          United States Court of Appeals
                      For the First Circuit

Nos. 02-2521, 03-1038, 03-1090


                       CHRISTY PETER MIHOS,
               Plaintiff, Appellee/Cross-Appellant,

                                 v.

      JANE SWIFT, Individually and in her Official Capacity
   as the ACTING GOVERNOR OF THE COMMONWEALTH OF MASSACHUSETTS,
             Defendant, Appellant/Cross-Appellee, and


           WILLIAM F. GALVIN, in his Official Capacity
        as SECRETARY OF THE COMMONWEALTH OF MASSACHUSETTS,
                            Defendant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS
           [Hon. Robert E. Keeton, U.S. District Judge]


                              Before
              Torruella and Lipez, Circuit Judges,
           and Schwarzer,* Senior U.S. District Judge.


     Thomas A. Barnico, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, and David R. Kerrigan,
Assistant Attorney General, was on brief, for appellant.
     Harvey A. Schwartz, with whom Laurie Frankl and Rodgers,
Powers & Schwartz LLP were on brief, for appellee.
_____________________________


                          February 13, 2004




    *
      Of the   Northern    District   of   California,   sitting   by
designation.
            LIPEZ, Circuit Judge. In 2002, then-Acting Governor Jane

Swift   fired   Christy     Peter   Mihos   and   Jordan   Levy   from   their

positions as members of the Massachusetts Turnpike Authority after

both men cast votes on the timing of certain toll increases on

roads and tunnels in Massachusetts.         In this action, Mihos brought

suit against Swift under the First and Fourteenth Amendments and 42

U.S.C. § 1983, alleging that Swift violated his First Amendment

rights by removing him in retaliation for voting against her wishes

on the toll increases.        Swift filed a motion to dismiss, raising

the defense of qualified immunity.

            Although the pleadings never advanced beyond Swift's

motion to dismiss, the district court issued two rulings in this

case, see Mihos v. Swift, 2002 WL 31455257 (D. Mass. 2002)("Mihos

I") and Mihos v. Swift, 235 F. Supp. 2d 45 (D. Mass. 2002)("Mihos

II").     In its first ruling, the court held that Swift violated

Mihos's First Amendment rights, rejected Swift's qualified immunity

defense, and denied Swift's motion to dismiss the claims against

her in her individual capacity.         In its second ruling, the court

entered a declaratory judgment that Swift violated Mihos's First

Amendment    rights   but   essentially     changed   course   on   qualified

immunity, ruling that the law protected Swift against claims for

damages arising from the violation of Mihos's First Amendment

rights.     Specifically, the court entered a final judgment that

included these provisions:


                                     -2-
               (1) Plaintiff, Christy Peter Mihos, is awarded
               the following declaratory relief: It is hereby
               declared that Acting Governor Jane M. Swift,
               acting in her official capacity, violated his
               legally   protected   rights  by   retaliating
               against him for his voting, in his official
               capacity     as     Massachusetts     Turnpike
               Commissioner, contrary to her communicated
               wishes.

               (2) All claims    of Mihos for damages and for
               any other form   of relief beyond that allowed
               in paragraph      (1) of this judgment are
               DISMISSED WITH   PREJUDICE.

Mihos II, 235 F. Supp. 2d at 63.

               Swift appeals the court's denial of her motion to dismiss

in Mihos I and the declaratory judgment entered against her in

Mihos    II.      Mihos   appeals   the   ruling   denying   his   claims   for

damages.1      For the reasons set forth herein, we affirm the denial

of the motion to dismiss, vacate the declaratory judgment and the

denial of damages, and remand for further proceedings.




     1
      Three appeals have been filed in this case. The first, 02-
2521, is Swift's appeal from the court's denial of her motion to
dismiss in Mihos I. The second, 03-1038, is Mihos's appeal from
the court's denial of damages in Mihos II. The third, 03-1090, is
Swift's appeal from the court's award of a declaratory judgment to
Mihos in Mihos II.      Accordingly, Swift is designated as the
"Defendant, Appellant/Cross-Appellee," and Mihos is designated as
the "Plaintiff, Appellee/Cross-Appellant."
     Additionally, William F. Galvin, in his official capacity as
the Secretary of the Commonwealth of Massachusetts, is captioned as
the "Defendant" on these appeals. After a state court proceeding
ordered Mihos reinstated, Mihos's request for injunctive relief
against Swift and Galvin was moot. Consequently, Mihos's motion to
dismiss the claims against Swift in her official capacity and
against Galvin entirely was granted on October 29, 2002, and there
is no appeal pending in this matter regarding Secretary Galvin.

                                      -3-
                                  I.

           This case comes to us with two lengthy state court

opinions and two district court opinions already filed.            See Levy

v. The Acting Governor, 435 Mass. 697, 761 N.E.2d 494 (Mass.

2002)("Levy I"); Levy v. The Acting Governor, 436 Mass. 736, 767

N.E.2d 66 (Mass. 2002)("Levy II"); Mihos I, 2002 WL 31455257 (D.

Mass 2002); and Mihos II, 235 F. Supp. 2d 45 (D. Mass 2002).

Because the extensive and undisputed factual background of this

case has been set forth fully in published opinions, particularly

in Levy II, we will confine our recitation of the facts to those

pertinent to our holdings. The findings and analysis of each prior

opinion are discussed below where relevant to the issues now before

us on appeal.

                           A.    Background

           Governor Paul Cellucci appointed Christy Peter Mihos to

the Massachusetts Turnpike Authority in December 1998 to fulfill

the unexpired term of a departing member.      In July 1999, Governor

Cellucci reappointed Mihos to the Turnpike Authority to a full

eight-year term.    In May 2000, Mihos was elected vice-chairman of

the Turnpike Authority.

           The Turnpike Authority is "a body politic and corporate"

and   "a   public   instrumentality"    authorized    to    operate      the

Massachusetts   Turnpike   and   certain   other   roads   known    as   the

Metropolitan Highway System, including the Massachusetts Turnpike,


                                  -4-
its extension into Boston, and the tunnels under Boston Harbor (the

Sumner Tunnel, the Callahan Tunnel, and the Ted Williams Tunnel).

Mass. Gen. Laws ch. 81A, §§ 1, 3.           Three members, each of whom is

appointed by the Governor, comprise the Turnpike Authority, and a

two member quorum is required to conduct business.                Id. at § 2.

Through agreements with the Massachusetts Highway Department, the

Turnpike Authority is responsible for certain aspects of the design

and construction of the Central Artery/Tunnel Project, commonly

known as "the Big Dig." Additionally, the Turnpike Authority bears

sole responsibility for establishing tolls for the Turnpike, the

Boston    Harbor   tunnel   crossings,      and   the   Metropolitan    Highway

System.

