United States Court of Appeals 

For the First Circuit 

No. 16-1492 

MARK W. EVES, 

Plaintiff, Appellant, 

v. 

PAUL R. LEPAGE, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. George Z. Singal, U.S. District Judge] 

Before 

Lynch, Stahl, and Thompson, 

Circuit Judges. 

David G. Webbert, with whom Carol J. Garvan and Johnson, 

Webbert & Young, LLP were on brief, for appellant. 

Patrick Strawbridge, with whom Bryan K. Weir and Consovoy 

McCarthy Park PLLC were on brief, for appellee. 

November 22, 2016 
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LYNCH, Circuit Judge. Paul LePage, the Republican 

Governor of Maine, has had deep political disagreements with 

members of the Maine Legislature, particularly those who are 

Democrats -- including the Speaker of the House, plaintiff Mark 

Eves. The Speaker, who is term-limited, obtained a contract of 

employment with Good Will-Hinckley ("GWH"), a Maine nonprofit that 

operates the MeANS charter school for at-risk children, which is 

largely funded by biennial grants from the state. Whether to 

disburse that grant money to GWH was left by the legislature to 

the discretion of the governor. 

Governor LePage conveyed to GWH his displeasure at the 

organization's decision to hire the Speaker and threatened to 

withhold GWH's discretionary funding when payment would ordinarily 

be due, assuming passage of Maine's budget for Fiscal Years ("FY") 

2016 and 2017. Faced with the prospect of losing funding on which 

it depended, GWH terminated the Speaker's employment contract. 

The Speaker sued the Governor in federal court for 

damages and injunctive relief, asserting that the Governor, in 

violation of the U.S. Constitution, had retaliated against the 

Speaker's exercise of his First Amendment rights. The Speaker 

also sought relief under state tort law. The U.S. District Court 

for the District of Maine dismissed all claims. Eves v. LePage, 

No. 1:15-cv-300-GZS, 2016 WL 1948869 (D. Me. May 3, 2016). 
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We affirm dismissal with prejudice of the Speaker's 

federal claims, on qualified immunity grounds. As for his state 

claim, we vacate, and direct the district court to dismiss it 

without prejudice. 

I. 

Background 

The issues in this case are ultimately issues of law, 

which receive de novo review. See United States v. Baird, 712 

F.3d 623, 628 (1st Cir. 2013). Like the district court, we 

"assume[] the truth of the complaint's well-pleaded facts and 

draw[] all reasonable inferences in [Speaker Eves's] favor." 

Eves, 2016 WL 1948869, at *1 (citing Schatz v. Republican State 

Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)). 

A. Maine's Government and Budget Process 

We begin with background information that is helpful in 

understanding the issues in this case. 

Serving in the Maine Legislature is not a full-time job 

for most representatives. The legislature typically sits twice 

during each two-year session: once from December to June in year 

one, and then again from January to April in year two. See Me. 

Rev. Stat. Ann. ("M.R.S.A.") tit. 3, § 2. A legislator's salary 

is $24,056, spread across the two years, plus a $38 per diem, when 

the legislature is active, "for housing or mileage and tolls." 

Eves, 2016 WL 1948869, at *2. Most legislators have at least one 
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other source of income, often in the private sector. Id. In 

fact, legislators from both parties agree that "[n]early all 

legislators depend on a career outside of the State House to 

provide for their families." Id. at *5 (relaying statement by 

Maine Senate President Mike Thibodeau, a Republican). 

Maine's biennial budget process starts when the 

Department of Administrative and Financial Services, after 

considering submissions from various agencies and policy 

committees, "prepare[s] and submit[s] . . . a state budget 

document" to the governor. M.R.S.A. tit. 5, § 1662. The governor 

reviews the draft budget, alters it, and then sends it to the 

legislature before the statutory deadline "in January of the first 

regular legislative session." Id. § 1666. The legislature must 

"enact a budget no later than 30 days prior to the date of 

adjournment prescribed" by law. Id. § 1666-A. The legislature's 

budget then returns to the governor, who has line-item veto power, 

permitting him to reduce "any dollar amount" in the budget. Me. 

Const. art. IV, pt. 3, § 2-A. The legislature can override any 

line-item veto with a simple majority of both the House and the 

Senate. Id. The governor can also veto the entire budget, like 

any other piece of legislation, in which case a 2/3 majority of 

both the House and the Senate is necessary to override the veto. 

Id. art. IV, pt. 3, § 2. 
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The facts of this case, which occurred mostly in June 2015, 

arose in the midst of the biennial budget process and involved 

serious political conflict between Governor LePage and the 

legislature. In a press conference on May 29, 2015, the Governor 

stated that he planned to veto "every bill sponsored by a Democrat" 

for the rest of his term in office "unless the Legislature agreed 

to support his plan to have a referendum vote on eliminating 

Maine's income tax." Eves, 2016 WL 1948869, at *4. The Governor 

did, in fact, veto ten bills on June 8, 2015, stating that he had 

done so purely because of their Democratic sponsorship. After the 

legislature passed a budget on June 17, 2015, the Governor issued 

sixty-four line-item vetoes, each of which the legislature 

overrode on June 18 and 19, 2015. 

On June 29, 2015, the Governor vetoed the entire budget. 

The legislature also overrode that veto, on June 30, and enacted 

the budget for FY2016 and FY2017 into law. That budget included 

discretionary funding for GWH.

B. Good Will-Hinckley and Speaker Eves 

GWH is a private nonprofit organization, located in 

Fairfield, Maine, which aims to provide services to at-risk 

children throughout the state. Founded in 1889 as a "farm, school 

and home for needy boys," GWH now has a broader mission and 

portfolio encompassing a "college step-up program," a "Learning 

Center for youth with emotional or behavioral challenges," a 
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nutrition program, a library, and a museum. Id. at *2. The 

organization has long depended on both private donations and 

government grants. 

