Case Information
*1 United States Court of Appeals
For the First Circuit
No. 12-1251
ALAN D. KNOWLTON,
Plaintiff, Appellant,
v.
JUDITH SHAW; ANDREW BLACK; GLENN GRISWOLD,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella, Boudin, and Thompson, [*]
Circuit Judges.
Eric M. Mehnert, with whom Hawkes & Mehnert, LLP, was on brief for appellant.
Rоsie M. Williams, with whom Edward R. Benjamin, Jr. and Thompson & Bowie, LLP, were on brief for appellee Andrew Black. Martin J. Ridge, with whom Beagle & Ridge, LLC, was on brief for appellee Judith Shaw.
Russell B. Pierce, with whom Norman, Hanson & DeTroy, LLC, was *2 on brief for appellee Glenn Griswold.
January 4, 2013
*3
THOMPSON, Circuit Judge. An investigation into the questionable business practices of Appellant Alan D. Knowlton's employer, Bankers Life and Casualty Co. ("Bankers Life" or "the Company"), eventually led the Maine Bureau of Insurance ("the Bureau") and the Maine Attorney General's Office ("the AG's Office") to Knowlton's front door. In exchange for Knowlton accepting responsibility for his own unlawful conduct, Appellees Judith Shaw, Glenn Griswold and Andrew Black (collectively, "the state officials"), representing the Bureau and the AG's Office, agreed to take no further action against Knowlton. That promise turned out to be short-lived, however, when they agreed to Knowlton's termination in a separate agreement with Bankers Life. Knowlton appeals the district court's dismissal of his complaint against the state officials. We affirm.
BACKGROUND
As this case comes before us on a grant of a motion to dismiss,
we treat as true all well-pleaded facts, viewing those facts in the
light most favorable to the plaintiff, and drawing all reasonable
inferences therefrom for him. Gagliardi v. Sullivan,
In or around 2001, the Bureau began investigating Bankers Life's improper marketing practices targeting elderly consumers. Shaw, the Bureau's Deputy Superintendent, became involved and initiated a parallel investigation into Bankers Life's sales *4 practices. Griswold, Director of the Consumer Healthcare Division of the Bureau, led that investigation. In or around January 2005, after finding that Bankers Life had engaged in improper sales practices in Maine, Assistant Attorney General Black, Shaw and Griswold began negotiating with Bankers Life to resolve those claims.
Bankers Life was not the only one on the state officials' radar, however. Shaw, Griswold and Black quickly turned their attention to Knowlton, the Company's Branch Sales Managеr in Bangor, Maine, after learning about his November 2004 sales recruitment meeting. At that meeting, he distributed materials representing that Bankers Life had an "A" rating by A.M. Best Company, when its rating was actually a "B++." In response to an attendee's comment that he was pleased about the "A" rating, Knowlton said he hoped to see it improve.
On the heels of the investigation into Knowlton's actions, Knowlton entered into a consent agreement with the AG's Office and the Bureau to resolve licensing violations associated with the sales recruitment meeting and his conversation with the potential recruit. In the agreement, Knowlton admitted thаt he violated the Maine Insurance Code, Me. Rev. Stat. tit. 24-A, § 1, et seq ., by distributing materials containing a misleading representation about *5 Bankers Life's financial condition and by acknowledging the attendee's comment about the A.M. Best Company rating. In addition to accepting responsibility for those violations, he agreed to submit to a 60-day suspension of his insurance producer license and a 270-day period of license probation, pay a civil penalty of $750.00, and comply with other requirements regarding recruiting materials and the reporting of consumer complaints. In exchange, the Bureau and the AG's Office agreed tо "forgo pursuing further disciplinary measures or other civil or administrative sanctions against [him] for the violations" described in the agreement.
Not one week passed before the Bureau and the AG's Office entered into a separate consent agreement with Bankers Life to resolve the claims against it. During their negotiations, the Bureau accepted Bankers Life's proposal that the branch managers of its South Portland and Bangor branch offices (which included Knowlton's position as the Bangor branch manager) be terminated. Thus, the agreement called for Bankers Life to "relieve the managers of its Sоuth Portland and Bangor branch offices of their *6 positions as branch managers." Bankers Life terminated Knowlton's [2]
position as branch manager on April 14, 2005. [3]
Knowlton's complaint asserts claims against Shaw, Black and Griswold in their individual capacities for violations of 42 U.S.C. § 1983 and 42 U.S.C. § 1985(2). Specifically, the complaint alleges that by agreeing to Bankers Life's termination of Knowlton's position as branch manager, the appellees deprived Knowlton of continued employment with the Company without due process under § 1983. The complaint adds that Shaw, Black and Griswold violated his rights under § 1985(2) by participating in a conspiracy with the Bureau and Bankers Life to deprive him of his rights to challenge the termination provision in the consent agreement.
