*Of the Northern District of California, sitting by

designation.

United States Court of Appeals

For the First Circuit

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

CHRISTY PETER MIHOS,

Plaintiff, Appellee/Cross-Appellant,

v.

JANE SWIFT, Individually and in her Official Capacity

 as the ACTING GOVERNOR OF THE COMMONWEALTH OF MASSACHUSETTS,

Defendant, Appellant/Cross-Appellee, and

WILLIAM F. GALVIN, in his Official Capacity 

as SECRETARY OF THE COMMONWEALTH OF MASSACHUSETTS,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and Schwarzer,* Senior U.S. District Judge.

Thomas A. Barnico, Assistant Attorney General, with whom

Thomas F. Reilly, Attorney General, and David R. Kerrigan,

Assistant Attorney General, was on brief, for appellant.

Harvey A. Schwartz, with whom Laurie Frankl and Rodgers,

Powers & Schwartz LLP were on brief, for appellee.

_____________________________

February 13, 2004
-2-

LIPEZ, Circuit Judge. In 2002, then-Acting Governor Jane

Swift fired Christy Peter Mihos and Jordan Levy from their

positions as members of the Massachusetts Turnpike Authority after

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

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

suit against Swift under the First and Fourteenth Amendments and 42

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

rights by removing him in retaliation for voting against her wishes

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

the defense of qualified immunity.

Although the pleadings never advanced beyond Swift's

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

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

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

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

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

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

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

entered a declaratory judgment that Swift violated Mihos's First

Amendment rights but essentially changed course on qualified

immunity, ruling that the law protected Swift against claims for

damages arising from the violation of Mihos's First Amendment

rights. Specifically, the court entered a final judgment that

included these provisions:
1Three appeals have been filed in this case. The first, 02-

2521, is Swift's appeal from the court's denial of her motion to

dismiss in Mihos I. The second, 03-1038, is Mihos's appeal from

the court's denial of damages in Mihos II. The third, 03-1090, is

Swift's appeal from the court's award of a declaratory judgment to

Mihos in Mihos II. Accordingly, Swift is designated as the

"Defendant, Appellant/Cross-Appellee," and Mihos is designated as

the "Plaintiff, Appellee/Cross-Appellant."

Additionally, William F. Galvin, in his official capacity as

the Secretary of the Commonwealth of Massachusetts, is captioned as

the "Defendant" on these appeals. After a state court proceeding

ordered Mihos reinstated, Mihos's request for injunctive relief

against Swift and Galvin was moot. Consequently, Mihos's motion to

dismiss the claims against Swift in her official capacity and

against Galvin entirely was granted on October 29, 2002, and there

is no appeal pending in this matter regarding Secretary Galvin.

-3-

(1) Plaintiff, Christy Peter Mihos, is awarded

the following declaratory relief: It is hereby

declared that Acting Governor Jane M. Swift,

acting in her official capacity, violated his

legally protected rights by retaliating

against him for his voting, in his official

capacity as Massachusetts Turnpike

Commissioner, contrary to her communicated

wishes.

(2) All claims of Mihos for damages and for

any other form of relief beyond that allowed

in paragraph (1) of this judgment are

DISMISSED WITH PREJUDICE.

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

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

in Mihos I and the declaratory judgment entered against her in

Mihos II. Mihos appeals the ruling denying his claims for

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

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

denial of damages, and remand for further proceedings.
-4-

I. 

This case comes to us with two lengthy state court

opinions and two district court opinions already filed. See Levy

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

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

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

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

Because the extensive and undisputed factual background of this

case has been set forth fully in published opinions, particularly

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

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

opinion are discussed below where relevant to the issues now before

us on appeal.

A. Background

Governor Paul Cellucci appointed Christy Peter Mihos to

the Massachusetts Turnpike Authority in December 1998 to fulfill

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

Cellucci reappointed Mihos to the Turnpike Authority to a full

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

the Turnpike Authority.

The Turnpike Authority is "a body politic and corporate"

and "a public instrumentality" authorized to operate the

Massachusetts Turnpike and certain other roads known as the

Metropolitan Highway System, including the Massachusetts Turnpike,
-5-

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

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

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

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

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

Through agreements with the Massachusetts Highway Department, the

Turnpike Authority is responsible for certain aspects of the design

and construction of the Central Artery/Tunnel Project, commonly

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

sole responsibility for establishing tolls for the Turnpike, the

Boston Harbor tunnel crossings, and the Metropolitan Highway

System.

