Robert Bennie, Jr. v. John Munn

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3473
___________________________
Robert R. Bennie, Jr., individually and on behalf of Bob Bennie Wealth
Management, Inc.
lllllllllllllllllllllPlaintiff - Appellant
v.
John Munn, in his official capacity; Jack E. Herstein, in his official capacity;
Rodney R. Griess, in his official capacity
lllllllllllllllllllllDefendants - Appellees
____________
Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 17, 2015
Filed: May 11, 2016
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Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
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RILEY, Chief Judge.
Robert R. Bennie, Jr., a financial advisor, sued Nebraska financial regulators
after they investigated him and his broker-dealer employer around the time a
newspaper reported Bennie made unkind comments about the President of the United
States. The district court1 found that even though the regulators targeted Bennie
partly in retaliation for his constitutionally protected political speech, they did not do
enough to deter someone of ordinary firmness from continuing to speak, so Bennie’s
claim failed. Because we cannot say that finding was clearly wrong, we affirm.
I. BACKGROUND
Until November 2010, Bennie worked for LPL Financial (LPL). LPL is a
broker-dealer, meaning it holds accounts and assets and executes financial
transactions. It operates through agents like Bennie, who deal with customers. As
a broker-dealer, LPL is subject to regulation by the Nebraska Department of Banking
and Finance (department). See generally Neb. Rev. Stat. § 8-1120; 48 Neb. Admin.
Code § 1.002.01. Among other things, the department regularly reviews LPL’s
agents’ advertisements and other public statements for compliance with applicable
rules. The department can sanction broker-dealers and their agents for violations,
including by fining them or barring them from operating in Nebraska. See Neb. Rev.
Stat. § 8-1103(9)(a)-(b).
In late 2009, a department employee received, through an acquaintance, a
promotional compact disk (CD) of Bennie’s, along with an accompanying brochure,
and took the CD to the department’s office. The compliance supervisor at the
department, Rodney Griess, reviewed the CD on the assumption Bennie was currently
distributing it. In fact, Bennie had sent the CD to his clients several years earlier,
when different disclosure rules were in effect, but no one in the department knew that.
In the meantime, Griess determined the CD was missing disclosure required under the
2009 rules. He contacted someone at LPL, who agreed and promised to talk to
Bennie. Griess forwarded LPL’s admission to Jack Herstein, an assistant director of
1
The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
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the department, who responded “Bob [Bennie] always is seen wearing a cowboy hat
lately, so I say ‘Hang Him High.’”
Around the same time, Griess also reviewed a television commercial in which
Bennie rode a horse and said he would give customers who did business with him “a
hundred dollars towards the purchase of a firearm.” Because Griess thought the offer
“unusual,” he suspected Bennie had not gotten the necessary approval from LPL to
run the commercial. Eventually, Griess scheduled a conference call to talk to LPL
about the issues with Bennie.
A few days before the call, the Lincoln Journal Star ran a story about Bennie’s
role in the Tea Party political movement. The article quoted Bennie denouncing the
government and politicians, including President Barack Obama. The article also
mentioned Bennie’s business and was accompanied by a photograph of Bennie at his
desk in his office. Griess emailed LPL a link to the online version of the article. In
the body of his message, Griess quoted Bennie, in the article, calling President
Obama “a communist,” “dishonest,” and “an evil man.” The next day, Griess told a
colleague his upcoming call with LPL would cover Bennie’s “recent string of
activities; i.e., lack of . . . disclosure, gun slingin ads, and calling Obama a
‘communist’ and an ‘evil’ man issues.”
On the call, department employees and LPL discussed Bennie’s CD and
commercial and the article about him, and the department asked for information about
LPL’s review, if any, of the commercial and the article. Afterward, in an email
exchange with LPL to schedule a follow-up call, Griess wrote that it “would be nice
to know” if
LPL anticipate[d] imposing any kind of heightened supervision, more
frequent/unannounced exam schedule, specialized advertisement
approval process or other sanction(s) that may provide the Department
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with a little better sense that the firm is “on top of” addressing this type
of activity which in turn may be of some comfort to us and really is in
the best interest of the public . . . .
LPL sent Griess materials from its review and approval of the commercial and
told him it had not reviewed the article. In response to Griess’s question about LPL’s
supervision of Bennie, LPL explained that since a recent internal reorganization,
Bennie’s proposed advertisements were reviewed by a senior analyst. Department
employees asked whether LPL had any guidelines about agents like Bennie publicly
communicating their political views. LPL said it did not.
