

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                             

Nos. 95-1950
     95-1951
     95-1952

                       JANET SCOTT-HARRIS,
                       Plaintiff, Appellee,

                                v.

                   CITY OF FALL RIVER, ET AL.,
                     Defendants, Appellants.
                                             

No. 95-2100

                       JANET SCOTT-HARRIS,
                      Plaintiff, Appellant,

                                v.

                   CITY OF FALL RIVER, ET AL.,
                      Defendants, Appellees.
                                             

          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Patti B. Saris, U.S. District Judge]                                                               
                                             

                              Before

                      Selya, Circuit Judge,                                                    
                  Aldrich, Senior Circuit Judge,                                                         
                    and Boudin, Circuit Judge.                                                       
                                             

     Harvey  A. Schwartz, with whom Schwartz, Shaw &amp; Griffith was                                                                       
on brief, for plaintiff.
     Stephen C. Fulton, with whom Law Office of Bruce  R. Fox was                                                                       
on brief, for defendant City of Fall River.
     Bruce A. Assad for defendant Marilyn Roderick.                             
     Robert J.  Marchand, with  whom Driscoll, Marchand,  Boyer &amp;                                                                           
Stanton  and Mary E. O'Neil  were on brief,  for defendant Daniel                                     
Bogan.
                                             

                         January 15, 1997
                                             

          SELYA, Circuit Judge.   Although America began with the                    SELYA, Circuit Judge.                                        

vision of a city on a hill, not every American has shared a sense

of optimism  about our nation's  municipalities.  Indeed,  one of

the  most illustrious  of the  Framers regarded  great  cities as

"pestilential to the morals, the  health, [and] the liberties  of

man."   Christopher Tunnard, The  City of Man  34 (1970) (quoting                                                       

Thomas Jefferson).

          In this  vein, American  legal institutions  have begun

over time  to view cities  with a certain  constitutionally based

suspicion.   Thus,  in Monell  v. New  York City Dep't  of Social                                                                           

Servs.,  436 U.S. 658, 691  (1978), the Supreme  Court ruled that                

municipalities  could be held liable  under 42 U.S.C.    1983 for

deprivations  of  federally   protected  rights  which   occurred

"pursuant to official municipal policy of some  nature."1  Monell                                                                           

opened  the floodgates  for an  outpouring of such  suits against

municipalities.

                                                  

     1The statute provides:

          Every person who, under color of any statute,
          ordinance, regulation, custom,  or usage,  of
          any State  . . .,  subjects, or causes  to be
          subjected, any citizen  of the United  States
          or  other  person  within   the  jurisdiction
          thereof to  the  deprivation of  any  rights,
          privileges,  or  immunities  secured  by  the
          Constitution and laws, shall be liable to the
          party injured  in an  action at law,  suit in
          equity,  or  other   proper  proceeding   for
          redress.

42 U.S.C.    1983 (1994).   The upshot of the  Monell decision is                                                               
that a municipality is  a "person" for purposes of  section 1983,
and, hence, amenable to suit for violations thereof.  See Monell,                                                                          
436 U.S. at 690.

                                2

          The  case at  hand is  one  example of  the genre.   At

trial,  a jury found  the City of  Fall River (the  City) and two

municipal officials liable under section 1983 for the  passage of

a facially neutral ordinance  that abolished the plaintiff's job.

The  defendants'  appeals  raise  a  tantalizing  question  about

whether  a  discriminatory animus  displayed  by  fewer than  the

minimum  number  of city  council  members whose  votes  would be

required to enact an ordinance can  (or should) be imputed to the

municipality  itself.     Other  interesting   questions  abound,

including  questions dealing  with  causation in  the context  of

constitutional torts and the availability of legislative immunity

defenses in that setting.  Before addressing any of these issues,

however, we must  parse Fed. R.  App. P. 4  (a)(6) for the  first

time  and determine  whether  the defendants  have brought  their

appeals in a timeous fashion.

I.  A TALE OF ONE CITY          I.  A TALE OF ONE CITY

          Many  of the  facts in  this case  are conflicted.   We

present them as best they have presented themselves, occasionally

resolving disparities  as the  jury permissibly might  have done.

See, e.g.,  Veranda Beach Club  Ltd. Partnership v.  Western Sur.                                                                           

Co., 936 F.2d 1364, 1375 (1st Cir. 1991) (discussing standard for             

appellate   review  of  post-verdict  challenges  to  evidentiary

sufficiency).

          The City hired  the plaintiff,  Janet Scott-Harris,  as

the administrator of the  newly created Department of  Health and

Human  Services  (HHS).   When  Scott-Harris  entered the  City's

                                3

service in 1987,  she became the  first African-American ever  to

hold a managerial position  in the municipal government.   By all

accounts  she performed quite  well at HHS.   Withal, she did not

enjoy  a  problem-free  relationship  with  the City's  political

hierarchs.    In  1988,  for example,  she  clashed  with Marilyn

Roderick, the  vice-president of the City  Council.  Scott-Harris

believed  that  Roderick  made  inappropriate  references  to  an

aspirant's ethnicity in the course of an employment interview and

stormed out of  the room.   Shortly thereafter, she engaged  in a

shouting  match  with Roderick.   When  Scott-Harris subsequently

attempted to apologize, Roderick hung up the telephone.

          Scott-Harris'  difficulties with  Roderick did  not end

with the aforedescribed incident.   There were periodic flare-ups

   by way of  illustration, Roderick wrote  a letter  to the City

Administrator, Robert Connors, protesting  Scott-Harris' use of a

City-owned motor vehicle    but it was Scott-Harris'  reaction to

the dysphemisms spouted by  Dorothy (Dot) Biltcliffe, a nutrition

program assistant  for the  City's Council  on Aging  (COA), that

precipitated internecine warfare.   In the  fall of 1990,  Scott-

Harris  learned  that   Biltcliffe  had  been   making  offensive

comments.   In  one  instance, referring  to her  co-worker Paula

Gousie and  to Scott-Harris,  Biltcliffe remarked:   "That little

French  bitch has her  head up that  nigger's ass."   In another,

Biltcliffe  referred to  a secretary  as "a little  black bitch."

Scott-Harris spoke out against this racist invective and, because

COA operated  under her  general supervision, she  consulted with

                                4

Connors and then drew up a set of charges against Biltcliffe as a

prelude to dismissal.

          The  pendency  of   these  charges   did  not   improve

Biltcliffe's manners;  she  called Scott-Harris  "a black  nigger

bitch"  and  warned that  there  would  be repercussions  because

Biltcliffe "knew  people."   Biltcliffe  unabashedly pressed  her

case with two city councilors (Roderick and Raymond Mitchell) and

a  state senator who, in  turn, called Roderick.   After numerous

postponements the City  held a hearing  on March 27, 1991.   This

resulted in a settlement under which Biltcliffe agreed to  accept

a 60-day suspension without pay.  Mayor Daniel Bogan subsequently

intervened and pared the punishment substantially.

          During this  time frame  the  City's financial  outlook

worsened.   Municipal officials anticipated that  state aid would

decline up to 10%  in the next fiscal year (July 1,  1991 to June

30, 1992).   Mayor Bogan  directed Connors  to prepare a  list of

proposed budget cuts to  accommodate the anticipated reduction in

funding.   Connors asked  his department heads,  including Scott-

Harris, for  their input.  Scott-Harris  recommended reducing the

hours of school nurses.  Bogan rejected this suggestion and, over

Connors'  objection,  insisted  that  Scott-Harris'  position  be

eliminated.

          Because  the   post  had  been  created   by  municipal

ordinance,  its   abolition  necessitated  the   same  procedural

formalities.  The City  Charter requires the votes of  a majority

of the  nine members of the  City Council for passage  of such an

                                5

ordinance.   The mayor often submits proposed  legislation to the

City Council,  and, in  addition, he  must approve  every enacted

ordinance  (or  else the  Council must  override  his veto).   In

February  1991 Bogan  asked the  Council to  do away  with Scott-

Harris' position.  On March 5 the ordinance committee, chaired by

Roderick,  reported  out  an  emendatory  ordinance  designed  to

achieve  this end and recommended its passage.  Three weeks later

the  City  Council voted  six-to-two  (Roderick  voting with  the

majority) to  approve the position-elimination ordinance.   Bogan

signed it into law.

