Blankenship v. Manchin, 06-1249.

Citation471 F.3d 523
Decision Date20 December 2006
Docket NumberNo. 06-1249.,06-1249.
PartiesDon BLANKENSHIP, Plaintiff-Appellee, v. Joe MANCHIN, III, in his individual capacity and in his official capacity as Governor of the State of West Virginia, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Mitchell Eliot Zamoff, Hogan & Hartson, L.L.P., Washington, D.C., for Appellant. Robert D. Luskin, Patton Boggs, L.L.P., Washington, D.C., for Appellee. ON BRIEF: Charles R. Bailey, Vaughn Sizemore, Bailey & Wyant, P.L.L.C., Charleston, West Virginia; Barbara H. Allen, Office of the Attorney General, Charleston, West Virginia; Adam K. Levin, Hogan & Hartson, L.L.P., Washington, D.C., for Appellant. Patrick J. Slevin, Patton Boggs, L.L.P., Washington, D.C., for Appellee.

Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and James R. SPENCER, Chief United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge SPENCER joined. Chief Judge WILKINS wrote a separate opinion concurring in the judgment.


GREGORY, Circuit Judge.

This appeal requires us to determine whether a sitting governor is entitled to qualified immunity for allegedly threatening a political rival and prominent businessman during a press conference concerning a bond issue before West Virginia voters. Because we find that the facts as alleged establish that the governor threatened imminent adverse regulatory action and that a reasonable public official in his position would know that such a threat is unlawful, we hold that the governor is not entitled to immunity from this suit at the motion-to-dismiss stage. Accordingly, we affirm the ruling of the district court.


This case arises from the controversy surrounding a proposed bond amendment to the West Virginia Constitution, supported by Governor Joe Manchin III ("Manchin" or "the Governor" or "Appellant") and opposed by Don Blankenship ("Blankenship" or "Appellee"). Because this case is on appeal at the motion-to-dismiss stage, the facts are presented largely from Appellee's complaint, with inferences drawn in his favor. See Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 300 n. 3 (4th Cir.2006).


Blankenship is the President of Massey Energy, one of the largest coal companies in the nation and the largest in West Virginia. In addition to his corporate employment, Blankenship is an active participant in West Virginia politics. In 2004, Blankenship campaigned against the reelection of West Virginia Supreme Court Chief Justice Warren McGraw. In early 2005, Blankenship publicly opposed legislation proposed by Manchin that would have increased the coal severance tax and funded workers' compensation benefit plans.

In February 2005, the West Virginia legislature passed a bond amendment to the state constitution. If approved by voters, the amendment would have permitted the sale of over five billion dollars worth of state general-obligation bonds to fund underfunded pension and disability plans for teachers, judges, and other public employees. The amendment was placed before the voters in a special election on June 25, 2005. Blankenship opposed the amendment and began to publicize his opposition through interviews and the financing of television, radio, and direct-mail advertising. The Governor publicly campaigned in support of the amendment, including, according to the complaint, running negative advertisements portraying Blankenship as an outsider and using staff to ask the West Virginia Secretary of State about Blankenship's residence.

On June 17, 2005, the Governor appeared at an American Electric Power plant in Putnam County, West Virginia, in part to promote the bond amendment. After his speech, the Governor took media questions. Blankenship alleges that some of the Governor's answers "threatened [Blankenship] by warning that the government would scrutinize the affairs of [Blankenship] and Massey even more closely in light of [Blankenship's] decision to participate in the public debate over the pension bond amendment." Compl. ¶ 16. The Governor is quoted as remarking, "I think that [additional scrutiny] is justified now, since [Blankenship] has jumped in there [the bond debate] with his personal wealth trying to direct public policy." Compl. ¶ 16 (quoting Ken Ward Jr., Manchin Still Sparring Over Pension Bond Bid, Charleston (W.V.) Gazette, June 18, 2005 at 6C).

The following day, the Governor's remarks were reported in the Charleston Gazette.1 The article ("the Gazette Article"), headlined "Manchin Still Sparring Over Pension Bond Bid," reported, in relevant part:

Gov. Joe Manchin continued Friday to spar with Massey Energy President Don Blankenship over the Governor's multimillion-dollar pension bond proposal. The Governor said Blankenship, who has launched a personal campaign against the bond plan, should expect tougher scrutiny of his business affairs.