Since 2009, GWH has been designated by Maine "to serve as 

the nonprofit charitable corporation with a public purpose 

to implement the Center of Excellence for At-risk Students." 

Id. at *3; see M.R.S.A. tit. 20-A, § 6951. Fulfilling this 

responsibility, GWH opened a charter school in 2012, called the 

Maine Academy of Natural Sciences ("MeANS"). MeANS has its own 

board and its own principal; it also relies in large part on 

discretionary state funding. 

The Maine state budget for FY2014 and FY2015 -- which 

covered the period from July 1, 2013 to June 30, 2015 -- allocated 

$1,060,000 in discretionary funding to GWH for the purpose 

of operating MeANS. In that period of time, the LePage 

Administration chose to disburse all of that money. The proposed 

budget for FY2016 and FY2017, under debate in spring 2015, 

contained an identical appropriation of $1,060,000, to be paid to 

GWH in quarterly installments, as in previous years. 

Glenn Cummings, formerly a Speaker of the Maine House of 

Representatives, resigned as president of GWH in September 2014, 

having served for approximately four years. GWH began searching 

for a successor, and plaintiff Mark Eves was one of nineteen 

applicants. Eves, Maine's current Speaker, has served in that 
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role since 2012 and as a representative since 2008. Because he 

is term-limited, see M.R.S.A. tit. 21-A, § 553(2), he must leave 

the House entirely in December 2016, when his fourth term expires. 

Speaker Eves also has fifteen years of professional experience as 

a marriage and family therapist. Since moving from California to 

Maine in 2003, the Speaker has worked in that field, even while 

serving in the legislature. 

GWH's eight-member search committee interviewed Speaker 

Eves on April 24, 2015. He visited the campus as one of three 

finalists, and on April 30, the GWH Senior Leadership Team 

unanimously recommended him as the best of the three. The Team's 

memo "cited his 'extensive clinical experience,' his 'balance of 

executive administration and fundraising experience,' and his 

'leadership style and polished approach' as reasons for their 

conclusion." Eves, 2016 WL 1948869, at *3. After Speaker Eves 

interviewed with the full boards of GWH and MeANS on May 15, both 

voted unanimously to offer him the job of GWH President. 

On June 5, 2015, Speaker Eves and GWH entered into a 

two-year employment agreement, which contained a "for-cause 

termination provision" and "no conditions or contingencies" 

related to any actions or funding decisions by the State. Id. at 

*4. GWH announced the Speaker as its new President on June 9. 
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C. Governor LePage's Intervention 

On June 5, 2015, Governor LePage learned that GWH had 

decided to hire Speaker Eves. The Governor promptly called GWH's 

Interim President, stating "that he was extremely upset" about the 

news and "us[ing] profanity to describe [Speaker Eves] and his 

work." Id. That same day or "soon after," LePage sent a 

handwritten note to GWH's Board Chair, which "referred very 

negatively to Eves" and called the Speaker a "hack." Id. The 

Board Chair's belief, after reading the note, was "that GWH would 

lose $1,060,000 in state funding if it retained Eves as its new 

President." Id. 

On June 8, Governor LePage sent a public letter to the 

Board Chairs of GWH and MeANS, "urging that they reconsider." Id. 

The letter characterized Speaker Eves as "a longtime opponent of 

public charter schools" who had fought against "every effort to 

reform Maine's government." Id. The GWH Board, "which includes 

people of various political affiliations," discussed the letter 

and "agreed that their selection of Speaker Eves [had been] wellsupported and . . . not based on political considerations." Id. 

Also on June 8, the Governor received a call from Gregory 

Powell, the Board Chair of the Harold Alfond Foundation ("the 

Foundation"), who was responding to a June 5 voicemail from the 

Governor. During their conversation, Powell learned that the 

Governor was "withdrawing all support, including financial 
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support, from GWH as long as Eves remained as President of the 

organization." Id. Responding to that news, Powell sent a letter 

to GWH's Board on June 18, warning them that the Foundation had 

"serious concern[s] . . . regarding [GWH's] future financial 

viability" if the Governor were to follow through on his threat to 

withhold the $1,060,000 of state funding. Id. Those concerns, 

he further warned, made the Foundation uneasy about committing to 

a $2,750,000 grant that the Foundation had been planning to give 

to GWH. 

On or about June 9, Governor LePage told the Acting 

Commissioner of the Department of Education not to send any more 

payments to GWH that were not required by law. The Commissioner 

duly froze $132,500 in discretionary funds scheduled to be sent to 

GWH for the next quarter (beginning on July 1). At that point, 

having passed no new budget, the legislature had not yet 

appropriated any quarterly payments for GWH beyond what GWH had 

already received. 

The lawyers representing Speaker Eves and Governor 

LePage, respectively, conferred on June 22. The Speaker's lawyer 

asked the Governor to withdraw his threats, but the Governor 

refused to change his stance. He also took no further steps "to 

reduce or eliminate the $1,060,000 in discretionary funds allotted 

in the proposed state budget for GWH." Id. at *5.
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After that conversation between the attorneys, GWH 

terminated Speaker Eves's employment contract on June 24, one week 

before his planned July 1 start date. The Speaker immediately 

stated publicly that "his firing was caused by LePage's threat to 

withhold funding." Id. Several GWH leaders emailed Speaker Eves, 

opining that he "would have been a wonderful fit" for the 

organization. Id. Months later, on October 15, GWH's Board Chair 

stated in a legislative hearing that Eves would not have been fired 

but for Governor LePage's intervention. Some of the Speaker's 

colleagues in the legislature also spoke out. State Senate 

President Mike Thibodeau, a Republican, publicly called himself 

"very saddened by this situation and shocked by what is being 

alleged. Nearly all legislators depend on a career outside of the 

State House to provide for their families." Id. 