            This toll-setting responsibility gave rise to the dispute

between Mihos and Swift.       The Executive Office of Transportation

and Construction, the Turnpike Authority, and Governor Cellucci

reached a consensus in late 1996 or early 1997 that tolls should be

raised in 1997 and again in January 2002.               In April 2001, then-

Lieutenant Governor Swift took office as Acting Governor when

Cellucci departed to accept an ambassadorial posting.               During the

latter part of 2001, Mihos and Levy became concerned about the

proposals    to    implement   toll    increases        on   portions   of   the

Massachusetts Turnpike in January 2002.            Following investigations

of the financial impact of the proposed toll increase, including

consulting with attorneys, financial experts, and bond counsel for


                                      -5-
the Authority, Mihos and Levy concluded that the toll increase was

neither necessary as a matter of law nor in the best interests of

the Turnpike Authority. Swift, however, supported the January 2002

increase.

             On October 30, 2001, the three Turnpike Authority members

met.   A motion to raise the tolls in January 2002 failed for want

of a second.    Subsequently, a motion to increase the tolls in July

2002 was made, seconded, and passed in a 2-1 vote, with Mihos and

Levy in favor.     Swift delivered letters to Mihos and Levy dated

November 16, 2001, notifying them that she was removing them from

their positions as members of the Turnpike Authority.

                      B.    The State Court Proceedings

             Following receipt of those letters, Mihos and Levy filed

a verified complaint in the Supreme Judicial Court of Massachusetts

seeking, inter alia, declaratory relief that Swift lacked authority

to remove members of the Turnpike Authority.         The Supreme Judicial

Court (SJC) rejected that argument and ruled instead that Mass.

Gen. Laws ch. 30, § 9 "confers on the Acting Governor the power to

remove   a   member    of    the   Massachusetts   Turnpike   Authority   in

accordance with the terms of that statute."          Levy I, 435 Mass. at

700.

             After this ruling, Swift conducted hearings to determine

whether she would remove Mihos and Levy from their positions on the

Turnpike Authority for cause.          By letter dated February 6, 2002,


                                      -6-
Swift notified     Mihos and Levy that she was removing them from

office, asserting that the principal cause for removal was the

fiscal irresponsibility of their votes at the October 30, 2001

meeting.    Mihos and Levy again sought review, in the nature of

certiorari, under Mass. Gen. Laws ch. 249, § 4, in county court.

A single justice reversed and referred the matter to the full

court.     The SJC held, inter alia, that "the dispute involves a

difference of opinion over policy that, in the circumstances, does

not constitute substantial evidence of cause to remove" and vacated

the order of dismissal.    Levy II, 436 Mass. at 737.   Mihos and Levy

were duly restored to their positions and received back pay.

                  C.   The District Court Proceedings

            In addition to seeking review in state court, Mihos

reserved his right to press his First Amendment claim in federal

district court, which he did simultaneously with the state court

proceedings.2    In his district court complaint, Mihos alleged that

Swift violated his First Amendment rights by retaliating against

him because of his vote regarding the timing of the toll increases,

and he sought, inter alia, declaratory relief, compensatory and

punitive damages, and attorney's fees.       Swift responded with a



     2
      See England v. Louisiana State Bd. of Med. Examiners, 375
U.S. 411, 421 (1964)(holding that a party may inform the state
court "that he intends, should the state court[] hold against him
on the question of state law, to return to [federal] District Court
for disposition of his federal contentions.").


                                  -7-
motion to dismiss, asserting the defense of qualified immunity.

Both parties agreed that discovery should be stayed pending the

resolution of the qualified immunity issue.   On October 29, 2002,

the district court rejected Swift's qualified immunity defense and

denied her motion to dismiss.   Mihos I, 2002 WL 31455257 at *7-*8.

The district court then stated that "[t]he only remaining issue or

issues this court must decide concern what relief to plaintiff is

appropriate," and ordered that the parties' arguments on damages

would be heard at the next case management conference.   Id. at *8.

           Pursuant to the district court's request, the parties

submitted memoranda regarding plaintiff's claim for compensatory

and punitive damages, as well as attorney's fees.    Additionally,

plaintiff sought discovery on issues relating to punitive damages.

After denying the discovery request, the district court issued an

opinion and final judgment on December 17, 2002.   Mihos II, 235 F.

Supp. 2d 45.    The district court declared that Swift "violated

[Mihos's] protected rights by retaliating against him for his

voting."   However, even though the district court previously had

ruled in Mihos I that Swift was not entitled to qualified immunity,

it held that Swift's own First Amendment interests served as a




                                -8-
shield to damages, essentially granting Swift qualified immunity,3

regardless of the terminology it employed.4




     3
      We recognize that qualified immunity, in its full scope,
shields public officials from the burdens of lawsuits and damages.
See, e.g., Guzman-Rivera v. Rivera-Cruz 98 F.3d 664, 666 (1st Cir.
1996)("The qualified immunity defense exists not only to shield
officials from liability for damages, but also to protect them from
the general costs of subjecting officials to the risks of trial. .
. .")(internal quotations and citations omitted).
     4
         For example, the district court wrote in Mihos II that

             to comport with constitutional and other
             fundamental principles, [Swift] says qualified
             immunity should be recognized where a public
             official is required to exercise her judgment
             and form an opinion as to a balance between
             competing interests, so long as the official
             does not knowingly or recklessly rely upon
             irrelevant     considerations     or     false
             information, or ignore contrary information.

             Here, defendant Swift asserts that she
             exercised her judgment and acted on her
             opinion in fact-specific circumstances as to
             which previous cases could only have been of
             limited assistance as to the appropriate
             weighing of clashing rights asserted by the
             parties. Swift says no showing has been made
             by Mihos that Swift acted in reckless
             disregard of information not supporting her
             opinion, or relied upon irrelevant or false
             considerations. Accordingly, she should be
             protected from personal liability.

             I conclude that First Amendment precedents
             identified in all the preceding parts of this
             opinion support this assertion by defendant
             Swift.

Mihos II, 235 F. Supp. 2d at 57.


                                  -9-
              Swift appealed the declaratory judgment in Mihos II and

the denial of qualified immunity in Mihos I, and Mihos appealed the

denial of any claim for damages in Mihos II.                 Both parties argue

that    the    record   before    the   district     court   in   Mihos   II   was

inadequate to support the ruling against them.



                                        II.