          At  about the  same time  that he  moved to  incinerate

Scott-Harris'  job, Bogan  offered  her a  different portfolio   

Public Health  Director    which paid approximately  $12,000 less

per annum.    Scott-Harris accepted  the  offer by  letter  dated

February 28,  1991, but a  follow-up communiqu  from  Bogan added

extra duties and shifted Scott-Harris to a less desirable office.

Disappointed,  Scott-Harris  drafted a  letter rejecting  the job

offer.   That letter mysteriously  arrived at the  mayor's office

and was  acted upon  by  Bogan despite  Scott-Harris' efforts  to

retract it.   Scott-Harris' tour of  duty with the City  ended on

March  29,  1991    two  days  after  the  hearing  that  led  to

Biltcliffe's suspension.  She filed suit several months later.

II.  THE LITIGATION          II.  THE LITIGATION

          Solon, the fabled  Greek legislator, once characterized

the best type of city as one "in which those who are not wronged,

no  less than those who  are wronged, exert  themselves to punish

                                6

the  wrongdoers."   Plutarch,  Plutarch's  Lives 455  (Bernadotte                                                          

Perrin trans., 1914).  Here, the plaintiff's complaint alleged in

substance that the City and certain municipal officials2 inverted

the Solonic ideal:   when the plaintiff responded forcefully (but

appropriately) to Biltcliffe's racial slurs, the defendants sided

with the  wrongdoer and instead punished  Scott-Harris by ousting

her from her  position under  a blatant pretext.   The  plaintiff

alleged  that, in  so doing,  the  defendants abridged  her First

Amendment  rights and  set the  stage for  redress under  section

1983.  See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429                                                                      

U.S. 274, 287  (1977) (explaining that in  order to prevail on  a

section 1983  claim based on  the First Amendment,  the plaintiff

must  prove  that her  protected  speech  was  a  substantial  or

motivating factor in the decision to eliminate her job).

          At trial the defendants  asserted that their motives in

passing the  challenged ordinance  were exclusively fiscal.   The

plaintiff disagreed,  contending that racial animus  and a desire

to punish  her for  protected speech, not  budgetary constraints,

spurred  the introduction and passage  of the ordinance.   On May

26,  1994,  evidently persuaded  by  the  plaintiff's efforts  to

connect Dot to her dismissal, the jury returned a verdict against

                                                  

     2The  plaintiff  originally sued  a plethora  of defendants.
She quickly narrowed  the field to Connors,  Roderick, Bogan, and
the City.  During the ensuing trial, the judge directed a verdict
in  Connors' favor.  The plaintiff has not contested that ruling,
and  we discuss these appeals as if Bogan, Roderick, and the City
were the sole defendants.

                                7

all three defendants.3

          The  verdict form  memorialized the  jury's conclusions

(1) that the plaintiff's  constitutionally protected speech was a

substantial  or motivating  factor  both in  Bogan's decision  to

recommend enactment  of the ordinance and  in Roderick's decision

to work for its  passage, and (2) that these  actions proximately

caused  the  extirpation  of the  HHS  director's  position.   As

originally  returned,  the  verdict form  added  an  inconvenient

wrinkle;  it indicated that the plaintiff had not proven that the

City's  professed desire  to  enact the  ordinance for  budgetary

reasons was pretextual.   Out  of the jury's  earshot, the  judge

expressed her  concern that  the jury's findings  were internally

inconsistent.   After a brief  colloquy, she resubmitted the case

to the jury with  appropriate supplemental instructions.  Shortly

thereafter  the  jury  returned  a  revised  verdict  form  which

reiterated everything except the  "no pretext" finding.   In that

wise,  the jury,  having reconsidered  the matter,  now concluded

that  the  City's  stated  reason for  wanting  the  ordinance   

budgetary concerns   was not its true reason.

          The  jury  assessed  compensatory  damages  against all

three  defendants,  jointly  and  severally,  in  the  amount  of

$156,000;  found Bogan liable for  punitive damages in the amount

of $60,000; and found Roderick liable for punitive damages in the

                                                  

     3The  jury   found  against   the  plaintiff  on   her  race
discrimination claim, and she does not contest that finding here.

                                8

amount  of   $15,000.4     The  court  subsequently   denied  the

defendants' motions  for  judgment notwithstanding  the  verdict.

These appeals followed   but not without a  perturbing procedural

prelude.

III.  THE NOTICES OF APPEAL          III.  THE NOTICES OF APPEAL

          Rule  4(a)(1)  of  the   Federal  Rules  of   Appellate

Procedure  requires that  notices of  appeal  "be filed  with the

clerk  of the  district court within  30 days  after the  date of

entry of the judgment  or order appealed from."   Compliance with

this  rule is  mandatory and  jurisdictional; while  a court  may

construe  the rule's  strictures  liberally, it  may not  wink at

them.  See  Torres v.  Oakland Scavenger Co.,  487 U.S. 312,  315                                                      

(1988); Air Line Pilots Ass'n v. Precision Valley Aviation, Inc.,                                                                          

26 F.3d 220, 223 (1st Cir. 1994).

          In  this  instance  the   district  court  entered  the

appealable order    the order denying  the defendants' post-trial

motions  for  judgment  n.o.v.     on  January  30,  1995.    The

defendants did not file  their notices of appeal until  August of

that  year.  Without more, Rule 4(a)(1) would bar the maintenance

of these appeals.

          The  appeal  period  denominated by  Rule  4(a)(1)  is,

                                                  

     4Although punitive damages may  lie against individuals in a
section 1983 action,  see, e.g., Keenan v.  City of Philadelphia,                                                                          
983 F.2d 459, 469-70 (3d Cir. 1992); Davet v. Maccarone, 973 F.2d                                                                 
22,  27 (1st  Cir.  1992),  they  are  not  available  against  a
municipality.   See City of  Newport v. Fact  Concerts, Inc., 453                                                                      
U.S. 247, 271 (1981).

                                9

however, subject to an occasional exception.  One such exception,

added to the Appellate Rules in 1991, provides:

          The district  court, if  it finds (a)  that a
          party entitled  to notice  of the entry  of a
          judgment or order did not receive such notice
          from the clerk or any party within 21 days of
          its  entry and  (b)  that no  party would  be
          prejudiced, may, upon motion filed within 180
          days  of entry  of the  judgment or  order or
          within  7  days of  receipt  of  such notice,
          whichever  is  earlier, reopen  the  time for
          appeal for a period of 14 days from  the date
          of the entry of  the order reopening the time
          for appeal.

Fed. R. App. P. 4(a)(6).  The mention of "notice" in Rule 4(a)(6)

is a reference to Fed. R. Civ. P. 77(d), which provides:

          Immediately  upon the  entry of  an order  or
          judgment the  clerk shall serve  a notice  of
          entry by  mail in the manner  provided for in
          Rule 5 upon  each party who is not in default
          for failure to appear,  and shall make a note
          in the docket of the mailing.   Any party may
          in addition  serve a notice of  such entry in
          the manner provided in Rule 5 for the service
          of papers.   Lack of  notice of the  entry by
          the clerk does not  affect the time to appeal
          or  relieve or authorize the court to relieve
          a party for failure to appeal within the time
          allowed, except  as permitted in Rule 4(a) of
          the Federal Rules of Appellate Procedure.

          These  rules lie  at the  center of  the jurisdictional

jumble  that  confronts us.    On  the defendants'  motions,  the

district court held a hearing and determined that Fed. R. App. P.

4(a)(6) appropriately could be  invoked to excuse the defendants'

seeming tardiness.  The  plaintiff's cross-appeal challenges this

determination.  Because Rule  4(a)(6) is relatively new, we  have

not yet had occasion to construe it.  We do so today, deciding at

the outset that the standard of review which governs a district's

                                10

court's determinations under Rule 4(a)(6) is abuse of discretion.

Accord Nunley  v. City of Los Angeles, 52 F.3d 792, 794 (9th Cir.                                               

1995).

          Certain  elements  of  the  Rule  4(a)(6) calculus  are

essentially undisputed:  the  defendants were parties entitled to

notice of the  entry of  the appealable final  order; their  Rule

4(a)(6) motions,  filed on April 10 and 11, 1995, came within 180

days of  the entry of that order; and no party would be subjected

to  cognizable prejudice by the  granting of the  motions.  Thus,

the  decisive  questions  in  this  case  relate  to  whether the

defendants  received notice of the  entry of the  order within 21

days, and if not,  whether they filed their Rule  4(a)(6) motions

within  seven days of the time when they eventually received such

notice.