Initially, Governor LePage declined to confirm or deny 

any interference with GWH's decision-making process. However, on 

June 29, local reporters interviewed the Governor and asked whether 

he had "threatened to withhold money" from GWH, and he responded: 

Yeah, I did! If I could, I would! Absolutely; why 

wouldn't I? Tell me why I wouldn't take the taxpayer 

money, to prevent somebody to go into a school and 

destroy it. Because his heart's not into doing the 

right thing for Maine people. 

In a radio address on July 7, the Governor further explained: 

[The Speaker] worked his entire political career to 

oppose and threaten charter schools in Maine. He is the 

mouthpiece for the Maine Education Association. Giving 
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taxpayers' money to a person who has fought so hard 

against charter schools would be unconscionable. 

. . . [F]ormer legislators used their political 

positions to land cushy, high-paying jobs in which they 

were trusted to use taxpayer money to improve the lives 

of Mainers. They abused that trust and had to face the 

consequences of their actions. The same is true of Mark 

Eves. 

And in another interview, on July 30, the Governor called Speaker 

Eves "a plant by the unions to destroy charter schools." The 

Governor drew an analogy: "One time I stepped in . . . when a man 

was beating his wife. . . . Should I have stepped in? Legally, 

no. But I did. And I'm not embarrassed about doing it." 

D. U.S. District Court Proceedings 

Speaker Eves filed this lawsuit on July 30, 2015 and 

then filed a First Amended Complaint on December 18, 2015. 

Governor LePage moved to dismiss on January 5, 2016, arguing that 

the complaint failed to state a claim, see Fed. R. Civ. P. 

12(b)(6), and that the subject matter of the lawsuit was "a 

political dispute that does not belong in court." On April 13, 

2016, the day of oral argument on the Governor's 12(b)(6) motion, 

the Speaker was granted leave (without opposition) to file a Second 

Amended Complaint. 

The Second Amended Complaint contained five claims 

against Governor LePage: four federal law claims under 42 U.S.C. 

§ 1983 for violations of Speaker Eves's rights to political 

affiliation, free speech, freedom of association, and procedural 
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due process, as well as a fifth claim under state law for 

intentional interference with contract. As relief, the Speaker 

requested (1) a declaratory judgment; (2) an injunction compelling 

Governor LePage to "permanently withdraw his illegal threat" to 

GWH and "cease using his authority to illegally retaliate against 

Eves or private organizations that are prospective employers or 

employers of Eves"; and (3) damages. 

On May 3, 2016, the district court issued an opinion, 

which granted Governor LePage's motion to dismiss. Eves, 2016 WL 

1948869, at *1. The court entered judgment for the Governor the 

next day, and Speaker Eves filed a notice of appeal that same day. 

II. 

Damages Claims 

Speaker Eves continues to seek damages under § 1983, for 

alleged violations of his First Amendment rights of political 

affiliation and freedom of association, as well as injunctive 

relief.1 Governor LePage argues in response that either absolute 

or qualified immunity shields him from any personal liability for 

damages under § 1983, and that there is no legal basis for 

injunctive relief. 

 1 On appeal, Speaker Eves has abandoned his § 1983 damages 

claims arising from free speech and due process violations. He 

continues to press those alleged violations in his pursuit of 

equitable relief. 
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The facts and the parties' arguments touch upon a host 

of nuanced First Amendment questions. We leave them for another 

day and affirm dismissal of the damages claims on narrow grounds: 

Governor LePage is entitled to qualified immunity, because Speaker 

Eves has not shown that it was beyond debate that the Governor's 

discretionary actions amounted to unconstitutional retaliation 

against the Speaker.2 See Ashcroft v. al-Kidd, 563 U.S. 731, 741 

(2011). 

A. Qualified Immunity Framework 

Qualified immunity analysis, which forecloses Speaker 

Eves's damages claims, encompasses two inquiries. The first is 

"whether the facts alleged or shown by the plaintiff make out a 

violation of a constitutional right," and the second is "whether 

the right was 'clearly established' at the time of the defendant's 

 2 Because we affirm the district court's judgment on these 

qualified immunity grounds, we express no view on whether Governor 

LePage could reasonably have believed that his own First Amendment 

rights and the government speech doctrine protected these 

communications from suit. See Eves, 2016 WL 1948869, at *13–15; 

see also Walker v. Texas Div., Sons of Confederate Veterans, Inc., 

135 S. Ct. 2239 (2015); Pleasant Grove City v. Summum, 555 U.S. 

460 (2009). We also do not reach the Governor's absolute immunity 

defense, or the question of whether Speaker Eves's position as 

President of GWH, an organization receiving state funding and 

overseeing Maine's first public charter school, made him a 

"policymaker" who could be terminated without offending the First 

Amendment. See, e.g., O'Connell v. Marrero-Recio, 724 F.3d 117, 

126 (1st Cir. 2013); Prisma Zona Exploratoria de P.R., Inc. v. 

Calderon, 310 F.3d 1, 7–8 (1st Cir. 2002). 
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alleged violation." Stamps v. Town of Framingham, 813 F.3d 27, 

34 (1st Cir. 2016) (quoting Mlodzinski v. Lewis, 648 F.3d 24, 32 

(1st Cir. 2011)). The second prong, in turn, contains two 

subparts: "(a) whether the legal contours of the right in question 

were sufficiently clear that a reasonable [official] would have 

understood that what he was doing violated the right, and 

(b) whether in the particular factual context of the case, a 

reasonable [official] would have understood that his conduct 

violated the right." Id. (quoting Mlodzinski, 648 F.3d at 32–33). 