              We first address the district court's rulings in Mihos

II.    Then, because the scope of the record necessarily affects our

analysis of Swift's qualified immunity defense in Mihos I, we turn

next to       determining   the    record     that   was   properly   before   the

district court.         Finally, we analyze Swift's qualified immunity

defense in light of that record.

  A.    The Mihos II Rulings: Declaratory Judgment for Mihos and
            Judgment for Swift on Mihos's Damages Claim

              Swift seeks reversal of the declaratory judgment that she

violated Mihos's First Amendment rights, arguing that it was

prematurely entered.        We agree.          For a plaintiff to overcome a

qualified immunity defense, he must show that his allegations, if

true, establish a constitutional violation; that the right was

clearly established; and that a reasonable official would have

known that her actions violated the constitutional right at issue.

See Suboh v. District Attorney's Office of Suffolk Dist., 298 F.3d

81, 90 (1st Cir. 2002).          However, the denial of qualified immunity

to a defendant does not translate into a victory for a plaintiff on

                                        -10-
the merits.     A determination that the "plaintiff's allegations, if

true, establish a constitutional violation," Hope v. Pelzer, 536

U.S.   730,     736   (2002),   does    not   mean    that   the   plaintiff's

allegations are true.           It simply means that the case may go

forward.       The court had no basis for entering a declaratory

judgment for Mihos on the constitutional violation claim.

              The judgment for Swift on Mihos's damages claim presents

a different problem.         Although the district court avoided the

language of qualified immunity in its ruling against Mihos, its

conclusion that Swift did not have to answer in damages for a

violation of Mihos's First Amendment right was tantamount to a

qualified immunity victory for Swift.                As such, the denial of

damages in Mihos II was a reversal of the district court's ruling

in Mihos I, which rejected Swift's qualified immunity defense

entirely.      The overriding question is which qualified immunity

ruling was correct. If the court's rejection of qualified immunity

in Mihos I was right, its acceptance of qualified immunity in Mihos

II was wrong.      For reasons we shall explain, the district court's

first ruling was correct.        Consequently, the district court erred

in dismissing Mihos's damages claim.

                        B.   The Scope of the Record

              When a motion to dismiss is based on the complaint, as it

is here, the facts alleged in the complaint control.               Behrens v.

Pelletier 516 U.S. 299, 309 (1996)("[T]he legally relevant factors


                                       -11-
. . . will be different on summary judgment than on an earlier

motion to dismiss.     At that earlier stage, it is the defendant's

conduct as   alleged   in    the   complaint    that   is   scrutinized    for

'objective legal reasonableness.'")(emphasis in the original); see

also Dirrane, 315 F.3d at 69 n.2.          However, as always, there are

exceptions to the rule.      Watterson v. Page, 987 F.2d 1, 3 (1st Cir.

1993)(describing "narrow exceptions for documents the authenticity

of which are not disputed by the parties; for official public

records;   for   documents    central   to    plaintiff's    claim;   or   for

documents sufficiently referred to in the complaint.")

           At issue here is whether and to what extent one of these

exceptions encompasses the SJC's decision in Levy II.           That is, we

must determine whether the decision of the SJC in Levy II changed

the rules applicable to a motion to dismiss when evaluating Mihos's

claim in his federal lawsuit that Swift's motivation for firing him

was constitutionally proscribed.        In her reply brief, Swift neatly

sums up the course of action taken by the district court:                  "the

District Court assumed the facts alleged in the complaint to be

true, disregarded allegations concerning the subjective intent of

the Governor [and] relied on the decisions of the Supreme Judicial

Court to explain the course of the proceedings and the Governor's

stated grounds for removal. . . ."           We agree with Swift that this

is the course of action the district court took; however, that

course was misguided.


                                    -12-
              Because Swift's "motivation in effecting the discharge is

an   essential      element    of    [Mihos's]      constitutional        claim,"   the

motivations      for   Swift's       actions       are   crucial     to   this     case.

Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 45 (1st Cir. 1988).

As we explain in Part C.1.b. infra, the motivation element of the

constitutional claim does not disappear at the qualified immunity

stage.    Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 12 (1st Cir.

2000)(affirming        "the        rightness       of    the    district        court's

consideration of motivation in rejecting the qualified immunity

defense. . . .").

              Here, relying on Levy II for findings about Swift's

motivations for firing Mihos, the district court found that "[i]n

the exercise of her discretion, Swift had concluded that Mihos'[s]

'acts    and     omissions         concerning      the    Authority's       finances,

particularly        during    the     time     period     culminating       with    the

Authority's October 30, 2001[,] [b]oard meeting and immediately

thereafter,     were    fiscally      irresponsible,       resulting       in   adverse

consequences of substantially decreasing projected revenues of the

Authority, damaging the Authority's credit outlook, and creating

financial instability.'"            Mihos II, 235 F. Supp. 2d at 48 (quoting

Levy    II,   436   Mass.     at    744).      Similarly,      the   district      court

determined, based on Levy II, that "Swift further found that the

alternative revenue plan prepared by Mihos was created 'hurriedly'

and in a 'haphazard' manner, and that it did not 'adequately'


                                            -13-
compensate for the revenues that had been lost as a result of

[Mihos's and Levy's] actions."          Mihos II, 235 F. Supp. 2d at 48

(quoting Levy II, 436 Mass. at 746)(alterations in the original).

            Based on these findings, the district court "conclude[d]

that these claims by Mihos are barred by the First Amendment and

other protections against an award of damages for the good faith

performance    of   public   duties    by    the   Acting    Governor   of    the

Commonwealth."      Mihos II, 235 F. Supp. 2d at 62 (emphasis added).

Further, the district court characterized Swift as "an energetic,

strong, and committed governor . . . who has rendered creditable

service to the public by standing fast in the assertion of deeply

held convictions." Id. Finally, the district court found that the

"expressive elements of Swift's actions arise out of the exercise

of her discretion in performing her duties as the Acting Governor

of   the   Commonwealth.       Swift   was    required      to   exercise    that

discretion because she was faced with what she perceived to be,

among other things, gross fiscal irresponsibility on the part of

[Mihos.]"     Id. at 57-58.5


      5
      In reciting these reasons from Levy II, the district court
ignored language in Levy II finding that many of the non-
retaliatory reasons for the terminations advanced by Swift were
supported by "no evidence." See, e.g., Levy II, 436 Mass. at 749-
51 ("There was no evidence that the vote to 'delay' the toll
increases violated any covenant in the 1997 and 1999 trust
agreements or their corresponding bond prospectuses. . . . There
is no evidence that Levy and Mihos failed to do anything legally
required of them. . . . There is no requirement to generate 'new
revenues'.     The plan satisfies the Authority's existing
obligations. . . .   [Mihos's and Levy's] plan had not been the

                                      -14-
          Swift claims that the district court properly relied on

Levy II in making these determinations regarding her motivations

for firing Mihos because, according to Swift, federal courts may

take judicial notice of related decisions of state courts when

ruling on a motion to dismiss.6    In essence, Swift urges that the

SJC's findings in Levy II estop Mihos from alleging in this federal

lawsuit that her motives for firing him were other than those

described by the SJC in Levy II.