          Both of these questions  involve an appreciation of the

kind  of notice that Rule  4(a)(6) contemplates.   In terms, Rule

4(a)(6)  advances a unitary concept of notice; its two references

to "such notice" plainly relate back to the phrase "notice of the

entry of a judgment or order."   The problem, exemplified by this

case, is that the rule does not specify whether that  notice must

be written notice or  actual notice.  That problem  defies facile

solutions, and the courts of appeals which have addressed it thus

far have not  achieved consensus.   Compare Avolio  v. County  of                                                                           

Suffolk, 29 F.3d  50, 53  (2d Cir. 1994)  (holding that the  rule                 

contemplates written notice) with Nunley, 52 F.3d at 794 (holding                                                  

that actual notice suffices) and Zimmer St. Louis, Inc. v. Zimmer                                                                           

                                11

Co.,  32  F.3d 357,  359  (8th  Cir.  1994) (same).    Though  we             

acknowledge  that  the  phrase, simpliciter,  is  susceptible  of                                                     

multiple  interpretations,  we  believe  that the  references  to

"notice"  in Rule  4(a)(6), taken  in context,  are best  read as

requiring written notice.

          Our starting  point is  our  perception that  Appellate

Rule  4(a)(6) and  Civil Rule 77(d)  must be read  in pari passu.                                                                          

Accord Nunley, 52 F.3d at  795.  The text of Rule  77(d) requires                       

the clerk  to serve the notice  of entry of an  order or judgment

"by mail."   Because a  mailed notice is  invariably written,  it

seems  logical to conclude that  when reference is  made later in

the  text  to  "lack of  notice  of  the  entry," that  reference

contemplates lack of written notice.                                      

          We think that further evidence  to the same effect  can

be gleaned from the  scrivenings of the Advisory Committee.   The

Advisory Committee's Notes are entitled to weight in interpreting

federal  rules of practice and procedure.  See Whitehouse v. U.S.                                                                           

Dist. Ct.  for Dist.  of R.I.,  53 F.3d 1349,  1364-65 (1st  Cir.                                       

1995).  Here, they tell us that Rule 4(a)(6)

          provides a limited opportunity for  relief in
          circumstances where the notice of  entry of a
          judgment or order, required  to be mailed  by
          the  clerk of the  district court pursuant to
          [Rule  77(d)], is  either not  received by  a
          party or is received so late as to impair the
          opportunity  to  file  a  timely   notice  of
          appeal.

Fed.  R.  App.  P.  4(a)(6), Advisory  Committee's  Notes.    The

statement "required to be mailed" refers to "notice of entry of a

judgment or order," again  suggesting that the notice must  be in

                                12

writing.  We believe that when a procedural rule uses the precise

phrase employed by  the Advisory Committee, it  can reasonably be

inferred that the phrase means the same thing in both contexts.

          Policy  concerns  point  us  in  the   same  direction.

Reading  Rule 4(a)(6)  to  require written  notice will  simplify

future  proceedings.   As  the familiar  request  to "put  it  in

writing" suggests, writings are more readily susceptible to proof

than  oral communications.  In particular, the receipt of written

notice (or its  absence) should be more  easily demonstrable than

attempting to discern whether (and, if so, when) a party received

actual  notice.    Such a  scheme  not  only  takes  much of  the

guesswork  out of  the  equation, but  also,  because Rule  77(d)

specifically provides that parties  who do not wish to  rely upon

the  clerk to  transmit the  requisite written  notice may  do so

themselves,  the  scheme  confers  certitude  without  leaving  a

victorious litigant at the mercy of a slipshod clerk.

          To sum up, we  hold that written notice is  required to

trigger  the  relevant  time  period  under  Rule  4(a)(6);  oral

communications or other  forms of actual  notice will not  serve.

We now apply this holding to the facts at hand.

          The district  court found  that the defendants  did not

receive  written notice of the entry of the operative order until

April  7, 1995, when the  plaintiff's counsel sent  them a demand

letter  seeking satisfaction  of the  judgments.  The  court made

this  finding  against  a  backdrop  of   unusual  events.    The

defendants' motions for judgment  n.o.v. were argued on September

                                13

29, 1994.  During that session, an unrecorded sidebar  conference

occurred.   The  court's  comments at  that  conference left  all

counsel  with the  distinct impression  that an  appealable final

judgment would not  enter until the court decided the plaintiff's

pending application for attorneys' fees.  Although the impression

was  mistaken, see Budinich v.  Becton Dickinson &amp;  Co., 486 U.S.                                                                 

196, 202-03 (1988) (holding that the appeal period commences once

a  final decision on the merits has been entered, irrespective of

any  claim  for attorneys'  fees),  it  proved persistent.    The

plaintiff's lawyer,  no less than defense  counsel, labored under

the  misimpression; he wrote to  the defense team  on February 2,

1995,  stating  in  relevant  part:    "I  received  the  Court's

memorandum  and order on the defendants' motion for J.N.O.V.  The

only  remaining  issue  before  judgment can  be  entered  is the                                                                   

plaintiff's  unopposed  motion  for attorney's  fees."  (Emphasis

supplied).

          Unbeknownst  to  the parties,  however,  the  court had

granted the plaintiff's motion for  attorneys' fees in late 1994.

The  clerk  entered this  order  on the  docket  but, apparently,

neglected to serve  copies of the  order or the  docket entry  on

counsel.   To  complicate matters  further, when  defense counsel

made  inquiries to the clerk in February  and March of 1995 as to

whether  an  order  had  been   entered  disposing  of  the   fee

application, the clerk said that one had not.

          Last  but not least, although all counsel in one way or

another  had  actual   notice  of  the  order  that   denied  the

                                14

defendants'  motions for  judgment  n.o.v. by  February 1,  1995,

cases discussing Rule 4(a)(6)  differentiate between notice of an

order and notice of the  entry of the order, indicating that  the

rule contemplates  the latter.   See  Virella-Nieves v. Briggs  &amp;                                                                           

Stratton Corp.,  53 F.3d 451,  452-54 (1st  Cir. 1995).   In this                        

instance the clerk attempted to furnish such notice, but one copy

of the court's  order was addressed  incorrectly and returned  by

the  Post Office as undeliverable, while another copy, plucked by

a different lawyer from the clerk's office, bore no notation that

it had been entered on the docket.  From this  tangled record the

district  court  concluded  that,  though at  least  one  defense

attorney  received actual  notice of  the entry  of the  order on

February 24, 1995,5  it was not  until April 7,  1995   when  the

plaintiff's  attorney demanded  satisfaction of  the  judgments  

that  the  defendants received  a  written  notice sufficient  to

animate Rule 4(a)(6).  They filed their excusatory motions within

seven days of their receipt of this notice.

          Given these facts, and given the confused circumstances

that  contributed to the muddle, the district court did not abuse

its discretion in  finding that the requirements  of Rule 4(a)(6)

had been  met and in  reopening the time  for appeal.   Since the

defendants all filed  their notices of  appeal within the  14-day

period  that began on August  14, 1995, when  Judge Saris entered

her  order reopening the time for doing  so, we conclude that the

                                                  

     5We note, parenthetically, that  even this notice came after
the 21-day period specified by Rule 4(a)(6) had elapsed.

                                15

appeals are properly before us.

IV.  THE VERDICT FORM          IV.  THE VERDICT FORM

          The  defendants collectively  assert that  the district

court erred in refusing to declare a mistrial when presented with

the  original  verdict  form  and added  impudence  to  injury by

resubmitting the  case for further  deliberation.  We  review the

district court's denial of the defendants' motions for a mistrial

for abuse  of discretion.   See Clemente  v. Carnicon-P.R.  Mgmt.                                                                           

Assocs., 52  F.3d 383,  388  (1st Cir.  1995).   We evaluate  the                 

judge's  related actions,  namely,  her decisions  to reject  the

original  verdict form and to resubmit the matter, under the same

standard of  review.   See Santiago-Negron v.  Castro-Davila, 865                                                                      

F.2d 431, 444 (1st Cir. 1989).

