
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-2315                          ROBERT WAGNER AND MARGARET WAGNER,                               Plaintiffs, Appellants,                                          v.              PATRICIA DEVINE, KEVIN A. JOURDAIN, CHARLES E. MORAN, III,               ARTHUR THERRIEN, JOHN E. WHELIHAN, THE CITY OF HOLYOKE,           MASSACHUSETTS, THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS,           LOCAL 388, AND THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                        Coffin and Cyr, Senior Circuit Judges.                                        _____________________                                 ____________________            Stewart T. Graham, Jr., for appellants.            ______________________            John  H. Fitz-Gibbon with  whom Harry  L. Miles  was on  brief for            ____________________            _______________        appellees  Devine, Jourdain, Moran, Whelihan  and the City of Holyoke,        Massachusetts.            Lawrence  D.   Humphrey  for  appellees  Therrien,   International            _______________________        Brotherhood  of  Police  Officers, Local  388,  and  the International        Brotherhood of Police Officers.                                 ____________________                                    August 1, 1997                                 ____________________               COFFIN,  Senior  Circuit  Judge.   Appellant  Robert Wagner,                        ______________________          former chief of police in Holyoke, Massachusetts, claims that his          First  Amendment freedom  of political  association was  violated          when  members of  the city  council and  others subjected  him to          severe harassment, ultimately  forcing him to resign,  because of          his  political support  for  the  city's mayor.    He filed  this          lawsuit  alleging federal  constitutional and state  law claims.1          The  district  court  dismissed the  First  Amendment  counts for          failure  to state a claim, and declined supplemental jurisdiction          over the state law counts.   Because the First Amendment does not          protect  a policymaking official such as appellant from criticism          and harassment, we affirm.                                I. Factual Background2                                   __________________               Appellant  Wagner was appointed Holyoke's chief of police in          July 1991 by  then newly elected Mayor Hamilton.   Wagner asserts          that four  members  of  the  City  Council  who  were  Hamilton's                                        ____________________               1 The complaint  included a count for loss  of consortium on          behalf  of Wagner's  wife, Margaret  Wagner.  Because  this claim          survives or  fails with Robert  Wagner's state claims, we  do not          address it separately.                2 We  note  that the  facts  alleged in  Wagner's  complaint          provide  a  much  sketchier picture  of  the  defendants' alleged          conduct than  the facts  described by counsel  at the  hearing on          defendants' motion  to  dismiss.   In reviewing  a Rule  12(b)(6)          dismissal,  we typically consider the "well-pleaded facts as they          appear  in  the  complaint," see  Correa-Martinez  v.  Arrillaga-                  __________________   ___  _______________      __________          Belendez,  903 F.2d  49,  51 (1st  Cir.  1990) (emphasis  added).          ________          Because  we ultimately uphold  the dismissal, and  the additional          facts are helpful in understanding the case, we draw the facts in          this  section from  both  the  complaint and  the  hearing.   For          purposes of  the motion  to dismiss, we  take the  allegations as          true  and  grant  all reasonable  inferences  in  Wagner's favor.          Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).          ______    _________                                         -2-          political opponents engaged  in a campaign of  harassment against          him  for  the  purpose  of  embarrassing  the  mayor and  forcing          appellant to  resign.  He  contends that their criticisms  of his          job  performance were  unfair  and  inaccurate,  and  that  their          actions   were  motivated  solely  by  their  opposition  to  his          political beliefs  and his political  support of the mayor.3   He          further asserts  that  the president  of  the police  union,  and          through  him the local  and international unions,  conspired with          the council members to effectuate the plan to oust him.               The complaint accuses  the council members of  harassing him          by  means  of  unspecified  "actions,"  and  numerous  false  and          defamatory statements.  At the  hearing on the motion to dismiss,          appellant's counsel identified the challenged actions as follows:               They   were  constantly  criticizing  him.    They  had               subcommittees  that they were chairing and they had him               up  to see the  council constantly, criticizing  him in               everything he did  . . . . They tried  to eliminate his               salary.   They reduced  his salary.   They reduced  his               benefits.  They  refused to fund  programs that he  was               pushing.          Although the mayor  has sole authority under the  city charter to          hire or  fire the police chief, the council  has power to set the          salary and benefits  for the position.  According  to Wagner, the          four defendant council members, aminority of the governing body,                                         ____________________               3  In his  appellate briefs,  Wagner  makes several  passing          references to  a First Amendment violation based on his political          speech, as well as on political affiliation, and he cites several          speech cases  in support  of his arguments.   The  complaint, the          hearing on  the  motion  to  dismiss, and  the  district  court's          opinion all  reveal that this  case has been litigated  solely on          the theory that defendants harassed and constructively discharged          him based on his political beliefs and affiliation.  