This toll-setting responsibility gave rise to the dispute

between Mihos and Swift. The Executive Office of Transportation

and Construction, the Turnpike Authority, and Governor Cellucci

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

raised in 1997 and again in January 2002. In April 2001, thenLieutenant Governor Swift took office as Acting Governor when

Cellucci departed to accept an ambassadorial posting. During the

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

proposals to implement toll increases on portions of the

Massachusetts Turnpike in January 2002. Following investigations

of the financial impact of the proposed toll increase, including

consulting with attorneys, financial experts, and bond counsel for
-6-

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

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

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

increase.

On October 30, 2001, the three Turnpike Authority members

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

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

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

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

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

their positions as members of the Turnpike Authority.

B. The State Court Proceedings

Following receipt of those letters, Mihos and Levy filed

a verified complaint in the Supreme Judicial Court of Massachusetts

seeking, inter alia, declaratory relief that Swift lacked authority

to remove members of the Turnpike Authority. The Supreme Judicial

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

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

remove a member of the Massachusetts Turnpike Authority in

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

700.

After this ruling, Swift conducted hearings to determine

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

Turnpike Authority for cause. By letter dated February 6, 2002,
2See England v. Louisiana State Bd. of Med. Examiners, 375

U.S. 411, 421 (1964)(holding that a party may inform the state

court "that he intends, should the state court[] hold against him

on the question of state law, to return to [federal] District Court

for disposition of his federal contentions.").

-7-

Swift notified Mihos and Levy that she was removing them from

office, asserting that the principal cause for removal was the

fiscal irresponsibility of their votes at the October 30, 2001

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

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

A single justice reversed and referred the matter to the full

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

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

not constitute substantial evidence of cause to remove" and vacated

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

were duly restored to their positions and received back pay.

C. The District Court Proceedings

In addition to seeking review in state court, Mihos

reserved his right to press his First Amendment claim in federal

district court, which he did simultaneously with the state court

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

Swift violated his First Amendment rights by retaliating against

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

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

punitive damages, and attorney's fees. Swift responded with a
-8-

motion to dismiss, asserting the defense of qualified immunity.

Both parties agreed that discovery should be stayed pending the

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

the district court rejected Swift's qualified immunity defense and

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

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

issues this court must decide concern what relief to plaintiff is

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

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

Pursuant to the district court's request, the parties

submitted memoranda regarding plaintiff's claim for compensatory

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

plaintiff sought discovery on issues relating to punitive damages.

After denying the discovery request, the district court issued an

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

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

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

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

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

it held that Swift's own First Amendment interests served as a
3We recognize that qualified immunity, in its full scope,

shields public officials from the burdens of lawsuits and damages.

See, e.g., Guzman-Rivera v. Rivera-Cruz 98 F.3d 664, 666 (1st Cir.

1996)("The qualified immunity defense exists not only to shield

officials from liability for damages, but also to protect them from

the general costs of subjecting officials to the risks of trial. .

. .")(internal quotations and citations omitted).

4For example, the district court wrote in Mihos II that

to comport with constitutional and other

fundamental principles, [Swift] says qualified

immunity should be recognized where a public

official is required to exercise her judgment

and form an opinion as to a balance between

competing interests, so long as the official

does not knowingly or recklessly rely upon

irrelevant considerations or false

information, or ignore contrary information.

Here, defendant Swift asserts that she

exercised her judgment and acted on her

opinion in fact-specific circumstances as to

which previous cases could only have been of

limited assistance as to the appropriate

weighing of clashing rights asserted by the

parties. Swift says no showing has been made

by Mihos that Swift acted in reckless

disregard of information not supporting her

opinion, or relied upon irrelevant or false

considerations. Accordingly, she should be

protected from personal liability.

I conclude that First Amendment precedents

identified in all the preceding parts of this

opinion support this assertion by defendant

Swift.

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

-9-

shield to damages, essentially granting Swift qualified immunity,3

regardless of the terminology it employed.4
-10-

Swift appealed the declaratory judgment in Mihos II and

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

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

that the record before the district court in Mihos II was

inadequate to support the ruling against them.

II.

