United States Court of Appeals

For the First Circuit

No. 06-2680

MICHAEL GAGLIARDI,

Plaintiff, Appellant,

v.

MICHAEL J. SULLIVAN and the CITY OF LAWRENCE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Walter H. Underhill, on brief for appellant.

January 18, 2008
 Gagliardi also made a state law claim that is not at issue in 1

this appeal.

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TORRUELLA, Circuit Judge. Michael Gagliardi lost his

position on the Merrimack Valley Workforce Investment Board

("Board") in Lawrence, Massachusetts, when the Board was dissolved

for failure to achieve the required state certification. He

brought suit under 42 U.S.C. § 1983, claiming that Michael 1

Sullivan, Lawrence's mayor ("Mayor Sullivan"), along with the City

of Lawrence itself ("City") and three state officials, were

responsible for the Board's dissolution and his consequent

dismissal, and that such conduct amounted to a violation of his

First and Fourteenth Amendment rights. The three state officials

moved to dismiss Gagliardi's claim for failure to state a claim on

which relief could be granted, see Fed. R. Civ. P. 12(b)(6), and

the district court granted the motion with respect to all five

defendants. Gagliardi appeals this dismissal, but only with

respect to Mayor Sullivan and the City. After careful

consideration, we affirm.

I. Background

A. Facts

Since the district court dismissed Gagliardi's complaint

pursuant to Rule 12(b)(6), we assume the truth of the well-pleaded

facts therein. Martínez-Rivera v. Sánchez-Ramos, 498 F.3d 3, 5

(1st Cir. 2007); see also Ruiz v. Bally Total Fitness Holding
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Corp., 496 F.3d 1, 5 (1st Cir. 2007). We draw our recounting of

the relevant facts from the complaint and the documents annexed to

it or fairly incorporated within it. See Wetmore v. MacDonald,

Page, Schatz, Fletcher & Co., LLC, 476 F.3d 1, 2 (1st Cir. 2007).

The Board was a nonprofit corporation established

pursuant to the Workforce Investment Act §§ 101-195, 29 U.S.C.

§§ 2801-2945 (2007). Its duties included determining how to

allocate federal, state, and local funds to occupational training

in Lawrence and surrounding communities, establishing workforce

development policy, and assisting in overseeing two "one-stop

career centers" in the Lawrence area. During the relevant period,

Mayor Sullivan served as the Board's Chief Elected Official. Among

Mayor Sullivan's duties as Chief Elected Official was to appoint

members to the Board. See id. § 2832(c)(1)(A).

The Workforce Investment Act requires that local boards

be certified by the governor of the state every two years, based on

certain specified criteria. See id. § 2832(c)(2). During the

relevant period, then-Governor Mitt Romney ("Governor Romney")

delegated responsibility for certifying workforce investment

boards, along with receiving and evaluating certification-related

documents, to the Massachusetts Division of Career Services

("DCS"), headed by Susan V. Lawler ("Commissioner Lawler"). DCS

was a subunit of the Massachusetts Department of Workforce

Development ("DWD"), headed by Ranch Kimball ("Secretary
 Governor Romney, Secretary Kimball, and Commissioner Lawler were 2

originally named as defendants in this lawsuit along with Mayor

Sullivan and the City.

 Gagliardi omits to state in his complaint or brief the date on 3

which the report was issued. We glean the fact that it was issued

sometime in the summer of 2005 from the September 13, 2005

newspaper article on this incident, which Gagliardi attached to his

complaint.

 A city department known as the Division of Training and 4

Development ("DTD") assisted in the operation of the two Lawrencearea career centers, and was originally also the employer of record

of the Board members, "Title I administrator," and fiscal agent.

The Board complained to DCS that state policy forbade the DTD from

performing these latter functions, and it was agreed that they

would be transferred to another entity. As Chief Elected Official,

this responsibility fell to Mayor Sullivan.

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Kimball"). DCS conditionally certified Gagliardi's Board sometime 2

in 2004 pending the fulfillment of certain criteria.

At a certain point, the Board became concerned with the

way Mayor Sullivan was using grant money subject to the Board's

jurisdiction. It set up a task force, which in the summer of 20053

uncovered a covert fund of some $1.1 million which Mayor Sullivan

was using for his own purposes. The Board produced a report

exposing the existence of the fund and criticizing Mayor Sullivan's

use of Board funds in general.