Not long after the second call, the director of the department, John Munn,
asked Griess to review a mass-mailing Munn had received, in which Bennie invited
prospective customers to discuss their investment plans over dinner. Griess
concluded the invitation violated applicable rules, so he emailed LPL asking for the
name and contact information of Bennie’s senior-analyst supervisor, all notes and
communications related to the review and approval of the invitation, a list of
everyone in Nebraska it was sent to, and a list of everyone in Nebraska who had
accepted. He also ordered LPL to cancel any scheduled dinners and not to schedule
any more until the invitation was corrected. And he warned LPL that “[t]he
Department may invoke whatever administrative action deemed necessary and
appropriate under its authority against both Mr. Bennie and/or LPL Financial to
insure compliance.”
That week, Bennie contacted Nebraska Governor David Heineman and told
him the department was targeting Bennie and “harassing [Bennie] because of his
political views.” Governor Heineman called Munn to discuss the situation.
Afterward, Munn had Griess review a draft memorandum responding to the
Governor. Griess observed the draft did not say anything about the newspaper article
and explained he “felt compelled to at least mention it” because
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While Mr. Bennie did not author the article, and does not appear to be
subject to our regulatory purview regarding it, the comments made
regarding the President etc., regardless of anyone’s political views do
tend to be quite polarizing to say the least, not all that dissimilar to the
firearm purchase statement. Anyway, it’s another piece of the puzzle
and just saw that it was missing.
Munn agreed to “mention that situation.”
Around the same time, LPL pushed back against the department’s treatment of
Bennie’s dinner-invitation mailing, arguing both LPL and a federal regulator had
approved the invitation and there was nothing wrong with it. The department
“agree[d] to disagree” and said Bennie could go ahead with any meetings he had
scheduled.
Herstein, the assistant director, then received another mailing from Bennie, this
one about a seminar on retirement income, which he also gave to Griess to review.
Griess determined the seminar mailing was “a classic example” of a noncompliant
advertisement and alerted LPL. LPL agreed the seminar mailing lacked required
disclosure, but explained the senior analyst had approved it because she mistakenly
thought it would be printed on letterhead containing the missing information.
Herstein and Griess decided to “keep this in a reserve file and move on.” Herstein
added “hopefully [Bennie] will eventually hang himself along with LPL.” That was
in March 2010.
LPL fired Bennie at the beginning of November 2010. At that point, Bennie
was still active in the Tea Party movement. In mid-2011, Bennie filed a public-
records request and received the department’s internal communications regarding the
investigations in 2010. According to Bennie, after learning what people in the
department wrote about him, he stopped arranging Tea Party events and writing
letters to the editor and restrained himself from criticizing President Obama publicly.
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He also pursued a media campaign against the department for harassing him, calling
for the people involved to be fired and prosecuted.
Bennie then sued several department employees in their official and individual
capacities. He eventually dropped all but his official-capacity claims against Griess,
Herstein, and Munn (collectively, the state regulators) for First Amendment
retaliation based on the department’s investigation and inquiries. See 42 U.S.C.
§ 1983. After a bench trial, the district court found the state regulators were partly
motivated by Bennie’s protected speech and “[s]ome of the questions they asked of
LPL would not have been asked had it not been for [Bennie’s] political activity,” but
nonetheless ruled in the state regulators’ favor because their retaliation would not
have deterred an ordinary person in Bennie’s position from continuing to speak.
Bennie appeals. See 28 U.S.C. § 1291 (appellate jurisdiction).
II. DISCUSSION
Before addressing the merits of Bennie’s appeal, we dispose of three threshold
issues raised by the state regulators. First, the remedy Bennie asks for—a declaratory
judgment and injunctions against future retaliation—is the sort of prospective relief
that can be sought in federal court from state officials sued in their official capacities,
notwithstanding the state’s sovereign immunity, under Ex Parte Young, 209 U.S. 123
(1908). See, e.g., Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 281 (1997)
(“An allegation of an ongoing violation of federal law where the requested relief is
prospective is ordinarily sufficient.”); Summit Med. Assocs., P.C. v. Pryor, 180 F.3d
1326, 1338 (11th Cir. 1999) (concluding the requirement of “an ongoing and
continuous violation of federal law” is satisfied “where there is a threat of future
enforcement that may be remedied by prospective relief”).