          The defendants' argument on this point boils  down to a

claim that the  district court  crafted a verdict  form that  was

structurally flawed; that the  jury responded to it  by returning

two  irreconcilable  findings; and  that, therefore,  Judge Saris

should  have granted the defendants' motions for a mistrial.  But

it  is not enough to  preserve the defendants'  point that, after

the jury  first returned  with the  verdict form,  the defendants

pounced  on the  perceived  inconsistency and  moved to  pass the

case.   Rather, the viability  of this assignment  of error harks

back  to  the  circumstances  surrounding the  emergence  of  the

verdict  form.   Although the  defendants now  say that  the form

tempted potential confusion, they failed to object when the judge

initially submitted it to the jury.  The failure to object to the

                                16

structure of a  verdict form  before the jury  retires, like  the

failure to object  to any  other portion of  the judge's  charge,

constitutes  a waiver.  See Fed. R. Civ.  P. 51; see also Phav v.                                                                        

Trueblood,  Inc., 915 F.2d 764, 769 (1st Cir. 1990) (holding that                          

Rule 51  applies to verdict forms as well as to the trial court's

oral instructions);  Anderson v. Cryovac, Inc., 862 F.2d 910, 918                                                        

(1st   Cir.  1988)  ("If  a  slip  has  been  made,  the  parties

detrimentally affected must act expeditiously to cure it, not lie

in wait  and ask for another  trial when matters turn  out not to

their liking.").

          We need not probe this point too profoundly, for in all

events  the  judge  handled   the  perceived  incongruity  in  an

agreeable manner.    When  a verdict  appears  to  be  internally

inconsistent, the safest course    in the absence of  irreparable

damage,  and  none appears  here    is  to defer  its acceptance,

consult with  counsel, give  the jury  supplemental instructions,

and recommit the matter for further consideration.  See Hafner v.                                                                        

Brown, 983  F.2d 570, 575 (4th Cir. 1992) ("If the district judge               

concludes that an inconsistent verdict reflects jury confusion or

uncertainty, he or she has the duty to clarify the  law governing

the case and resubmit the verdict for a jury decision."); Poduska                                                                           

v. Ward, 895 F.2d 854, 856 (1st Cir. 1990) (deeming it "precisely                 

correct" for a judge, faced with an unclear and inconsistent jury

verdict, to provide  supplemental instructions and then  recommit

the matter  to the jury).   This is exactly the  course of action

that  Judge Saris  followed.   The  actual instructions  that she

                                17

gave,  first orally  and then  in  a written  response to  a jury

question,  were   unimpugnable.6     We  discern  no   error,  no

unfairness,  and no  abuse  of discretion  either in  the judge's

handling  of matters related to the verdict form or in her denial

of the defendants' motions for a mistrial.

V.  MUNICIPAL LIABILITY          V.  MUNICIPAL LIABILITY

          We  turn  now to  the  City's  principal assignment  of

error.   Clearly, a municipality may be held liable under section

1983   for  the  passage  of  a  single  ordinance  or  piece  of

legislation.   See, e.g., Pembaur v. City of Cincinnati, 475 U.S.                                                                 

469, 480 (1986).  Although municipal liability cannot be based on

the doctrine of respondeat superior in this context,  see Monell,                                                                          

436 U.S. at 691, such liability can flow from a  finding that the

city  itself  has  acted  through  an  official decision  of  its

legislative body.7  Hence,  from a purely theoretical standpoint,

nothing prevents a determination  that, if the ordinance  here in

question    which was passed by a majority vote of the Fall River

City Council and approved by the mayor   violates the plaintiff's

First Amendment rights, then the City is liable for the violation

                                                  

     6Neither  Bogan nor  Roderick  voiced any  objection to  the
court's supplemental instructions.   The lone objection lodged by
the City  challenged the  judge's interchanging of  "real reason"
and  "true reason"  during  her supplemental  instructions.   The
judge understandably dismissed this  objection as nitpicking, and
the City (wisely, in our view) has not resuscitated it on appeal.

     7Such  a  decision  can  be manifested  either  through  the
enactment  of an ordinance or through the adoption of a municipal
policy.  See, e.g., Pembaur, 475 U.S. at 479-81; Monell, 436 U.S.                                                                 
at 690.  Thus, adoption-of-policy cases are pertinent to a survey
of enactment-of-ordinance cases.

                                18

under section 1983.

          We pause at this juncture.  We think it is important to

note  early  on  that  the  defendants  have  not challenged  the

premise, or the district judge's confirmatory ruling, that Scott-

Harris'  speech was protected by the First Amendment in the sense

needed  to give  rise to  a claim  under section  1983.   Yet the

Supreme Court has laid down important restrictions:  to give rise

to a section 1983 action, a  plaintiff's speech must have been on

a  matter  of public  concern,  and  her interest  in  expressing

herself  must  not  be  outweighed  by  the  state's  interest as

employer  in promoting  the efficiency  of the  services that  it

performs.  See Waters v. Churchill, 114 S. Ct. 1878, 1884 (1994);                                            

Connick v. Myers, 461 U.S. 138, 142 (1983).                          

          Given the Supreme Court's application of these tests in

Connick, 461 U.S. at  147-54, one could argue that  Scott-Harris'                 

comments about, and efforts  to discipline, a particular employee

do not qualify as  speech on a matter  of public concern.   We do

not pursue  this point because it  has not been argued  to us; it

has, therefore, effectively been waived.  We mention it, however,

because we do not intend our opinion to be taken as deciding that

the facts here asserted comprise protected speech.

          We note, moreover, that  there is another unusual twist

to this  case.   In  most similar  instances, the  constitutional

deprivation is apparent on  the face of the  ordinance or in  the

text  of the  challenged municipal  policy, thus  eliminating any

need for  a  predicate inquiry  into  the motives  of  individual

                                19

legislators.  See,  e.g., City  of Oklahoma City  v. Tuttle,  471                                                                     

U.S.  808, 822-23 (1985); City of Newport v. Fact Concerts, Inc.,                                                                          

453  U.S. 247, 251-53 (1981);  Bateson v. Geisse,  857 F.2d 1300,                                                          

1303  (9th Cir. 1988); Little v. City  of N. Miami, 805 F.2d 962,                                                            

967  (11th  Cir.  1986);  18A  James  Perkowitz-Solheim  et  al.,

McQuillin Mun. Corp.   53.173 (3d ed. 1993).   Here, by contrast,                              

the City enacted an ordinance which, on its face, is  benign.  In

cases  like this one, implicating the exercise of First Amendment

rights, liability under section 1983 can attach to the passage of

a  facially  benign law  only if  one  peers beneath  the textual

facade and concludes  that the  legislative body acted  out of  a

constitutionally  impermissible  motive.    This  is  a  delicate

business,   but   this  court   previously   has  sanctioned   an

investigation into the motives that  underlay the enactment of  a

facially neutral ordinance for the purpose of assessing liability

under section 1983, see  Acevedo-Cordero v. Cordero-Santiago, 958                                                                      

F.2d 20, 23 (1st Cir. 1992), and we are bound by that precedent.

          Still, the accumulated jurisprudence  leaves perplexing

problems of proof  unanswered.  The  baseline principle is  well-

settled:  legislators' bad motives may be proven by either direct

or  circumstantial evidence.  See, e.g., United States v. City of                                                                           

Birmingham, 727 F.2d  560, 564-65 (6th  Cir.), cert. denied,  469                                                                     

U.S. 821 (1984); Smith v. Town of Clarkton, 682 F.2d 1055,  1064-                                                    

65 (4th Cir. 1982).  But this principle speaks to the qualitative                                                                           

nature of the evidence that is gathered; it  does not address the

quantitative  question.  That question is best framed as follows:                      

                                20

How  many  municipal  legislators  (or,  put  another  way,  what

percentage  of  the  legislative  body)  must  be  spurred  by  a

constitutionally  impermissible  motive  before the  municipality

itself  may be held liable under section 1983 for the adoption of

a  facially neutral  policy or  ordinance?   This is  a difficult

question, and the case law proves a fickle companion.

          Some courts appear to have held that the plaintiff must

adduce evidence sufficient to show that a majority of the members

of the legislative body  acted from a constitutionally proscribed

motive before this kind of municipal liability can attach.  Often

this  position is implied  rather than  specifically articulated.

See generally United  States v.  City of Yonkers,  856 F.2d  444,                                                          

457-58   (2d  Cir.  1988).    But  some  courts  have  been  more

forthcoming.  In Church v. City of Huntsville, 30 F.3d 1332 (11th                                                       

Cir. 1994), a group of homeless persons alleged that the city had

adopted  a  policy of  excluding them  from  the community.   The

plaintiffs  based  their section  1983  action  on  the acts  and

statements  of one individual on a five-member city council.  The

court  observed that  a single  council member  did not  have any

authority either  to establish  municipal policy  or to  bind the

municipality.  See  id. at  1343-44.  It  therefore examined  the                                 

evidence against the  other four councilors, finding that two had

opposed the alleged policy and that two had expressed no views on

the  subject.    The  court  refused  to  draw  an  inference  of

discriminatory intent  from the  silence of council  members, see                                                                           

id. at 1344 n.5, and rejected the plaintiffs' claim.             