In the meantime, the Board was having problems obtaining

its biennial certification from DCS. It had submitted a

certification package sometime in 2004, but DCS stated that it

would not certify the Board until Mayor Sullivan had completed

certain tasks, which he failed to do throughout 2005. DCS cited 4
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this failure as a reason for its inability to grant full

certification to the Board.

In September 2005, the City acknowledged that the Board

had compiled all the certification documents "within its purview,"

but that "there [were] a few items that remain[ed] which [were]

dependent on City of Lawrence Decisions." Soon thereafter,

Gagliardi and the Board's chair disclosed Mayor Sullivan's inaction

to a local newspaper, which published an article on the matter on

September 13, 2005. According to Gagliardi's complaint, this

publicity infuriated Mayor Sullivan's brother, Kevin Sullivan, who

purportedly threatened to use his "influence with the state" to

cause the Board to be decertified.

On October 21, 2005, Commissioner Lawler informed the

Board that, due to its continued conditionally certified status, it

was no longer authorized to undertake workforce development

business, and would be confined to whatever business was necessary

to rectify outstanding certification issues. Mayor Sullivan put

attorney William DiAdamo in charge of compiling and presenting a

final certification package to DCS. Apparently as part of this

package, DiAdamo drafted a new set of Board bylaws which, inter

alia, would give Mayor Sullivan the power to dismiss board members

at will. The Board chair refused to go along with the termination

provision, claiming it was inconsistent with the Workforce

Investment Act. Gagliardi claims that, in response to this
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refusal, DiAdamo's father "said he had powerful allies in . . .

Ranch Kimball's office, who would decertify the [Board] on a

moment's notice."

According to the complaint, at some point in November

2005, Mayor Sullivan met "at a secret location with four DCS and/or

DWD officials." At the end of the meeting, "the Mayor announced

that he had disbanded the Board." Mayor Sullivan and DCS took the

position that the Board had to be dissolved because of its failure

to submit a complete certification package, and Mayor Sullivan

expressed the view that conflicts among the Board's members had

prevented it from functioning effectively.

B. Procedure in the District Court

On March 28, 2006, Gagliardi filed suit in the district

court under 42 U.S.C. § 1983, claiming that Mayor Sullivan, the

City, Commissioner Lawler, Secretary Kimball, and Governor Romney

had infringed his constitutional rights to free speech and

procedural due process. He averred, inter alia, that "[t]he Board

members were fired for performing an oversight function required by

federal law," and that Mayor Sullivan and DCS conspired to destroy

the Board by interfering with the certification process. Gagliardi

sought, inter alia, a declaration that the termination of the Board

was unlawful, an injunction reinstating the Board and requiring

Mayor Sullivan to assist it in achieving certification, and

compensatory and punitive damages.
 By agreement among the parties, all claims against Governor 5

Romney were dismissed, as were all claims against all defendants in

their official capacities for compensatory and punitive damages.

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Governor Romney, Secretary Kimball, and Commissioner

Lawler moved jointly under Rule 12(b)(6) to dismiss Gagliardi's

complaint for failure to state a claim on which relief could be

granted. Neither Mayor Sullivan nor the City joined the motion.

At the hearing on the motion, counsel for Governor Romney,

Secretary Kimball, and Commissioner Lawler presented arguments, as

did counsel for Gagliardi; counsel for Mayor Sullivan and the City

was in attendance, but made no submissions and acknowledged that he

was "not obviously participating substantively in the discussions

. . . ." The district court dismissed all of Gagliardi's federal

claims -- not only against Governor Romney, Secretary Kimball, and

Commissioner Lawler, but also against Mayor Sullivan and the City

-- and remanded the state claims to Massachusetts court.5

C. Procedure on Appeal

Gagliardi appealed the dismissal of his complaint, only

with respect to Mayor Sullivan, the City, and Commissioner Lawler.