          This   argument   misapprehends   the   scope   of   issue

preclusion:   "When an issue of fact or law is actually litigated

and determined by a valid and final judgment, and the determination

is essential to the judgment, the determination is conclusive in a


result of 'haphazard' planning. . . . There was nothing haphazard
about [Mihos's and Levy's] actions. . . .        Contrary to the
Governor's contention, there was no obligation to vote on the
proposed toll increases and the alternative revenue plan at the
same time.")

     6
      In her reply brief, Swift also urges that Levy II is part of
the record because Mihos "made specific reference to the
proceedings before the SJC in his complaint." See, e.g., Watterson
v. Page, 987 F.2d 1, 3 (1st Cir. 1993)("documents sufficiently
referred to in the complaint" can be properly considered on a
motion to dismiss). In paragraph 16 of the complaint, Mihos stated
that "[f]ollowing proceedings in the Massachusetts Supreme Judicial
Court, the defendant Acting Gov. Swift held hearings concerning the
removal of Mr. Mihos and Mr. Levy." This is the only reference in
the complaint to the state court proceedings, and simple chronology
compels the conclusion that Mihos was not referring to Levy II: the
complaint was filed almost three months before Levy II was decided.
We need not decide whether this reference is sufficient to
expressly incorporate Levy I into the record. The findings in Levy
I are not germane to the issues on appeal, and neither party relies
on Levy I for their legal arguments in the briefs.

                               -15-
subsequent action between the parties, whether on the same or a

different    claim."       Restatement       (Second)    of    Judgments   §    27

(1982)(emphasis added).      It follows from this hornbook definition

of issue preclusion that the district court made improper use of

Levy II in deciding Mihos II.         The task before the SJC in Levy II

was to decide whether Swift's stated reasons for terminating Mihos

satisfied the "for cause" standard.               The SJC did not address

whether Swift's stated reasons were actually the reasons that

motivated her actions.      Indeed, the court stated specifically that

"the Governor's good faith and honest judgment play no part in the

instant matters affecting the Authority."               Levy II, 436 Mass. at

749.   In other words, the SJC accepted Swift's stated reasons as

true for purposes of their analysis of "for cause" dismissal under

Massachusetts    law.       Mihos's     complaint       alleges    a   different

motivation: that "Swift was enraged" at Mihos's vote and fired him

"in direct retaliation" in an act of "political interference and

intimidation."    The district court denied Mihos the opportunity to

pursue discovery on these allegations, despite the central role

that motivation plays in First Amendment political retaliation

claims.

            We conclude that the district court's reliance on Levy II

in   assessing   Swift's    actual    motivation    for       firing   Mihos   was

improper since that issue was never litigated.                 As we have said

before, "when two adversaries concentrate in attempting to resolve


                                      -16-
an   issue   importantly   involved   in   a   litigation,   there   is   no

unfairness in considering that issue settled for all time between

the parties and those in their shoes.          But . . . it is unfair to

close the door to issues which have not been on stage center, for

there is no knowing what the white light of controversy would have

revealed."    Farmington Dowel Prods. Co. v. Forster Mfg. Co., Inc.,

421 F.2d 61, 79 (1st Cir. 1969).

             The statements in Levy II related to Swift's motivation

do not fall within one of the exceptions to the general rule that

the facts alleged in the complaint control on a motion to dismiss.

Accordingly, we limit the factual considerations in our qualified

immunity analysis to the allegations in Mihos's complaint.7

                        C.   Qualified Immunity

             Having ascertained the scope of the record before us, we

now turn to Swift's qualified immunity defense.              "[G]overnment

officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known." Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982).         At least to the extent that the

qualified immunity defense turns upon a purely legal question, we


      7
      We need not address at this juncture the exact contours of
the proper use of Levy I and Levy II in the proceedings on remand.
Beyond Swift's attempted reliance on the motivation issue, neither
party seeks to bring other findings in the Levy litigation into the
record.

                                  -17-
review qualified immunity determinations de novo.               See Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985); see also Suboh v. District

Attorney's Office of Suffolk Dist., 298 F.3d 81, 90 (1st Cir.

2002).

               Drawing on Supreme Court precedent and our own case law,

we employ a three-part test when determining if a public official

is     entitled    to   qualified   immunity:      (1)    whether   plaintiff's

allegations, if true, establish a constitutional violation; (2)

whether that right was clearly established at the time of the

alleged violation; and (3) whether a similarly situated reasonable

official would have understood that the challenged action violated

the constitutional right at issue.               Suboh, 298 F.3d at 90.       See

also Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).                       The

"Supreme Court has instructed us to start . . . with the question

of whether the facts as alleged make out a violation of the First

Amendment."       Dirrane v. Brookline Police Dept., 315 F.3d 65, 69

(1st    Cir.    2002)(citing   Saucier      v.    Katz,   533   U.S.   194,   201

(2001))(emphasis in original).        Accordingly, we take each of these

issues in turn.

               1. Constitutional Violation

               Because Mihos alleged that Swift violated his First

Amendment rights, the first step in our qualified immunity analysis

breaks down into a three-part inquiry itself: (1) whether the

speech involves a matter of public concern; (2) whether, when


                                     -18-
balanced against each other, the First Amendment interests of the

plaintiff and the public outweigh the government's interest in

functioning efficiently; and (3) whether the protected speech was

a substantial or motivating factor in the adverse action against

the plaintiff.        Mullin v. Town of Fairhaven, 284 F.3d 31, 37-38

(1st Cir. 2002) (discussing the Supreme Court precedents that

require each of these three inquiries: Connick v. Myers, 461 U.S.

138, 147-48 (1983)(matter of public concern requirement); Pickering

v. Board of Educ., 391 U.S. 563 (1968)(balancing requirement); Mt.

Healthy City School Dist. Bd. Educ. v. Doyle, 429 U.S. 274, 287

(1977)(substantial factor requirement)).      We address each of these

items in sequence.

                 a.    Matter of Public Concern

          For purposes of the motion to dismiss, Swift did not

contest that Mihos's vote on the toll increase was a matter of

public concern.        Mihos I, 2002 WL 31455257, at *5.     Like the

district court, we pause briefly to address the issue on the

merits.