The state officials moved to dismiss the complaint on several grounds, including absolute immunity for the § 1983 claim. In granting the motion, the district court agreed that absolute immunity protected the state officials from liability. The court *7 further concluded that Knowlton failed to plead a plausible § 1985(2) claim, and rejected his argument that the state officials were judicially estopped from denying liability under § 1983 based on a prior civil suit Knowlton had filed against the State for breach of contract (more on that later). Knowlton now appeals.
DISCUSSION
We review dе novo the grant of a motion to dismiss under Rule
12(b)(6). Feliciano-Hernández v. Pereira-Castillo,
Absolute Immunity
We first consider whether the district court erred in dismissing Knowlton's due process claim on the basis that the state officials had absolute immunity from suit.
While "[t]he presumption is that qualified rather than absolute
immunity is sufficient to protect government officials in the
exercise of their duties," Burns v. Reed,
In considering whether absolute immunity attaches to an
official's conduct, we employ a "functional approach," Buckley,
509 U.S. at 269; Harrington v. Almy, 977 F.2d 37, 40 (1st Cir.
1992) ("[T]he availability of absolute immunity turns on a
functional analysis."), which looks to the "nature of the function
performed," not the identity of the actor who performed it. See
Forrester v. White,
269; Frazier v. Bailey, 957 F.2d 920, 931 n.12 (1st Cir. 1992)
("Absolute immunity depends not on the titles of officials but
their functions."). Officials claiming absolute immunity, like the
state officials here, bear the burden of proving their actions
warrant that protection. Buckley,
Knowlton argues that the district court got it wrong: negotiating and executing the consent agreements to resolve the civil violations against Bankers Life and Knowlton, he argues, were not prosecutorial-type functions protected by absolute immunity, but rather were actions taken in the state officials' administrative and investigative capacities which do not afford them absolute immunity. The question before us is whether the state officials' actions werе, as the district court found, prosecutorial in nature to warrant absolute immunity. We agree that they were.
Shaw and Griswold, as representatives of the Bureau, have the duty and authority to enforce Maine's insurance laws, and through the AG (Black), may "invoke the aid of the Superior Court through proceedings" to enforce any action taken by the Bureau or pursue criminal prosecution based on violations of the Code. Me. Rev. Stat. tit. 24-A, § 214; see also id., § 211. An enforcement
*10 petition need not, however, reach an administrative proceeding or even the courthouse door. The Bureau may decide to еxecute consent agreements that impose penalties or fines authorized by law to "resolve[] a complaint or investigation without further proceedings." Me. Rev. Stat. tit. 10 § 8003(5)(B). Vested with [6] that authority, Shaw, Griswold, and Black made a judgment call on how to best address Bankers Life's and Knowlton's violations of the Maine Insurance Code. On the Bureau's and AG's behalf, they decided to forego further proceedings (be it administrative or in- court) related to those violations and entered into consent agreements to resolve them instead (including the agreement with Bankers Life that called for Knowlton's termination). The [7] decision to rеsolve the violations before pursuing further proceedings not only arose directly from their roles as the State's advocates in enforcing Maine's insurance laws, but was inextricably related to the judicial process. The state officials took these *11 actions in preparing for the initiation of the enforcement proceeding -- a proceeding that would have surely followed had no consent agreement been executed.
An agency official's decision to initiate administrative
proceedings "aimed at legal sanctions," Wang v. New Hampshire Bd.
of Registration in Med., 55 F.3d 698, 701 (1st Cir. 1995), is
discretionary, "very much likе [a] prosecutor's decision to
initiate or move forward with a criminal prosecution" and is,
therefore, entitled to absolute immunity. Butz,
result from their decisions.
While no administrative proceeding was initiated in this case
(only a petition to enforce was issued), we see no meaningful
difference between the nature of an agency official's decision to
pursue an administrative proceeding and that of her decision to
resolve a violation before reaching that step. In both instances,
the agency official acts as thе State's advocate, exercising her
"broad discretion in deciding whether a proceeding should be
brought and what sanctions should be sought." Butz,
In an attempt to show that absolute immunity is nonetheless unavailable here, Knowlton argues that the state officials' decision to execute the consent agreements was administrative and investigative in nature but he fails to fully develop that argument. As best we can tell, Knowlton appears to argue that his case is analogous to Burns аnd Buckley. The state officials' [8]
actions here, however, are far from those the Supreme Court found to be administrative and investigative in those cases. Burns held that absolute immunity protected a prosecutor's appearance at a probable cause hearing, but did not similarly protect his actions in giving legal advice to the police. In finding that giving [9]
legal advice to the police was not a function "closely associated
with the judicial process," but closer to an investigative
function, the Court explained that "[a]lmost any action by a
prosecutor, including his or her direct participation in purely
investigative activity, could be said to be in some way related to
*14
the ultimate decision whether to prosecute, but we have never
indicated that absolute immunity is that expansive." Burns, 500
U.S. at 495. Similarly, Buckley held that the prosecutors were not
entitled to absolute immunity for allegedly "fabricating evidence
during the preliminary investigation of a crime" which the Supreme
Court found to be "entirely investigative" activity.