Commissioner Lawler filed a response brief; Mayor Sullivan and the

City did not, and did not appear for oral argument. Before oral

argument, Commissioner Lawler and Gagliardi moved pursuant to
 After Commissioner Lawler was dismissed, Mayor Sullivan and the 6

City filed a letter stating that they "formally adopt" the

arguments made in Commissioner Lawler's brief "as their own." An

appellee cannot, however, simply adopt the arguments of another

appellee without making some effort at explaining how those

arguments apply to its case, particularly in the present

circumstances where Commissioner Lawler's position and alleged

conduct differ in several important respects from those of Mayor

Sullivan. See United States v. Casas, 425 F.3d 23, 30 n.2 (2005).

We decline the invitation to scour Commissioner Lawler's brief in

search of arguments that might be availing to Mayor Sullivan and

the City. See id., 425 F.3d at 30 n.2.

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Federal Rule of Appellate Procedure 42(b) to dismiss the appeal

with respect to her. We granted the motion.6

II. Discussion

A. Standard of Review

To survive a motion to dismiss for failure to state a

claim under Rule 12(b)(6), the factual allegations in a complaint

must "possess enough heft" to set forth "a plausible entitlement to

relief." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966-67

(2007). Dismissal for failure to state a claim is appropriate if

the complaint fails to set forth "'factual allegations, either

direct or inferential, respecting each material element necessary

to sustain recovery under some actionable legal theory.'" Centro

Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st

Cir. 2005) (quoting Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.

1997)).

We review a district court's order granting a motion to

dismiss de novo. Id. at 5. Although we take the well-pleaded
 Gagliardi may have been entitled to different treatment because, 7

while he was clearly on notice that the district court might grant

the Rule 12(b)(6) motion with respect to its proponents Romney,

Kimball, and Lawler, he may not have been on notice that the

district court would also dismiss the complaint with respect to

Sullivan and the City. As discussed above, Sullivan and the City

did not join the motion or make arguments at the motion hearing.

See Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002) (sua sponte

dismissal under Rule 12(b)(6) upheld only if "[i]f it is crystal

clear that the plaintiff cannot prevail and that amending the

complaint would be futile") (quoting González-González v. United

States, 257 F.3d 31, 37 (1st Cir. 2001)). Nevertheless, Gagliardi

did not object at the hearing and has not raised this issue on

appeal, so we apply the normal standard. See Zannino, 895 F.2d at

17.

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facts in the light most favorable to the plaintiff and indulge him

all reasonable inferences, Berner, 129 F.3d at 23, we need not

credit "bald assertions, periphrastic circumlocutions,

unsubstantiated conclusions, or outright vituperation," or

"subjective characterizations, optimistic predictions, or

problematic suppositions." Wash. Legal Found. v. Mass. Bar Found.,

993 F.2d 962, 971 (1st Cir. 1993) (citation and internal quotation

marks omitted); accord Dartmouth Review v. Dartmouth Coll., 889

F.2d 13, 16 (1st Cir. 1989), overruled on other grounds by

Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st

Cir. 2004). We may augment the facts in the complaint by reference

to "(i) documents annexed to [the complaint] or fairly incorporated

into it, and (ii) matters susceptible to judicial notice."

Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006).7
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B. 42 U.S.C. § 1983

Section 1983 is a vehicle through which individuals may

sue certain persons for depriving them of federally assured rights,

such as the First Amendment's right to free speech or the

Fourteenth Amendment's right to procedural due process. See Centro

Médico del Turabo, 406 F.3d at 6 n.2. A claim under § 1983 has two

"essential elements": the defendant must have acted under color of

state law, and his or her conduct must have deprived the plaintiff

of rights secured by the Constitution or by federal law.

Rodríguez-Cirilo v. García, 115 F.3d 50, 52 (1st Cir. 1997). The

second element requires the plaintiff to show "that the

[defendant's] conduct was the cause in fact of the alleged

deprivation." Id.

1. Free Speech Claim

Claims of retaliatory adverse employment action for the

exercise of First Amendment rights are cognizable under § 1983.

See Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004). To make

out such a claim in the present circumstances, the well-pleaded

facts in the complaint, considered together with the documents

annexed to it or fairly incorporated within it, must establish that

Gagliardi's speech was protected under the First Amendment so as to

shield him from adverse employment action in retaliation for such
 Whether a public employee is shielded from adverse employment 8

action for engaging in speech is governed by a two-step inquiry

that asks "'whether the employee spoke as a citizen on a matter of

public concern'" and, if so, "'whether the relevant government

entity had an adequate justification for treating the employee

differently from any other member of the general public.'" Curran

v. Cousins, No. 07-1686, 2007 WL 4247791, at *6 (1st Cir. Dec. 5,

2007) (quoting Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006)).