"I think that is justified now, since Don has jumped in there with his personal wealth trying to direct public policy," Manchin said.

. . .

After his brief speech ... Manchin was quizzed repeatedly by reporters about his pension bond battle with Blankenship.

In a later interview, Manchin declined to say if he thought Blankenship was "a good corporate citizen."

"I'm not going to sit here and try to rag on anyone," Manchin said.

"I truly appreciate and value every business person who creates jobs in our state," the Governor said. "[But] I want Don to use his creative energies in a good, positive manner."

Manchin said he was puzzled that Blankenship would not agree to serve on a pension bond advisory committee before launching his campaign against the Governor's proposal.

"The most frustrating thing going on is that there's a person who has been very successful financially in the business world, and when someone asked him to be a part of a positive movement in West Virginia, he said, `No.'"

When asked, Manchin said that Blankenship's campaign against the pension bonds should and will prompt even more scrutiny of Blankenship, who is arguably already the state's highest-profile coal executive.

"If you want to throw yourself into public policy, your record is open," the Governor said.

Manchin declined to personally offer any specific criticisms of the way Massey or Blankenship has operated, except to note that the company has had numerous run-ins with state environmental regulators.

"I think there have been many violations that hopefully they've been able to correct," the Governor said.

Ward Jr., supra. On June 25, 2005, voters rejected the bond amendment.

Blankenship alleges that in retaliation for his campaign against the amendment, Manchin "used state government resources to reinforce his threat against [Blankenship] and Massey." Compl. ¶ 19. On June 30, 2005, the West Virginia Department of Environmental Protection ("DEP") approved a Massey permit application to build a coal silo in Raleigh County, West Virginia. Despite the approval, Manchin allegedly ordered members of his staff to meet with DEP and other regulatory officials to investigate possible safety concerns with regard to the silo site. Blankenship maintains that the Governor ignored these safety concerns when other groups raised them previously and initiated the investigation "not out of concern for the safety of residents, but instead, in retaliation for [Blankenship's] campaign against the bond amendment." Compl. ¶ 19.


On July 26, 2005, Blankenship commenced this action against Manchin, in his official and individual capacities, alleging that Manchin violated 42 U.S.C. § 1983 by unconstitutionally retaliating against Blankenship. The complaint sought declaratory, injunctive, and compensatory relief, as well as attorneys' fees pursuant to 42 U.S.C. § 1988. In response, Manchin filed a motion to dismiss, alleging that Blankenship's complaint fails to state a claim of retaliatory action in violation of the Constitution; that Blankenship lacks standing to assert the claim; that the claims are barred by qualified immunity; that monetary damages based in Manchin's official capacity are barred by the Eleventh Amendment; and that injunctive relief is inappropriate.2 On January 18, 2006, the district court denied the motion in all respects, except for dismissing the compensatory damages claim against Manchin in his official capacity.

Rejecting Manchin's qualified immunity argument, the district court began by noting that First Amendment retaliation claims are governed by this Court's decision in Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.2000), where we elucidated a three-part test for evaluating First Amendment retaliation claims against a public official. The district court characterized the relationship between Manchin and Blankenship as "best exhibited by the fact that the industry in which the [Appellee] finds himself is also one over which the state exercises robust oversight powers." Blankenship v. Manchin, 410 F.Supp.2d 483, 492 (S.D.W.Va.2006).

The district court then concluded that the complaint adequately alleged threats suggesting imminent adverse regulatory action because of Manchin's remarks that Blankenship justifiably should expect tougher scrutiny of his business affairs. In addition, the district court noted that discovery would reveal whether Manchin's actions in ordering his staff to meet with DEP officials was an accompanying act of retaliation against Appellee. Taking these factors together, the district court held that the alleged threats and retaliatory conduct would deter a person of ordinary firmness from exercising her First Amendment rights.

Further, relying on this Court's decisions in Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir.2001), and Suarez, the district court held that a reasonable governor would have known that Manchin's alleged actions violated clearly...

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