We first address the district court's rulings in Mihos

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

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

next to determining the record that was properly before the

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

defense in light of that record.

A. The Mihos II Rulings: Declaratory Judgment for Mihos and

Judgment for Swift on Mihos's Damages Claim

Swift seeks reversal of the declaratory judgment that she

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

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

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

true, establish a constitutional violation; that the right was

clearly established; and that a reasonable official would have

known that her actions violated the constitutional right at issue.

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

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

to a defendant does not translate into a victory for a plaintiff on
-11-

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

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

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

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

forward. The court had no basis for entering a declaratory

judgment for Mihos on the constitutional violation claim.

The judgment for Swift on Mihos's damages claim presents

a different problem. Although the district court avoided the

language of qualified immunity in its ruling against Mihos, its

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

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

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

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

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

entirely. The overriding question is which qualified immunity

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

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

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

first ruling was correct. Consequently, the district court erred

in dismissing Mihos's damages claim. 

B. The Scope of the Record

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

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

Pelletier 516 U.S. 299, 309 (1996)("[T]he legally relevant factors
-12-

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

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

conduct as alleged in the complaint that is scrutinized for

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

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

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

1993)(describing "narrow exceptions for documents the authenticity

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

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

documents sufficiently referred to in the complaint.")

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

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

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

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

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

was constitutionally proscribed. In her reply brief, Swift neatly

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

District Court assumed the facts alleged in the complaint to be

true, disregarded allegations concerning the subjective intent of

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

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

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

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

course was misguided.
-13-

Because Swift's "motivation in effecting the discharge is

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

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

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

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

constitutional claim does not disappear at the qualified immunity

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

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

consideration of motivation in rejecting the qualified immunity

defense. . . .").

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

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

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

'acts and omissions concerning the Authority's finances,

particularly during the time period culminating with the

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

thereafter, were fiscally irresponsible, resulting in adverse

consequences of substantially decreasing projected revenues of the

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

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

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

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

alternative revenue plan prepared by Mihos was created 'hurriedly'

and in a 'haphazard' manner, and that it did not 'adequately'
5In reciting these reasons from Levy II, the district court

ignored language in Levy II finding that many of the nonretaliatory reasons for the terminations advanced by Swift were

supported by "no evidence." See, e.g., Levy II, 436 Mass. at 749-

51 ("There was no evidence that the vote to 'delay' the toll

increases violated any covenant in the 1997 and 1999 trust

agreements or their corresponding bond prospectuses. . . . There

is no evidence that Levy and Mihos failed to do anything legally

required of them. . . . There is no requirement to generate 'new

revenues'. The plan satisfies the Authority's existing

obligations. . . . [Mihos's and Levy's] plan had not been the

-14-

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

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

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

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

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

other protections against an award of damages for the good faith

performance of public duties by the Acting Governor of the

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

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

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

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

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

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

of her discretion in performing her duties as the Acting Governor

of the Commonwealth. Swift was required to exercise that

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

among other things, gross fiscal irresponsibility on the part of

[Mihos.]" Id. at 57-58.5
result of 'haphazard' planning. . . . There was nothing haphazard

about [Mihos's and Levy's] actions. . . . Contrary to the

Governor's contention, there was no obligation to vote on the

proposed toll increases and the alternative revenue plan at the

same time.")

6In her reply brief, Swift also urges that Levy II is part of

the record because Mihos "made specific reference to the

proceedings before the SJC in his complaint." See, e.g., Watterson

v. Page, 987 F.2d 1, 3 (1st Cir. 1993)("documents sufficiently

referred to in the complaint" can be properly considered on a

motion to dismiss). In paragraph 16 of the complaint, Mihos stated

that "[f]ollowing proceedings in the Massachusetts Supreme Judicial

Court, the defendant Acting Gov. Swift held hearings concerning the

removal of Mr. Mihos and Mr. Levy." This is the only reference in

the complaint to the state court proceedings, and simple chronology

compels the conclusion that Mihos was not referring to Levy II: the

complaint was filed almost three months before Levy II was decided.

We need not decide whether this reference is sufficient to

expressly incorporate Levy I into the record. The findings in Levy

I are not germane to the issues on appeal, and neither party relies

on Levy I for their legal arguments in the briefs.