                                21

          Other courts,  acting principally in the  areas of race

and  gender discrimination,  have  not required  evidence of  the

motives of  a majority of  the legislative  body before  imposing

liability on the municipality under section 1983.  Representative

of this line of cases is United States v. City of Birmingham, 538                                                                      

F. Supp.  819 (E.D. Mich.  1982), aff'd, 727  F.2d 560  (6th Cir.                                                 

1984).   There,  the  district  court  held  a  city  liable  for

violations  of the Fair Housing  Act, 42 U.S.C.     3604(a), 3617

(1994),  based  on  the   actions  of  a  seven-member  municipal

commission  which  had  blocked  the  construction  of  racially-

integrated housing by  a four-to-three vote.   While opponents of

the  project  had  attributed  their  position  to  a  series  of

articulated nondiscriminatory rationales, the court looked behind

their avowals and  ruled, based  on a combination  of direct  and

circumstantial  evidence,  that  racial  considerations  actually

propelled the commission's action.  538  F. Supp. at 826-27.  The

court  concluded that  the  city could  be  held liable  for  the

commissioners'  animus even  though  there was  no  proof of  the

motives  of all four commissioners who voted to kill the project;

it  was enough,  the court  suggested, if  "racial considerations

were a motivating factor among a significant percentage  of those

who were responsible  for the city's [rejection of the project]."

Id. at 828.  Explicating this construct, the court indicated that             

a "significant percentage" would not have to encompass the entire

four-person majority.  See  id. at 828-29.  Noting  evidence that                                         

racial  concerns motivated "at least  two of the  four members of

                                22

the majority faction," the court declared that "[t]hat fact alone

may be  sufficient to attribute a  racially discriminatory intent

to the City."  Id. at 829.8                            

          Two   Massachusetts   cases   also  premise   municipal

liability on  evidence  concerning less  than a  majority of  the

relevant legislative body.  In Southern Worcester County Regional                                                                           

Voc.  Sch. Dist. v. Labor Relations Comm'n, 436 N.E.2d 380 (Mass.                                                    

1982),  the Supreme Judicial  Court (SJC) upheld  a lower court's

finding that  the plaintiffs had  been discharged based  on their

union activity.   The SJC declared  that "it is not  fatal to the

[plaintiffs']  claims that only three of the seven members of the

school committee made anti-union  statements."  Id. at 385.   The                                                             

court concluded that the  three members' statements, coupled with

evidence  of bias on the  part of the  school superintendent (who

had  no vote), sufficed to support the finding of liability.  See                                                                           

id.  Similarly, in Northeast Metro. Regional Voc. Sch. Dist. Sch.                                                                           

Comm.  v. MCAD,  575  N.E.2d  77  (Mass.  App.  1991),  a  gender                        

discrimination case involving a refusal  to hire, the court noted

that direct  evidence of bias had  been exhibited by only  two of

the twelve members of the school committee.  See id. at 81.   The                                                              

                                                  

     8This rationale finds succor in United States v. Yonkers Bd.                                                                           
of  Educ., 837 F.2d 1181,  1221-23 (2d Cir.  1987), cert. denied,                                                                          
486 U.S. 1055 (1988), in which the court of appeals held the city
liable  for Fair  Housing  Act  violations.   Though  the  city's
liability derived from the  actions of a 12-member city  council,
the court focused  almost exclusively on statements  by the mayor
(who  had only one vote on the council) and race-based opposition
expressed by  a few other councilors.   The court did not premise
its  decision on a requirement that a majority of the council had
acted out of impermissible motives.

                                23

court upheld a finding of liability based on this evidence and on

statements by  three other  committee members that  the plaintiff

had  been a  victim of  discrimination and/or  had been  the best

qualified candidate for the job.  See id. at 81-82.                                                   

          The precedent in this area is uncertain, and persuasive

arguments can  be made on both sides.  On the one hand, because a

municipal ordinance can become law only by a majority vote of the

city  council, there is  a certain incongruity  in allowing fewer

than a majority  of the council  members to subject  the city  to

liability  under  section  1983.    On  the  other  hand, because

discriminatory animus  is insidious and  a clever pretext  can be

hard to  unmask, the law sometimes  constructs procedural devices

to ease a victim's burden of proof.  See, e.g., McDonnell-Douglas                                                                           

Corp.  v.  Green,  411  U.S.  792,  802-05  (1973)  (establishing                          

presumptions for  use in  Title VII  cases);  Mesnick v.  General                                                                           

Elec.  Co.,  950  F.2d  816,  823-24 (1st  Cir.  1991)  (adopting                    

comparable format for  age discrimination  cases), cert.  denied,                                                                          

504 U.S. 985 (1992).  Where,  as here, a plaintiff alleges that a

city's  councilors connived  to victimize  her by  the pretextual

passage  of  a  facially  neutral ordinance,  it  may  be  overly

mechanistic  to  hold  her  to  strict  proof  of the  subjective

intentions of a numerical majority of council members.

          Cognizant of  these competing  concerns, we  eschew for

the  time  being  a bright-line  rule.    Rather,  we assume  for

argument's  sake  (but  do not  decide)  that  in a  sufficiently

compelling  case the  requirement  that the  plaintiff prove  bad

                                24

motive  on  the  part  of  a  majority  of  the  members  of  the

legislative body might  be relaxed and a  proxy accepted instead.

Nevertheless,  any such  relaxation  would be  contingent on  the

plaintiff mustering evidence of  both (a) bad motive on  the part

of  at  least  a  significant   bloc  of  legislators,  and   (b)

circumstances suggesting  the probable complicity of  others.  By

way of illustration, evidence of procedural anomalies, acquiesced

in by  a majority of  the legislative  body, may support  such an

inference.   See, e.g., City  of Birmingham, 727  F.2d at 564-65;                                                     

Town of Clarkton, 682 F.2d at  1066-67.  By like token,  evidence                          

indicating  that  the  legislators  bowed  to   an  impermissible

community animus, most commonly manifested by an unusual level of

constituent pressure, may  warrant such an inference.  See, e.g.,                                                                          

United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1221-25 (2d                                               

Cir.  1987),   cert.  denied,  486  U.S.  1055  (1988);  City  of                                                                           

Birmingham, 538 F. Supp. at 824-27.  The key is  likelihood:  Has                    

the  plaintiff  proffered  evidence,  direct  or  circumstantial,

which, when reasonable  inferences are drawn in  her favor, makes

it  appear  more  probable  (i.e.,  more  likely  than  not) that

discrimination was  the real  reason underlying the  enactment of

the ordinance or the adoption of the policy?

          The  facts of this case  do not require  that we refine

the  point  to any  further extent.    Scott-Harris has  not only

failed to prove that a majority of the councilors possessed a bad

motive, but she also has failed  to furnish enough circumstantial

evidence  to ground  a  finding that,  more  likely than  not,  a

                                25

discriminatory animus propelled the City Council's action.

          The evidence, viewed most hospitably to the plaintiff,9

reveals  that six of  the nine councilors  voted in  favor of the

challenged ordinance and two opposed it.  The plaintiff presented

sufficient  evidence from which a  jury could deduce  that one of

these  six, Roderick, along with Mayor  Bogan (who did not have a

vote), acted  out of a bad motive.10  The plaintiff also produced

some glancing  evidence apropos  of Councilor Mitchell:   he  and

Roderick  were   friends;  Roderick   spoke  to  him   about  the

Biltcliffe/Scott-Harris  imbroglio;  and  Biltcliffe called  him,

presumably to protest her  treatment.  The jury could  have found

from other evidence in  the case that Mitchell probably  voted in

favor of the  ordinance (although the  record does not  eliminate

the possibility that he abstained).  Even though Mitchell did not

testify and  the substance of his conversations with Roderick and

Biltcliffe are unknown, we assume arguendo that a jury reasonably

could infer that Mitchell, too, acted for a proscribed reason.