Our analysis          is therefore confined to that context.                                                 -3-          "led the charge" against him and secured the complicity of enough          other councilors to accomplish their unlawful objectives.               Wagner resigned in  September 1994.  He asserts  that he was          forced  to do so  because the defendants'  actions and statements          hindered,  undermined, and interfered with the performance of his          duties, and thus constituted a constructive discharge.4               This  lawsuit followed.  In addition to federal civil rights          claims  under 42  U.S.C.    1983, which  assert violation  of his          First  Amendment right to political association, Wagner alleged a          state civil rights violation, and state law claims of defamation,          tortious  interference  with contractual  relations, and,  in his          wife's name, loss of consortium.   In response to the defendants'          motion to  dismiss under Fed.  R. Civ. P. 12(b)(6),  the district          court substantively  addressed only the  section 1983 count.   It          ruled that "the alleged harassment which  Wagner sustained at the                                        ____________________               4 Defendants contend that they  cannot be found liable for a          constructive discharge because  only the mayor had  the authority          to fire  Wagner.  Their argument cuts too narrowly.  Although the          city council may not have had explicit authority to terminate the          police chief, its authority  to set salary, benefits and  working          conditions  gave  it  the  power  to  accomplish  a  constructive          discharge. See, e.g., Vega v.  Kodak Caribbean, Ltd., 3 F.3d 476,                     ___  ____  ____     _____________________          480  (1st Cir. 1993) (constructive discharge occurs when "working          conditions  [are] so intolerable[] that a reasonable person would          feel  compelled to  forsake  his  job rather  than  to submit  to          looming  indignities"); Aviles-Martinez v. Monroig, 963 F.2d 2, 6                                  _______________    _______          (1st Cir. 1992) (similar).  Of course, a minority  of the council                                                   ________          does not have such power, and a finding of constructive discharge          would require some  showing that the challenged  conduct actually          was  attributable to the  alleged discrimination.   See generally                                                              ___ _________          Scott-Harris v. City  of Fall River, Nos.  95-1950-1952, 95-2100,          ____________    ___________________          1997  WL 9102, at  *9-10 (1st Cir. Jan.  15, 1997), cert. granted                                                              _____________          sub nom  Bogan v. Scott-Harris,  65 U.S.L.W. 3809 (U.S.  June 10,          ______________    ____________          1997) (No. 96-1569).  In any event,  as we conclude infra, such a                                                              _____          discharge  would not  be  actionable if,  as  here, the  affected          employee was a policymaker.                                           -4-          hands  of a  minority of  the city  councilors and  a subordinate          police  officer was  not  of sufficient  degree to  constitute 'a          constitutionally  significant  burden   on  [Wagner's]  political          association right.'"   Memorandum and Order at 5 (quoting Agosto-                                                                    _______          de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1216 (1st Cir. 1989)          ____________    ____________          (en banc)).           __ ____               The  court also concluded  that, even if  the harassment had          been sufficiently  severe to  implicate constitutional  concerns,          Wagner's  First  Amendment  claim still  would  fail  because the          police chief's position  was one for which  political affiliation          is an  appropriate requirement.   Public employees who  hold such          positions, the  court  ruled,  are not  protected  by  the  First          Amendment from partisan attacks on their job performance.  Having          dismissed  the federal  claims, the  court  declined to  exercise          supplemental  jurisdiction over the remaining state law causes of          action and dismissed them as well.               The  Wagners then  filed this  appeal.   Our  review of  the          district  court's Rule  12(b)(6) dismissal is  de novo.   Romero-                                                         __ ____    _______          Barcelo v. Hernandez-Agosto, 75 F.3d  23, 28 n.2 (1st Cir. 1996).          _______    ________________          We may affirm a dismissal for failure to state a claim only if it          clearly appears that,  on the facts alleged, the plaintiff cannot          recover  on any  viable theory.    Correa-Martinez v.  Arrillaga-                                             _______________     __________          Belendez, 903  F.2d 49, 52 (1st Cir. 1990).  Because the district          ________          court's ruling that the  First Amendment does not  protect Wagner                                         -5-          from  politically motivated  discrimination is  both  correct and          dispositive, we turn to that issue first.5                                    II. Discussion                                        __________               The Supreme  Court more  than twenty  years ago  established          that the First Amendment provides protection for public employees          from  adverse job  action  based  solely  on  partisan  political          affiliation.  See Elrod v.  Burns, 427 U.S. 347 (1976) (plurality                        ___ _____     _____          opinion);  Branti  v.  Finkel,  445 U.S.  507  (1980);  Rutan  v.                     ______      ______                           _____          Republican Party,  497 U.S.  62 (1990).6   The protection  is not          ________________          universal,  however.  