Goldstein v. Galvin , 719 F.3d 16 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2184
PHILLIP GOLDSTEIN,
Plaintiff, Appellant,
v.
WILLIAM F. GALVIN,
SECRETARY OF THE COMMONWEALTH OF MASSACHUSETTS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Andrew Good, with whom Philip G. Cormier and Good & Cormier
were on brief, for appellant.
Pierce O. Cray, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for appellee.
June 10, 2013
SELYA, Circuit Judge. A hoary proverb teaches that large
oaks from little acorns grow. That is a natural progression. This
case, however, features a less natural progression: an obscure
violation of a state securities regulation, not especially
egregious in itself, has led to a litigation extravaganza — an
extravaganza that pits a prominent hedge fund operator against a
state official with broad regulatory authority over the securities
industry. This appeal is the latest (but, we fear, not necessarily
the last) chapter in the tale.
The matter before us turns on allegations in the
plaintiff's amended complaint that the state official used his
oversight powers to retaliate unlawfully against the plaintiff for
his opposition to what he deems excessive regulation of the
securities industry. The case raises a farrago of interesting
questions about the scope and extent of the immunities afforded to
state officials whose duties encompass both adjudicatory and
prosecutorial functions. The district court resolved these
questions against the plaintiff and dismissed the action.
Goldstein v. Galvin, No. 10-10139, 2012 WL 4481206, at *2-4 (D.
Mass. Sept. 28, 2012). After careful consideration, we affirm.
I. BACKGROUND
Plaintiff-appellant Phillip Goldstein is a principal of
Bulldog Investors General Partnership, a hedge fund business. By
his own description, the plaintiff is "an outspoken public critic
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of excessive regulation of hedge funds." He takes particular pride
in having invalidated a bothersome federal securities rule. See
Goldstein v. SEC, 451 F.3d 873 (D.C. Cir. 2006).
Defendant-appellee William F. Galvin, an elected
official, is the Secretary of the Commonwealth of Massachusetts.
Under state law, the Secretary is charged with oversight of the
local securities industry. See Mass. Gen. Laws ch. 110A, § 406(a).
The plaintiff alleges that, in retaliation for his anti-regulatory
stance, the Secretary "induced prosecutorial advocates in the
Enforcement Section of the Massachusetts Securities Division to"
prosecute an administrative complaint against him. The
administrative complaint (which named as respondents the plaintiff
and other individuals and entities) was filed on January 31, 2007.
It charged the respondents with violating the Massachusetts Uniform
Securities Act (the Act), Mass. Gen. Laws ch. 110A, § 301, by
offering unregistered securities for sale in Massachusetts.
Although the Secretary did not sign the complaint — it was signed
instead by four of his minions in the Enforcement Section — the
Secretary is charged with enforcing the Act and can delegate that
authority to others. See id. § 406(a); see also id. ch. 9, § 10A.
In answering the administrative complaint, the
respondents interposed a number of affirmative defenses, including
a defense premised on the First Amendment. During the course of
the administrative proceeding, the hearing officer ruled that the
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First Amendment issue was not in play and rejected the other
affirmative defenses. The acting director of the Securities
Division adopted the hearing officer's findings, decided that the
respondents had violated the Act, ordered them to cease and desist,
and imposed a fine.
The respondents sought judicial review. Their efforts
were unsuccessful. See Bulldog Investors Gen. P'ship v. Sec'y of
the Commonwealth (Bulldog I), 929 N.E.2d 293, 303 (Mass. 2010).
Like the administrative proceeding itself, that review did not
encompass the First Amendment issue. Id. at 301-02.
During the pendency of the proceedings described above,
the respondents (including the plaintiff) filed a separate action
in a Massachusetts state court in an attempt to vindicate their
First Amendment rights. See Bulldog Investors Gen. P'ship v. Sec'y
of the Commonwealth (Bulldog II), 953 N.E.2d 691 (Mass. 2011).