Second, the state regulators’ “‘voluntary cessation’” of their improper inquiries
did not moot Bennie’s case because the department still has regulatory authority over
him and the state regulators’ assurances that they know better than to retaliate against
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him again are not enough to make it “‘absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.’” Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 609 (2001)
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
189 (2000)).
Third, the state regulators are mistaken that Bennie’s requested injunction
would be unenforceable and “provide[] no relief” because “[t]he Department is
already obligated to follow the law.” True, “an injunction which does little or nothing
more than order the defendants to obey the law is not specific enough.” Daniels v.
Woodbury County, 742 F.2d 1128, 1134 (8th Cir. 1984). Yet that does not mean a
court cannot enjoin acts that are already illegal, as the state regulators think. Rather,
the point is that an injunction cannot be too vague and must give “fair and precisely
drawn notice of what the injunction actually prohibits.” Calvin Klein Cosmetics
Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 669 (8th Cir. 1987); see also Fed. R.
Civ. P. 65(d)(1)(C). An injunction against making inquiries or taking regulatory
actions based on Bennie’s protected expression of his political views would be
sufficiently specific for the state regulators to know what they were not allowed to do.
Cf. Power v. Summers, 226 F.3d 815, 819 (7th Cir. 2000) (“The term ‘retaliation’ is
not so vague that a defendant enjoined from retaliating against a person for exercising
his right of free speech would not know what he could and could not do with
reference to that person.”).
We proceed to the merits. To establish his First Amendment retaliation claim,
Bennie needed to show three things: “(1) he engaged in a protected activity, (2) the
government official[s] took adverse action against him that would chill a person of
ordinary firmness from continuing in the activity, and (3) the adverse action was
motivated at least in part by the exercise of the protected activity.” Revels v.
Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). The first element is not disputed. The
second is the focus of this appeal. The third we need not reach.
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A. Standard of Review
The initial question is what standard we apply to review the district court’s
conclusion that the state regulators’ actions against Bennie would not have chilled an
ordinary person’s speech. The standard of review applied here likely is dispositive.
Bennie says the district court held the adverse acts he alleged were insufficient as a
matter of law, which “is necessarily a legal conclusion” subject to de novo review.
At first glance, the district court’s reference to the retaliation as “de minimis” appears
to bear out Bennie’s characterization. But on closer review the context demonstrates
the district court used the term not to denote a legal ruling, but rather to encapsulate
the factual finding that, on the evidence presented, the state regulators’ actions were
“insufficiently substantial” to be actionable.2 Cf. Bell v. Johnson, 308 F.3d 594, 603
(6th Cir. 2002) (“[I]n most cases, the question of whether an alleged retaliatory action
poses a sufficient deterrent threat to be actionable will not be amenable to resolution
as a matter of law.”). We therefore review that finding for clear error, reversing “if
upon a review of the entire record [we] form[] ‘the definite and firm conviction that
2
Bennie identifies two conceptually distinct issues “imbedded” in the district
court’s conclusion: what the state regulators did and whether it was chilling enough.
He argues that while the first issue is factual, the second—the part he challenges—“is
best viewed as a legal question.” We disagree. Except when the alleged harassment
is so inconsequential that even allowing a claim “‘would trivialize the First
Amendment,’” Naucke v. City of Park Hills, 284 F.3d 923, 928 (8th Cir. 2002)
(quoting Bloch v. Ribar, 156 F.3d 673, 679 (6th Cir. 1998)), which was not true here,
the determination of whether government action would chill an ordinary person’s
speech is a matter for the factfinder. Cf. Garcia v. City of Trenton, 348 F.3d 726, 729
(8th Cir. 2003) (“Ultimately, this sort of question is usually best left to the judgment
of a jury, twelve ordinary people, than to that of a judge, one ordinary person. The
jury, after all, represents the conscience of the community. It decides many similar
questions—for example, what would a person of ordinary prudence have done in
certain circumstances?”).
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a mistake has been committed.’”3 Ridgway v. United Hosps.-Miller Div., 563 F.2d
923, 927 (8th Cir. 1977) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)); see also Fed. R. Civ. P. 52(a)(6); Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985) (“This standard plainly does not entitle a reviewing court
to reverse the finding of the trier of fact simply because it is convinced that it would
have decided the case differently.”).
3
At oral argument, Bennie for the first time invoked the rule that “[a]n appellate
court’s review . . . is unique in the context of a First Amendment claim,” requiring
“‘an independent examination of the whole record.’” Doe v. Pulaski Cty. Special
Sch. Dist., 306 F.3d 616, 621 (8th Cir. 2002) (en banc) (quoting N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 285 (1964)). We normally “do not consider arguments first
raised at oral argument.” United States v. Johnson, 710 F.3d 784, 787 n.1 (8th Cir.
