                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


PAULETTE N. MCWATERS,                      
                 Plaintiff-Appellee,
                   v.
ROBERT R. COSBY, in his official
capacity as a member of the Board of
Supervisors of Powhatan County, and
in his personal capacity,
                  Defendant-Appellant,
                  and
JOHN F. RICK, in his official capacity
as County Attorney for Powhatan
County, Virginia and in his personal
capacity; STEPHEN F. OWEN, in his
official capacity as County                   No. 02-1430
Administrator for Powhatan County,
Virginia and in his personal capacity;
ROY J. HARRISON, in his official
capacity as a member of the Board of
Supervisors of Powhatan County, and
in his personal capacity; T. J. BISE, in
his official capacity as a member of
the Board of Supervisors of Powhatan
County, and in his personal capacity;
EDMUND C. BURRUSS, in his official
capacity as a member of the Board of
Supervisors of Powhatan County, and
in his personal capacity; MARGARET H.
MANNING, in her official capacity as a     
2                       MCWATERS v. COSBY


member of the Board of Supervisors         
of Powhatan County, and in her
                                           
personal capacity,
                         Defendants.
WAYNE W. WASSON,
                               Movant.     
PAULETTE N. MCWATERS,                      
                 Plaintiff-Appellee,
                   v.
JOHN F. RICK, in his official capacity
as County Attorney for Powhatan
County, Virginia and in his personal
capacity; STEPHEN F. OWEN, in his
official capacity as County
Administrator for Powhatan County,
Virginia and in his personal capacity;
ROY J. HARRISON, in his official
capacity as a member of the Board of

                                           
Supervisors of Powhatan County, and
in his personal capacity; T. J. BISE, in       No. 02-1436
his official capacity as a member of
the Board of Supervisors of Powhatan
County, and in his personal capacity;
EDMUND C. BURRUSS, in his official
capacity as a member of the Board of
Supervisors of Powhatan County, and
in his personal capacity; MARGARET H.
MANNING, in her official capacity as a
member of the Board of Supervisors
of Powhatan County, and in her
personal capacity,
                 Defendants-Appellants,
                  and                      
                       MCWATERS v. COSBY                     3


ROBERT R. COSBY, in his official        
capacity as a member of the Board of
Supervisors of Powhatan County, and
in his personal capacity,
                           Defendant.
                                        
WAYNE W. WASSON,
                             Movant.    
          Appeals from the United States District Court
        for the Eastern District of Virginia, at Richmond.
                 Robert E. Payne, District Judge.
                         (CA-01-726-3)

                   Argued: December 5, 2002

                  Decided: December 27, 2002

       Before WILKINSON, Chief Judge, and LUTTIG and
                  MICHAEL, Circuit Judges.



Reversed by unpublished per curiam opinion.


                           COUNSEL

ARGUED: Robert A. Dybing, SHUFORD, RUBIN & GIBNEY,
Richmond, Virginia; Jeff Wayne Rosen, PENDER & COWARD,
P.C., Virginia Beach, Virginia, for Appellants. Patrick Michael
McSweeney, MCSWEENEY & CRUMP, P.C., Richmond, Virginia,
for Appellee. ON BRIEF: John A. Gibney, Jr., SHUFORD, RUBIN
& GIBNEY, Richmond, Virginia; Lisa Ehrich, PENDER & COW-
ARD, P.C., Virginia Beach, Virginia; Henry M. Massie, Jr., TAY-
LOR & WALKER, P.C., Richmond, Virginia, for Appellants. Betty
S. W. Graumlich, John L. Marshall, Jr., MCSWEENEY & CRUMP,
P.C., Richmond, Virginia, for Appellee.
4                        MCWATERS v. COSBY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Paulette McWaters, a former member of the Powhatan County
Board of Supervisors (the "Board"), brought an action under 42
U.S.C. § 1983 against the Board and certain other Powhatan County
officials alleging violations of her equal protection and First Amend-
ment rights. Her claims arise out of two events, an investigation of her
travel expense reimbursement requests and a subsequent decision not
to reimburse her for legal fees she incurred in the course of the inves-
tigation. The defendants moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6) and asserted qualified immunity. The district
court denied both the 12(b)(6) motion and the qualified immunity
defense, deciding that the allegations in McWaters’ complaint, if
proven, would establish a violation of clearly established law. We dis-
agree. McWaters’ complaint does not establish an equal protection
violation, and she cannot show that the defendants violated clearly
established law with respect to her First Amendment claim. Accord-
ingly, we reverse the district court’s order denying qualified immu-
nity.

                                   I.

   The facts, as alleged in McWaters’ complaint, are these. McWaters
was a member of the Board from 1996 through January 2000, at
which point she was replaced by defendant T.J. Bise who currently
sits on the Board. Defendant John F. Rick is the County Attorney of
Powhatan County and has served in that capacity since 1997. Defen-
dant Stephen F. Owen is the County Administrator of Powhatan
County and has served in that capacity since 1993. Defendants Roy
J. Harrison, Robert R. Cosby, Edmund C. Burruss, and Margaret H.
Manning are members of the Board and have served in that capacity
at all times relevant to this case.
                        MCWATERS v. COSBY                           5
   McWaters alleges that during the 1996-2000 Board term, the Board
members were divided on the issue of financial management of the
Powhatan County School District. McWaters was a consistent and
outspoken critic of the School Board and the District Superintendent
of Schools on that issue. She was also critical of other members of
the Board.