This action, brought pursuant to 42 U.S.C. § 1983 against the
Secretary in his official capacity, challenged "the
constitutionality of the [state] regulations that prohibit general
solicitation and advertising by anyone offering unregistered
securities," which allegedly infringed upon the respondents'
"constitutional[] entitle[ment] to maintain their Web site and
communicate with any interested person." Id. at 700. The
Massachusetts courts, up to and including the Supreme Judicial
Court, rejected these section 1983 claims. Id. at 718.
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Before the dust had settled (that is, while Bulldog I and
Bulldog II were still pending on appeal in the state court system),
the plaintiff commenced another section 1983 action. This action,
filed in the federal district court, alleged that the Secretary had
(i) induced the Enforcement Section to deviate from normal
investigatory practices and charging standards; (ii) induced the
Enforcement Section to file the administrative complaint; and (iii)
gone out of his way to announce, on his website, that "Secretary
Galvin Charges Phillip Goldstein and Bulldog Investors for
unregistered securities offering." The district court dismissed
the suit, concluding that the defendant was absolutely immune with
respect to the prosecution of the enforcement action and
qualifiedly immune with respect to the website announcement. See
Goldstein, 2012 WL 4481206, at *2-3.
This timely appeal ensued. Because the district court
dismissed the complaint on immunity grounds, we review de novo.
Coggeshall v. Mass. Bd. of Regist. of Psychologists, 604 F.3d 658,
662 (1st Cir. 2010). In that endeavor, we take as true the well-
pleaded facts set forth in the plaintiff's amended complaint. See
SEC v. Tambone, 597 F.3d 436, 438 (1st Cir. 2010) (en banc).
II. CLAIM PRECLUSION
The Secretary argues that the doctrine of claim
preclusion barred the maintenance of the underlying action. This
argument hinges on the preclusive effect of Bulldog II.
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When a federal court considers the preclusive effect of
an earlier state court judgment, it must apply that state's
preclusion principles. See Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 81 (1984); see also 28 U.S.C. § 1738. This
remains true even when the new case poses a quintessentially
federal question. See Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d
60, 66 (1st Cir. 2008). Accordingly, we look here to Massachusetts
preclusion principles.
Under Massachusetts law, "[c]laim preclusion makes a
valid, final judgment conclusive on the parties and their privies,
and prevents relitigation of all matters that were or could have
been adjudicated in the action." Kobrin v. Bd. of Regist. in Med.,
832 N.E.2d 628, 634 (Mass. 2005) (internal quotation marks
omitted). Three elements must be satisfied to trigger the
application of this doctrine: the parties to the prior and present
actions must either be identical or in privity; the causes of
action must arise out of the same nucleus of operative fact; and
the prior action must have produced a final judgment on the merits.
See id. In this instance, our inquiry begins and ends with the
first element.
In Bulldog II, suit was brought against the Secretary in
his official capacity. Here, however, the suit is against the
Secretary in his individual capacity. This distinction is
critically important.
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"[O]fficial-capacity suits generally represent only
another way of pleading an action against an entity of which an
officer is an agent . . . ." Monell v. Dep't of Soc. Servs. of
N.Y., 436 U.S. 658, 690 n.55 (1978). In other words, "an official-
capacity suit is, in all respects other than name, to be treated as
a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166
(1985). This means, of course, that a public official, sued only
in his official capacity, is a proxy for the government entity that
employs him and is in privity with that entity. See Town of
Seabrook v. New Hampshire, 738 F.2d 10, 11 (1st Cir. 1984) (per
curiam). The situation is quite different when an official is sued
in his individual capacity. By definition, such a suit takes aim
at the individual, not the government entity with which he is
associated. Such a defendant is, therefore, not considered to be
in privity with the government entity. See, e.g., Conner v.
Reinhard, 847 F.2d 384, 395 (7th Cir. 1988).
The flipside of this coin is that a person sued in his
official capacity is a different party, in contemplation of law,
than the same person sued in his individual capacity. It follows
inexorably that a person sued only in his official capacity is
neither identical to, nor in privity with, the same person sued in
his individual capacity. See Mitchell v. Chapman, 343 F.3d 811,
823 (6th Cir. 2003); Andrews v. Daw, 201 F.3d 521, 526 (4th Cir.