2013). Because such independent review has been called “a constitutional duty,”
Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp. of Bos., Inc., 515 U.S. 557, 567
(1995), we further explain the issue presented here is not whether Bennie’s speech
was protected by the First Amendment—no one disputes it was—but the deterrent
effect of the state regulators’ actions, which is not the sort of finding that might
trigger such a duty. See Pulaski Cty. Special Sch. Dist., 306 F.3d at 621 (“[A]n
independent review of the facts is not necessarily a de novo review of all the facts
relevant to the ultimate judgment rendered.”); cf. Hurley, 515 U.S. at 567 (describing
the “obligation” as “decid[ing] for ourselves whether a given course of conduct falls
on the near or far side of the line of constitutional protection”); Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 505-10 (1984) (surveying questions on
which the Supreme Court has considered independent review appropriate); N.Y.
Times Co., 376 U.S. at 285 (“In cases where that line [between protected and
unprotected speech] must be drawn, the rule is that we ‘examine for ourselves the
statements in issue and the circumstances under which they were made to see . . .
whether they are of a character which the principles of the First Amendment, as
adopted by the Due Process Clause of the Fourteenth Amendment, protect.’”
(quoting Pennekamp v. Florida, 328 U.S. 331, 335 (1946))).
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B. Chilling Effect
In essence, what Bennie challenged was the state regulators taking a marginally
increased interest in his business for a little over a month and discussing his political
speech with LPL. Bennie worked in a heavily regulated and closely overseen
industry, and his unorthodox advertising approach already had put him on the
department’s radar, and the state regulators already had contacted LPL about him,
before Griess read what Bennie had to say about President Obama. The other alleged
acts of retaliation—the state regulators talking to LPL about Bennie and asking about
closer supervision or other internal sanctions, making LPL temporarily stop Bennie
from meeting with certain potential clients, and suggesting LPL or Bennie could face
further undefined “administrative action”—largely arose out of the state regulators’
scrutiny of Bennie and the rule violations (or what the state regulators thought were
violations) they discovered through that scrutiny.4 Further, except for the order
demanding Bennie’s scheduled dinner meetings “be cancelled immediately”
(emphasis in original), Bennie did not show the state regulators’ actions directly
affected him or his business in any way.
To be sure, “the threat”—not to mention the reality—“of continued and
heightened regulatory scrutiny” sometimes can have a chilling effect, regardless of
whether it ultimately results in sanctions being imposed. Blankenship v. Manchin,
471 F.3d 523, 532 (4th Cir. 2006); see also Garcia, 348 F.3d at 729 (referring to
“engag[ing] the punitive machinery of government in order to punish [the plaintiff]
for her speaking out”). The increased attention from the department undeniably
4
This is not to suggest that because the state regulators were ostensibly doing
their jobs and for the most part did not directly target Bennie’s political speech in
their investigations, they were somehow justified in, as the district court found,
“looking for reasons to go after” Bennie. See Cody v. Weber, 256 F.3d 764, 771 (8th
Cir. 2001) (“Conduct that retaliates against the exercise of a constitutionally protected
right is actionable, even if the conduct would have been proper if motivated by a
different reason.”).
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affected LPL—not the least by necessitating the expenditure of time and money
responding to questions about Bennie—and thus had the potential to harm Bennie
indirectly by turning his employer against him.5 However, while the record in this
case might well have supported a conclusion that an ordinary person’s speech would
have been chilled, it did not compel such a finding. See Anderson, 470 U.S. at 574
(“Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).
Bennie marshals case law in an attempt to counter this point, but it is largely
inapposite. The cases Bennie cites, from this court and others, arise in different
procedural postures and thus answer a different question than is presented here.
Specifically, Bennie relies on decisions saying dismissal on the pleadings or summary
judgment was not appropriate because government conduct that more or less
resembles what the state regulators did—“closer regulatory scrutiny and threats of
sanctions,” in Bennie’s words—could support finding an ordinary person would be
chilled. See, e.g., L.L. Nelson Enters., Inc. v. County of St. Louis, 673 F.3d 799, 809
(8th Cir. 2012); Blankenship, 471 F.3d at 530-33; see also Garcia, 348 F.3d at 729
(reversing the district court’s grant of judgment notwithstanding a verdict finding
liability). Yet that unremarkable proposition, which we by no means question, does
not imply the much stronger conclusion that a reasonable factfinder presented with
the record in this case must find a sufficient chilling effect.6
5
As it happened, LPL apparently stood by Bennie and was able to appease the
state regulators by implementing a previously planned reorganization of its system
of review, but that is beside the point. What matters is what the state regulators did,
not how LPL responded.