-15-

Swift claims that the district court properly relied on

Levy II in making these determinations regarding her motivations

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

take judicial notice of related decisions of state courts when

ruling on a motion to dismiss.

6 In essence, Swift urges that the

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

lawsuit that her motives for firing him were other than those

described by the SJC in Levy II.

This argument misapprehends the scope of issue

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

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

is essential to the judgment, the determination is conclusive in a
-16-

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

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

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

of issue preclusion that the district court made improper use of

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

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

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

whether Swift's stated reasons were actually the reasons that

motivated her actions. Indeed, the court stated specifically that

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

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

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

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

Massachusetts law. Mihos's complaint alleges a different

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

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

intimidation." The district court denied Mihos the opportunity to

pursue discovery on these allegations, despite the central role

that motivation plays in First Amendment political retaliation

claims.

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

in assessing Swift's actual motivation for firing Mihos was

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

before, "when two adversaries concentrate in attempting to resolve
7We need not address at this juncture the exact contours of

the proper use of Levy I and Levy II in the proceedings on remand.

Beyond Swift's attempted reliance on the motivation issue, neither

party seeks to bring other findings in the Levy litigation into the

record.

-17-

an issue importantly involved in a litigation, there is no

unfairness in considering that issue settled for all time between

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

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

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

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

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

The statements in Levy II related to Swift's motivation

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

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

Accordingly, we limit the factual considerations in our qualified

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

C. Qualified Immunity

Having ascertained the scope of the record before us, we

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

officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

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

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

qualified immunity defense turns upon a purely legal question, we
-18-

review qualified immunity determinations de novo. See Mitchell v.

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

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

2002). 

Drawing on Supreme Court precedent and our own case law,

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

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

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

whether that right was clearly established at the time of the

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

official would have understood that the challenged action violated

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

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

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

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

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

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

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

issues in turn.

1. Constitutional Violation

Because Mihos alleged that Swift violated his First

Amendment rights, the first step in our qualified immunity analysis

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

speech involves a matter of public concern; (2) whether, when
-19-

balanced against each other, the First Amendment interests of the

plaintiff and the public outweigh the government's interest in

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

a substantial or motivating factor in the adverse action against

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

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

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

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

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

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

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

items in sequence.

a. Matter of Public Concern

For purposes of the motion to dismiss, Swift did not

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

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

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

merits.

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

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

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

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

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

2002 toll increase and for a July 2002 toll increase concerned a
-20-

matter of significant import related to financing the largest

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

increases would affect every person and corporation who used the

Turnpike extension into Boston and the Boston Harbor tunnels.

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

clearly a legitimate matter of inherent concern to the electorate,

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

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

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

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

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

public concern, satisfying the first prong of the constitutional

violation analysis.

b. Balancing the Interests

The next step in determining whether Swift violated

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

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

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

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

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

process is commonly known as "Pickering balancing."

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

motivations for firing Mihos loom large. In evaluating the

defendant’s side of the scale, Pickering and its progeny instruct
8In making this observation, we express no opinion regarding

the preclusive effect, if any, that Levy II might have on remand in

evaluating the legitimacy of these concerns or Swift’s ability to

demonstrate them on the record.

-21-

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

preventing unnecessary disruptions and inefficiencies in carrying

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

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

because she was concerned that the tangible results of his vote

would negatively affect the efficient functioning of government

services and the financial standing of the Turnpike Authority, she

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

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

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

she would have no legitimate governmental interests on her side of

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

his vote is a core issue in this case. 

Given the importance of Swift’s motivation for firing

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

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

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

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

with citations to Harlow, is often made in First Amendment

retaliation cases when defendants raise the qualified immunity

defense. We are mindful that the Supreme Court in Harlow changed
9Although in many areas of the law there are important

distinctions between "intent" and "motive," we use them here

interchangeably because the Supreme Court does so in its qualified

immunity jurisprudence. See, e.g., Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982) and Crawford-El v. Britton, 523 U.S. 574 (1998).