Qualified immunity ultimately shields "all but the plainly 

incompetent or those who knowingly violate the law." Mullenix v. 

Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Malley v. 

Briggs, 475 U.S. 335, 341 (1986)). 

We jump directly to the second prong3 and ask whether 

Speaker Eves has met his burden to show that Governor LePage 

violated "clearly established" federal law. See, e.g., Lopera v. 

Town of Coventry, 640 F.3d 388, 396 (1st Cir. 2011) (exercising 

the Pearson option and beginning with prong two). In doing so, 

we heed the Supreme Court's oft-repeated warning "not to define 

clearly established law at a high level of generality." E.g., 

 3 In Pearson v. Callahan, the Supreme Court instructed 

lower courts "to exercise their sound discretion in deciding which 

of the two prongs of the qualified immunity analysis should be 

addressed first in light of the circumstances of the particular 

case at hand." 555 U.S. 223, 236 (2009). 
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Mullenix, 136 S. Ct. at 308; Plumhoff v. Rickard, 134 S. Ct. 2012, 

2023 (2014); al-Kidd, 563 U.S. at 742; Stamps, 813 F.3d at 39. 

Although Speaker Eves need not produce "a case directly on point" 

to overcome Governor LePage's qualified immunity defense, 

"existing precedent must have placed the . . . constitutional 

question beyond debate." al-Kidd, 563 U.S. at 741. 

B. Analysis of Qualified Immunity Defense 

The specific question we must consider is whether a 

reasonable governor objectively could have been uncertain about 

either the contours of the legal landscape or the constitutionality 

of this particular series of actions. See Stamps, 813 F.3d at 34. 

Speaker Eves bears the burden of proof, see Rivera-Corraliza v. 

Morales, 794 F.3d 208, 215, 219 (1st Cir. 2015), and he must place 

it beyond debate that Governor LePage unlawfully infringed upon 

the Speaker's First Amendment interests. 

Speaker Eves has not done so. On these facts, a 

reasonable governor could have been uncertain whether the attempts 

to influence GWH would infringe upon the Speaker's constitutional 

rights -- even if the attempts were successful. No Supreme Court 

case or circuit case clearly forbade Governor LePage from informing 

a potential recipient of a government grant of his intention to 

exercise funding discretion, afforded him by the state 

legislature, if the potential recipient chose to persist with a 

course of action that the Governor disfavored. The decision that 
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actually affected the Speaker was made by third parties -- and 

private parties, at that. See Zaloga v. Borough of Moosic, No. 

15-2723, 2016 WL 6156003, at *5 (3d Cir. Oct. 24, 2016) (affording 

qualified immunity to elected official, for lack of clearly 

established law, in part because "it has never been established 

that a governmental official who does not himself retaliate but 

instead pressures another individual to retaliate . . . can be 

held personally liable"). 

Speaker Eves articulates the alleged § 1983 violation as 

Governor LePage "us[ing] his control over public funds to coerce 

a private employer into firing the leader of the opposing political 

party in retaliation for that leader's exercise of First Amendment 

rights." At the highest level of generality, denying a 

governmental benefit "on a basis that infringes [a plaintiff's] 

constitutionally protected interests" amounts to a cognizable 

§ 1983 claim. Perry v. Sindermann, 408 U.S. 593, 597 (1972). 

In our view, however, Speaker Eves "cannot plausibly 

urge that [Governor LePage] had no valid . . . reason" for 

interfering with GWH's hiring decisions, in the specific context 

of this case. Wood v. Moss, 134 S. Ct. 2056, 2070 (2014). The 

qualified immunity test for government officials is objective, 

rather than subjective; we focus on what a reasonable governor 

could have believed, not on allegations about what Governor LePage 

actually believed. See Messerschmidt v. Millender, 132 S. Ct. 
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1235, 1245 (2012); Harlow v. Fitzgerald, 457 U.S. 800, 817–19 

(1982) (holding that mere allegations of bad faith or pretext do 

not suffice without allegations of objectively and clearly 

wrongful conduct, and thereby abrogating Scheuer v. Rhodes, 416 

U.S. 232 (1974)); Matalon v. Hynnes, 806 F.3d 627, 633 (1st Cir. 

2015); Floyd v. Farrell, 765 F.2d 1, 4–6 (1st Cir. 1985). The 

Governor reasonably could have believed that his threats and 

criticisms pertained to subjects within his political ken and broad 

discretionary authority as governor, and that he was acting 

lawfully by criticizing and commenting upon GWH's plan to employ 

a president with a track record of opposition to Governor LePage's 

priorities with respect to education policy. 

To avoid this conclusion, Speaker Eves must identify 

"existing precedent . . . [that] placed the statutory or 

constitutional question beyond debate." Taylor v. Barkes, 135 

S. Ct. 2042, 2044 (2015) (per curiam) (quoting al-Kidd, 563 U.S. 

at 741). He cites several circuit cases and says that they put 

Governor LePage on notice that the Governor's communications with 

a third party -- that is, GWH -- violated the Speaker's rights. 

Of the cases the Speaker identifies, we discuss three, each of 

which involved a governor as defendant: Mihos v. Swift, 358 F.3d 

91 (1st Cir. 2004); El Dia, Inc. v. Rossello, 165 F.3d 106 (1st 

Cir. 1999); and Blankenship v. Manchin, 471 F.3d 523 (4th Cir. 

2006). None of the three placed it "beyond debate," in June 2015, 
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that the Governor's actions violated the Speaker's constitutional 

rights. 