   In 1998, McWaters and Manning attended a National Association
of Counties ("NACO") conference in Portland, Oregon. McWaters
and Manning submitted several travel expense reimbursement
requests to Powhatan County after attending the conference. The
Board approved and authorized payment for McWaters’ and Man-
ning’s expenses at the 1998 NACO conference.

   At an October 11, 1999, meeting of the Board, Denise Eyles, an
employee of the Powhatan County School District, addressed the
Board during its public comment period and rebuked McWaters for
spending County money on travel to various conferences. Eyles con-
fined her criticism to McWaters because her travel expenses in the
aggregate were greater than the expenses of any other Board member
and because McWaters had been a persistent critic of the Powhatan
County School District and its spending practices. Eyles’ criticisms
made their way into two newspaper articles, one in the Powhatan
Today and the other in the Richmond Times-Dispatch, which ran later
that month.

  At McWaters’ request, Owen sent her a letter on October 25, 1999,
wherein he stated that he was not "aware of any improper reimburse-
ments." J.A. 13. After sending that letter, Owen reported that he had
developed doubts about certain reimbursement requests submitted by
McWaters for the 1998 NACO conference. Without first contacting
McWaters or consulting with the Board, Owen asked Rick to investi-
gate the matter. Owen did not ask Rick to investigate any of the other
Board members, and no others were investigated.

   Rick immediately began his investigation and notified the Chair-
man of the Board, Cosby, of what he was doing. Ultimately, the
investigation into the reimbursements found no criminal violation. In
defending herself during the investigation, McWaters incurred
$21,153.94 in legal expenses, which she formally requested the Board
6                             MCWATERS v. COSBY
                  1
to reimburse. On August 14, 2001, Owen advised McWaters that he
was denying her request for reimbursement on the advice of Rick that
reimbursement for such expenses was not authorized by state law.

   McWaters brought suit under section 1983, alleging that the inves-
tigation and subsequent refusal to reimburse amounted to a denial of
her equal protection and First Amendment rights. She sued all defen-
dants in their official as well as their individual capacities. The defen-
dants moved to dismiss under Rule 12(b)(6) for failure to state a claim
and asserted qualified immunity. The district court denied the motion
and rejected the qualified immunity defense. See McWaters v. Rick,
195 F. Supp. 2d 781 (E.D. Va. 2002). The defendants appealed.

                                        II.

   The defendants contend that the district court erred by denying
them qualified immunity. Because the defendants’ assertion of quali-
fied immunity arises in conjunction with a motion to dismiss, we take
the facts as alleged in McWaters’ complaint as true. See McVey v.
Stacy, 157 F.3d 271, 276 (4th Cir. 1998). We review the district
court’s denial of qualified immunity de novo. See id. at 276. We con-
sider first whether the facts as alleged by McWaters state a constitu-
tional violation. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If so,
we proceed to consider whether the right was clearly established; that
is, whether a reasonable officer in the respective defendants’ positions
would have known that he was violating federal law. Id. at 201-02.

    1
     According to Virginia law,
        If any officer or employee of any locality is investigated . . . on
        any criminal charge arising out of any act committed in the dis-
        charge of his official duties, and no charges are brought . . . the
        governing body of the locality may reimburse the officer or
        employee for reasonable legal fees and expenses incurred by him
        in defense of the investigation . . ., the reimbursement to be paid
        from the treasury of the locality.
Va. Code Ann. § 15.2-1521.
                          MCWATERS v. COSBY                             7
                                   A.

   The defendants first challenge the legal sufficiency of McWaters’
equal protection claim. McWaters alleged in her complaint that the
defendants violated her equal protection rights by "intentionally
treat[ing] [her] differently from others similarly situated without any
rational basis for the difference in treatment," J.A. 19, in the course
of (a) investigating only her in the first instance and (b) refusing to
grant her request for reimbursement of legal fees.

   The first question is of course whether the facts alleged by
McWaters establish an equal protection violation. She argues that her
allegation is sufficient under Village of Willowbrook v. Olech, 528
U.S. 562 (2000) (per curiam). In Olech, the Supreme Court upheld the
viability of a so-called "class of one" theory and concluded that an
allegation that one "has been intentionally treated differently from
others similarly situated and that there is no rational basis for the dif-
ference in treatment" was sufficient to state a claim for an equal pro-
tection violation. Id. at 564. The Court clarified that the irrationality
allegation was separate from the actual subjective motivation of the
Village of Willowbrook. Id. at 565 (stating that the irrationality alle-
gation was sufficient "quite apart from the Village’s subjective moti-
vation").