          We are guided in this inquiry by the Supreme Court's

holding in Connick: "Whether an employee's speech addresses a

matter of public concern must be determined by the content, form

and context of a given statement, as revealed by the whole record."

461 U.S. at 147-48.        Mihos's votes against the proposed January

2002 toll increase and for a July 2002 toll increase concerned a


                                   -19-
matter of significant import related to financing the largest

construction project in the country.            Further, the timing of the

increases would affect every person and corporation who used the

Turnpike extension into Boston and the Boston Harbor tunnels.

           "Where a public employee speaks out on a topic which is

clearly a legitimate matter of inherent concern to the electorate,

the court may eschew further inquiry into the employee's motives as

revealed by the 'form and context' of the expression." O'Connor v.

Steeves, 994 F.2d 905, 913-14 (1st Cir. 1993).               There is no need

for further analysis of the "public concern" issue.              We conclude,

as did the district court, that Mihos's votes involved a matter of

public concern, satisfying the first prong of the constitutional

violation analysis.

               b.    Balancing the Interests

           The next step in determining whether Swift violated

Mihos's constitutional rights is to balance the interests of Mihos

and the public in Mihos's speech (his vote) against the "interest

of the State, as an employer, in promoting the efficiency of the

public   services   it   performs     through    its   employees.    .   .   ."

Pickering, 391 U.S. at 568.     See also Mullin, 284 F.3d at 39.           This

process is commonly known as "Pickering balancing."

           It is here, in the Pickering balancing, that Swift's

motivations   for   firing   Mihos    loom   large.     In    evaluating     the

defendant’s side of the scale, Pickering and its progeny instruct


                                     -20-
courts to focus on the government’s “legitimate interests in

preventing unnecessary disruptions and inefficiencies in carrying

out its public service mission.” O’Connor, 994 F.2d at 915 (citing

Pickering, 391 U.S. at 568-75).            Accordingly, if Swift fired Mihos

because she was concerned that the tangible results of his vote

would negatively affect the efficient functioning of government

services and the financial standing of the Turnpike Authority, she

would have weighty interests on her side of the Pickering scale.8

On the other hand, if Swift fired Mihos in a retaliatory fit of

pique because she disagreed with his vote and wished to punish him,

she would have no legitimate governmental interests on her side of

the scale.       Indeed, Swift’s true motivation for firing Mihos for

his vote is a core issue in this case.

               Given the importance of Swift’s motivation for firing

Mihos for his vote, we must pause to address Swift’s argument in

her brief that "the state of mind of the public official is not

relevant to the question of qualified immunity," citing to Harlow

v. Fitzgerald, 457 U.S. 800, 816-17 (1982).               This argument, along

with       citations   to   Harlow,   is   often   made   in   First   Amendment

retaliation cases when defendants raise the qualified immunity

defense.       We are mindful that the Supreme Court in Harlow changed



       8
      In making this observation, we express no opinion regarding
the preclusive effect, if any, that Levy II might have on remand in
evaluating the legitimacy of these concerns or Swift’s ability to
demonstrate them on the record.

                                       -21-
qualified   immunity   doctrine      to   emphasize   the   objective,   not

subjective, nature of that inquiry. However, Harlow does not stand

for the proposition that inquiries into defendants’ subjective

motivation is inappropriate in the first step of the qualified

immunity    analysis      in    assessing    whether    an    intent-based

constitutional violation has been alleged.9

            Prior to Harlow, the third step of the qualified immunity

inquiry consisted of both objective and subjective components: a

defendant would not be entitled to qualified immunity "if he knew

or reasonably should have known that the action he took within his

sphere of official responsibility would violate the constitutional

rights of the [plaintiff], or if he took the action with the

malicious intention to cause a deprivation of constitutional rights

or other injury. . . ."         Wood v. Strickland, 420 U.S. 308, 322

(1975)(emphasis added).         Under Wood, then, a plaintiff could

usually avoid an adverse pre-trial qualified immunity ruling by

merely alleging (1) a constitutional violation (2) of clearly

established   law   (3)    by   a   public   official   who   either   acted

maliciously or knew that his actions would deprive the plaintiff of

his constitutional rights.          This third step involved an inquiry

into the public official’s subjective state of mind to assess


     9
      Although in many areas of the law there are important
distinctions between "intent" and "motive," we use them here
interchangeably because the Supreme Court does so in its qualified
immunity jurisprudence. See, e.g., Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982) and Crawford-El v. Britton, 523 U.S. 574 (1998).

                                     -22-
whether   the   official   acted   with   malice   or   was   aware   of   the

constitutional violation that would flow from his actions.

           Seven years later, in Harlow, the Supreme Court revisited

the relevance of the public official's subjective state of mind in

the qualified immunity analysis.          First, the Court noted that

"[t]he resolution of immunity questions inherently requires a

balance between the evils inevitable in any available alternative."

Harlow, 457 U.S. at 813.       The Court also reiterated its concern

that allowing insubstantial claims against public officials to

proceed to trial exacted costs on society as a whole, "includ[ing]

the expenses of litigation, the diversion of official energy from

pressing public issues, and the deterrence of able citizens from

acceptance of public office."      Harlow, 457 U.S. at 814.      The Harlow

Court noted that Wood v. Strickland's "subjective element of the

good-faith defense frequently has proved incompatible with our

admonition . . . that insubstantial claims should not proceed to

trial . . . [because] an official's subjective good faith has been

considered to be a question of fact that some courts have regarded

as inherently requiring resolution by jury."            Harlow, 457 U.S. at

816.

           Because of the incompatibility of the subjective inquiry

with the need to dismiss insubstantial cases prior to trial, the

Harlow Court found that "the dismissal of insubstantial lawsuits

without trial--a factor presupposed in the balance of competing


                                   -23-
interests struck by our prior cases--requires an adjustment of the

'good faith' standard established by our decisions."       Harlow, 457

U.S. at 814-15. This "adjustment of the 'good faith' standard" was

a reformulation of the third step of the qualified immunity test to

eliminate the good-faith, subjective inquiry: "We therefore hold

that    government    officials   performing   discretionary   functions

generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow, 457 U.S. at 818 (emphasis added).