          The  remaining  gaps  in  the  plaintiff's   proof  are

                                                  

     9On the  question of  evidentiary sufficiency, we  review de
novo  the denial of the City's motion for judgment n.o.v.  Gibson                                                                           
v. City of Cranston, 37  F.3d 731, 735 (1st  Cir. 1994).  We  are                             
bound by  the  same decisional  standards  that bound  the  court
below:    we must evaluate the  record without regard to  witness
credibility, testimonial  conflicts, or unevenness  in the weight
of  the evidence,  see  id., and  we  must affirm  unless,  after                                     
surveying the evidence and  the inferences derivable therefrom in
the light most flattering  to the plaintiff, we determine  that a
rational  factfinder could  not  have resolved  liability in  her
favor, see Veranda Beach Club, 936 F.2d at 1375.                                       

     10We discuss the evidence against Roderick and Bogan in Part
VI(C), infra.                      

                                26

considerably more difficult to overlook.  None of the other seven

city council  members uttered any untoward  statements or engaged

in  any suspicious  actions.   The  "we  must slash  the  budget"

pretext  had a ring of plausibility, and from aught that appears,

none of these  seven individuals had any way of  knowing that the

position-elimination ordinance  would not  save  the City  sorely

needed funds.   Nor is  there strong  circumstantial evidence  of

complicity;  indeed, the record tells us almost nothing about the

inclinations of the silent seven.11  Moreover, the plaintiff made

virtually no effort to adduce such evidence.  She neither deposed

any of the seven nor called them as witnesses at trial.  She  did

not  attempt to show  that any of  the other four  councilors who

voted  for the ordinance had any basis  for doubting the truth of

the  party line  ("we  must  slash  the  budget")  or  that  they

possessed ties to Roderick  or Bogan, or that they  were beholden

to  Biltcliffe, or that they  were hostile to  Scott-Harris.  The

stark fact is that the motivations of the council members   other

than  Roderick  and Mitchell     did  not receive  individualized

scrutiny.   By  any  responsible standard,  this sparse  evidence

falls  short of  providing a  proper predicate  for a  finding of

municipal liability.

          We  do  not think  it is  a  coincidence that  in every

                                                  

     11The  record does  show that  one council member  who voted
against the  ordinance, John  Medeiros, called the  plaintiff and
asked  why  "they" were  trying  to  get rid  of  her.   But  the
plaintiff provided no  insight into  who "they" might  be and  no
evidence  that "they" comprised a majority, or even a significant
bloc, of the City Council.

                                27

analogous case  in which municipal liability has  been imposed on

evidence implicating less than a  majority of a legislative body,

substantial  circumstantial  evidence   existed  from  which  the

requisite discriminatory animus  could be inferred.   In City  of                                                                           

Birmingham, the evidence showed that the race-based opposition of                    

constituents  to integrated  housing was  widespread, pronounced,

and  vociferously  articulated.     After  several  members   who

supported the  racially integrated  development were  ousted from

office, the commission responded to this unremitting pressure and

took  the  unprecedented step  of  submitting the  proposal  to a

community referendum.  538 F. Supp. at 826-29.  In Yonkers Bd. of                                                                           

Educ.,  the  requisite inference  was  supported  by evidence  of               

massive constituent agitation  as well as by "departures from the

normal  procedural  sequence"  in   respect  to  the   challenged

proposal.  837 F.2d at 1221. 

          In this case no such evidence exists.  Nothing suggests

the  City Council  deviated from  its  standard protocol  when it

received and enacted the ordinance that abolished the plaintiff's

job.  Nothing suggests that the  vote took place in an atmosphere

permeated   by  widespread   constituent  pressure.12     Putting

speculation and surmise to one side, it simply cannot be inferred

that more than  two of the council  members who voted to  abolish

                                                  

     12The plaintiff's assertion  that the publication of  front-
page  articles about  her  plight in  the  local newspaper  shows
constituent  coercion  will not  wash.   There  is  a significant
difference between heightened public  interest   an environmental
phenomenon  with  which  legislatures  grapple  constantly    and
pervasive constituent pressure.

                                28

the  plaintiff's  position did  so  to punish  her  for protected

speech.    We  cannot rest  municipal  liability  on  so frail  a

foundation.   Because no reasonable  jury could find  against the

City  on the proof presented, Fall River's motion for judgment as

a matter of law should have been granted.

VI.  INDIVIDUAL LIABILITY          VI.  INDIVIDUAL LIABILITY

          Roderick and Bogan advance a different constellation of

arguments in support  of their  motions for judgment  n.o.v.   We

treat these arguments sequentially.

                    A.  Legislative Immunity.                              A.  Legislative Immunity.                                                      

          The individual  defendants  concentrate most  of  their

fire  on  the  district  court's  rendition  of  the doctrine  of

legislative immunity.  While municipalities do not enjoy immunity

from  suit under section  1983, see Leatherman  v. Tarrant County                                                                           

Narcotics  Intell.  &amp;  Coord. Unit,  507  U.S.  163,  166 (1993),                                            

lawmakers have absolute immunity from civil liability for damages

arising  out  of  their  performance  of  legitimate  legislative

activities.  See Tenney  v. Brandhove, 341 U.S. 367,  376 (1951);                                               

National  Ass'n of Social Workers v. Harwood, 69 F.3d 622, 629-30                                                      

(1st Cir. 1995).   This immunity derives from federal  common law

and,  under  existing  Supreme Court  precedents,  embraces state

lawmakers,  see Tenney, 341 U.S.  at 376, and regional officials,                                

see  Lake Country Estates,  Inc. v. Tahoe  Regional Plan. Agency,                                                                          

440 U.S. 391, 405 (1979).13
                                                  

     13Members  of  Congress  enjoy   a  parallel  immunity  from
liability for their  legislative acts under the Speech  or Debate
Clause, U.S. Const. art. I,   6, cl. 1.  See Doe v. McMillan, 412                                                                      

                                29

          The Court  has yet to decide  whether local legislators

are  protected by  this  strain of  absolute  immunity, see  Lake                                                                           

Country  Estates, 440 U.S. at 404  n.26 (reserving the question),                          

but the lower federal courts, including this court, have shown no

reticence in holding that the doctrine of legislative immunity is

available to  such persons.  See, e.g., Acevedo-Cordero, 958 F.2d                                                                 

at 22-23; Aitchison  v. Raffiani,  708 F.2d 96,  98-100 (3d  Cir.                                          

1983);  Reed v. Village of  Shorewood, 704 F.2d  943, 952-53 (7th                                               

Cir.  1983);  Bruce v.  Riddle, 631  F.2d  272, 274-80  (4th Cir.                                        

1980).  We reaffirm today that the shield of legislative immunity

lies within reach of city officials.

          This  holding  does  not  end our  inquiry.    Although

legislative   immunity   is  absolute   within   certain  limits,

legislators  are not immune with respect to all actions that they

take.   The dividing line  is drawn along  a functional axis that

distinguishes between  legislative and administrative acts.   The

former are protected,  the latter are not.   See Acevedo-Cordero,                                                                          

958F.2d at 23. We have useda pair of testsfor separating the two:

          The first  test focuses on the  nature of the
          facts used  to reach the given  decision.  If
          the underlying facts on which the decision is
          based  are  "legislative   facts,"  such   as
          "generalizations concerning a policy or state
          of   affairs,"   then    the   decision    is
          legislative.    If  the  facts  used  in  the
          decision  making are  more specific,  such as
          those that relate  to particular  individuals
          or   situations,   then   the   decision   is
          administrative.   The second test  focuses on
          "the particularity of the impact of the state
          of   action."     If   the   action  involves
                                                  

U.S. 306, 324 (1973); Harwood, 69 F.3d at 629.                                       

                                30

          establishment  of a  general  policy,  it  is
          legislative;  if  the  action "single[s]  out
          specifiable  individuals  and affect[s]  them
          differently     from    others,"     it    is
          administrative.

Cutting v. Muzzey, 724  F.2d 259, 261 (1st Cir.  1984) (citations                           

omitted).

          When   the  relevant   facts  are   uncontroverted  and

sufficiently   developed,  the   question  whether   an   act  is

"administrative"  as opposed  to "legislative"  is a  question of

law, and  it may be  decided by the  judge on a  pretrial motion.

See Acevedo-Cordero, 958 F.2d at 23.  When the material facts are                             

genuinely disputed, however, the  question is properly treated as

a question of  fact, and  its disposition must  await the  trial.

See id.                 

