Of the District of Maine, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 09-2458

WILLIAM P. MONAHAN,

Plaintiff, Appellant,

v.

WILLARD MITT ROMNEY, ET AL.,

Defendants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Chief Judge.

Lipez, Circuit Judge,

and Woodcock, District Judge. *

Richard J. Hayes for the appellant.

Robert G. Jones for the appellees.

November 3, 2010
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LYNCH, Chief Judge. In 2006, William P. Monahan filed

suit against former Massachusetts Governor Willard Mitt Romney and

several members of the Governor's senior staff: Eric Fehrnstrom,

Nicholas Tzitzon, Shawn Feddeman, and Spencer Zwick. Monahan's

complaint listed seven counts revolving around his central

allegation that the defendants had unconstitutionally removed him

from his office as Chairman of the Massachusetts Civil Service

Commission in 2003, depriving him of protected property and liberty

interests without due process of law.

After a four-day bench trial in April 2009, the district

court found that Monahan had voluntarily resigned and ruled against

him on all counts. Monahan has appealed, arguing that the district

court's findings of fact were wholly unsupported by the evidence

and that the court therefore committed legal error in its

conclusions of law. We hold that the district court's conclusions

are well supported in the evidence and that it committed no error.

We affirm entry of judgment for the defendants.

I.

In early 2003, William Monahan filled out an application

for membership on the Massachusetts Civil Service Commission. The

background information section on the application included the

general question: "Is there any other information or potential

conflicts that you feel should be known to us prior to the

appointment?" Monahan answered "No." 
See, e.g., United States v. Barone, 114 F.3d 1284, 1289 1

(1st Cir. 1997) ("In the early 1980s, the Patriarca Family was run

by boss Raymond Patriarca, Sr., underboss Gennaro 'Gerry' Angiulo,

consigliere Vittore Nicolo Angiulo, and capo regimes including

Donato F. 'Danny' Angiulo . . . ."); United States v. Angiulo, 897

F.2d 1169, 1175-76 (1st Cir. 1990) (stating that "Gennaro Angiulo,

Donato Angiulo, . . . Francesco Angiulo, and Michele Angiulo, are

all members or associates of the Patriarca Family of La Cosa

Nostra" and that "Gennaro Angiulo was the underboss of this

organization, in charge of its day-to-day operations"). 

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Governor Romney appointed Monahan to be the Chairman of

the Civil Service Commission. Monahan began work on August 1,

2003. He was to serve for approximately 4 years and 10 months--the

time remaining in the term of the commissioner whom he was

replacing. As a public officer, Monahan could only be removed for

cause and his interest in continued employment was protected by the

Due Process Clause of the Fourteenth Amendment. See Mass. Gen.

Laws ch. 7, § 4I; Mass. Gen. Laws ch. 30, § 9; Bd. of Regents of

State Colleges v. Roth, 408 U.S. 564, 576-78 (1972). 

On August 28, 2003, Frank Phillips, a noted investigative

reporter from the Boston Globe, called Monahan to ask about his

purchase in 1980 of a property at 253 Tremont Street in Boston.

Monahan and Dominic Paulo had purchased the property from Gennaro

Angiulo, Donato Angiulo, Francesco Angiulo, Michele Angiulo, and

Nicolo Angiulo, who were doing business as Huntington Realty. The

Angiulo family was deeply connected to organized crime in Boston.1

Monahan and Paulo had made a down payment of $80,000 on the

building, and covered the balance of the purchase price by
The purchase of the property had been reported in the 2

media in the early 1990s, when Monahan was serving as town

selectman in Belmont and running for state representative. Monahan

had appeared on a local cable television channel for an hour to

discuss the transaction and answer phone calls about it. He

testified that he assumed that Romney, who lived in Belmont, knew

about the purchase and the media attention that it had received.

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executing a promissory note for $180,000 secured by a mortgage with

Huntington Realty. 

After Phillips confirmed the facts of this transaction

with Monahan, he contacted the Governor's Press Secretary, Shawn

Feddeman, to inform her that he was working on a story about it.

Feddeman conveyed this information to the Governor's Communications

Director, Eric Fehrnstrom, and they decided to ask Monahan whether

the story was true. The dispute in this case revolves around the

content of three ensuing phone calls with Monahan.

At approximately 6:15 p.m., Fehrnstrom and Feddeman--

along with Nicholas Tzitzon, the Governor's Director of

Appointments--made the first call to Monahan. While it is

uncontested that in this call Monahan confirmed that the story was

true, there is conflicting testimony about what else was said.

Monahan testified that the Governor's staff told him in "very swell

and pitched voices" that he needed to resign, to which he responded

that the story had been well vetted a dozen years ago, that he had

done nothing wrong, and that he thought that the Governor had been

aware of the transaction. Fehrnstrom and Feddeman testified that 2

they did not mention resignation during that call, but merely asked
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Monahan about the transaction and why he had not disclosed it in

his job application.

