Maine’s biennial budget process starts when the Department of Administrative and Financial Services, after considering submissions from various agencies and policy committees, “prepare[s] and submit[s] ... a state budget document” to the governor. M.R.S.A. tit. 5, § 1662. The governor reviews the draft budget, alters it, and then 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 budget then returns to the governor, who has line-item
The facts of 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. In a press conference on May 29, 2015, the Governor 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,
On June 29, 2015, the Governor vetoed the entire budget. The legislature also overrode that veto, on June 30, and enacted, the budget for FY2016 and FY2017 into law. That budget included discretionary funding for GWH.
B. Good Will-Hinckley and Speaker Eves
GWH is a private nonprofit organization, located in Fairfield, Maine, which 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 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.
Since'2009, GWH has been designated by Maine “to serve as the nonprofit charitable corporation with a public purpose to implement the Center of Excellence for At-risk Students.” Id. at *3; see M.R.S.A. tit. 20-A, § 6951. Fulfilling this responsibility, GWH opened a charter school in 2012, called the Maine Academy of Natural Sciences (“MeANS”). MeANS has its own board and its own principal; it also relies in large part on discretionary state funding.
The Maine state budget for FY2014 and FY2015—which covered the period from July 1, 2013 to June 30, 2015—allocated $1,060,000 in discretionary- funding to GWH for the purpose of operating MeANS. In that period of time, the Le-Page Administration chose to disburse all of that money. The proposed budget for FY2016 and FY2017, under debate in spring 2015, contained an identical appropriation of $1,060,000, to be paid to GWH in quarterly installments, as in previous years.
Glenn Cummings, formerly a Speaker of the Maine House of Representatives, resigned as president of GWH in September 2014, having served for approximately four years. GWH began searching for a successor, and plaintiff Mark Eves was one of nineteen applicants. Eves, Maine’s current Speaker, has served in that role since 2012 and as á representative since 2008. Because he is term-limited, see M.R.S.A. tit. 21-A, § 553(2), he must leave the House entirely in December 2016, when his fourth term expires. Speaker Eves also has fifteen years of professional experience as a marriage and family therapist. Since moving from California to Maine in 2003, the
GWH’s eight-member search committee interviewed Speaker 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,
On June 5, 2015, Speaker Eves and GWH entered into a two-year employment agreement, which contained a “for-cause termination provision” and “no conditions or contingencies” related to any actions or funding decisions by the State. Id. at *4. GWH announced the Speaker as its new President on June 9.
C. ■ Governor LePage’s Intervention
On June 5, 2015, Governor LePage learned that GWH had decided to hire Speaker Eves. The Governor promptly called GWH’s Interim President, stating “that he was extremely upset” about the news and “us[ing] profanity to describe [Speaker Eves] and his work.” Id. That same day or “soon after,” LePage sent a handwritten note to GWH’s Board Chair, which “referred very negatively to Eves” and called the Speaker a “hack.” Id. The Board Chair’s belief, after reading the note, was “that GWH would lose $1,060,000 in state funding if it retained Eves as its new President.” Id.
On June 8, Governor LePage sent a public letter to the Board Chairs of GWH and MeANS, “urging that they reconsider,” Id. The letter characterized Speaker Eves as “a longtime opponent of public charter schools” who had fought against “every effort to reform Maine’s government.” Id. 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.
Also on June 8, the Governor received a call from Gregory Powell, the Board Chair of the Harold Alfond Foundation (“the Foundation”), who was responding to a June 5 voicemail from the Governor. During their conversation, Powell learned that the Governor was “withdrawing all support, including financial support, from GWH as long as Eves remained as President of the organization.” Id. Responding to that news, Powell sent a letter to GWH’s Board on June 18, warning them that the Foundation had “serious con-cernís] ... regarding [GWH’s] future financial viability” if the Governor were to follow through on his threat to withhold the $1,060,000 of state funding. Id. Those concerns, he further warned, made the Foundation uneasy about committing to a $2,750,000 grant that the Foundation had been planning to give to GWH.
On or about June 9, 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 duly froze $132,500 in discretionary funds scheduled to be sent to GWH for the next quarter (beginning on July 1). At that point, having passed no new budget, the legislature had not yet appropriated any quarterly payments for GWH beyond what GWH had already received.