6
The state regulators’ reliance on Williams v. City of Carl Junction to claim
that “evidence of repeated regulatory action against a defendant, . . . as a matter of
law, . . . may not be sufficient to chill a person of ordinary firmness” is equally
misplaced. In Williams, before reaching the ordinary-firmness issue, this court
concluded all but one of the municipal citations the plaintiff claimed were retaliatory
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The parties devote much of their arguments about this issue to the question of
whether Bennie’s speech was in fact chilled. The district court’s analysis likewise
centered on finding Bennie was not chilled until after LPL fired him, which, the
district court found, was not the state regulators’ fault. Although it is true that “how
[a] plaintiff acted might be evidence of what a reasonable person would have done,”
the ordinary-firmness inquiry is at bottom “an objective one, not subjective.” Garcia,
348 F.3d at 729. This case illustrates some of the dangers of giving undue weight to
how a particular plaintiff actually responded to government retaliation, rather than
how a hypothetical reasonable person would have reacted.
In particular, the question of whether Bennie’s speech was chilled, and by
what, is complicated by the fact that although Bennie suspected the department’s
inquiries were politically motivated, he did not get confirmation of the connection
between his comments about the President and the increased scrutiny until he filed
his records request over a year later. That he “continued his political activity
unabated” for a while in the meantime, as the district court found, proves little.
Further muddying the water, by the time Bennie learned what happened he also had
lost his job with LPL and suffered other setbacks in his business for which
he—incorrectly, for purposes of this case7 —blamed the state regulators, making it
difficult to isolate the additional chilling effect, if any, of what the state regulators
actually did. Bennie was by all indications unusually resilient and determined, so
were not, so the relevant ruling in fact addressed only the single remaining citation,
not “repeated regulatory action” as the state regulators assert. Williams v. City of
Carl Junction, 480 F.3d 871, 877-78 (8th Cir. 2007).
7
Bennie briefly suggests the state regulators’ actions “contributed to [his]
termination” by “negatively impact[ing] LPL’s view of [him] and his value to the
company.” The district court firmly rejected the proposition that LPL’s firing of
Bennie “could reasonably be associated with the defendants’ alleged retaliation.”
Even if Bennie’s theory is “not unreasonable,” as he insists, it falls far short of
establishing the district court’s finding was clear error.
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whether he continued to speak, even if satisfactorily proved, could not tell us much
about what a person of only ordinary firmness would have done in his position. See
Bennett v. Hendrix, 423 F.3d 1247, 1252 (11th Cir. 2005) (“There is no reason to
‘reward’ government officials for picking on unusually hardy speakers.”). Although
Bennie’s arguments on this point—briefly, that the district court looked for a chilling
effect within too short a time-frame and should have focused on whether he continued
in the particular sort of vigorous, publicized speech that drew the state regulators’
attention, as opposed to political activity in general8—are well taken, we conclude
Bennie’s subjective reaction, whatever it was, is of little use in resolving this issue.
Finally, we address the suggestion in the state regulators’ brief that the only
thing they did wrong was “to quote Bennie’s statements about the President in [the]
. . . email [to LPL].”9 Far from it. The email was certainly problematic, because it
implicitly pressured LPL to curtail Bennie’s speech to avoid problems with the
department. The email was also evidence of a deeper problem, as the district court
found: that the state regulators “were looking for reasons to go after” Bennie and
8
Bennie also claims the district court wrongly required him to prove the state
regulators got him fired from LPL, citing the district court’s statement that “this might
be a different case” if Bennie made such a showing. Bennie reads too much into that
observation. In context, the district court’s discussion of one way Bennie could have
won does not imply the district court thought that was the only way.
9
On this point, we also note Griess’s testimony that he “would be doing a
disservice not only to the people of the State of Nebraska but to [him]self” if he did
not investigate Bennie after reading Bennie’s comments about President Obama
accompanied by the photograph of Bennie at his desk, as well as Munn’s assertion,
in an email to Griess, that Bennie being photographed at his desk making political
comments “would be like me standing up in front of the flags and seal in my office
and talking about a topic like abortion.” Like the language quoted above, these
statements appear to reflect a troubling misunderstanding of the—nonexistent—role
that political speech by persons in regulated entities should play in the department’s
investigatory and enforcement activities.