2000); Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 188 (5th
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Cir. 1990); Willner v. Budig, 848 F.2d 1032, 1034 n.2 (10th Cir.
1988) (per curiam); Conner, 847 F.2d at 395-96; Gregory v. Chehi,
843 F.2d 111, 119-21 (3d Cir. 1988); Headley v. Bacon, 828 F.2d
1272, 1279 (8th Cir. 1987); Roy v. City of Augusta, 712 F.2d 1517,
1521-22 (1st Cir. 1983); see also Restatement (Second) of Judgments
§ 36(2). The upshot is that a person who is sued in one capacity
(whether official or individual) cannot assert a defense of claim
preclusion in a later action in which he is sued in a different
capacity.
We conclude, therefore, that "an official who has
litigated [a claim] in his official capacity is not precluded from
relitigation in his personal capacity." 18A Charles Alan Wright et
al., Federal Practice and Procedure § 4458 (2d ed. updated Apr.
2013). Similarly, we conclude that a person who has defended a
suit brought against him in his official capacity is not protected
by principles of claim preclusion from a subsequent suit brought
against him by the same plaintiff(s) in his individual capacity.1
Based on these conclusions, we reject the Secretary's claim
preclusion argument. Because the Secretary was sued only in his
official capacity in Bulldog II, the plaintiff is not precluded
from bringing this second section 1983 action against the Secretary
in his individual capacity.
1
To be sure, principles of issue preclusion might nonetheless
apply. See, e.g., Kobrin, 832 N.E.2d at 634. Here, however, the
Secretary does not raise any defense premised on issue preclusion.
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III. ABSOLUTE IMMUNITY
42 U.S.C. § 1983 creates a private right of action
through which plaintiffs may recover against state actors for
constitutional violations. See Rehberg v. Paulk, 132 S. Ct. 1497,
1501-02 (2012). "Claims of retaliation for the exercise of First
Amendment rights are cognizable under § 1983." Powell v.
Alexander, 391 F.3d 1, 16 (1st Cir. 2004).
Section 1983 does not, however, have an unlimited
remedial reach. Among other things, it "was not meant to effect a
radical departure from . . . the common-law immunities applicable
in tort suits." Rehberg, 132 S. Ct. at 1502. Courts must look to
federal law in appraising the viability of immunity defenses in
section 1983 actions. Wang v. N.H. Bd. of Regist. in Med., 55 F.3d
698, 701 (1st Cir. 1995). The immunity-seeker must carry the
devoir of persuasion to show that an immunity applies. See Burns
v. Reed, 500 U.S. 478, 486 (1991).
Immunities come in various shapes and sizes. The
Secretary's principal defenses in this case implicate claims of
absolute immunity from suit. Absolute immunity applies to a narrow
swath of public officials, including "judges performing judicial
acts within their jurisdiction," "prosecutors performing acts
intimately associated with the judicial phase of the criminal
process," and agency officials with functions similar to judges
and/or prosecutors. Bettencourt v. Bd. of Regist. in Med. of
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Mass., 904 F.2d 772, 782 (1st Cir. 1990) (internal quotation marks
omitted); see Butz v. Economou, 438 U.S. 478, 508-17 (1978). The
protection afforded by an absolute immunity endures even if the
official "acted maliciously and corruptly" in exercising his
judicial or prosecutorial functions. Wang, 55 F.3d at 702(internal quotation marks omitted). It likewise endures "in the
presence of 'grave procedural errors.'" Nystedt v. Nigro, 700 F.3d
25, 32 (1st Cir. 2012) (quoting Stump v. Sparkman, 435 U.S. 349,
359 (1978)). The imperviousness of this protection is no accident:
"[a]lthough this concept of absolute immunity allows some abuses of
official power to go unredressed, it is necessary for the effective
administration of government that government workers be able to
perform their jobs without fear of liability." Ricci v. Key
Bancshares of Me., Inc., 768 F.2d 456, 462 (1st Cir. 1985).
In determining whether an official qualifies for absolute
immunity, an inquiring court must examine the particular functions
that the official performs. See Buckley v. Fitzsimmons, 509 U.S.