The lawyers representing Speaker Eves and Governor LePage, respectively, con
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. The Speaker immediately stated publicly that “his firing was caused by LePage’s threat to withhold funding.” Id. Several GWH leaders emailed Speaker Eves, opining that he “would have been a wonderful fit” for the organization. Id. Months later, on October 15, GWH’s Board Chair stated in a legislative hearing that Eves would not have been fired but for Governor LePage’s intervention. Some of the Speaker’s colleagues in the legislature also spoke out. State Senate President Mike Thibodeau, a Republican, publicly called himself “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 any interference with GWH’s decision-making process. However, on June 29, local reporters interviewed the Governor and asked whether he had “threatened to withhold money” from GWH, and he responded:
Yeah, I did! If I could, I would! Absolutely; why wouldn’t I? Tell me wliy 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, the Governor further explained:
[The Speaker] 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.
... [F]ormer legislators used their political positions to land cushy, high-paying jobs in which they were trusted to use taxpayer money to improve the lives of Mainers. They abused that trust and had ...to face the consequences of their actions. The same is true of Mark Eves.
And in another interview, on July 30, the Governor called Speaker Eves “a plant by the unions to destroy charter schools.” The Governor drew an analogy: “One time I stepped in ... when a man was beating his wife. ... Should-1 have stepped in? Legally, no. But I did. And I’m not embarrassed about doing it.”
D. U.S. District Court Proceedings
Speaker Eves filed this lawsuit on July 30, 2015 and then filed a First Amended Complaint on December 18, 2015. Governor LePage moved to dismiss on January 5, 2016, arguing that the complaint failed to state a claim, see Fed. R. Civ. P. 12(b)(6), and that the subject matter of the lawsuit was “a political dispute that does not belong in court.” On April 13, 2016, the day of oral argument on the Governor’s 12(b)(6) motion, the Speaker was granted leave (without opposition) to file a Second Amended Complaint.
The Second Amended Complaint contained five claims against Governor.Le-Page: four federal law claims under 42 U.S.C. § 1983 for violations of Speaker Eves’s rights to political affiliation, free speech, freedom of association, and procedural due process, as well as a fifth claim under state law for intentional interference with contract. As relief, the Speaker re
On May 3, 2016, the district court issued an opinion, which granted Governor Le-Page’s motion to dismiss. Eves,
II.
Damages Claims
Speaker Eves continues to seek damages under § 1983, for alleged violations of his First Amendment rights of political affiliation and freedom of association, as well as injunctive relief.
The facts and the parties’ arguments touch upon a host of nuanced First Amendment questions. We leave them for another day and affirm dismissal of the damages claims on narrow grounds: Governor LePage is entitled to qualified immunity, because Speaker Eves has not shown that it was beyond debate that the Governor’s discretionary actions amounted to unconstitutional retaliation against the Speaker.
A. Qualified Immunity Framework
Qualified immunity analysis, which forecloses Speaker Eves’s damages claims, encompasses two inquiries. The first is “whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right,” and the second is “whether the right was ‘clearly established’ at the time of the defendant’s alleged violation.” Stamps v. Town of Framingham,
We jump directly to the second prong
B. Analysis of Qualified Immunity Defense
The specific question we must consider is whether a reasonable governor objectively could have been uncertain about either the contours of the legal landscape or the constitutionality of this particular series of actions. See Stamps,
Speaker Eves has not done so. On these facts, a reasonable governor could have been uncertain whether the attempts to influence GWH would infringe upon the Speaker’s constitutional rights—even if the attempts were successful. No Supreme Court case or circuit case clearly forbade Governor LePage from informing a potential recipient of a government grant of his intention to exercise funding discretion, afforded him by the state legislature, if the potential recipient chose to persist with a course of action that the Governor disfavored. The decision that actually affected the Speaker was made by third parties— and private parties, at that. See Zaloga v. Borough of Moosic, No. 15-2723,
Speaker Eves articulates the alleged § 1983 violation as Governor LePage “us[ing] his control over public funds to coercé a private employer into firing the leader of the opposing political party in retaliation for that leader’s exercise of First Amendment rights.” At the highest level of generality, denying a governmental benefit “on a basis that infringes [a plaintiffs] constitutionally protected interests” amounts to a cognizable § 1983 claim. Perry v. Sindermann,
In our view, however, Speaker Eves “cannot plausibly urge that [Gover
To avoid this conclusion, Speaker Eves must identify “existing precedent ... [that] placed the statutory or constitutional question beyond -debate.” Taylor v. Barkes, — U.S. -,
The decision in Mihos does not support denial of qualified immunity for at least two reasons. First, Mihos is factually dissimilar: the court- denied pretrial .qualified immunity to a governor who had directly terminated a plaintiffs appointment to a public-service position with a fixed term. In 1999, the Governor of Massachusetts, Paul Cellucci, reappointed plaintiff Christy Mihos to the Massachusetts Turnpike Authority, .a “public instrumentality,” for an eight-year term to expire in 2007. Mihos,