The decision in Mihos does not support denial of 

qualified immunity for at least two reasons. First, Mihos is 

factually dissimilar: the court denied pretrial qualified immunity 

to a governor who had directly terminated a plaintiff's appointment 

to a public-service position with a fixed term. In 1999, the 

Governor of Massachusetts, Paul Cellucci, reappointed plaintiff 

Christy Mihos to the Massachusetts Turnpike Authority, a "public 

instrumentality," for an eight-year term to expire in 2007. 

Mihos, 358 F.3d at 96. In 2001, Mihos and a colleague voted to 

delay an increase in Turnpike tolls beyond the date preferred by 

Cellucci's successor, Governor Swift. Id. at 96–97. Governor 

Swift responded by removing them from office, citing "the fiscal 

irresponsibility of their votes" on the toll increase. Id. at 97. 

The Mihos court "articulate[d] the First Amendment right at stake 

. . . as the right of a public official to vote on a matter of 

public concern . . . without suffering retaliation from the 

appointing authority for reasons unrelated to legitimate 

governmental interests," and found that the right was clearly 

established. Id. at 109. 

Mihos's precise holding, however, was that "[n]o 

reasonable public official could have failed to realize that a 

member of a public instrumentality cannot be terminated on such 
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grounds for voting on matters of public concern within his 

authority." Id. at 110. Because Governor LePage did not directly 

terminate Speaker Eves's employment, but rather (taking the 

Speaker's allegations as true) used discretionary state funding as 

leverage to influence a private organization, Mihos did not 

indisputably put Governor LePage on notice that his particular 

conduct amounted to clearly unlawful retaliation in violation of 

the Speaker's constitutional rights.4

Even if Mihos were on all fours with this case, it would 

fail to undermine Governor LePage's qualified immunity defense for 

a second reason: the Governor could reasonably have concluded that 

Mihos's reasoning had been undermined by Garcetti v. Ceballos, 547 

U.S. 410 (2006). Mihos applied the familiar Pickering test and 

weighed Mihos's First Amendment interests against "the interest of 

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

public services it performs through its employees." Mihos, 358 

F.3d at 103 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 

 4 The Speaker also cites Blankenship, which also involved 

threats of adverse regulatory action directly against the 

plaintiff. See Blankenship, 471 F.3d 523. The Fourth Circuit 

denied immunity at the 12(b)(6) stage to Joe Manchin III, then 

Governor of West Virginia, who had allegedly reacted to political 

criticism from plaintiff Blankenship by directing state regulators 

to apply "tougher scrutiny" to Blankenship's business affairs and 

work sites. Id. at 525–26. The case is distinguishable for that 

reason. 
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(1968)). But two years later, the Supreme Court squarely rejected 

"the notion that the First Amendment shields from discipline the 

expressions employees make pursuant to their professional duties." 

Garcetti, 547 U.S. at 426. That rejected notion is central to 

Mihos's reasoning. 

Other courts, in granting qualified immunity, have 

observed that Garcetti has caused "substantial disagreement" among 

lower courts with respect to the scope of retaliation claims by 

public employees. Werkheiser v. Pocono Twp., 780 F.3d 172, 180 

(3d Cir. 2015). The Third Circuit, for example, granted qualified 

immunity last year to two elected officials who were subjected to 

a retaliation lawsuit by a third elected official, plaintiff 

Werkheiser, after the defendants denied Werkheiser reappointment 

to a position in local government. Id. at 174–75. The court held 

that it was not clearly established whether elected officials -- 

like Werkheiser, or someone like Speaker Eves in the instant case 

-- are "public employees," nor what speech by elected officials 

should be categorized as "pursuant to their official duties." See 

id. at 177-81 (collecting cases and discussing "the unsettled 

nature of the law," after Garcetti, "amongst both the circuit 

courts and the district courts"). Because of the uncertainty in 

this doctrinal area in the wake of Garcetti, a reasonable official 
- 21 - 

in Governor LePage's position could also have viewed Mihos as a 

case of uncertain precedential value.5 

In El Dia, the issue was whether the Governor of Puerto 

Rico, Pedro Rossello, was entitled to qualified immunity for his 

alleged termination of advertising contracts between government 

agencies and the plaintiff newspaper, which had "published a series 

of articles alleging patterns of fraud and waste in the Rossello 

Administration." 165 F.3d at 108. This court acknowledged that 

"[c]learly established law prohibits the government from 

conditioning the revocation of benefits on a basis that infringes 

constitutionally protected interests." Id. at 110 (citing Perry, 

408 U.S. at 597). But in El Dia, "the very action in question 

ha[d] previously been held unlawful" by decisions in the Third and 

 5 We acknowledge that Garcetti addresses mostly free 

speech claims, as opposed to political affiliation or freedom of 

association claims. But Garcetti's concerns about the "delicate 

balancing" of public-employee rights and government flexibility, 

as well as its anxiety about "judicial intervention in the conduct 

of governmental operations," are not applicable only in the free 

speech context. 547 U.S. at 423. Those concerns, for example, 

also underlie the so-called policymaker exception: the principle 

that political affiliation, for certain public employees, is an 

"appropriate requirement for continued tenure." O'Connell, 724 

F.3d at 126 (quoting Rosenberg v. City of Everett, 328 F.3d 12, 18 

(1st Cir. 2003)); see also Maymí v. P.R. Ports Auth., 515 F.3d 20, 

27 (1st Cir. 2008) (recognizing that both an official's political 

affiliation and her "substantive views on agency matters" are 

permissible justifications for firing or demotion when she 

occupies a policymaking role (citing Flynn v. City of Boston, 140 

F.3d 42, 47 (1st Cir. 1998))). 
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Fifth Circuits. Id. (quoting Anderson v. Creighton, 483 U.S. 635, 