In its precedent-setting case examining the          constitutionality of the  patronage system, the Court  recognized          the  competing First Amendment interest of the in-power political          party  "to  insure   that  policies  which  the   electorate  has          sanctioned  are effectively implemented," Elrod, 427 U.S. at 372.                                                    _____          The Court therefore  allowed patronage practices to  continue for          those  employees who, inter alia, make policy or occupy positions                                _____ ____          of confidence.  Id.; Branti, 445 U.S. at 517-18.7                          ___  ______                                        ____________________               5 Wagner contends  that the district court's  other holding,          that   the  harassment  he   suffered  was  not  constitutionally          significant, was based on a misreading of the complaint.  We need          not, and therefore do not, take up this issue.               6  The   Supreme  Court   addressed  politically   motivated          discharges in Elrod and Branti,  extending its reasoning to other                        _____     ______          forms of employment discrimination in Rutan.                                                 _____               7  At  various points  in  this  opinion,  we use  the  term          "policymaker" as a shorthand reference for the several categories          of employees for whom partisan affiliation  is an appropriate job          criterion.   Such employees  are "'involved in  policymaking, the          communication of political  ideas, or  sensitive tasks  connected          with the policymaking function,' Vazquez Rios v. Hernandez Colon,                                           ____________    _______________          819 F.2d 319,  322 (1st Cir. 1987), []or 'occupy[] positions of .          . . unusually intimate propinquity to government leaders,' id. at                                                                     ___                                         -6-               Our circuit has since faced a long line of cases raising the          issue  of political discrimination  in employment, most  of which          have  focused  on whether  the  particular position  held  by the          plaintiff  employee fell inside  or outside the  First Amendment-          protected  sphere.  See,  e.g., Agosto-de-Feliciano, 889  F.2d at                              ___   ____  ___________________          1212 & n.1, 1218 (noting "first wave" of cases involving outright          dismissals,  and adopting  standard for evaluating  "second wave"          cases   involving  discriminatory   conduct   falling  short   of          discharge).  This case presents an interesting departure from the          norm.   Both  parties accept  that Wagner's  job as  police chief          sufficiently  elevated him in  the Holyoke hierarchy  that, under          the principles  we have just outlined, he could be fired based on          political affiliation.                 Wagner,  however, contends  that  he  was  subjected  to  an          impermissible constructive  discharge because  only the mayor  --          the  official  who  hired  him  and  for  whom  he  served  as  a          policymaker  -- may  fire  him  based  on  political  affiliation          without violating the First Amendment.  This is so, he maintains,          because  the Elrod-Branti exception  was designed to  ensure that                       _____ ______          the  policies of  a new  administration  -- "policies  presumably          sanctioned by  the electorate," Elrod,  427 U.S. at 367  -- would                                          _____          not   be  undercut  by  the  obstructive  tactics  of  opposition          incumbents.    This  rationale   provides  no  justification  for          opponents of a new administration  -- such as the defendants here          _________                                        ____________________          324." Correa-Martinez, 903 F.2d at 56 n.6.                _______________                                         -7-          -- to  harass the  administration's supporters.   Their  conduct,          Wagner argues, is therefore unconstitutional.               Wagner's  analysis ignores the  reality of precedent.   Both          Supreme  Court  and  First Circuit  caselaw  have  recognized the          applicability  of the Elrod-Branti  dichotomy outside the context                                ____________          of a new administration's  patronage practices.  The  conflict in          Rutan,  where the  Supreme Court  held  that the  First Amendment          _____          forbids  government  officials  from  basing  less-than-discharge          actions  such as  hiring, promotion,  and  transfer on  political          affiliation and  support, did not  arise amidst the seating  of a          new administration.    At  issue  was the  implementation  of  an          executive  order proclaiming a  hiring freeze,  with "exceptions"          allegedly made based on political affiliation.  In referring back          to  Elrod and  Branti  in the  opinion's  opening paragraph,  the              _____      ______          majority  broadly described  those  cases  as  protecting  public          employees  from discharge "solely for not being supporters of the          political   party  in  power,  unless  party  affiliation  is  an          appropriate requirement for  the position involved," 497  U.S. at          64.  That decision indicates  that the First Amendment protection          against  patronage practices,  as  well  as  the  exceptions  for          certain categories  of highly  placed  employees, apply  whenever          public employees are at odds politically with their superiors and          thus subject to politically discriminatory behaviors.               Our decision in Romero-Barcelo, 75 F.3d  at 33-34, brings us                               ______________          even closer to the present context.  