   While McWaters’ complaint dutifully asserts irrationality, even a
cursory review of the facts as alleged in her complaint demonstrates
that she has not shown a violation of her equal protection rights,
because numerous rational bases for the defendants’ actions suggest
themselves even from these facts. For example, the defendants may
have chosen to investigate only McWaters because her reimbursement
requests were the largest and triggered the most public scrutiny, both
through the Eyles accusation and the subsequent newspaper articles.
And the defendants might have refused her reimbursement request
simply because they decided, in their discretion, to conserve county
funds.

   Because the rational basis inquiry is separate from the subjective
motivation inquiry, the defendants are not required to show that they
actually were acting on those rational bases. "[T]he State need not
articulate its reasoning at the moment a particular decision is made.
8                          MCWATERS v. COSBY
Rather, the burden is upon the challenging party to negative any rea-
sonably conceivable state of facts that could provide a rational basis
for the classification." Board of Trustees of University of Alabama v.
Garrett, 531 U.S. 356, 367 (2001) (internal quotation marks omitted).
Since McWaters’ complaint does not negative the facts that support
the rational bases noted above — indeed, it alleges them — it follows
that she has failed in her burden of asserting irrationality. Thus, all of
the defendants are entitled to qualified immunity on the ground that
McWaters has not pled a violation of her rights under the Equal Pro-
tection Clause.

                                    B.

   The defendants also insist that they are entitled to qualified immu-
nity as to McWaters’ First Amendment claim. McWaters alleged in
her complaint that the investigation and refusal to reimburse

        were motivated and activated by [her] outspoken criticism
        of other members of the Board of Supervisors, as well as the
        management of the Powhatan County School District and
        Owen himself, during [her] term of office as a member of
        the Board of Supervisors. The investigation of [McWaters]
        was intended to punish her for her criticism and to discour-
        age her from publicly expressing her views.

J.A. 19-20. She asserted that this conduct violated her First Amend-
ment right to be free from retaliatory government action.2

   The first question is, once again, whether McWaters has success-
fully pled a violation of federal law. We conclude, for substantially
    2
    McWaters has not stated a claim against the Board members them-
selves for retaliatory action with respect to the investigation. Defendants
Cosby, Burruss, Harrison, Manning, and Bise cannot be liable for the
investigation because, as stated in McWaters’ complaint, they did not ini-
tiate the investigation, J.A. 13, and, under Virginia law, it appears that
the only means by which they could have stopped the investigation was
by revoking McWaters’ reimbursements. See Va. Code Ann. § 15.2-
1245(B). Thus, McWaters’ quarrel with respect to the investigation is at
most with defendants Owen and Rick.
                          MCWATERS v. COSBY                              9
the same reasons given by the district court, that McWaters has pled
a First Amendment violation. See McWaters, 195 F. Supp. 2d at 794-
805. The district court’s reasoning was quite thorough, and we will
not repeat it here. Suffice it to say that McWaters’ allegations that the
defendants took adverse action against her with the purpose of chill-
ing her protected speech are sufficient to state a First Amendment
retaliation claim.

   We disagree, however, with the district court’s conclusion that the
First Amendment right asserted by McWaters was clearly established.
As the district court acknowledged at the beginning of its analysis,
"[i]t is not entirely clear which retaliation test applies under these cir-
cumstances and, to complicate matters, courts have not been entirely
consistent in their analytical approach." Id. at 796. Such a conclusion
as to the state of the law should normally require a grant of qualified
immunity. Moreover, not only is the law unclear in this area, but the
application of the law to the facts is often difficult to predict. As we
have said, "particularly in First Amendment cases, where a sophisti-
cated balancing of interests is required to determine whether the
plaintiff’s constitutional rights have been violated, only infrequently
will it be ‘clearly established’ that a public employee’s speech on a
matter of public concern is constitutionally protected." McVey, 157
F.3d at 277 (internal quotation marks omitted).

   In this case, we cannot say that a reasonable officer would have
known what retaliation test would apply, and accordingly whether his
actions were in violation of the law. McWaters points to no cases
which are factually analogous. Her case is atypical, in part, because
she is an elected public official, rather than a rank-and-file public
employee. See McWaters, 195 F. Supp. 2d at 796 ("The public
employee cases decided by the Fourth Circuit do not involve public
employees who also are members of a governing body of a local gov-
ernment entity."). As an elected public official, the First Amendment
interests implicated are different from those of an ordinary civil ser-
vant and local officials are not required to perfectly predict what a
court will later determine those interests to entail. Further compound-
ing the confusion as to the applicable legal standard, McWaters was
not a public employee at the point at which the Board denied her
reimbursement request. Under these circumstances, even though
McWaters has alleged a First Amendment violation, her claim ulti-
10                       MCWATERS v. COSBY
mately must fail because she cannot show that a reasonable officer in
the defendants’ positions would have known that he was violating
federal law.

                            CONCLUSION

   For the reasons stated herein, the district court erred in denying the
defendants qualified immunity, and accordingly the judgment is
reversed.

                                                            REVERSED