259, 269 (1993).
By statute, the Secretary is responsible for both
adjudicatory and prosecutorial functions with respect to the Act.
See Mass. Gen. Laws ch. 110A, §§ 406-408; id. ch. 9, § 10A. The
Secretary asseverates that the actions of which the plaintiff
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complains are protected under principles of judicial immunity,
prosecutorial immunity, or both.2 We test this asseveration.
An inquiry into the existence vel non of judicial
immunity encompasses three questions. First, we ask whether the
defendant carries out traditional adjudicatory functions. See
Bettencourt, 904 F.2d at 783. If so, we ask whether the defendant
is called upon to decide cases that are "sufficiently controversial
that, in the absence of absolute immunity, he would be subject to
numerous damages actions." Id. If the answers to these two
queries are affirmative, we then ask whether the defendant performs
his adjudicatory functions "against a backdrop of multiple
safeguards designed to protect [the plaintiff's] constitutional
rights." Id. We explain briefly why we need not conduct this
tripartite inquiry here.
"Judicial acts are those that are 'intimately associated'
with the judicial function." Nystedt, 700 F.3d at 31 (quoting
Burns, 500 U.S. at 486). The bedrock judicial function is, of
course, the adjudication of disputes. Id. Other traditional
judicial functions include such things as "weighing evidence,
2
Courts have used terms like "judicial immunity," "quasi-
judicial immunity," "prosecutorial immunity," and "quasi-
prosecutorial immunity" interchangeably. That imprecision arises
because the doctrines sometimes apply to officials, like the
Secretary, who are neither members of the judicial branch nor
prosecutors in the classic sense. For ease in exposition, we use
here the unadorned terms "judicial immunity" and "prosecutorial
immunity."
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making factual findings, reaching legal determinations, choosing
sanctions, and expounding reasons for [] decisions." Coggeshall,
604 F.3d at 663.
In his amended complaint, the plaintiff concedes, as he
must, that the Secretary has "comprehensive power to interpret the
Act to determine if it has been violated, . . . to adjudicate
whether any violations . . . occurred, and to impose sanctions for
violations of the Act or the rules and regulations adopted
thereunder." This concession has deep roots in the statutory
scheme, which imbues the Secretary with a host of judicial
functions:
C holding adjudicatory hearings and, in the course
of them, administering oaths and affirmations,
subpoenaing witnesses, compelling the attendance
of witnesses, taking evidence, and requiring the
production of documents and other materials, see
Mass. Gen. Laws ch. 110A, § 407(b);
C after providing notice and opportunity for a
hearing, determining that a person has violated
the Act, id. § 407A(a); and
C ordering those who have violated the Act to cease
and desist as well as imposing other penalties
and sanctions, id.
All of these functions are intimately associated with the judicial
task. They are not, however, put in issue by the plaintiff's
amended complaint.
The retaliation alleged in this case involves the
Secretary's actions in choosing to bring, and actually bringing,
the enforcement action. It does not involve the Secretary's
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actions in regard to the actual decisionmaking process; that is,
the Secretary's performance of his core judicial functions. The
plaintiff has offered no developed argumentation connecting the
alleged retaliation to the Secretary's performance of these latter
functions. Consequently, we need not pursue the judicial immunity
inquiry. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (explaining "that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived"). Even though the Secretary performed judicial functions
in the enforcement action, the plaintiff's retaliation claim, as
presented here, does not implicate those functions.
This conclusion does not end our odyssey. The plaintiff
vociferously challenges the Secretary's performance of non-judicial
acts. The Secretary responds by asserting that his performance of
these non-judicial acts is entitled to prosecutorial immunity. We
turn to that assertion.
The baseline rule is that a state official who performs
prosecutorial functions, including the initiation of administrative
proceedings that may result in legal sanctions, is absolutely
immune from damages actions. See Wang, 55 F.3d at 701; see also
Butz, 438 U.S. at 516. By statute, the Secretary's
responsibilities include administering and enforcing the Act, see
Mass. Gen. Laws ch. 9, § 10A; id. ch. 110A, § 406(a); instituting
proceedings, see id. ch. 110A, § 407(d); and determining whether
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grounds exist to believe that "any person has violated . . . any
provision of" the Act, id. § 407(a).