          In some  ways, Acevedo-Cordero  and this case  are fair                                                  

congeners.    There,  as   here,  the  defendants  asserted  that

budgetary  woes  sparked  the  enactment  of  a  facially  benign

position-elimination ordinance.  There, as here, the plaintiff(s)

countered  with  a  charge  that,  in  fact,  a  constitutionally

proscribed reason lurked  beneath the surface.   There, as  here,

conflicted  evidence as  to the  defendants' true  motives raised

genuine issues of material fact.  Acevedo-Cordero teaches that in                                                           

such  situations the issue of  immunity must be  reserved for the

trial.  See id.                         

          Judge   Saris   faithfully  applied   these  teachings,

refusing   to  reward  premature   attempts  by   the  individual

defendants  to dismiss  the action  on  the basis  of legislative

                                31

immunity.  At  the end of  the trial, the  jury made two  crucial

findings.  First, it found that the defendants' stated reason for

enacting the position-elimination  ordinance was  not their  real

reason.   Second, it found that  the plaintiff's constitutionally

sheltered  speech was a  substantial or motivating  factor in the

actions which  Roderick and  Bogan took vis- -vis  the ordinance.

These  findings reflect  the  jury's belief  that the  individual

defendants  relied on facts relating to a particular individual  

Scott-Harris    in  the  decisionmaking calculus  and devised  an

ordinance that targeted Scott-Harris and  treated her differently

from other managers employed by the City.

          We think that in  passing on the individual defendants'

post-trial motions,  the judge in effect  accepted these findings

and concluded  that  the position-elimination  ordinance  (which,

after  all, constituted  no  more in  this  case than  the  means

employed by Scott-Harris' antagonists to fire her) constituted an

administrative rather than  a legislative  act.  As  long as  the

quantum of proof  suffices   a matter to which  we shall return  

both this conclusion and its natural corollary (that Roderick and

Bogan  are  not  shielded  from liability  by  operation  of  the

doctrine of  legislative immunity) rest on  solid legal ground.14

See, e.g., Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27-                                                          

                                                  

     14The  defendants  do  not   assert  a  claim  of  qualified
immunity,  nor would  such  a claim  be fruitful  here.   It  was
clearly established at  the time of  the plaintiff's ouster  that
public  officials  could  not constitutionally  punish  a  public
employee for protected speech.  See Mt. Healthy, 429 U.S. at 283-                                                         
84.

                                32

28 (1st Cir.  1994), cert. denied, 115 S.  Ct. 1098 (1995); Vacca                                                                           

v.  Barletta, 933 F.2d 31, 33 (1st  Cir.), cert. denied, 502 U.S.                                                                 

866 (1991).

                          B.  Causation.                                    B.  Causation.                                                 

          Roderick  has another string  to her  bow.   She posits

that, as a matter of law, her actions in respect to the position-

elimination ordinance cannot be deemed the proximate cause of the

harm to  Scott-Harris.15  She bases  this claim on the  fact that

her vote alone was impuissant:  five votes would ensure enactment

of the ordinance, but  six legislators voted for passage.   Thus,

not only was she unable to get  the ordinance enacted by herself,

but it also would have been passed without her cooperation.  This

thesis  has  a patina  of  plausibility,  but  it  misstates  the

question before us (and, consequently, we take no view of it).

          According to accepted lore, section 1983 actions are to

be  considered   against  the  background  of   traditional  tort

principles.   See  Monroe  v. Pape,  365  U.S. 167,  187  (1961);                                            

Wagenmann v. Adams,  829 F.2d 196, 212 (1st Cir.  1987).  In tort                            

law,  determinations  relating   to  causation  are   customarily

"question[s] of  fact for the jury, to  be solved by the exercise

                                                  

     15Bogan does not press a comparable claim, probably because,
as  he concedes in his brief, the plaintiff's ouster required two
distinct steps:  (1)  the mayor's proposal of the  ordinance, and
(2) a favorable vote by a majority of the city council.  Although
both  events were  necessary, Bogan's  actions could  properly be
considered a proximate cause of the ultimate harm.  See Wagenmann                                                                           
v.  Adams, 829 F.2d  196, 212 (1st  Cir. 1987)  (upholding a jury                   
finding that  a police officer's characterization  of plaintiff's
conduct  was a proximate cause  of excessive bail,  even though a
judicial officer was responsible for the ultimate bail decision).

                                33

of good common sense in the consideration of the evidence of each

particular case."   Springer v.  Seamen, 821 F.2d  871, 876  (1st                                                 

Cir.   1987)   (citations  omitted).      Phrased   another  way,

"[a]pplication of  the legal cause standard  to the circumstances

of a particular case  is a function ordinarily performed  by, and

peculiarly within the competence  of, the factfinder."  Swift  v.                                                                       

United States, 866 F.2d 507, 510 (1st Cir. 1989).                       

          In  this  instance,  the  judge  charged  the  jury  as

follows:

          The defendant's actions  are the legal  cause
          of the  plaintiff's injuries if [they were] a
          substantial  factor  in  bringing  about  the
          harm. . . .  It does not matter whether other
          concurrent   causes    contributed   to   the
          plaintiff's injuries so long as you find that
          the  defendant's  actions were  a substantial
          factor  in producing  them.   If  defendant's
          actions were a substantial factor,  then they
          were  the legal  cause  or what  we call  the
          proximate cause.

Because no one objected  to these instructions, they,  whether or

not entirely accurate, are the  law of the case.16  See  Moore v.                                                                        

Murphy, 47 F.3d 8, 11  (1st Cir. 1995); Milone v.  Moceri Family,                                                                           

Inc., 847 F.2d 35, 38-39 (1st Cir. 1988).              

          We believe that the jury, applying this standard to the

facts before it, could  reasonably have concluded that Roderick's

overall  conduct  was  a  substantial  factor  in  depriving  the
                                                  

     16We do not mean to suggest that the particular instructions
given  here are  problematic.   To the  contrary, they  appear at
first  blush to comport with  precedent.  See  Furtado v. Bishop,                                                                          
604  F.2d 80,  89 (1st  Cir. 1979)  (discussing causation  in the
context of section 1983), cert. denied, 444 U.S. 1035 (1980); see                                                                           
also O'Brien  v. Papa Gino's  of Am., Inc.,  780 F.2d 1067,  1072                                                    
(1st Cir. 1986).

                                34

plaintiff of her constitutional rights.  After all, Roderick  was

not just another face in the crowd:  she served as vice-president

of the City  Council and  chaired its ordinance  committee; as  a

result, the jury easily could find that she played a  role in the

passage of the ordinance that was disproportionate  to her single

vote.  In order to gain approval, the ordinance had to go through

the five-member ordinance committee.   Roderick established  this

committee's agenda, and  its favorable report on March  5 cleared

the way for the ordinance's enactment.17

          Although the plaintiff's evidence in this regard is not

robust, it  suffices in the context  of the record as  a whole to

render the issue of causation susceptible to differing evaluative

determinations.    Thus,  the  district  judge  did  not  err  in

submitting the causation question  to the jury.  And  because the

jury  reasonably could have adopted one such view of the evidence

and  concluded that Roderick made a successful effort to have the

plaintiff ousted, the liability finding must stand.

                 C.  Sufficiency of the Evidence.                           C.  Sufficiency of the Evidence.                                                          

          Roderick and Bogan, in chorus, assert that insufficient

evidence  exists from which a  jury lawfully could  find that the

                                                  

     17The  fact that  other causes  (i.e., the  votes  of fellow
council  members) concurrently  contributed  to the  harm neither
insulates Roderick's  conduct nor  undercuts the  jury's verdict.
See Ricketts  v. City  of Columbia,  36 F.3d 775,  779 (8th  Cir.                                            
1994),  cert. denied, 115 S. Ct. 1838 (1995); Wagenmann, 829 F.2d                                                                 
at 211-13; see generally Marshall v. Perez Arzuaga, 828 F.2d 845,                                                            
848 (1st Cir. 1987) (stating  that a "defendant is liable if  his
negligence is a proximate  cause of the damage although  it might
not be the  sole proximate  cause of such  damage") (emphasis  in                          
original; citations omitted), cert. denied, 484 U.S. 1065 (1988).                                                    

                                35

desire to punish  the plaintiff  for her protected  speech was  a

substantial or  motivating factor  behind the actions  which they

took.  This assertion is easily refuted.

          In challenging a jury verdict on sufficiency grounds, a

defendant  labors under  a  heavy  burden.    See  supra  note  9                                                                  

(elucidating  applicable   legal  standard  and   citing  cases).

Because  the evidence in this  case is capable  of supporting two

sets  of divergent  inferences, Roderick  and Bogan  cannot carry

their burden.