640 (1987)). Although El Dia involved alleged retaliation by 

means of withholding discretionary benefits, and not by means of 

affirmative regulatory action, the case does not speak directly to 

the actions Governor LePage took and therefore did not put him on 

notice that his conduct was unlawful. Even more importantly, El 

Dia involved intrusion by a governor into the operations of a 

newspaper and the freedom of the press -- factors not present 

here.6

By way of conclusion, we reiterate that we have no need 

to address the constitutionality vel non of Governor LePage's 

conduct. We hold only that an official in the Governor's position 

reasonably could have been uncertain whether this particular 

series of actions, falling within broad discretion given by the 

 6 Speaker Eves cites several other decisions from our 

sister circuits. Those cases also fail to render it beyond debate 

that Governor LePage's conduct violated the Speaker's First 

Amendment rights. In the absence of "controlling authority" from 

the Supreme Court or this court, the Speaker's burden is to 

identify "a consensus of cases of persuasive authority" from our 

sister circuits. Wilson v. Layne, 526 U.S. 603, 617 (1999); see 

also El Dia, 165 F.3d at 110 n.3 (recognizing that, "[a]mong other 

factors, the location and level of the precedent," as well as its 

age, are important factors in a qualified immunity analysis). 

Speaker Eves has not met that burden: the out-of-circuit cases 

that are not factually distinguishable predate key Supreme Court 

precedent or are inconsistent with intervening precedent from our 

circuit. Even collectively, these cases fall short of a 

"consensus." 
- 23 - 

legislature and pertaining to funds not yet formally appropriated, 

amounted to a violation of Speaker Eves's constitutional rights. 

Our holding is consistent with a long line of Supreme Court cases 

applying immunity as a shield for public officials who must 

exercise broad discretion in the discharge of their public duties. 

See, e.g., Mullenix, 136 S. Ct. at 310-12; Wood, 134 S. Ct. at 

2067 (discussing broad discretion inherent to Secret Service 

roles); al-Kidd, 563 U.S. at 741–43 (affording qualified immunity 

to former U.S. Attorney General); Harlow, 457 U.S. at 815-19; Nixon 

v. Fitzgerald, 457 U.S. 731, 749-58 (1982) (affording absolute 

immunity to former U.S. President, as "a functionally mandated 

incident of the President's unique office"). 

III. 

Injunctive and Declaratory Relief 

Speaker Eves seeks, in addition to damages, injunctive 

relief preventing Governor LePage from threatening GWH again or 

"using his authority" to interfere with the Speaker's employment 

in the private sector. Speaker Eves also seeks a declaratory 

judgment and an order compelling the Governor to complete 

"effective civil rights training." Qualified immunity, of course, 

cannot shield the Governor from these requests for equitable 

relief. See Battista v. Clarke, 645 F.3d 449, 452 (1st Cir. 2011). 

The district court suggested that Speaker Eves's 

equitable claims are moot. Eves, 2016 WL 1948869, at *21. We 
- 24 - 

agree that the request for injunctive relief is moot insofar as it 

relates to ongoing interference with GWH. The Speaker conceded 

at oral argument, as a factual matter, that he has obtained a new 

private-sector job and that GWH has a new president. There appears 

to be "no ongoing conduct left for the court to enjoin." ACLU of 

Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 53 (1st 

Cir. 2013).

As to Speaker Eves's other requests for prospective 

injunctive relief, the district court feared that the Speaker's 

desired injunction would have "extraordinary" breadth and would 

attempt to "compel [Governor LePage] to conform his behavior to 

some preferred standard of decorum." Eves, 2016 WL 1948869, at 

*22. We perceive the same problem, but it strikes us as sounding 

more in standing doctrine than in mootness. The Governor, as the 

party invoking mootness, bears a "formidable burden" in attempting 

to show that his "allegedly wrongful behavior could not reasonably 

be expected to recur." Friends of the Earth, Inc. v. Laidlaw 

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). Even so, 

projected future harm can be "too speculative to support standing," 

even if it is "not too speculative to overcome mootness." Id. 

Speaker Eves has not "credibly allege[d] . . . a 

realistic threat" of future retaliation from Governor LePage. Id. 

And the Supreme Court has been reluctant to afford private citizens 

standing to enjoin hypothetical future government conduct. See, 
- 25 - 

e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 105–06, 110 (1983) 

(finding no standing for plaintiff seeking to enjoin police 

department's future use of choke holds, because he had failed to 

"indicate why [he] might be realistically threatened" by the use 

of such choke holds in the future). The Speaker's "subjective 

fears . . . are generic, speculative, and fail to demonstrate a 

'real and immediate threat' of likely future violations." 

Asociación de Periodistas de P.R. v. Mueller, 680 F.3d 70, 85 (1st 

Cir. 2012) (quoting Lyons, 461 U.S. at 105). 

There is another reason to affirm dismissal of these 

claims: Speaker Eves has not pleaded facts sufficient to prove his 

entitlement to an injunction. He has not demonstrated that any 

injury he has suffered was "irreparable," nor that "the public 

interest would not be disserved by a permanent injunction." eBay 

Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). "The 

decision to grant or deny permanent injunctive relief is an act of 

equitable discretion by the district court," id., and the district 

court did not abuse its discretion in this instance. 

IV. 

State Law Claim 

Speaker Eves also raises a pendent state claim under the 

Maine Tort Claims Act ("MTCA") for intentional interference with 

contract. Governor LePage argues that he is immune, as a matter 

of state law, because Maine grants absolute personal immunity to 
- 26 - 

"employees of governmental entities" for "[p]erforming or failing 

to perform any discretionary function or duty, whether or not the 

discretion is abused." M.R.S.A. tit. 14, § 8111(1), (1)(C). 