The Secretary exercised these powers in the case at hand.
In doing so, he was performing prosecutorial functions. Acts that
collectively comprise the pursuit of an enforcement action fit
snugly within the realm of traditional prosecutorial functions.
See, e.g., Butz, 438 U.S. at 516; Wang, 55 F.3d at 701.
In an effort to blunt the force of this reasoning, the
plaintiff maintains that the Secretary acted beyond the bounds of
prosecutorial immunity by "induc[ing] prosecutorial advocates" to
file the administrative complaint. This divests an official of
immunity, the plaintiff says, because there is a material
difference between prosecuting a case (which comes within the scope
of immunity) and inducing its prosecution (which falls outside the
scope of immunity). While this dichotomy may be helpful in certain
circumstances, it has no bearing here.
The plaintiff's argument relies disingenuously on the
Supreme Court's decision in Hartman v. Moore, 547 U.S. 250 (2006).
There, postal inspectors were alleged to have induced an Assistant
United States Attorney to initiate a prosecution. See id. at 254,
262. The Court explained that the postal inspectors were strangers
to the prosecutorial process and, therefore, did not enjoy
prosecutorial immunity. See id. at 261-62.
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Hartman is easily distinguishable. Here, unlike in
Hartman, the defendant is not an outsider who seeks to persuade a
prosecutor to initiate a proceeding. Rather, the Secretary is the
official statutorily charged with enforcing the Act. That the
Secretary may have ordered subordinates to carry out his
prosecutorial functions is not equivalent to inducement. Compare,
e.g., The American Heritage Dictionary of the English Language 1238
(4th ed. 2000) (defining "order" as "[t]o issue a command or
instruction"), with, e.g., id. at 894 (defining "induce" as "[t]o
lead or move, as to a course of action, by influence or
persuasion"). In the last analysis, it is difficult to fathom how
the Secretary could "induce" his subordinates, whose only authority
was that which he had delegated to them, to bring an enforcement
action that he himself was empowered to bring.
We add, moreover, that — contrary to the plaintiff's
importunings — this delegation did not in any way, shape, or form
curtail the Secretary's prosecutorial immunity. If a function is
protected by an absolute immunity, it does not matter if a higher-
ranking official delegates that function to a lower-ranking
official. Notwithstanding the delegation, the scope of immunity is
measured by reference to the higher-ranking official. See Ricci,
768 F.2d at 462.
The plaintiff also argues that some of the Secretary's
acts were investigatory and, thus, not entitled to prosecutorial
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immunity. The Secretary's only involvement, he suggests, was in
inducing the prosecution without sufficient cause or investigation.
To this end, the plaintiff alleges that "[n]o discovery was
conducted and no depositions of witnesses . . . were taken before
the complaint was filed and served in order to investigate" the
plaintiff's role in the activities under scrutiny.
The plaintiff is fishing in an empty stream. His
argument ignores the Court's teaching that "[t]he duties of the
prosecutor in his role as advocate for the State involve actions
preliminary to the initiation of a prosecution and actions apart
from the courtroom." Imbler v. Pachtman, 424 U.S. 409, 431 n.33
(1976). Refined to bare essence, the argument amounts to no more
than an accusation that the Secretary failed to investigate enough
— a creative, but plainly unavailing, reformulation of an
underlying challenge to the decision to prosecute. See Butz, 438
U.S. at 516; Wang, 55 F.3d at 701.
The plaintiff makes a further effort to overcome the
defense of absolute immunity. He posits that, even if the
Secretary is theoretically entitled to immunity for his judicial or
prosecutorial functions in isolation, he cannot enjoy absolute
immunity in a scenario in which he is statutorily charged with both
functions. In the plaintiff's view, these dual roles place so much
power in a single official's hands that ordinary immunity rules do
not hold sway.