After this call, Fehrnstrom and Spencer Zwick, Romney's

Deputy Chief of Staff, contacted Governor Romney. They discussed

the nature of the real estate transaction, the prior media

attention that it had received, and the pending story to be

published in the Boston Globe. Romney told them that he was

concerned that Monahan was leading a Commission that acted in a

quasi-judicial role, and that Monahan's involvement would severely

impact the reputation of the Commission and the reputation of the

Commonwealth. Romney decided that Monahan could not be allowed to

retain his position, and that he would offer Monahan a chance to

resign, and in the alternative, go through the steps to remove him.

Romney instructed Zwick to request Monahan's resignation and

authorized Zwick to accept a resignation on his behalf.

At 6:52 p.m., Zwick made the second call to Monahan--with

Fehrnstrom and Tzitzon also on the line--to request Monahan's

resignation. Monahan testified that during this call, Zwick told

him that he needed to "take one for the team" and resign, to which

he replied that he was a team player and would resign if he thought

that it was either in the Governor's or his own best interests, but

that it was not in either of their interests. Monahan testified

that Zwick provided him with a number for faxing his letter of
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resignation, that he wrote down the number, but that he did not

commit to resigning.

Monahan's account of this call was contradicted by the

testimony of Governor Romney's staff. According to Tzitzon's

testimony about the call, Monahan stated that he would in fact

resign, Zwick replied that he needed to confirm that Monahan was

offering his resignation, and Monahan responded that he was. This

account of the call accords with Zwick's testimony that his

understanding from the call was that Monahan had offered to resign,

and that he had accepted the resignation on Romney's behalf.

Fehrnstrom's testimony was also in agreement on this point.

Although Fehrnstrom could not "remember the precise words that were

used" by Monahan, it was "clear" to him that Monahan had "agreed to

voluntarily step down." This was clear because when Fehrnstrom

informed Monahan that he was going to notify Phillips at the Boston

Globe of the resignation, Monahan "did not object at all" as he

"understood that this was the course of action that he had decided

upon."

After this call, Zwick informed Governor Romney of

Monahan's resignation, and Fehrnstrom informed Feddeman. Feddeman

then contacted Phillips at the Boston Globe, explaining that

Monahan had resigned and that Romney had accepted his resignation.

At 8:15 p.m., Governor Romney made the third call to

Monahan. Romney testified that he began this conversation by
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thanking Monahan for tendering his resignation, to which Monahan

did not say or indicate in any way that he had not in fact

resigned. Romney testified that they talked about the fact that

Romney had not been aware of the real estate transaction, that it

should have been indicated on Monahan's job application, and that

Romney would not have appointed Monahan if he had known about it.

Romney testified that he offered to help Monahan find alternative

employment, and that when he made this offer, Monahan did not

respond by saying that he did not require any help because he had

not resigned. Monahan contested this account. Monahan's version

was that he told Romney that he did not think that it was in either

of their best interests for him to resign, and that therefore he

"wasn't going to resign." Monahan testified that Romney merely

told him that he should "think it over" and that Romney would help

Monahan get a job in the private sector if Monahan resigned.

The next day, August 29, 2003, the Boston Globe published

a story on the 1980 transaction and on Monahan's resignation as

Chairman of the Massachusetts Civil Service Commission. The

parties agree that Monahan went to work that day and found that his

garage parking pass no longer worked, and that he worked for part

of the day and then went home. At home, he received a phone call

from Tzitzon asking why he had not yet faxed his letter of

resignation. Monahan testified that he replied that he "wasn't

planning to fax any resignation," whereas Tzitzon testified that
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Monahan said that he would be happy to send a letter but that he

might be delayed because of problems with his printer. 

The following day--Saturday, August 30--Joseph Brodigan,

a friend of Monahan's and an attorney, informed Zwick that Monahan

would not be resigning. When business resumed on the Tuesday after

Labor Day, Romney's legal counsel faxed Brodigan a letter stating

that it was the administration's position that Monahan had

submitted an oral resignation on Thursday, August 28, and that

Governor Romney had accepted that resignation. Approximately a

week later, Monahan's counsel responded with a position statement

stating that Monahan had spent the day after his conversation with

Romney thinking about the suggestion that he should resign, that he

had decided he must not resign in those circumstances, and that his

representative had communicated this decision.

The district court, confronted with conflicting

testimony, found "the defendants' version of the facts to be more

credible." The court concluded that Monahan voluntarily

relinquished his position, that he was not coerced to do so, and

that therefore, "the Due Process Clause [was] not implicated since

no 'deprivation' of a constitutionally protected interest
The court held, in the alternative, that even assuming 3

Monahan had not voluntarily resigned, "he was afforded all of the

process he was constitutionally due. Monahan's pre-deprivation

process--which included an extended conversation with the chief

executive officer himself, Governor Romney--and the

post-deprivation remedies available to him under Massachusetts law

were more than adequate to meet the requirements of the Due Process

Clause." The district court further determined that, even if

Monahan was not afforded adequate post-deprivation process,

defendants would be entitled to qualified immunity because the

claimed "unavailability" or inadequacy of the post-deprivation

remedies was not clearly established at the time of the challenged

conduct.

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occurred." The court entered judgment for the defendants on all 3

counts. Monahan filed a timely appeal. 

II.