-22-

qualified immunity doctrine to emphasize the objective, not

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

for the proposition that inquiries into defendants’ subjective

motivation is inappropriate in the first step of the qualified

immunity analysis in assessing whether an intent-based

constitutional violation has been alleged.9

Prior to Harlow, the third step of the qualified immunity

inquiry consisted of both objective and subjective components: a

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

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

sphere of official responsibility would violate the constitutional

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

malicious intention to cause a deprivation of constitutional rights

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

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

usually avoid an adverse pre-trial qualified immunity ruling by

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

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

maliciously or knew that his actions would deprive the plaintiff of

his constitutional rights. This third step involved an inquiry

into the public official’s subjective state of mind to assess
-23-

whether the official acted with malice or was aware of the

constitutional violation that would flow from his actions.

Seven years later, in Harlow, the Supreme Court revisited

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

the qualified immunity analysis. First, the Court noted that

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

balance between the evils inevitable in any available alternative."

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

that allowing insubstantial claims against public officials to

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

the expenses of litigation, the diversion of official energy from

pressing public issues, and the deterrence of able citizens from

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

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

good-faith defense frequently has proved incompatible with our

admonition . . . that insubstantial claims should not proceed to

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

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

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

816.

Because of the incompatibility of the subjective inquiry

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

Harlow Court found that "the dismissal of insubstantial lawsuits

without trial--a factor presupposed in the balance of competing
10The Supreme Court recently explained again that "[t]he reason

why retaliating against individuals for their speech offends the

Constitution is that it threatens to inhibit exercise of the

protected right. Retaliation is thus akin to an 'unconstitutional

condition' demanded for the receipt of a government-provided

benefit." Crawford-El v. Britton, 523 U.S. 574, 589 n.10

(1998)(citations omitted).

-24-

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

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

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

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

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

that government officials performing discretionary functions

generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

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

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

qualified immunity analysis: whether plaintiff's allegations, if

true, establish a constitutional violation. Certain constitutional

violations, including First Amendment retaliation claims, include

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

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

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

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

qualified immunity analysis inquiries into whether a defendant knew

that he was violating plaintiff's constitutional rights or acted
11Of course, if the constitutional tort itself does not include

a subjective element such as intent, it would be an error to import

such an element into the qualified immunity assessment of whether

the plaintiff's allegations, if true, establish a constitutional

violation.

-25-

maliciously to that end, this jurisprudence has not suggested that

the "objectification" of the qualified immunity inquiry somehow

removes the intent element in the "subset of constitutional torts

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

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

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

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

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

[plaintiff].”).11

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

Supreme Court confirmed that although Harlow eliminated inquiries

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

the qualified immunity analysis, it did not eliminate inquiries

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

the qualified immunity analysis when plaintiff alleges an intentbased constitutional tort. While striking down a heightened

pleading requirement for motivation-based constitutional torts, the

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

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

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

is an important distinction between the 'bare allegations of
-26-

malice' that would have provided the basis for rebutting a

qualified immunity defense under Wood v. Strickland [the third

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

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

Emphasizing its concern with intrusive discovery into a

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

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

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

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

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

found that when assessing intent as an element of a constitutional

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

discovery on any potential theoretical basis for the cause of

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

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

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

Id. 

The Court then observed that "existing law already

prevents this more narrow element of unconstitutional motive

[alleged as part of the underlying constitutional tort] from

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

because a defendant might prevail on a qualified immunity defense

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

need to inquire as to her motives, if (1) the relevant law was not
12Fed. R. Civ. P. 7(a) allows a court to "order a reply to an

answer. . . ." Fed. R. Civ. P. 12(e) provides that "[i]f a

pleading to which a responsive pleading is permitted is so vague or

ambiguous that a party cannot reasonably be required to frame a

responsive pleading, the party may move for a more definite

statement before interposing a responsive pleading. The motion

shall point out the defects complained of and the details desired."

-27-

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

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

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

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

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

the immunity defense eliminated by Harlow, the improper intent

element of various causes of action should not ordinarily preclude

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

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

recognized that even though a qualified immunity defense to an

intent-based constitutional tort often can be resolved on grounds

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

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

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

federal trial judges in handling claims that involve examination of

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

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

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

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

. the district court should resolve [the] threshold question [of
-28-

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

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

allegations, the official's conduct violated clearly established

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

survives these initial hurdles and is otherwise viable, the

plaintiff ordinarily will be entitled to some discovery. Rule 26

vests the trial judge with broad discretion to tailor discovery

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

described the ways in which the district court may limit the

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

depositions and interrogatories, as well as various discovery

scenarios that would facilitate "the prompt and efficient

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

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

not mentioned, summary judgment serves as the ultimate screen to

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

With its careful attention to the ways in which trial

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

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

adoption of an objective standard for qualified immunity in Harlow

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

consideration of qualified immunity when state of mind is an
13When plaintiffs allege an intent-based constitutional tort,