          We choose not  to tarry.  It  suffices to say  that, on

this pleochroic record, the jury could have found that Biltcliffe

used political connections to  hinder the investigation of Scott-

Harris' accusations  by, inter  alia, banishing the  accuser, and                                              

that  Roderick and Bogan  were the instruments  of her vengeance.

Roderick bore an animosity toward Scott-Harris based on a history

of friction between the two women, and the jury permissibly could

have  found that when  Biltcliffe complained to  her about Scott-

Harris'  charges, she  spoke to  Connors; that  when Scott-Harris

persisted,  Roderick  agreed  to  push  the  position-elimination

ordinance despite  the fact that Scott-Harris  was performing her

duties well; that the asserted budgetary basis for  the ordinance

was a sham;18 and that Roderick knew as much.

          As to Bogan, much of the same evidence is relevant.  In
                                                  

     18On this point, the evidence permitted the jury to conclude
that,   rather  than   saving  money,   the  position-elimination
ordinance actually  cost more because it  necessitated the hiring
of three new administrators to manage agencies that the plaintiff
had been supervising single-handed.

                                36

addition, the jury could  have found that he knew  Biltcliffe and

resented Scott-Harris' outspoken efforts  to cashier her; that he

abetted the  effort to save Biltcliffe's  sinecure by terminating

Scott-Harris (and no other  manager) for a bogus reason;  that he

proposed   the  position-elimination   ordinance  to   that  end,

notwithstanding  Connors' opposition;  that he happily  signed it

into  law;  that when  he learned  of Scott-Harris'  intention to

accept a  different municipal  position at a  reduced salary,  he

pulled the rug from under  her by increasing the responsibilities

of  the job and shifting her to  a dingy office; that when Scott-

Harris  tried  to  retract   her  rejection  of  this  diminished

position, he foiled her efforts to  do so; and that in all events

Bogan   showed  his   true  colors  by   shortening  Biltcliffe's

suspension.

          To  be sure,  this  set of  conclusions  does not  flow

ineluctably from  the evidence,  but it represents  a permissible

construction  of  the  record.   Consequently,  the  evidence  is

adequate to support the verdicts against both Roderick and Bogan.

VII.  ATTORNEYS' FEES          VII.  ATTORNEYS' FEES

          Our journey is not yet ended.  The last leg requires us

to  revisit  the  lower  court's  order  awarding  the  plaintiff

$83,179.70 in counsel fees  and associated expenses against three

defendants  (Roderick,   Bogan,  and   the  City),   jointly  and

severally.

          In a section 1983  action a court, "in  its discretion,

may  allow the prevailing party . . . a reasonable attorney's fee

                                37

as part  of the costs."   42 U.S.C.    1988 (1994).   Despite its

seemingly precatory  tone, we  have interpreted this  language to

mean that  "a prevailing  plaintiff is presumptively  entitled to

fee-shifting"  in  a   section  1983  case.    Casa  Marie  Hogar                                                                           

Geriatrico,  Inc. v. Rivera-Santos,  38 F.3d  615, 618  (1st Cir.                                            

1994);  accord Foster v. Mydas  Assocs., Inc., 943  F.2d 139, 145                                                       

(1st  Cir.   1991)  (stating  that  a   prevailing  civil  rights

plaintiff's  entitlement to a fee award "comes almost as a matter

of course").  For this purpose, a party prevails if  she succeeds

on a significant issue in the litigation and thereby achieves all

or some meaningful part  of the benefit that she  envisioned when

she brought suit.   See Hensley v.  Eckerhart, 461 U.S. 424,  433                                                       

(1983); Pearson  v. Fair, 980 F.2d  37, 43 (1st Cir.  1992).  The                                  

converse,  of course, is equally  true:  if  a plaintiff's claims

against  a  particular defendant  come to  naught,  she is  not a

prevailing  party and  is not  entitled to  reap a  harvest under

section 1988.   See Nunez-Soto  v. Alvarado, 956  F.2d 1,  3 (1st                                                     

Cir. 1992).  Moreover, if a plaintiff succeeds in the trial court

but the  judgment she obtains  is reversed  on appeal, she  is no

longer entitled  to a  fee  award.   See Globe  Newspaper Co.  v.                                                                       

Beacon Hill Arch. Comm'n, 100 F.3d 175, 195 (1st Cir. 1996).                                  

          Applying  these standards  to the  case at  bar,  it is

evident  that the matter  of attorneys'  fees must  be rethought.

Because the plaintiff prevailed below on claims against all three

defendants,  none of them opposed  her application for  fees.  In

their  appeals, however, they preserved the issue of whether (and

                                38

to what extent)  the fee  award could withstand  the reversal  on

appeal of all  or some  part of the  judgments.  This  precaution

serves  the City in good  stead; because the  judgment against it

must be reversed, see supra Part V, the fee award against it must                                     

be nullified.

          This  leaves a nagging question as to the status of the

award  vis- -vis  Roderick  and Bogan.    On  the  one hand,  the

judgments against  those two defendants remain  intact, see supra                                                                           

Part  VI,  and,  thus,  as  to  them,  the  plaintiff  remains  a

prevailing  party presumptively entitled to reasonable attorneys'

fees.  On the  other hand, the record before  us is opaque as  to

the  proper  extent  of  that  entitlement.    This   opacity  is

particularly  pronounced because we do not know how much (if any)

of the work  performed by  the plaintiff's lawyer  in respect  to

Scott-Harris' unsuccessful claims against  the City paved the way

for  her successful  claims  against  the individual  defendants.

This is  an important datum  because a court  may allow  fees for

time  spent  on unsuccessful  claims  only  if those  claims  are

sufficiently linked to successful claims.  See Lipsett v. Blanco,                                                                          

975 F.2d  934, 940-41 (1st Cir. 1992);  Aubin v. Fudala, 782 F.2d                                                                 

287, 290-92 (1st Cir. 1986).

          We need go no further.  From what we have  said to this

juncture,  it is apparent  that the matter  of fees must  be more

fully  explored   and it  is preferable for  obvious reasons that

the trial court, as opposed to this court, undertake what amounts

to an archeological dig  into counsel's time sheets and  make the

                                39

necessary factual  determinations.   We therefore vacate  the fee

award against the City  and remand so that the district court can

reconsider the amount of  fees and costs that should  properly be

assessed against the remaining defendants.

          The plaintiff also has  prevailed on appeal against two

of  the defendants, and she  is entitled to  a reasonable counsel

fee for  the work  that yielded  this victory.   Though we  often

entertain such fee applications directly, we have sometimes opted

to have  the district  court  handle them.   See,  e.g., Rodi  v.                                                                       

Ventetuolo, 941 F.2d  22, 31 (1st Cir.  1991); see also  1st Cir.                                                                 

Loc. R. 39.2 (permitting  use of this alternative).   Because the

district  court must  in any  event reopen  its inquiry  into the

overall  question of fees, we deem it expedient for the plaintiff

to file her application for  fees on appeal with that court,  and

for  that court  to make  the supplementary award.   We  leave to

Judge Saris the procedure to be  followed on remand in respect to

both   reexamination   of   the   original  award   and   initial

consideration  of the supplementary  award for  services rendered

and expenses (apart from ordinary costs) incurred on appeal.

          The  plaintiff's cross-appeal  (No. 95-2100)  is denied                    The  plaintiff's cross-appeal  (No. 95-2100)  is denied                                                                           

and the district  court's order permitting  the reopening of  the          and the district  court's order permitting  the reopening of  the                                                                           

appeal period is affirmed.  The judgment against the City of Fall          appeal period is affirmed.  The judgment against the City of Fall                                                                           

River is reversed, and the fee  award against it is vacated.  The          River is reversed, and the fee  award against it is vacated.  The                                                                           

judgments against  the remaining defendants are  affirmed and the          judgments against  the remaining defendants are  affirmed and the                                                                           

case is remanded to the district court for further proceedings in          case is remanded to the district court for further proceedings in                                                                           

                                40

respect to  both the previous fee award  against these defendants          respect to  both the previous fee award  against these defendants                                                                           

and the question of fees on appeal.  No costs are awarded in Nos.          and the question of fees on appeal.  No costs are awarded in Nos.                                                                           

95-1950 and 95-2100; costs  are awarded to the plaintiff  in Nos.          95-1950 and 95-2100; costs  are awarded to the plaintiff  in Nos.                                                                           

95-1951 and 95-1952.          95-1951 and 95-1952.                             

                                41