            Harlow, then, did not affect the first step of the

qualified immunity analysis: whether plaintiff's allegations, if

true, establish a constitutional violation. Certain constitutional

violations, including First Amendment retaliation claims, include

defendant's motivations as a foundational element of the tort:

Mihos's First Amendment retaliation claim "has no meaning absent

the allegation of impermissible motivation."       Acevedo-Garcia, 204

F.3d at 11.10        While the Supreme Court has removed from the

qualified immunity analysis inquiries into whether a defendant knew

that he was violating plaintiff's constitutional rights or acted


       10
      The Supreme Court recently explained again that "[t]he reason
why retaliating against individuals for their speech offends the
Constitution is that it threatens to inhibit exercise of the
protected right. Retaliation is thus akin to an 'unconstitutional
condition' demanded for the receipt of a government-provided
benefit."    Crawford-El v. Britton, 523 U.S. 574, 589 n.10
(1998)(citations omitted).

                                   -24-
maliciously to that end, this jurisprudence has not suggested that

the "objectification" of the qualified immunity inquiry somehow

removes the intent element in the "subset of constitutional torts

[in which] motivation or intent is an element of the cause of

action."   Id.   Accord Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir.

2003)(“Though    the   qualified   immunity   inquiry   is   generally   an

objective one, a defendant's subjective intent is indeed relevant

in motive-based constitutional torts such as the one alleged by

[plaintiff].”).11

             In Crawford-El v. Britton, 523 U.S. 574 (1998), the

Supreme Court confirmed that although Harlow eliminated inquiries

into the defendant's subjective state of mind in the third step of

the qualified immunity analysis, it did not eliminate inquiries

into the defendant's subjective state of mind in the first step of

the qualified immunity analysis when plaintiff alleges an intent-

based constitutional tort.         While striking down a heightened

pleading requirement for motivation-based constitutional torts, the

Crawford-El Court stated that "a judicial revision of the law to

bar claims that depend on proof of an official's motive" was not

justified.    Id. at 592.   The Court went on to explain that "there

is an important distinction between the 'bare allegations of


     11
      Of course, if the constitutional tort itself does not include
a subjective element such as intent, it would be an error to import
such an element into the qualified immunity assessment of whether
the plaintiff's allegations, if true, establish a constitutional
violation.

                                   -25-
malice'    that   would   have     provided   the    basis   for     rebutting   a

qualified immunity defense under Wood v. Strickland [the third

step] and the allegations of intent that are essential elements of

certain constitutional claims [the first step]."               Id.

            Emphasizing its concern with intrusive discovery into a

public official's state of mind, the Court observed that under

Wood, prior to Harlow, allegations of defendant's malicious intent

to cause any injury at all to plaintiff--not just constitutional

deprivations--"would have permitted an open-ended inquiry into [the

official's] subjective motivation." Id.              In contrast, the Court

found that when assessing intent as an element of a constitutional

violation, the motivation inquiry is not so broad as to allow

discovery on any potential theoretical basis for the cause of

defendant's alleged animosity towards plaintiff: "rather, [the

motivation inquiry] is more specific, such as an intent . . . to

deter public comment on a specific issue of public importance."

Id.

            The   Court   then   observed     that    "existing      law   already

prevents   this   more    narrow    element   of     unconstitutional       motive

[alleged as part of the underlying constitutional tort] from

automatically carrying a plaintiff to trial."                Id.   This is true

because a defendant might prevail on a qualified immunity defense

in a case alleging an intent-based constitutional tort, without

need to inquire as to her motives, if (1) the relevant law was not


                                      -26-
clearly established, (2) the plaintiff's speech did not relate to

a matter of public concern, or (3) the defendant showed that she

would have reached the same decision even in the absence of the

employee's protected speech.    Id. at 592-93.   In consequence, as

noted by the Crawford-El Court, "unlike the subjective component of

the immunity defense eliminated by Harlow, the improper intent

element of various causes of action should not ordinarily preclude

summary disposition of insubstantial claims."    Id. at 593.

          In Part IV of its opinion in Crawford-El, the Court

recognized that even though a qualified immunity defense to an

intent-based constitutional tort often can be resolved on grounds

that avoid inquiries into the government official's motives, that

will not always be so.   Therefore, the Court found it "appropriate

to add a few words on some of the existing procedures available to

federal trial judges in handling claims that involve examination of

an official's state of mind."   Id. at 597.   "First, the court may

order a reply to the defendant's . . . answer under Federal Rule of

Civil Procedure 7(a), or grant the defendant's motion for a more

definite statement under Rule 12(e)."12   Id. at 598.   "Second, . .

. the district court should resolve [the] threshold question [of


     12
      Fed. R. Civ. P. 7(a) allows a court to "order a reply to an
answer. . . ."     Fed. R. Civ. P. 12(e) provides that "[i]f a
pleading to which a responsive pleading is permitted is so vague or
ambiguous that a party cannot reasonably be required to frame a
responsive pleading, the party may move for a more definite
statement before interposing a responsive pleading.      The motion
shall point out the defects complained of and the details desired."

                                -27-
qualified     immunity]    before    permitting        discovery       .    .   .   [by]

determin[ing]     whether,      assuming    the   truth    of    the       plaintiff's

allegations, the official's conduct violated clearly established

law."   Id.    The Court then noted that "[i]f the plaintiff's action

survives    these     initial    hurdles    and   is   otherwise       viable,       the

plaintiff ordinarily will be entitled to some discovery.                        Rule 26

vests the trial judge with broad discretion to tailor discovery

narrowly and to dictate the sequence of discovery."                Id.       The Court

described the ways in which the district court may limit the

number,    length,     subject    matter,     time,    place,     and       manner    of

depositions and interrogatories, as well as various discovery

scenarios      that   would     facilitate     "the     prompt     and       efficient

resolution of the lawsuit. . . ."            Id. at 599.    Finally, the Court

observed that "[b]eyond these procedures and others that we have

not mentioned, summary judgment serves as the ultimate screen to

weed out truly insubstantial lawsuits prior to trial." Id. at 600.