defendants asserting qualified immunity often quote the passage in

Crawford-El stating that "improper motive is irrelevant on the

issue of qualified immunity. . . ." 523 U.S. at 589. In doing so,

they take the passage out of context. In this portion of CrawfordEl, the Court is explaining how Harlow removed the subjective

elements from the third step of the qualified immunity inquiry so

that "bare allegations" that the defendant maliciously or knowingly

violated plaintiff's constitutional rights would no longer suffice

to overcome a qualified immunity defense. As Crawford-El explains

in the same paragraph, its holding in Harlow "that 'bare

allegations of malice' cannot overcome the qualified immunity

defense did not implicate the elements of the plaintiff's initial

burden of proving a constitutional violation," which is the first

step in the qualified immunity inquiry. As we have explained, the

rest of the Crawford-El opinion confirms this point.

Indeed, in the footnote immediately preceding the statement

that "evidence of improper motive is irrelevant on the issue of

qualified immunity," Crawford-El quotes an opinion of Justice

Ginsburg, when she was a judge on the District of Columbia Circuit,

and calls it a "correct understanding of Harlow. . . ."

Had the Court [in Harlow] intended its

formulation of the qualified immunity defense

to foreclose all inquiry into the defendants'

state of mind, the Court might have instructed

the entry of judgment for defendants Harlow

and Butterfield on the constitutional claim

without further ado. In fact, the Court

returned the case to the district court in an

open-ended remand, a disposition hardly

consistent with a firm intent to delete the

state of mind inquiry from every

constitutional tort calculus.

Crawford-El, 523 U.S. at 589 n.11 (quoting Martin v. D.C. Metro.

Police Dep't, 812 F.2d 1425, 1432 (D.C. Cir. 1987)(alteration and

emphasis in original)).

-29-

element of the constitutional tort.13 Swift misreads Harlow in

asserting that its reformulation of the qualified immunity defense

makes her motivation in firing Mihos irrelevant to the qualified

immunity analysis. Therefore, if the qualified immunity defense
-30-

proffered in her motion to dismiss does not identify proper grounds

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

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

constitutionally proscribed motive, she is unlikely to succeed.

Apart from her misguided argument that motivation is

always irrelevant to the qualified immunity inquiry, Swift only

argues that no constitutional violation occurred because her

termination of Mihos was motivated by her legitimate concerns for

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

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

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

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

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

produce a decisive tilt for Mihos.

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

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

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

community in receiving, information on matters of public

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

have a strong interest in voting their conscience on important

issues without having to suffer retaliatory recriminations from

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

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

out freely without fear of retaliatory dismissal."). The public
-31-

also has a substantial interest in members of public authorities

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

judgment, without fear of political interference and intimidation.

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

interest in encouraging the vigorous exercise of official

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

heavily on their side of the Pickering balance.

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

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

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

firing Mihos cannot trump the contrary allegations in Mihos's

complaint. In consequence, the complaint alone sets forth the

factual allegations that inform our review of this motion to

dismiss.

In his complaint, Mihos explains that Swift stated in the

February 6, 2002 termination letters that she removed Mihos and

Levy from office principally because their votes were "fiscally

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

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

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

Mihos alleged that "he exercised his best judgment and concluded

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

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

Mihos's complaint, "Swift was enraged that the Authority failed to
14Many of the qualified immunity cases use the phrases

“substantial factor” and “motivating factor” interchangeably to

describe the causal relationship between the protected conduct and

the adverse action taken against the plaintiff. We prefer to use

the phrase “substantial factor” to avoid confusion with the earlier

discussion of motivation, where motivation, rather than referring

to causation, refers to whether Swift was concerned about

legitimate government interests or impermissible retaliation. See

Stella, 63 F.3d at 74-75 (explaining that "plaintiff must show . .