These are issues of law for the court. As discussed below, the

third issue is causation.

 As a general rule, we abstain at this stage of the proceedings 9

from deciding whether this element has been established, since it

"'normally presents a factfinding responsibility for the jury.'"

Garnier v. Rodríguez, 506 F.3d 22, 27 (1st Cir. 2007) (quoting

Nethersole v. Bulger, 287 F.3d 15, 18-19 (1st Cir. 2002)). In this

case we are presented with a rare exception to the general rule, as

the complaint is so patently deficient.

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speech, and that he suffered adverse employment action caused by 8

Mayor Sullivan and the City. In addition, there is a third

question concerned with causation, "with whether the plaintiff can

show that the protected expression was a substantial or motivating

factor in the adverse employment decision." Curran v. Cousins, No.

07-1686, 2007 WL 4247791, at *6 (1st Cir. Dec. 5, 2007). The 9

employer must, of course, "have the opportunity to prove that it

would have made the same decision regardless of the protected

expression." Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ.

v. Doyle, 429 U.S. 274, 287 (1977)).

Read in the light most favorable to Gagliardi and drawing

all reasonable inferences in his favor, the complaint cites two

concrete instances of speech which allegedly provoked the

retaliatory dissolution of the Board. The first was in the summer
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of 2005, when the Board issued its report exposing the existence of

Mayor Sullivan's $1.1 million covert fund. The second was the

September 13, 2005 newspaper article in which Gagliardi and the

chair of the Board exposed Mayor Sullivan's persistent failure to

perform the tasks necessary for the Board to complete its

certification package. Neither allegation is sufficient to state

a claim on which relief can be granted.

First, it is evident that neither Mayor Sullivan nor

anyone else whose conduct may be imputed to the City was directly

responsible for decertifying, and thus dissolving, the Board.

Despite the occasional asseveration that Mayor Sullivan himself

"fired," "terminated," or "disbanded" the Board -- and thus "fired"

or "terminated" its members -- it is clear that only the governor

and those acting with authority delegated by him were empowered to

certify or decertify workforce investment boards. See 29 U.S.C.

§ 2832(c). Nowhere does Gagliardi allege that Governor Romney

delegated this authority to Mayor Sullivan or another Lawrence city

official. He instead admits that Governor Romney delegated it to

DCS, and that it was Commissioner Lawler as head of DCS who oversaw

the certification process, including by corresponding with the

Board on the steps still needed to achieve certification, and by

ultimately deciding that the Board could transact no further

workforce development business until it submitted a complete and

satisfactory certification package. According to the complaint,
 We similarly give no credit to any notion that Kevin Sullivan, 10

Mayor Sullivan's brother, carried out his threat to use his

"influence with the state" to cause the Board to be decertified in

retaliation for the newspaper article, or that DiAdamo's father

carried out his threat to contact "powerful allies in . . . Ranch

Kimball's office, who would decertify the [Board] on a moment's

notice." In any event, the complaint does not allege that either

man actually approached any state official to urge decertification.

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Mayor Sullivan did not announce the Board's dissolution until after

he had met in secret with unnamed officials from DCS or from DWD,

the state agency of which DCS formed part. We reject the

complaint's intimation that Mayor Sullivan somehow twisted the arm

of these officials, during this meeting or elsewhere, to persuade

them to decertify the Board; this allegation is conclusory and is

not substantiated by reasonable inference from the well-pleaded

facts. See Dartmouth Review, 889 F.2d at 16. The well-pleaded 10

facts do not demonstrate that either Mayor Sullivan or any other

Lawrence city official made or directly compelled the state

officials to make the decision to decertify.

Second, Gagliardi's complaint, viewed in the light most

favorable to him, can also be read as making an allegation of

indirect causation between Mayor Sullivan and the decision to

decertify. The Board was decertified for failing to submit a

complete certification package. While the Board had, sometime in

2004, turned in all the required documentation it could to DCS, it

fell to Mayor Sullivan as Chief Elected Official to undertake the

remaining tasks necessary for certification. Gagliardi argues that
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Mayor Sullivan deliberately refrained from undertaking these tasks

in retaliation for the critical report, the newspaper article, or

both.