              With its careful attention to the ways in which trial

courts can control the examination of an official's state of mind

pre-trial, the Supreme Court acknowledged in Crawford-El that the

adoption of an objective standard for qualified immunity in Harlow

did not foreclose all state of mind inquiries during the pre-trial

consideration of qualified immunity when state of mind is an




                                      -28-
element of the constitutional tort.13    Swift misreads Harlow in

asserting that its reformulation of the qualified immunity defense

makes her motivation in firing Mihos irrelevant to the qualified

immunity analysis.   Therefore, if the qualified immunity defense



     13
      When plaintiffs allege an intent-based constitutional tort,
defendants asserting qualified immunity often quote the passage in
Crawford-El stating that "improper motive is irrelevant on the
issue of qualified immunity. . . ." 523 U.S. at 589. In doing so,
they take the passage out of context. In this portion of Crawford-
El, the Court is explaining how Harlow removed the subjective
elements from the third step of the qualified immunity inquiry so
that "bare allegations" that the defendant maliciously or knowingly
violated plaintiff's constitutional rights would no longer suffice
to overcome a qualified immunity defense. As Crawford-El explains
in the same paragraph, its holding in Harlow "that 'bare
allegations of malice' cannot overcome the qualified immunity
defense did not implicate the elements of the plaintiff's initial
burden of proving a constitutional violation," which is the first
step in the qualified immunity inquiry. As we have explained, the
rest of the Crawford-El opinion confirms this point.
     Indeed, in the footnote immediately preceding the statement
that "evidence of improper motive is irrelevant on the issue of
qualified immunity," Crawford-El quotes an opinion of Justice
Ginsburg, when she was a judge on the District of Columbia Circuit,
and calls it a "correct understanding of Harlow. . . ."

          Had the Court [in Harlow] intended its
          formulation of the qualified immunity defense
          to foreclose all inquiry into the defendants'
          state of mind, the Court might have instructed
          the entry of judgment for defendants Harlow
          and Butterfield on the constitutional claim
          without further ado.      In fact, the Court
          returned the case to the district court in an
          open-ended   remand,   a   disposition  hardly
          consistent with a firm intent to delete the
          state    of    mind   inquiry     from   every
          constitutional tort calculus.

Crawford-El, 523 U.S. at 589 n.11 (quoting Martin v. D.C. Metro.
Police Dep't, 812 F.2d 1425, 1432 (D.C. Cir. 1987)(alteration and
emphasis in original)).

                               -29-
proffered in her motion to dismiss does not identify proper grounds

apart from motive for dismissing the case, and if the thrust of her

motion to dismiss is simply to deny that she acted with the

constitutionally proscribed motive, she is unlikely to succeed.

            Apart from her misguided argument that motivation is

always irrelevant to the qualified immunity inquiry, Swift only

argues   that     no    constitutional    violation        occurred    because    her

termination of Mihos was motivated by her legitimate concerns for

the public's interest rather than by a desire to politically

retaliate against him.           However, as we have previously explained,

on a motion to dismiss we must accept as true the allegations in

Mihos's complaint about Swift's motivation.                    In the Pickering

balance, the exercise to which we now return, these allegations

produce a decisive tilt for Mihos.

            We look first to Mihos’s side of the scale to assess “the

interests served by [Mihos’s First Amendment activity] – including

[his]    interests       in    communicating,   and    the    interests      of   the

community    in        receiving,    information      on     matters    of   public

importance. . . .”            O'Connor, 994 F.2d at 915.        Public officials

have a strong interest in voting their conscience on important

issues without having to suffer retaliatory recriminations from

their superiors.         See, e.g., Connick v. Myers, 461 U.S. 138, 149

(1983)("[I]t is essential that public employees be able to speak

out freely without fear of retaliatory dismissal.").                    The public


                                       -30-
also has a substantial interest in members of public authorities

being able to freely cast their votes in accordance with their best

judgment, without fear of political interference and intimidation.

See Butz v. Economou, 438 U.S. 478, 506 (1978)(noting "public

interest     in    encouraging    the     vigorous   exercise     of   official

authority").       Together, Mihos's and the public's interests weigh

heavily on their side of the Pickering balance.

           In turning to Swift's side of the balance, we find almost

nothing because of the posture of this case.                We have already

explained why the Levy II descriptions of Swift's reasons for

firing Mihos cannot trump the contrary allegations in Mihos's

complaint.        In consequence, the complaint alone sets forth the

factual allegations that inform our review of this motion to

dismiss.

           In his complaint, Mihos explains that Swift stated in the

February 6, 2002 termination letters that she removed Mihos and

Levy from office principally because their votes were "fiscally

irresponsible."        However,   Mihos's      complaint   then   denies   this

charge, stating that the motion for which he voted "was fiscally

sound and in the best interest of the Authority."                 Furthermore,

Mihos alleged that "he exercised his best judgment and concluded

that the January 2002 toll increase was not in the Authority's best

interests and was not necessary as a matter of law."              According to

Mihos's complaint, "Swift was enraged that the Authority failed to


                                        -31-
approve the January 2002 toll increase, which she supported."

Further, Mihos alleged that the actions Swift took against him

"were in direct retaliation for the votes" he took regarding the

tolls.    Finally, Mihos alleged that he was "removed from public

office before the expiration of his term because of disagreement

with the way [he] voted on matters of public concern" and that his

termination was "political interference and intimidation."              The

district court, and this court on appeal, must accept Mihos's

version of the dispute.     Accordingly, when considering only the

complaint, as we are bound to do, we find a void on Swift's side of

the scale and the Pickering scale tips decisively in favor of

Mihos.

               c.   Substantial Factor

           Having   determined   that    the   Pickering   balance   favors

Mihos’s First Amendment rights, we now consider whether his vote

was a substantial factor in Swift’s decision to fire him.            See Mt.

Healthy City School Dist. Bd. Educ. v. Doyle, 429 U.S. 274, 287

(1977).   This “substantial factor” requirement is wholly distinct

from the discussion of “motivation” in the previous section.14


     14
      Many of the qualified immunity cases use the phrases
“substantial factor” and “motivating factor” interchangeably to
describe the causal relationship between the protected conduct and
the adverse action taken against the plaintiff. We prefer to use
the phrase “substantial factor” to avoid confusion with the earlier
discussion of motivation, where motivation, rather than referring
to causation, refers to whether Swift was concerned about
legitimate government interests or impermissible retaliation. See
Stella, 63 F.3d at 74-75 (explaining that "plaintiff must show . .

                                  -32-
Here, the inquiry is whether Mihos’s        termination was attributable

to his exercise of his First Amendment rights or to some other

reason unrelated to his vote.     See id.     In short, the issue is the

causal   link   between   the   protected    conduct   and   the   adverse

employment action.    For purposes of her motion to dismiss, Swift

did not contest that Mihos's vote was the reason for her decision

to remove him from the Turnpike Authority. Again, we pause briefly

to address this issue on the merits.

           Mihos and Levy voted against Swift's wishes regarding the

toll increases on October 30, 2001.           Seventeen days later, on

November 16, Swift informed Mihos and Levy that she was removing

them from office.    Following Levy I and the termination hearing,

Swift notified Mihos and Levy of her decision to remove them for

cause, stating that the principal cause for their removal was their

"fiscally irresponsible" votes on October 30, 2001.            The third

member of the Turnpike Authority, who proposed the January 2002

increases and voted against the July 2002 toll increases, never

received any such communication. Hence, we agree with the district

court that, on these facts, there is no serious dispute that




. that his speech was a substantial or motivating factor for the
adverse action taken against him . . . and the defendant must then
prove . . . that the employer would have acted in the same way
toward the plaintiff ‘even in the absence of the protected
conduct.’"(citing Mt. Healthy, 429 U.S. at 287)(internal citations
omitted)).