Mihos’s precise holding, however, was that “[n]o reasonable public official could have failed to realize that a member of a public instrumentality cannot be terminated on such grounds for voting on matters of public concern within his authority.” Id. at 110. Because Governor LePage did not directly terminate Speaker Eves’s employment, but rather (taking the Speaker’s allegations as true) used discretionary state funding as leverage to influence a private organization, Mihos did not indisputably
Even if Mihos were on all fours with this case, it would fail to undermine Governor LePage’s qualified immunity defense for a second reason: the Governor could reasonably have concluded that Mihos’s reasoning had beén undermined by Garcetti v. Ceballos,
Other courts, in granting qualified immunity, have observed that Garcetti' has caused “substantial disagreement” among lower courts with respect to the scope of retaliation claims by public employees. Werkheiser v. Pocono Twp.,
In El Dia, the issue was whether the Governor of Puerto Rico, Pedro Ros-sello, was entitled to qualified immunity for his alleged termination of advertising
By way of conclusion, we reiterate that we have no need to address the constitutionality vel non of Governor LePage’s conduct. We hold only that an official in the Governor’s position reasonably could have been uncertain whether this particular series of actions, falling within broad discretion given by the legislature and pertaining to funds not yet formally appropriated, amounted to a violation of Speaker Eves’s constitutional rights. Our holding is consistent with a long line of Supreme Court cases applying immunity as a shield for public officials who must exercise broad discretion in the discharge of their public duties. See, e.g., Mullenix,
III.
Injunctive and Declaratory Relief
Speaker Eves seeks, in addition to damages, injunctive relief preventing Governor LePage from threatening GWH again or “using his authority” to interfere with the Speaker’s employment in the private sector. Speaker Eves also seeks a declaratory judgment and an order compelling the Governor to complete “effective civil rights training.” Qualified immunity, of course, cannot shield the Governor from these requests for equitable relief. See Battista v. Clarke,
The district court suggested that Speaker Eves’s equitable claims are moot.
As to Speaker Eves’s. other requests for prospective injunctive relief, the district court feared that the Speaker’s desired injunction would have “extraordinary” breadth and-would attempt to “compel [Governor LePage] to conform his behavior to some preferred standard of decorum.” Eves,
Speaker Eves has not “credibly allege[d] ... a realistic threat” of future retaliation from Governor LePage. Id. And the Supreme Court has been reluctant to afford private citizens standing to enjoin hypothetical future government conduct. See, e.g., City of Los Angeles v. Lyons,
There is another reason to affirm dismissal of these claims: Speaker Eves has not pleaded facts sufficient to prove his entitlement to an injunction. He has not demonstrated that any injury he has suffered was “irreparable,” nor that “the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C.,
IV.
State Law Claim
Speaker Eves also raises a pendent state claim under the Maine Tort Claims Act (“MTCA”) for intentional interference with contract. Governor LePage argues that he is immune, as a matter of state law, because Maine grants absolute personal immunity to “employees of governmental entities” for “[performing or failing to perform any discretionary function or duty, whether or not the discretion is abused.” M.R.S.A. tit. 14, § 8111(1), (1)(C).
Having properly dismissed the § 1983 claims on which federal jurisdiction relied, the district court exercised supplemental jurisdiction and dismissed the pendent MTCA claim on immunity grounds. In our view, the district court should have declined to exercise supplemental jurisdiction.
Here, the balance of Gibbs factors tips heavily toward a federal court declining to exercise its supplemental jurisdiction. Admittedly, the state law claim does not predominate, in Speaker Eves’s lawsuit, see id. at 727-28,
To that end, the district court’s dismissal of Speaker Eves’s MTCA claim on the merits is vacated. We remand with instructions to dismiss the claim without prejudice.
V.
Conclusion
The district court’s judgment is affirmed with respect to the dismissal of Speaker Eves’s federal claims, and vacated with respect to the dismissal with prejudice of Speaker Eves’s MTCA claim, which is remanded to the district court for a dismissal without prejudice. No costs are awarded.
Notes
. On appeal, Speaker Eves has abandoned his § 1983 damages claims arising from free speech and due process violations. He continues to press those alleged violations in his pursuit of equitable relief.
. Because we affirm the district court's judgment on these qualified immunity grounds, we express no view on whether Governor LePage could reasonably have believed that his own First Amendment rights and the government speech doctrine protected these communications from suit. See Eves,
. In Pearson v. Callahan, the Supreme Court instructed lower courts "to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.”
. The Speaker also cites Blankenship, which also involved threats of adverse regulatory action directly against the plaintiff. See Blankenship,
. We acknowledge that Garcetti addresses mostly free speech claims, as opposed to political affiliation or freedom of association claims: But Garcetti’s concerns about the "delicate balancing" of public-employee rights and government flexibility, as well as its anxiety about “judicial intervention in the conduct of governmental operations,” are not applicable only in the free speech context.