A district court's findings of fact after trial "must not

be set aside unless clearly erroneous, and the reviewing court must

give due regard to the trial court's opportunity to judge the

witnesses' credibility." Fed. R. Civ. P. 52(a)(6); Anderson v.

Bessemer City, 470 U.S. 564, 573 (1985). "A party who challenges

a district court's findings of fact, arrived at after a bench

trial, faces a steep uphill climb. When a district court finds the

facts without the intervention of a jury, the court of appeals is

not at liberty to start afresh." Fed. Refinance Co. v. Klock, 352

F.3d 16, 26-27 (1st Cir. 2003). Where there are "two permissible

views of the evidence," the "factfinder's choice between those

competing views cannot be clearly erroneous." Id. at 29. The

district court's legal determinations are reviewed de novo. Am.
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Nat'l Fire Ins. Co. v. York County, 575 F.3d 112, 118 (1st Cir.

2009). But this case involves, in the end, no issues of law.

In explaining its finding that Monahan had voluntarily

resigned, the district court provided a detailed account of the

witness testimony and other evidence presented at trial, and it

weighed the evidence in accordance with its responsibility as the

trier of fact. The court made express credibility determinations,

finding reason to reject Monahan's testimony about aspects of all

three phone calls, and gave well reasoned explanations.

As to the first phone call, the court found a tension

between Monahan's testimony and the testimony of the defendants.

Monahan testified that Romney's staff had pressured him to resign

in this first call. However, the court found that at the time of

this call, Fehrnstrom and Feddeman had not yet spoken with Governor

Romney, and that their focus was on obtaining information, not

resignation. The court credited the testimony of Fehrnstrom, and

rejected that of Monahan.

As to the second call, the court again rejected key

aspects of Monahan's testimony. The court found it "inconceivable

that Feddeman would have made [the call to the Globe] had she not

been convinced that Monahan had resigned. A dispute about

resignation would have turned a 'one day' story into a multiple day

story, precisely what the Governor's staff wanted to avoid." There

was too great a risk "that Monahan would contest a concocted story
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of resignation, giving rise to even more unwanted negative

publicity." The court also noted that although Fehrnstrom told

Monahan that he was going to report Monahan's resignation to the

Globe, Monahan did not state that he needed more time to decide, as

one would expect if he had not in fact resigned.

As to the third phone call, which was between Monahan and

Governor Romney, the district court credited Romney's testimony,

and rejected Monahan's claim that he told Romney in this call that

he would not resign. The court's decision was in part based on the

fact that Monahan's testimony about the call differed in an

important respect from the position statement that he had written

shortly after the call. At trial, Monahan testified that he had

told Romney on the phone: "[I]f I thought it was in his best

interests or mine, I would resign, but I didn't think that it was,

and I wasn't going to resign." The position statement stated: "I

informed the Governor that if I determined that it was in his best

interest and in my best interest, that I would resign. At that

point he gave me a private number in order to get in further

contact with him." The court found that the absence of the line "I

wasn't going to resign" in the position statement was telling, and

credited Romney's testimony against that of Monahan.

The district court found that Monahan's resignation was

not involuntary. In making this finding, the court cited the fact

that Monahan had a choice between resignation and termination; that
This appeal does not raise the issue of what legal 4

standard should be employed to determine voluntariness. The

parties do not contest the district court's application of the

standard set out in Stone v. University of Maryland Medical System

Corp., 855 F.2d 167 (4th Cir. 1988), which was cited by this court

in Walker v. Waltham Housing Authority, 44 F.3d 1042, 1047 (1st

Cir. 1995). Monahan's argument that the court erred in finding

that he voluntarily resigned is based on his claims that the

court's underlying factual findings are unsupported. He argues,

for example, that "the trial court's confusion as to factual

findings, for which the Court has wide latitude, leads the Court to

an erroneous legal finding."

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Monahan had a law degree and understood that he was under no

obligation to resign and possessed the power to reject the

defendants' request; that to the extent any coercion was inherent

in the request, it was reduced by the fact that the request was

made by phone; and that although Monahan likely felt pressure to

make a quick decision, he could have requested more time or

demanded to speak to the Governor to argue against resignation.

Under these circumstances, the court found, Monahan's resignation

was not involuntary. The district court's reasons were well

supported and well explained. On appeal, no question of law is

raised. 

4

Because Monahan voluntarily resigned, his claim that the

defendants deprived him of a property interest within the meaning

of the Due Process Clause necessarily fails. See Stone v. Univ. of

Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir. 1988) ("If he

resigned of his own free will even though prompted to do so by

events set in motion by his employer, he relinquished his property
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interest voluntarily and thus cannot establish that the state

'deprived' him of it within the meaning of the due process

clause."). For the same reason, Monahan's claim that the

defendants deprived him of a constitutionally protected liberty

interest also fails. See Lyons v. Sullivan, 602 F.2d 7, 11 (1st

Cir. 1979) ("While defamation in the course of termination of

governmental employment does entitle an employee to procedural due

process protection, . . . the facts alleged do not bring plaintiff

within this rule since plaintiff's employment was not terminated;

plaintiff resigned.") (citation omitted). 

The district court's judgment is affirmed.