Yet even if Gagliardi could manage to prove at trial a

causal nexus between Mayor Sullivan's deliberate inaction and the

decision to decertify the Board -- including that DCS would have

certified the Board but for Mayor Sullivan's inaction -- he has

failed to demonstrate that either instance of speech was a

substantial or motivating factor behind the inaction. The

complaint avers that the certification package was ready, with the

exception of the tasks required of Mayor Sullivan, sometime in

2004. According to the complaint, "[t]hroughout 2005, the Mayor,

through his inaction, prevented the certification process from

being completed." These facts plainly indicate that Mayor

Sullivan's inaction began at least some months before the two

instances of speech, which occurred respectively in the summer of

2005 and on September 13, 2005. The speech in question did not

provoke Mayor Sullivan to abstain from undertaking his

certification-related tasks; such abstention long predated the

speech and continued up to the Board's November 2005

decertification. See Johnson v. Louisiana, 369 F.3d 826, 830 (5th

Cir. 2004) ("[I]f the decision-maker who imposed the adverse

employment action was not motivated by the speech, then the speech

did not cause the adverse employment action."). Even if a causal
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link could be demonstrated between Mayor Sullivan's inaction and

the decision to decertify the Board, Gagliardi has failed to plead

sufficient facts to show that his speech was a substantial or

motivating factor behind Mayor Sullivan's inaction.

Accordingly, Gagliardi has failed to state a plausible

entitlement to relief on the free speech claim: he has not alleged

sufficient well-pleaded facts to demonstrate that Mayor Sullivan or

the City directly caused the Board's decertification or that, if

Mayor Sullivan indirectly caused the decertification through his

inaction, that the speech in question was a substantial or

motivating factor behind such inaction. No relief could therefore

be granted on this claim if the case were to proceed to trial.

2. Due Process Claim

What we have said above allows us to dispose of

Gagliardi's Fourteenth Amendment due process claim in short order.

Invoking Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985),

Gagliardi argues that he had a property interest in his position on

the Board, and that he was deprived of this interest without due

process of law by not being told the reasons for the Board's

dissolution and his consequent dismissal, or being given an

opportunity to be heard. See Alvarado-Aguilera v. Negrón, No. 06-

2467, 2007 WL 4247665, at *1 (1st Cir. Dec. 5, 2007) (plaintiff

must "'exhibit a constitutionally protected interest in life,

liberty, or property'" to state a valid claim for a violation of
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Fourteenth Amendment due process (quoting Centro Médico del Turabo,

406 F.3d at 8)); id. ("Property interests are created and defined

by 'existing rules or understandings that stem from an independent

source such as state law.'") (quoting Hatfield-Bermúdez v.

Aldanondo-Rivera, 496 F.3d 51, 59 (1st Cir. 2007)); Loudermill, 470

U.S. at 542 (notice and an opportunity to be heard are "essential

principle[s] of due process").

This claim appears to be a relic from a time when the

state officials ostensibly responsible for the decision to

decertify the Board -- Governor Romney, Secretary Kimball (for

DWD), and Commissioner Lawler (for DCS) -- were still defendants in

this case. We need not reach the question of whether Massachusetts

law gave Gagliardi a property interest in continued appointment to

the Board because he cannot make out a due process claim even if he

can show such an interest. This is so because neither Mayor

Sullivan nor any other Lawrence official was responsible for the

decision to decertify the Board, and they accordingly had no duty

to provide Gagliardi with notice or an opportunity to be heard. If

anyone owed Gagliardi such guarantees -- again, a question we do

not reach -- it would have been Governor Romney, Secretary Kimball,

Commissioner Lawler, or some other state official with the proper

authorization; none of these persons is a party to the lawsuit.

Cf. Woods v. City of Michigan City, Ind., 940 F.2d 275, 279 (7th

Cir. 1991) (defendants city and county not liable under § 1983
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where official whose order arguably deprived plaintiff of

constitutionally protected liberty interest without due process was

a non-defendant state judge). Thus, Gagliardi has again failed to

state a plausible entitlement to relief. The district court did

not err in dismissing this claim under Rule 12(b)(6).

III. Conclusion

For the foregoing reasons, we affirm the dismissal of

Gagliardi's complaint. No costs are awarded.

Affirmed.