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The major flaw in the fabric of this argument is that we
have decided, time and again, that officials who exercise both
judicial and prosecutorial functions may nonetheless be entitled to
absolute immunity. See, e.g., Coggeshall, 604 F.3d at 662-63;
Wang, 55 F.3d at 701; Bettencourt, 904 F.2d at 782 & n.13. The
rationale is straightforward: standard judicial immunity applies to
the official's judicial functions and standard prosecutorial
immunity applies to the official's prosecutorial functions. See
Wang, 55 F.3d at 701; Bettencourt, 904 F.2d at 782 & n.13. These
decisions are controlling here.
The plaintiff, represented by ingenious counsel, rejoins
that our prior dual-role decisions are inapposite for three
reasons. We reject each of the proffered reasons.
First, the plaintiff denigrates our prior dual-role cases
as "licensing board cases" that "involved claims against officials
for alleged unfairness in the performance of adjudicatory
functions." His case, he says, is different: he is challenging the
Secretary's actions in going forward with the administrative
complaint, not the equities of the administrative decision itself.
This is a distinction without a difference. Even if the
cases can be distinguished on this basis, we do not see how any
such distinction is relevant to the immunity analysis.
Second, the plaintiff points out that none of our earlier
cases "involved claims against a single individual empowered to
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exercise the full panoply of functions" conferred upon the
Secretary. This is true as far as it goes, but it does not take
the plaintiff very far. Although our precedents have involved
multi-person boards, other courts have had scant difficulty
concluding that dual-role individuals, like members of dual-role
boards, may be absolutely immune. See Reed v. Vill. of Shorewood,
704 F.2d 943, 951-54 (7th Cir. 1983); D'Agostino v. N.Y. State
Liquor Auth., 913 F. Supp. 757, 767-69 & n.5 (W.D.N.Y.), aff'd, 104
F.3d 351 (2d Cir. 1996) (unpublished); cf. Brown v. DeBruhl, 468 F.
Supp. 513, 520 (D.S.C. 1979) (finding absolutely immune sheriff
with "dual status of a quasi-prosecutor and [] a witness").
Consistent with these decisions, we hold that a government
official's dual status as one who performs both adjudicatory and
prosecutorial functions does not deprive him of an otherwise
applicable immunity defense.
Finally, the plaintiff contends that our prior cases are
distinguishable because the Secretary "delegated the adjudicative
function and power to lawyers who have attorney-relationships with
the agency's prosecutorial arm" and, thus, suffered from conflicts
of interest. This is whistling past the graveyard: the plaintiff's
contention overlooks that "[t]he Supreme Court has established that
an accusation of a conflict of interest does not trump a claim of
absolute immunity." Guttman v. Khalsa, 446 F.3d 1027, 1033-34
(10th Cir. 2006) (citing Mireles v. Waco, 502 U.S. 9, 11 (1991)).
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As a fallback, the plaintiff insists that absolute
immunity cannot shield the Secretary's dual roles because checks
and balances, which would otherwise prevent abuses in
administrative enforcement actions, are lacking. In his view, the
Secretary's dual-role status is, in itself, a corruption of any
safeguards that otherwise attend administrative enforcement
proceedings. In support, he notes that Butz (the seminal case
applying absolute immunity to administrators) was premised in part
on safeguards found in the Administrative Procedure Act (APA),
e.g., 5 U.S.C. § 554. See 438 U.S. at 513-14.
This thesis does not hold water. While the Butz Court
did discuss the evolution of the APA in laying the historical
groundwork for its holdings on immunity, see, e.g., id., safeguards
identical to those contained in the APA are "not necessary
preconditions to claiming absolute immunity," Knowlton v. Shaw, 704
F.3d 1, 9 (1st Cir. 2013) (internal quotation marks omitted).
In all events, even in a dual-role setting the safeguards
in place here are consistent with the kind of safeguards that
should accompany the availability of absolute immunity. Cf. Silvia
v. Secs. Div., 810 N.E.2d 825, 834 (Mass. App. Ct. 2004) (upholding
the Securities Division enforcement mechanism and observing that
"it is commonplace in administrative practice that cases prosecuted
by an agency's enforcement section are decided by that agency's
adjudicators, be they the individual or board who head the agency
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or a separate hearings section"). Typically, such safeguards are
drawn from a menu of items that include the right to be represented
by counsel, access to a transcribed record, the right to present
witnesses and documentary evidence, the right to cross-examine, a
written final opinion guided by precedents, and the availability of
judicial review. See Butz, 438 U.S. at 512; Bettencourt, 904 F.2d
at 783.