Having properly dismissed the § 1983 claims on which 

federal jurisdiction relied, the district court exercised 

supplemental jurisdiction and dismissed the pendent MTCA claim on 

immunity grounds. In our view, the district court should have 

declined to exercise supplemental jurisdiction. 

A district court "may decline to exercise supplemental 

jurisdiction" if the court "has dismissed all claims over which it 

has original jurisdiction." 28 U.S.C. § 1367(c)(3). The Supreme 

Court has explained that district courts must weigh several factors 

when deciding whether to exercise jurisdiction over pendent state 

law claims: assuming jurisdiction might promote "judicial economy" 

and "convenience," but declining jurisdiction might promote 

"comity" or afford the parties a "surer-footed reading of 

applicable law" from state courts. United Mine Workers of Am. v. 

Gibbs, 383 U.S. 715, 726 (1966). 

Here, the balance of Gibbs factors tips heavily toward 

a federal court declining to exercise its supplemental 

jurisdiction. Admittedly, the state law claim does not 

predominate in Speaker Eves's lawsuit, see id. at 727–28, and his 

claims all "derive from a common nucleus of operative fact," id. 

at 725. Still, in this circuit, it is well settled "that in the 
- 27 - 

usual case in which all federal-law claims are eliminated before 

trial, the balance of factors [from Gibbs] will point toward 

declining to exercise jurisdiction over the remaining state-law 

claims." Rivera-Díaz v. Humana Ins. of P.R., Inc., 748 F.3d 387, 

392 (1st Cir. 2014) (quoting Carnegie-Mellon Univ. v. Cohill, 484 

U.S. 343, 350 n.7 (1988)). Most importantly, comity concerns loom 

especially large when a case broaches questions about the authority 

of a state's governor and the separation of powers within the state 

government. We take no position on whether the district court's 

interpretation of Maine law was correct; for the foregoing reasons, 

the matter is best left to the Maine courts. 

To that end, the district court's dismissal of Speaker 

Eves's MTCA claim on the merits is vacated. We remand with 

instructions to dismiss the claim without prejudice. 

V. 

Conclusion 

The district court's judgment is affirmed with respect 

to the dismissal of Speaker Eves's federal claims, and vacated 

with respect to the dismissal with prejudice of Speaker Eves's 

MTCA claim, which is remanded to the district court for a dismissal 

without prejudice. No costs are awarded. 

-Dissenting Opinion Follows- 

 
- 28 - 

THOMPSON, Circuit Judge, dissenting. 

Mark Eves is qualified to lead Good WillHinckley. This really goes beyond the 

political. This is personal and vindictive. 

I often disagree with Speaker Eves, but he's 

a fine and honest man. More importantly, he's 

a husband and a father of three beautiful kids 

who is trying to support his family. 

Political battles are one thing, but trying to 

ruin someone economically is quite another. 

Roger Katz, a Maine 

Republican state senator7

 Let what happened here sink in for a moment: As part of 

his 2015 scorched-earth campaign against Democrats, Republican 

Governor LePage threatened to put GWH — a century-old socialservice organization for at-risk children — out of business by 

withholding over a cool mil in state funding unless GWH canned 

Democratic House Speaker Eves as its president. That's the story 

underlying Speaker Eves's complaint. And it's the one we must 

take as true given the pleading-stage nature of this controversy. 

See, e.g., Morales–Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st 

Cir. 2012). 

Anyway, zeroing in on the second prong of the qualifiedimmunity analysis (the clearly-established-right prong), my 

colleagues basically believe a governor back then could've 

reasonably thought it perfectly legal to do what Governor LePage 

did, because, they say, no prior case "forbade" the precise conduct 

 7 A quote lifted from Speaker Eves's operative complaint. 
- 29 - 

that Speaker Eves complains of. Take a second and reread the 

majority's holding (fyi, I've added bracketed letters for ease of 

reference): arguing that [a] no case holds a government official 

liable for pressuring a "private" "third party" to retaliate 

against another, the majority writes that 

an official in the Governor's position reasonably could 

have been uncertain whether this particular series of 

actions, [b] falling within broad discretion given by 

the legislature and [c] pertaining to funds not yet 

formally appropriated, amounted to a violation of 

Speaker Eves's constitutional rights. 

On top of that, my colleagues insist that [d] the Governor 

"reasonably could have believed . . . that he was acting lawfully 

by criticizing and commenting upon GWH's plan to employ a president 

with a track record of opposition to [his] priorities with respect 

to education policy." Convinced that the majority's qualifiedimmunity analysis is off the mark, I write these words of protest. 

The qualified-immunity defense hardly gives an official 

carte blanche to trash a citizen's constitutional rights simply 

because the fact pattern of the case doesn't precisely match the 

fact pattern of earlier cases. See, e.g., Hope v. Pelzer, 536 

U.S. 730, 739, 741 (2002) (explaining that "officials can still be 

on notice that their conduct violates established law even in novel 

factual circumstances," and adding that "[f]or a constitutional 

right to be clearly established, its contours 'must be sufficiently 

clear that a reasonable official would understand that what he is 
- 30 - 

doing violates that right'" (quoting Anderson v. Creighton, 483 

U.S. 635, 640 (1987))); Marrero-Méndez v. Calixto-Rodríguez, 830 

F.3d 38, 46 (1st Cir. 2016); Mlodzinski v. Lewis, 648 F.3d 24, 38 

(1st Cir. 2011). That makes sense, because 

[t]he easiest cases don't even arise. There has never 

been a section 1983 case accusing welfare officials of 

selling foster children into slavery; it does not follow 

that if such a case arose, the officials would be immune 

from damages liability because no previous case had 

found liability in those circumstances. 