                                  -33-
Mihos’s vote on the timing of the toll increases was a substantial

factor in Swift’s decision to remove him from office.

           Having determined that (1) Mihos's vote involved a matter

of public concern, (2) Mihos's and the public's interest are more

weighty on the Pickering scale than Swift's, and (3) Mihos's vote

was a substantial factor in Swift's decision to fire him, we

conclude that Mihos has alleged a violation of his First Amendment

rights.

           2.    Clearly Established Right

           We now turn to whether Mihos's First Amendment right in

this case was clearly established at the time Swift decided to

remove him from the Turnpike Authority.

           The   level   of   abstractness    at   which   the   "right"   in

question is articulated can often determine the outcome of this

inquiry.   In consequence, the Supreme Court has cautioned against

applying   general   definitions   of     constitutional   rights    in    the

qualified immunity context.      Anderson v. Creighton, 483 U.S. 635,

639 (1987). "The inquiry into the nature of a constitutional right

for the purpose of ascertaining clear establishment seeks to

discover whether the right was reasonably well settled at the time

of the challenged conduct. . . ."       Martinez v. Colon, 54 F.3d 980,

988 (1st Cir. 1995).     Additionally, the "inquiry into whether the

right is clearly established 'must be undertaken in light of the




                                   -34-
specific context of the case, not as a broad general proposition.'"

Suboh, 298 F.3d at 93.

           With this guidance in mind, we articulate the First

Amendment right at stake here as the right of a public official to

vote on a matter of public concern properly before his agency

without suffering retaliation from the appointing authority for

reasons unrelated to legitimate governmental interests.           We have

applied a similar formulation before: "[a]lthough we have found no

cases   directly   on   point,   probably   because   it   is   considered

unassailable, we have no difficulty finding that the act of voting

on public issues by a member of a public agency or board comes

within the freedom of speech guarantee of the first amendment. . .

.   There can be no more definite expression of opinion than by

voting on a controversial public issue."        Miller v. Town of Hull,

878 F.2d 523, 532 (1st Cir. 1989).        We reiterated six years later

that this right was clearly established:       "Voting by members of .

. . boards, commissions, and authorities comes within the heartland

of First Amendment doctrine, and the status of public officials'

votes as constitutionally protected speech [is] established beyond

peradventure of doubt. . . ." Stella v. Kelley, 63 F.3d 71, 75 (1st

Cir. 1995).

           Notwithstanding Stella and Miller, Swift urges that "a

balancing test, by its indeterminate nature, makes it highly

unlikely that a public employer, in such circumstances, could be


                                   -35-
held to have violated a clearly established right."         In support of

this proposition, Swift refers to Frazier v. Bailey, quoted by the

district court in Mihos II, holding that when a right is "subject

to a balancing test, the right can rarely be considered 'clearly

established,' at least in the absence of closely corresponding

factual and legal precedent." 957 F.2d 920, 931 (1st Cir. 1992).

Here, though, Miller and Stella provide the "closely corresponding

factual and legal precedents" that would have served to inform a

public official that Mihos's First Amendment right was clearly

established.15

            As Swift acknowledges in her brief, both cases involve

votes by public officials on matters of public concern and their

subsequent removal based on those votes.         Swift seeks to downplay

their import by emphasizing that Miller and Stella neither applied

the Pickering balancing test nor addressed "the limits of the

'right to    vote'   where   the   removing   official   states   that   the

consequences of the decision rendered by the 'vote' will harm the

public interest."

            Once again, Swift is hampered by the procedural posture

of this case.    Her stated belief that the consequences of Mihos's

vote will harm the public interest cannot trump Mihos's claim of a



     15
      Whether a reasonable person in Swift's position would have
known that her actions violated that clearly established right is
a different question.    We address that question in the next
section.

                                    -36-
politically retaliatory motive. As we have explained at length, on

a motion to dismiss the factual allegations in the complaint

control.     Hence, Swift's defense of her action cannot serve to

distinguish Stella and Miller any more than it can weigh on her

side of the Pickering scale.

            3.   The Understanding of a Reasonable Official

            The third step in the qualified immunity analysis, which

embodies the objective standard announced in Harlow, requires us to

analyze    "whether   an        objectively     reasonable   officer   in    the

defendant's position would have understood [her] action to violate

the plaintiff's rights."           Suboh, 298 F.3d 95.        Given the facts

alleged in the complaint, as described in Part I.A. supra, we have

no trouble finding that a reasonable official similarly situated to

Swift would have known that terminating Mihos for his vote violated

his constitutional rights. Taking the allegations in the complaint

as true, Mihos exercised his best judgment as to the proper course

of action, cast his vote, and was fired in retaliation for that

vote for reasons unrelated to legitimate governmental interests.

No reasonable public official could have failed to realize that a

member of a public instrumentality cannot be terminated on such

grounds    for   voting    on    matters   of    public   concern   within   his

authority.

            Having found that (1) Mihos's allegations, if true,

establish a violation of his First Amendment rights, (2) the right


                                       -37-
was clearly established at the time Swift fired him, and (3) a

reasonable public official would have known that the discharge

constituted a constitutional violation, we find that Swift is not

entitled to qualified immunity.16

                               III.

          For the reasons explained above, we affirm the district

court's denial of the motion to dismiss in Mihos I, vacate the

declaratory judgment and the denial of damages in Mihos II, and

remand for proceedings consistent with this opinion.

          SO ORDERED.




     16
      Of course, this ruling does not preclude Swift from asserting
qualified immunity in a subsequent motion for summary judgment or
at trial. See Guzman-Rivera v. Rivera-Cruz 98 F.3d 664, 669 (1st
Cir. 1996)(holding that the "defense of qualified immunity may be
raised and appealed at multiple stages of the trial. . . .").
However, if the trial court denies the request for summary judgment
because of a genuine issue as to any material fact, including
motive, that ruling would not permit an interlocutory appeal. See,
e.g., Stella, 63 F.3d at 74 (holding that "a district court's pre-
trial rejection of a qualified immunity defense is not immediately
appealable to the extent that it turns on either an issue of fact
or an issue perceived by the trial court to be an issue of fact.").

                               -38-