In one last ditch effort to save his case, Knowlton argues that
the state officials' actions were not subject to "judicial
oversight" and, as a result, cannot be entitled to absolute
immunity. To support that argument, Knowlton relies on Butz, a §
1983 case involving administrative proceedings brought by federal
agency officials. Butz, 438 U.S. at 480. In finding the
officials were entitled to absolute immunity for initiating
administrative proceedings, Butz noted the proceedings provided
certain safeguards to the defendant -- i.e., "checks on agency
zeal" and аn "opportunity" for the defendant to challenge the
"legality" of the proceeding itself.
The state officials' decision to agree to the termination
provision, however, need not be "put in the framework for
adversarial testing and judicial supervision," for absolute
immunity to apply. Harrington,
In sum, the state officials carried their burden in establishing they are entitled to absolute immunity for entering into the consent agreements with Knowlton and Bankers Life. Given our ruling, we need not reach whether qualified immunity applies or delve into the merits of Knowlton's due process claim.
instance is protected by absolute immunity. Buckley,
be considered prosecutorial functions because his consent agreement was not an enforceable plea agreement. Despite the questionable legal basis for this assertion, it is sufficient to point out that Knowlton failed to raise this argument before the district court (at least according to the record before us) and has thus waived it. Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("[L]egal theories not raised squarely in the lower court cannot be broached for the first time on appeal.").
Judicial Estoppel
Knowlton next argues that the state officials should have been
judicially estopped from asserting an immunity defense for the §
1983 claim. We review the district court's decision not to invoke
judicial estoppel for abuse of discretion. Alt. Sys. Concepts,
Inc. v. Synopsys, Inc.,
Although the contours of judicial estoppel may be hazy, courts
generally consider three factors before invoking the doctrine in a
particular case. Perry,
Knowlton contends that the state officials should not be able to claim immunity for the § 1983 claim when, in his view, they had just represented to the Maine Supremе Judicial Court in a previous lawsuit that he had a viable claim. See Knowlton v. Attorney General, 976 A.2d 973, 975-76 (Me. 2009). In that lawsuit, Knowlton sued the State for breach of contract (the consent agreement between Knowlton and the State). Id. at 975.
Knowlton faces an uphill battle with his argument. For one
thing, a party against whom judicial estoppel is invoked,
typically, must be the same party who made the prior inconsistent
representation. See, e.g., Perry,
For another, even assuming the parties were the same, we see no clear inconsistency between the position taken before the Maine Supreme Judicial Court and that taken below. A close look at the record tells us why. During oral argument before the Maine Supreme Judicial Court, in response to Justice Silver's comment that the State may be immune from suit but had not acted "honorably," the State, represented by an Assistant Attorney General ("AAG"), said that it "may or may not have acted properly in this case" but that "there is a section 1983 remedy for that I think." Justice Silver followed up with the more direct question, asking whether Knowlton indeed had a § 1983 remedy. The AAG clarified that the State was "not saying [Knowlton] would prevail on а [section] 1983 claim" but that he thought "a [section] 1983 claim is the vehicle by which [Knowlton] could address whether what the State did was fair." Contrary to Knowlton's interpretation of the AAG's statements, the *21 AAG specifically declined to take a position one way or the other regarding the viability of a § 1983 claim, merely noting that bringing a section 1983 action may be the "vehicle" through which Knowlton could address a potential due process claim.
Finally, as we have made clear, "a proponent of judicial
estoppel must affirmatively show, by competent evidence or
inescapable inference, that the рrior court adopted or relied upon
the previous inconsistent assertion." Perry,
42 U.S.C. § 1985(2) claim
Lastly, Knowlton challenges the district court's finding that
the complaint failed to plead a plausible § 1985(2) claim. The
second clause of § 1985(2), which Knowlton claims applies here,
prohibits conspiracies to obstruct "the due course of justice in
any State or Territory, with intent to deny to any citizen the
equal protection of the laws, or to injure him or his property for
lawfully enforcing, or attempting to enforce, the right of any
person, or class of persons, to the equal protection of the laws." Because that language is "directed toward 'the equal protection of
the laws,'" a plaintiff must allege a "class-based, invidiously
discriminatory animus" to state a plausible § 1985(2) claim. Hahn
v. Sargent,
While the complaint alleges that the state officials conspired with others to deprive Knowlton of a constitutionally protected property interest -- i.e., his job with Bankers Life -- it fails to *23 allege any racial, or otherwise class-based, invidiously discriminatory animus underlying the state officials' actions. As the district court properly concluded, the complaint's failure to do so dooms Knowlton's § 1985(2) claim. See, e.g., Hahn, 523 F.3d at 469 (finding allegation of invidiously discriminatory animus is required to state a claim under the portion of § 1985(2) proscribing conspiracies to interfere with the administration of justice in state courts); Schneider, 8 F.3d at 809 (finding
meritless plaintiff's § 1985(2) claim for obstruction of state
court proceedings for failure to allege that defendants were
motivatеd by any class-based, invidiously discriminatory animus);
see also Mason v. Village of El Portal,
CONCLUSION
In the end, we affirm the district court's dismissal of Knowlton's claims against the state officials.