The plaintiff had the benefit of all of these safeguards
in the administrative proceeding here. He received fair notice of
the proceeding and the charges against him. See Mass. Gen. Laws
ch. 30A, § 11(1). A record was kept. See id. § 11(6); 950 Mass.
Code Regs. § 10.09(m), (o). Evidence was taken and vetted. See
Mass. Gen. Laws ch. 30A, § 11(2), (4); 950 Mass. Code Regs.
§ 10.09(h), (i). The plaintiff had the right to representation by
an attorney. 950 Mass. Code Regs. § 10.03(a). He had the right
both to call witnesses and to submit rebuttal evidence. Mass. Gen.
Laws ch. 30A, § 11(3). He had the right to cross-examine. Id.;
950 Mass. Code Regs. § 10.09(h)(1). The proceeding culminated in
a reasoned decision, see Mass. Gen. Laws ch. 30A, § 11(8); 950
Mass. Code Regs. § 10.09(p), subject to a right to judicial review,
Mass. Gen. Laws ch. 30A, § 14; id. ch. 110A, § 411(a). In short,
the process was adversarial.
At first blush, this panoply of safeguards seems
adequate. The plaintiff, however, challenges this conclusion on
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the basis of the Secretary's status as an elected official. We
think that this emphasis is misplaced.
To be sure, the Butz Court noted that insulation from
political pressures is a factor to be considered in measuring the
adequacy of available safeguards. See 438 U.S. at 512-13. But
neither Butz nor any other decision of which we are aware stands
for the proposition that elected status, without more, requires
heightened safeguards. The case law suggests the opposite. See,
e.g., Keystone Redev. Partners, LLC v. Decker, 631 F.3d 89, 98 &
n.4 (3d Cir. 2011); Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir.
2008); Brown v. Griesenauer, 970 F.2d 431, 439 (8th Cir. 1992).
For present purposes, it suffices to say that the elected
status of an official who performs judicial or prosecutorial
functions is a factor to be considered in weighing the adequacy of
safeguards. See Butz, 438 U.S. at 512-14. But elected status,
without more, is not a trump card that cancels out an otherwise
applicable immunity.3
To say more on the immunity issues would be to paint the
lily.4 As material here, some of the Secretary's functions are
3
We note that election of judges is commonplace among the
fifty states and, were the law cast as the plaintiff envisions it,
an elected judge would never receive absolute immunity. See
Keystone Redev. Partners, 631 F.3d at 98 n.4.
4
The plaintiff has contrived a golconda of other arguments,
not specifically addressed here, as to why absolute immunity does
not attach. None of these arguments has merit and we reject them
out of hand.
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judicial; some are prosecutorial. Notwithstanding his dual roles,
he is — with one exception — entitled to absolute immunity from the
plaintiff's suit. We turn next to that exception.
IV. THE STATEMENT
There is one loose end: the plaintiff complains of an
allegedly retaliatory act that is not within the scope of either
judicial or prosecutorial immunity, specifically, the use of the
plaintiff's name in the public announcement of the enforcement
proceeding on the Secretary's website. The district court disposed
of this claim on the basis of qualified immunity. See Goldstein,
2012 WL 4481206, at *3. We choose instead to meet it head-on. See
Coggeshall, 604 F.3d at 662 (explaining that the court of appeals
may affirm an order of dismissal on any ground made manifest by the
record).