. Speaker Eves cites several other decisions from our sister circuits. Those cases also fail to render it beyond debate that Governor Le-Page’s conduct violated the Speaker’s First Amendment rights. In the absence of "controlling authority”'from the Supreme Court or this court, the Speaker’s burden is to identify "a consensus of cases of persuasive authority” from our sister circuits. Wilson v. Layne,
Dissenting Opinion
dissenting.
Mark Eves is qualified to lead Good Will-Hinckley. This really goes beyond the political. This is personal and vindictive. I often' disagree with Speaker Eves, but he’s a fine and honest man. More importantly, he’s a husband and a father of three beautiful kids who is trying to support his family. Political battles are one thing, but trying to ruin someone economically is quite another.
Roger Katz, a Maine
Republican state senator
Let what happened here sink in for a moment: As part of his 2015 scorched-earth campaign against Democrats, Republican Governor LePage threatened to put GWH—a century-old social-service organization for at-risk children—out of business by withholding over a cool mil in state funding unless GWH canned Democratic House Speaker Eves as its president. That’s the story underlying Speaker Eves’s complaint. And it’s the one we must take as true given the pleading-stage nature of this - controversy. See, e.g., Mor
Anyway, zeroing in on the second prong of the qualified-immunity analysis (the clearly-established-right prong), my colleagues basically believe a'governor back then could’ve reasonably thought it perfectly legal to do what Governor LePage did, because, they say, no prior case “forbade” the precise conduct that Speaker Eves complains of. Take a second and reread the majority’s holding (fyi, I’ve added bracketed letters for ease of reference): arguing that [a] no case holds a government official liable for pressuring a “private” “third party” to retaliate against another, the majority writes that
an official in the Governor’s position reasonably could have been' uncertain whether this particular series of actions, [b] falling within broad discretion given by the legislature and [c] pertaining to funds not yet formally appropriated, amounted to a violation of Speaker Eves’s constitutional rights.
On top of that, my colleagues insist that [d] the Governor' “reasonably could have believed ... that he was acting lawfully by criticizing and commenting upon GWH’s plan to employ a president with a track record of opposition to [his] priorities with respect to education policy.” Convinced that the majority’s qualified-immunity analysis is off the mark, I write these words of protest.
The qualified-immunity defense hardly gives an official carte blanche to trash a citizen’s constitutional rights simply because the fact pattern of the case doesn’t precisely match the fact pattern of earlier cases. See, e.g., Hope v. Pelzer,
[t]he easiest cases don’t even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not 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.
K.H. Through Murphy v. Morgan,
As for the majority’s talk about Governor LePage’s funding discretion—point [b]: Does anyone think the Governor would or should get off scot-free if he had browbeat a state-funds-receiving entity into dumping an employee for religious, racial, or gender reasons? No way. Anyhow, a case on our books long before the present fracas flatly contradicts Governor Le-Page’s view—embraced by the majority— that the First Amendment doesn’t apply to the mere withholding of discretionary state funding. See El Dia, Inc. v. Rossello,
As I see it, a levelheaded governor could’ve extrapolated from El Dia that he couldn’t withdraw discretionary state funding to get back at a political opponent for exercising First Amendment rights. The majority tries to deflect ElDia’s impact by arguing that “El Dia involved intrusion by a governor into the operations of a newspaper and the freedom of the press—factors not present here.” But nothing in El Dia’s money quote—that “[cjlearly established law prohibits the government from conditioning the revocation of benefits on a basis that infringes constitutionally protected interests”—limits its reach to newspaper/freedom-of-the-press cases. Rather, a fair reading of the words used there gave Governor LePage fair warning that his now-challenged actions would cross the constitutional line.
That leads us to my co-panelists’ point [c]—that Governor LePage’s actions related to “not yet formally appropriated” funds. Well, they never explain why that matters. Regardless, the complaint alleges
And that leaves us with the majority’s point [d]—that Governor LePage can get away with doing what he did because Speaker Eves opposed his education policy. I see a big problem: by accepting the Governor’s response to Speaker Eves’s political-affiliation-based allegations, they’re not taking the complaint’s well-pled allegations as true and reading them in the light most hospitable to the Speaker—which is a no-no. See generally Wilson v. HSBC Mortg. Servs., Inc.,
The bottom line: Clearly-established law didn’t give Governor LePage the discretion to infract Speaker Eves’s constitutional rights. And because the majority—though conscientious—rules otherwise, I respectfully but emphatically dissent.
. A quote lifted from Speaker Eves’s operative complaint.