Notes
[*] Judge Boudin heard oral argument in this matter, and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).
[1] A.M. Best Company is the leading provider of financial ratings for insurance companiеs.
[2] Knowlton claims that Bankers Life proposed terminating his employment to avoid an audit (originally requested by the Bureau) of the Company's Bangor and South Portland Branch Sales Managers' practices which would have involved an investigation of a sales manager who was one of Bankers Life's top producers.
[3] After Bankers Life relieved Knowlton of his position as branch manager, he took a 90-day paid leave of absence and worked as a Unit Sales Manager in Bankers Life's Boston office until around July 2006. As best we can tell from the record, Knowlton's employment with the Company ended sometime thereafter.
[4] Qualified immunity will bar a civil action against a
government official unless the plaintiff has alleged the
deprivation of a constitutional right that was clearly established
at the time of the alleged violation. Conn v. Gabbert, 526 U.S.
286, 290 (1999). Absolute immunity, on the other hand, acts as a
"complete bar" to damages claims of any sort, constitutional or
otherwise. Acevedo-Cordero v. Cordero-Santiago,
[5] As indicated in the consent agreement, "[t]he Superintendent of [the Maine Bureau] of Insurance is the official charged with administering and enforcing the insurance laws of the State of Maine."
[6] Those agreements may only bе entered into if the Bureau, the AG, and, as relevant in this case, the licensee consent. Me. Rev. Stat. tit. 10, § 8003(5)(B). These consent agreements are not subject to review or appeal and may be enforced by an action in Superior Court. Id.
[7] Knowlton entered into the consent agreement specifically "to resolve, without an adjudicatory proceeding, the charges against [him] contained in the Petition to Enforce in this matter dated January 4, 2005" regarding his violations of the Maine Insurance Code. Bankers Life entered into the consent agreement "to resolve, without resort to an adjudicatory proсeeding, [its] failure to comply with the requirements of the Maine Insurance Code" as set forth in the agreement.
[8] Knowlton cites Buckley but refers to the holding in Burns to support his argument. We nonetheless address both Burns and Buckley.
[9] There, the § 1983 suit challenged a prosecutor's act in
giving legal advice to the police on the propriety of hypnotizing
a suspect and on whether probable cause existed to arrest the
suspect, and participating in a probable cause hearing. The
prosecutor's appearance at the probable cause hearing was entitled
to absolute immunity since it was "'intimately associated with the
judicial phase of the criminal process,'" Burns,
[10] Knowlton also cites Wang, 55 F.3d at 701 (disciplinary proceedings before state medical licensing board), to support his argument that the agency officials there would not have been able to claim absolute immunity had no administrative proceeding taken place. Wang says nothing of the sort.
[11] Although it is true, as Knowlton argues, that Bankers Life's compliance with the agreement (of which Knowlton had no part) harmed Knowlton given that he lost his job, it is simply "irrelevant" to the question whеther the conduct (namely, the negotiation and execution of the consent agreements) in the first
[13] Specifically, Knowlton asserted that the State had breached
his consent agreement by entering into the subsequent consent
agreement with Bankers Life because the subsequent agreement called
for Knowlton's termination as the Bangor branch manager, and
Knowlton maintained that requirement constituted further
disciplinary action against him. The Maine Supreme Judicial Court
vacated a judgment in favor of Knowlton, concluding that sovereign
immunity shielded the State from liability. Knowlton,
[14] While "courts sometimes have allowеd judicial estoppel when the estopped party was responsible in fact for the earlier representation, or when the estopped party was the assignee of a litigation claim or assumed the original party's role," Perry, 629 F.3d at 9 (internal citations omitted), Knowlton does not contend that any of these exceptions apply.
[15] The first clause of § 1985(2) covers conspiracies to interfere with justice in the federal courts. The second clause, on the other hand, covers conspiracies to interfere with justice in the state courts "with intent to deny to any citizen the equal protection of the laws." 42 U.S.C. § 1985(2); see Kush v. Rutledge, 460 U.S. 719, 725 (1983) (identifying the different classes of unlawful conspiratorial activity under § 1985).