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“made regulatory inquiries of LPL that were motivated, to varying degrees, by the
content of [Bennie’s] speech.” For the state regulators to allow their apparent
disagreement with or even distaste for what Bennie had to say politically, or how he
said it, to influence how the department treated him and his employer was wholly
inappropriate—and absolutely inconsistent with the First Amendment. That
inappropriate, unconstitutional conduct was wrong, regardless of whether the state
regulators revealed their retaliatory motives to LPL or anyone else or whether the
consequences of their actions were severe enough to be actionable in this case.
III. CONCLUSION
We are not of a definite and firm conviction that a mistake was committed by
the district court such that the district court clearly erred by finding the state
regulators’ actions against Bennie would not have quieted a person of ordinary
firmness. Based on this standard of review, see, e.g., Anderson, 470 U.S. at 573-74,
we affirm.
BEAM, Circuit Judge, concurring in part and dissenting in part.
Because I do not believe "the district court's account of the evidence is
plausible in light of the record viewed in its entirety," Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573-74 (1985), I respectfully dissent with respect to part
II.B of the court's opinion and, therefore, in its decision. I believe the district court
committed a mistake in at least two respects. First, in its order the district court relied
entirely on the actions of an "unusually resilient and determined" individual, ante at
12, as evidence of how a person of ordinary firmness would respond to the
department's increased regulatory scrutiny. Although the district court acknowledged
that "the question is not whether the plaintiff himself was deterred," it nonetheless
based its reasoning entirely on Bennie's actions. Second, to the extent the district
court correctly considered evidence of Bennie's actual conduct relevant to the person-
of-ordinary-firmness inquiry, it neglected to account for Bennie's self-censorship at
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the time he became fully aware of the department's retaliatory motivation in mid-
2011. In looking to the actions of the recipient of retaliation as probative of how an
ordinary person might behave, it must be the case that the recipient is aware of the
retaliatory motivation behind the adverse action. Although Bennie knew the
department was focusing on him in the spring of 2010 and suspected it was because
of his political activities, it was not until mid-2011 that he knew the extent to which
his political statements impelled the department's actions. In light of Bennie's
resilient nature, the resulting self-censorship tends to demonstrate, if anything, that
an ordinary, less resilient person would react similarly.
A correct evaluation of the record, in my view, compels a finding that the
department's actions would deter a person of ordinary firmness from engaging in
protected political speech. The court correctly recognizes that the department, which
may suspend or revoke Bennie's registration as an agent, Neb. Rev. Stat. § 8-1103(9),
raised the "issue" of Bennie's political speech, inquired as to whether LPL regulated
such speech, and threatened both Bennie and LPL with "whatever administrative
action deemed necessary and appropriate under its authority . . . to insure
compliance." Because Bennie, and therefore a similarly situated ordinary person,
is employed in a profession "heavily regulated and closely overseen" by the
department, ante at 10, the chilling effect of the department's actions must be
evaluated in that context. It is apparent that an agency, empowered to deprive those
whom it regulates of their livelihood, could easily overcome the firmness of an
ordinary, regulated person by "engag[ing] the punitive machinery of government."
Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003). Bennie, as anyone else,
needs to earn a living. It is unsurprising that when confronted with even "marginally
increased interest" by his registering agency, ante at 10, Bennie's unusually firm
resolve gave way to self-censorship after the mid-2011 records request. It is clear
error, I think, not to have concluded in this case that an ordinary person would have
done the same.
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Additionally, it is clear, as the district court recognized, that employees at the
department "were bothered by the plaintiff, in no small part because of the plaintiff's
political views, or at least the manner in which he expressed those views. And that
antipathy was manifested in the Department's regulatory attention to the plaintiff."
I would therefore hold that the department's actions were motivated in part by
retaliation against Bennie's speech and thus that each of the three elements of a First
Amendment retaliation claim were satisfied here. See Revels v. Vincenz, 382 F.3d
870, 876 (8th Cir. 2004). Although I do not believe an injunction would be useful,
I would remand the case to the district court with instructions to grant Bennie
declaratory judgment that the department violated his rights under the First
Amendment and for a determination as to the propriety and amount of attorneys' fees
and costs under 42 U.S.C. § 1988.
______________________________
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