In rejecting a former Puerto          Rico governor's allegations that he had suffered severe political                                         -8-          discrimination  during a  murder  investigation  because  of  his          association with the out-of-power New Progressive Party (NPP), we          stated:               The Supreme  Court has  held that  the First  Amendment               "protects  nonpolicymakers  from being  drummed  out of               public   service  on  the   basis  of  their  political               affiliation or advocacy of ideas."  . . .   But Romero-               Barcelo most assuredly qualified as an NPP policymaker.               . . . Thus, the district court correctly found no First               Amendment  protection for "a politician whose rights to               freedom of speech, freedom of  association, and freedom               'to disassociate  [oneself] from unpopular  views' have               been injured by other politicians seeking  to undermine               his  credibility  within  his own  party  and  with the               electorate."          75 F.3d at 34 (citations omitted).   Cf. Larou v. Ridlon, 98 F.3d                                               ___ _____    ______          659,  661 (1st  Cir. 1996)  (noting as  a general  principle that          "[t]he First Amendment protects nonpolicymaking public  employees          from  discrimination   based  on   their  political   beliefs  or          affiliation"); Correa-Martinez, 903 F.2d at 56-57 & n.6 (same).                         _______________               Our conclusion in Romero-Barcelo stemmed from  a recognition                                 ______________          that an administration's need to assure that it can implement the          people's will  is  matched by  the  equally legitimate  right  of          political   opponents  to  exert  pressure  on  behalf  of  their          viewpoints  and  constituents.    Indeed,  like  the  mayor,  the          minority  members of  the  Holyoke  City  Council  represented  a          portion of the electorate, and they therefore share the rationale          that they  were pursuing objectives sanctioned by  the voters who          supported them.  The democratic process envisions a give-and-take          in  matters  of  policy,  and  the  unfortunate  fact  that  some          individuals will be caught  in the crossfire is "an  all too real                                         -9-          by-product of  our long-standing  organization of political  life          into two or more parties," Agosto-de-Feliciano, 889 F.2d at 1217.                                     ___________________               The Elrod-Branti line  of cases struck a balance between the                   ____________          competing  First Amendment  interests  by excluding  policymaking          public  employees from constitutional protection.  See, e.g., id.                                                             ___  ____  ___          at  1215 (quoting  Elrod  to  the effect  that  "there are  First                             _____          Amendment interests  on both  sides"); Pieczynski  v. Duffy,  875                                                 __________     _____          F.2d  1331,  1334   (7th  Cir.  1989)  (noting   "the  balance").          Policymakers, as front-line representatives  of the policies they          were  hired  to  implement,  can be  expected  to  face  stinging          partisan  attacks against their  efforts by outsiders  seeking to          persuade the electorate (and fellow legislators) to make them the          insiders.    Wagner  was in  a  particularly  vulnerable position          because of  the division of power over  his job between the mayor          and city council, both  of whom possessed municipal  authority --          albeit  in different  ways --  to terminate  his employment.   At          least when  the political pressure  exerted by those in  power is          within their  authority,8 the First Amendment does  not provide a          shield for those whose positions are politically sensitive.               We   add   this   comment   about   appellant's   particular          circumstances.  Were appellant's argument to be accepted -- i.e.,                                                                      ____          that  harassment and criticism  by political opponents  rising to          the  level  of  a  constructive  discharge  constituted  a  First          Amendment violation  -- we  quail at the  prospect of  judges and                                        ____________________               8 There is no allegation, for example, that the city council          lacked authority to reduce, or even eliminate, the police chief's          salary, or that improper procedures were followed.                                          -10-          juries  being inundated  by claims  of  unhappy politicians  that          their   opponents   had   transgressed   the   boundary   between          constitutional and unconstitutional fair play.  Partisan politics          does not, we fear, lend itself  to the rulemaking authority of  a          Marquess of Queensberry.               We therefore conclude that, because there is no dispute that          appellant  Wagner's position as  police chief was  a policymaking          one,  the district  court  properly  held that  he  had no  First          Amendment right to be free from discriminatory treatment based on          his politics.   This conclusion makes it  unnecessary to consider          the  other  issues   surrounding  his  First  Amendment   claims,          including  the  adequacy   of  his  allegations,  the   scope  of          legislative immunity, and whether the allegedly improper  motives          of  a four-member  minority  of  a  fifteen-member  city  council          provide a basis for municipal liability.  In these circumstances,          dismissal  of the  state law  claims  also is  appropriate.   See                                                                        ___          McIntosh v. Antonino, 71 F.3d 29, 33 n. 3 (1st Cir. 1995).            ________    ________               The judgment of the district court is affirmed.               _______________________________________________                                         -11-