-32-

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

Further, Mihos alleged that the actions Swift took against him

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

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

office before the expiration of his term because of disagreement

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

termination was "political interference and intimidation." The

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

version of the dispute. Accordingly, when considering only the

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

the scale and the Pickering scale tips decisively in favor of

Mihos.

c. Substantial Factor

Having determined that the Pickering balance favors

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

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

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

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

from the discussion of “motivation” in the previous section.14
. that his speech was a substantial or motivating factor for the

adverse action taken against him . . . and the defendant must then

prove . . . that the employer would have acted in the same way

toward the plaintiff ‘even in the absence of the protected

conduct.’"(citing Mt. Healthy, 429 U.S. at 287)(internal citations

omitted)).

-33-

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

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

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

causal link between the protected conduct and the adverse

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

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

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

to address this issue on the merits.

Mihos and Levy voted against Swift's wishes regarding the

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

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

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

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

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

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

member of the Turnpike Authority, who proposed the January 2002

increases and voted against the July 2002 toll increases, never

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

court that, on these facts, there is no serious dispute that
-34-

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

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

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

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

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

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

conclude that Mihos has alleged a violation of his First Amendment

rights.

2. Clearly Established Right

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

this case was clearly established at the time Swift decided to

remove him from the Turnpike Authority.

The level of abstractness at which the "right" in

question is articulated can often determine the outcome of this

inquiry. In consequence, the Supreme Court has cautioned against

applying general definitions of constitutional rights in the

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

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

for the purpose of ascertaining clear establishment seeks to

discover whether the right was reasonably well settled at the time

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

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

right is clearly established 'must be undertaken in light of the
-35-

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

Suboh, 298 F.3d at 93.

With this guidance in mind, we articulate the First

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

vote on a matter of public concern properly before his agency

without suffering retaliation from the appointing authority for

reasons unrelated to legitimate governmental interests. We have

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

cases directly on point, probably because it is considered

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

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

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

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

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

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

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

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

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

votes as constitutionally protected speech [is] established beyond

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

Cir. 1995).

Notwithstanding Stella and Miller, Swift urges that "a

balancing test, by its indeterminate nature, makes it highly

unlikely that a public employer, in such circumstances, could be
15Whether a reasonable person in Swift's position would have

known that her actions violated that clearly established right is

a different question. We address that question in the next

section.

-36-

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

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

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

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

established,' at least in the absence of closely corresponding

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

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

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

public official that Mihos's First Amendment right was clearly

established.15

As Swift acknowledges in her brief, both cases involve

votes by public officials on matters of public concern and their

subsequent removal based on those votes. Swift seeks to downplay

their import by emphasizing that Miller and Stella neither applied

the Pickering balancing test nor addressed "the limits of the

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

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

public interest."

Once again, Swift is hampered by the procedural posture

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

vote will harm the public interest cannot trump Mihos's claim of a
-37-

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

a motion to dismiss the factual allegations in the complaint

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

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

side of the Pickering scale.

3. The Understanding of a Reasonable Official

The third step in the qualified immunity analysis, which

embodies the objective standard announced in Harlow, requires us to

analyze "whether an objectively reasonable officer in the

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

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

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

no trouble finding that a reasonable official similarly situated to

Swift would have known that terminating Mihos for his vote violated

his constitutional rights. Taking the allegations in the complaint

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

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

vote for reasons unrelated to legitimate governmental interests.

No reasonable public official could have failed to realize that a

member of a public instrumentality cannot be terminated on such

grounds for voting on matters of public concern within his

authority.

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

establish a violation of his First Amendment rights, (2) the right
16Of course, this ruling does not preclude Swift from asserting

qualified immunity in a subsequent motion for summary judgment or

at trial. See Guzman-Rivera v. Rivera-Cruz 98 F.3d 664, 669 (1st

Cir. 1996)(holding that the "defense of qualified immunity may be

raised and appealed at multiple stages of the trial. . . .").

However, if the trial court denies the request for summary judgment

because of a genuine issue as to any material fact, including

motive, that ruling would not permit an interlocutory appeal. See,

e.g., Stella, 63 F.3d at 74 (holding that "a district court's pretrial rejection of a qualified immunity defense is not immediately

appealable to the extent that it turns on either an issue of fact

or an issue perceived by the trial court to be an issue of fact.").

-38-

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

reasonable public official would have known that the discharge

constituted a constitutional violation, we find that Swift is not

entitled to qualified immunity.16

III.

For the reasons explained above, we affirm the district

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

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

remand for proceedings consistent with this opinion.

SO ORDERED.