To state a claim for relief, a section 1983 complaint
must contain "a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
While a complaint need not include detailed factual allegations, it
"must contain sufficient factual matter to state a claim to relief
that is plausible on its face." Grajales v. P.R. Ports Auth., 682
F.3d 40, 44 (1st Cir. 2012) (internal quotation marks omitted); see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
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Assessing the sufficiency of a pleading entails a two-
step analysis. "First, the court must sift through the averments
in the complaint, separating conclusory legal allegations (which
may be disregarded) from allegations of fact (which must be
credited)." Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53
(1st Cir. 2013). "Second, the court must consider whether the
winnowed residue of factual allegations gives rise to a plausible
claim to relief." Id. If this factual residue is "too meager,
vague, or conclusory to remove the possibility of relief from the
realm of mere conjecture," the complaint may be dismissed.
Tambone, 597 F.3d at 442.
"Government actors offend the First Amendment when they
retaliate against an individual for constitutionally protected
speech." González-Droz v. González-Colón, 660 F.3d 1, 16 (1st Cir.
2011). To make out a First Amendment retaliation claim, the
plaintiff must show that his conduct was in fact constitutionally
protected. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977); Powell, 391 F.3d at 17. Then, he must adduce
"proof of a causal connection between the allegedly protected
speech and the allegedly retaliatory response." González-Droz, 660
F.3d at 16. Causation is established by showing that the
plaintiff's conduct was a "substantial" or "motivating" factor in
bringing about the allegedly retaliatory action. Mt. Healthy, 429
U.S. at 287 (internal quotation marks omitted).
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In this instance, the alleged retaliatory act is itself
in the form of government speech — the Secretary's use of the
plaintiff's name in a website announcement. Courts have not been
receptive to retaliation claims arising out of government speech.
See, e.g., Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 417 (4th Cir.
2006) ("When the challenged government action is government speech,
there is no retaliation liability — even if the plaintiff can
demonstrate a substantial adverse impact — unless the government
speech concerns 'private information about an individual' or unless
it was 'threatening, coercive, or intimidating so as to intimate
that punishment, sanction, or adverse regulatory action will
imminently follow.'" (quoting Suarez Corp. Indus. v. McGraw, 202
F.3d 676, 689 (4th Cir. 2000))); Benningfield v. City of Houston,
157 F.3d 369, 376-77 (5th Cir. 1998) (explaining that government
speech in the form of "mere accusations" of wrongdoing and "mere
criticisms" does not amount to adverse employment action for
retaliation purposes). This cautious approach to limiting
government speech is warranted. Not only do public officials have
free speech rights, but they also have an obligation to speak out
about matters of public concern.
In his amended complaint, the plaintiff alleges that the
Secretary "issued a public announcement which singled out [the
plaintiff] (and no other individual respondent) by name." He says
that this action departed from the Secretary's "custom and usual
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practice when issuing a public announcement of the filing of an
administrative complaint" under which he does not normally
"identify any individual respondent by name."
The crucial question is whether, under these
circumstances, the inclusion of the plaintiff's name in the
announcement can ground a claim of unconstitutional retaliation.
We think not.
It is clear beyond hope of contradiction that the
inclusion of the plaintiff's name in a run-of-the-mill website
announcement did not sink to the level of actionable retaliatory
conduct. The plaintiff does not contend that the website
announcement was false or misleading, nor that it divulged
confidential information; he takes issue only with the use of his
name. And even if the Secretary chose to include the plaintiff's
name in the announcement because he bore him a grudge — a matter on
which we take no view — that would not be enough to state a
plausible claim of unconstitutional retaliation. "[A] public
official's malicious intent, taken alone, cannot amount to a
retaliatory response." Balt. Sun, 437 F.3d at 420. There must be
actual "adverse conduct or speech." Id. (emphasis in original);
accord Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003);
Suarez Corp., 202 F.3d at 685-86. Allowing a plaintiff to weave a
First Amendment retaliation claim out of something so mundane as a
government official's issuance of a true statement, not couched in
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inflammatory terms, about a matter of public concern would
trivialize the Constitution.5
That ties up this loose end. The plaintiff has not
pleaded a plausible claim for unconstitutional retaliation based on
the website announcement. Consequently, the district court did not
err in dismissing this claim.
V. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the judgment of the district court.
Affirmed.
5
Cf. G.F. Northall, Folk-Phrases of Four Counties 23 (1894)
("Sticks and stones will break my bones, but names will never hurt
me.").
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