K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) 

(Posner, J., for the court); accord Marrero-Méndez, 830 F.3d at 47 

(holding that because the "coerciveness" of the official's actions 

is "patently" obvious, "no particular case — and certainly not one 

directly on point — need have existed to put a reasonable officer 

on notice of its unconstitutionality" (citation and quotations 

omitted)). What this means is that a plaintiff can meet his burden 

on the clearly-established front either by showing a prior case 

factually on all fours with the current one or by showing a 

violation so "obvious" that a reasonable person would've known 

about it, see Brosseau v. Haugen, 543 U.S. 194, 199 (2004) — note, 

please, that a violation fits the so-obvious category if "the 

relevant legal rights and obligations" were "particularized 

enough" that a sensible public servant could've "extrapolate[d] 

from them and conclude[d] that a certain course of conduct [would] 
- 31 - 

violate the law," see Savard v. Rhode Island, 338 F.3d 23, 28 (1st 

Cir. 2003) (en banc) (opinion of Selya, J.). 

Viewed against this backdrop, my co-panelists' analysis 

doesn't persuade. Take first their comment — point [a] — that no 

case has ever put a public official on the liability hook for 

pressuring a private third-party entity to ax one of its employees. 

Undercutting their position is the fact that the very opinion they 

cite to support their position also says that "a public official" 

who took "some type of adverse action" impinging the plaintiff's 

First Amendment rights may be personally liable if he 

"'threaten[ed]' or 'coerce[d]' the third party to act." See 

Zaloga v. Borough of Moosic, No. 15-2723, 2016 WL 6156003, at *4 

(3d Cir. Oct. 24, 2016) (quoting McLaughlin v. Watson, 271 F.3d 

566, 573 (3d Cir. 2001)). And assessing the allegations through 

the required plaintiff-friendly prism, I have no trouble 

concluding that Governor LePage's bullying — forcing GWH to sack 

Speaker Eves on pain of losing more than a million bucks in 

expected state funding, knowing as he did that such a loss would 

likely kill GWH — is the type of coercion condemned by Zaloga. 

As for the majority's talk about Governor LePage's 

funding discretion — point [b]: Does anyone think the Governor 

would or should get off scot-free if he had browbeat a statefunds-receiving entity into dumping an employee for religious, 

racial, or gender reasons? No way. Anyhow, a case on our books 
- 32 - 

long before the present fracas flatly contradicts Governor 

LePage's view — embraced by the majority — that the First Amendment 

doesn't apply to the mere withholding of discretionary state 

funding. See El Dia, Inc. v. Rossello, 165 F.3d 106 (1st Cir. 

1999). An El Dia-run newspaper published a bunch of unflattering 

articles about Puerto Rico's then governor and his administration. 

Id. at 108. Retaliating, the governor and other officials had 18 

government agencies stop advertising in the paper. Id. El Dia 

sued, alleging restriction of its First Amendment rights. Id. A 

district judge later granted the defendants' qualified-immunitybased motion to dismiss. Id. On appeal, the defendants persisted 

in arguing that no "'clearly established' First Amendment law" 

barred them from pulling gobs of discretionary "government 

advertising" from the paper as punishment for its knocking the 

administration. Id. But we would have none of it, saying in a 

ringing statement that "[i]t would seem obvious that using 

government funds" as a stick to punish First Amendment activity 

offends the Constitution because "[c]learly established law 

prohibits the government from conditioning the revocation of 

benefits on a basis that infringes constitutionally protected 

interests." Id. at 109-10 (emphasis added) (citing Perry v. 

Sindermann, 408 U.S. 593, 597 (1972)). 

As I see it, a levelheaded governor could've 

extrapolated from El Dia that he couldn't withdraw discretionary 
- 33 - 

state funding to get back at a political opponent for exercising 

First Amendment rights. The majority tries to deflect El Dia's 

impact by arguing that "El Dia involved intrusion by a governor 

into the operations of a newspaper and the freedom of the press — 

factors not present here." But nothing in El Dia's money quote — 

that "[c]learly established law prohibits the government from 

conditioning the revocation of benefits on a basis that infringes 

constitutionally protected interests" — limits its reach to 

newspaper/freedom-of-the-press cases. Rather, a fair reading of 

the words used there gave Governor LePage fair warning that his 

now-challenged actions would cross the constitutional line. 

That leads us to my co-panelists' point [c] — that 

Governor LePage's actions related to "not yet formally 

appropriated" funds. Well, they never explain why that matters. 

Regardless, the complaint alleges the Governor understood that 

discretionary funds for GWH were "very likely to remain in the 

budget when it was enacted." After all (to quote the complaint 

again), the $132,500 he had frozen "had already been submitted by" 

the department of education to the state controller's office "for 

payment" to GWH in the first quarter of the proposed budget — that 

the controller was getting ready to make this payment shows how 

everyone believed the money would be in the soon-to-be-enacted 
- 34 - 

budget. And if more were needed, the Governor's threats certainly 

presupposed that GWH-related funds would stay in the budget. 

And that leaves us with the majority's point [d] — that 

Governor LePage can get away with doing what he did because Speaker 

Eves opposed his education policy. I see a big problem: by 

accepting the Governor's response to Speaker Eves's politicalaffiliation-based allegations, they're not taking the complaint's 

well-pled allegations as true and reading them in the light most 

hospitable to the Speaker — which is a no-no. See generally Wilson 

v. HSBC Mortg. Servs., Inc., 744 F.3d 1, 7 (1st Cir. 2014) 

(discussing the motion-to-dismiss protocol). 

The bottom line: Clearly-established law didn't give 

Governor LePage the discretion to infract Speaker Eves's 

constitutional rights. And because the majority — though 

conscientious — rules otherwise, I respectfully but emphatically 

dissent.