Whalen v. Massachusetts Trial Court

• Decision Date: 04 February 2005
• Docket Number: No. 04-1976.,04-1976.
• Citation: 397 F.3d 19
• Parties: James M. WHALEN, Plaintiff, Appellant, v. MASSACHUSETTS TRIAL COURT; William W. Teahan, Jr., Robert F. Kumor, Barbara A. Dortch-Okara; Robert E. Fein, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

397 F.3d 19

James M. WHALEN, Plaintiff, Appellant, v. MASSACHUSETTS TRIAL COURT; William W. Teahan, Jr., Robert F. Kumor, Barbara A. Dortch-Okara; Robert E. Fein, Defendants, Appellees.

No. 04-1976.

United States Court of Appeals, First Circuit.

Heard December 6, 2004.

Decided February 4, 2005.

COPYRIGHT MATERIAL OMITTED

Harvey A. Schwartz with whom Laurie Frankl and Rodgers, Powers & Schwartz LLP were on brief for appellant.

Charles M. Wyzanski, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief for appellees.

Before TORRUELLA, Circuit Judge, COFFIN and STAHL, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

In September 2002, the Springfield (Massachusetts) District Court was obliged to lay off three of its nine assistant clerks because of a budget deficit. Appellant James Whalen, who had held his position since 1989, was one of the clerks chosen for layoff. He subsequently brought a federal civil rights suit against the Massachusetts Trial Court and four individuals, claiming that his procedural due process rights had been violated because he was given no opportunity to contest his selection for layoff. See 42 U.S.C. § 1983.¹ He sought damages against the individual defendants and injunctive relief against the Trial Court. The district court dismissed the case against the individual defendants based on qualified immunity and, after Whalen was reinstated to his position, dismissed the case against the Trial Court as moot. Whalen appeals both decisions.

In two respects, Whalen's claims require us to look beyond basic principles, first in considering the procedural due process rights associated with a budgetary termination, and second in considering the nature of the injunctive relief permitted against a state under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). After careful review, we conclude that Whalen suffered a due process injury, but that the individual defendants properly were granted immunity because the law was not clearly established that he was entitled to a pre-termination hearing. Because we also conclude that the Eleventh Amendment bars a federal court from ordering the injunctive relief Whalen seeks, we agree with the district court that the remainder of the case should be dismissed as moot.

I. Background

After implementing a series of voluntary cost-saving measures in the summer of 2002, including reduced work weeks and extended leaves of absence, administrators for the Massachusetts Trial Court determined that their anticipated budget shortfall also required a number of involuntary layoffs. In the Springfield District Court, the "[i]nvoluntary personnel reductions" affected a total of twelve employees, including three of the then-nine assistant clerks. In an affidavit, the Trial Court's Personnel Administrator stated that the Chief Justice for Administration and Management ("CJAM"), Barbara A. Dortch-Okara, had "determined that managers had the discretion to consider such factors as prior discipline, attendance, work product and other relevant factors" in selecting the employees to be laid off.

Appellant Whalen received a letter from Dortch-Okara dated August 29 notifying him that, as a result of a budget shortfall, he had been selected for layoff effective September 13. The letter gave no reasons for his selection. It was accompanied by materials explaining the continuation of his health insurance benefits and the procedures for applying for unemployment compensation. At least two of the assistant clerks retained by the court had less seniority in the position than appellant. Before the layoff went into effect, additional funding became available and one of the other assistant clerks selected for layoff was retained. That employee had held his job for less than three years.

The tenure and termination of assistant clerks is addressed by two Massachusetts statutes. Under Mass. Gen. Laws Ann. ch. 218, § 10, an assistant clerk who has held his position for three years before the effective date of the act "shall hold office during good behavior," subject to applicable retirement laws. The provision goes on to state that such an employee may be removed from office under procedures authorized by Mass. Gen. Laws Ann. ch. 211B, § 8. Section 8 provides that an employee covered by the provision "may be removed for cause." Such a removal must be reviewed by the advisory committee on personnel standards and is not final until approved by the committee. Covered employees who have served three full years in a position have the right to appear personally before the committee before it renders a decision.

In his complaint, Whalen contended that these provisions gave him a protected property interest in his job and that the Fourteenth Amendment's guarantee of due process thus entitled him to notice of the reasons why he was selected for layoff and a pre-termination opportunity to respond to the reasons given. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 101-02 (1st Cir.2002).² He sought monetary damages from four individuals — two justices of the Springfield District Court, the clerk of that court, and CJAM Dortch-Okara — and an injunction ordering the court to reinstate him with back pay and benefits.

The defendants initially argued that Whalen did not have the requisite three years of service to qualify for section 10's tenure protection,³ but abandoned that argument and conceded that "plaintiff's length of service was sufficient to qualify him" under the statute. They maintained, however, that he was not entitled to the procedures outlined in section 8 of chapter 211B because the provision applies only to removal for cause and not layoff. Moreover, the individual defendants claimed the shield of qualified immunity, arguing that Whalen did not have a clearly established constitutional right to a hearing before a budget-driven termination of his position — and, indeed, had no right to such a hearing at all.

Without articulating its reasons, the district court granted immunity to the individual defendants. It then certified to the Massachusetts Supreme Judicial Court the question whether section 8's procedural requirements apply to an assistant clerk who is terminated when the court reduces the total number of such positions for budgetary reasons. In March 2004, while that question was pending before the SJC, Whalen was reinstated. In June, the defendants moved to dismiss the remainder of the case, which involved only injunctive relief, as moot. The district court granted the motion over Whalen's objection and ordered the certification question to be withdrawn from the SJC.

On appeal, Whalen challenges both the grant of qualified immunity to the individual defendants and the mootness ruling. He claims that his constitutional right to some kind of pre-termination process was clearly established, and that reasonable court officials would have understood that the property right he held in his position entitled him to notice of the reasons he was selected for layoff and an opportunity to respond. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (explaining qualified immunity inquiry); Mihos v. Swift, 358 F.3d 91, 102 (1st Cir.2004) (same). He further maintains that his demand for injunctive relief did not become moot upon his reinstatement because he still seeks restoration of credit toward his retirement and pension benefits for the time he was out of work.

We consider each of these issues in turn.

II. Qualified Immunity

Guided by Supreme Court precedent, we have consistently applied a three-part test for evaluating an official's claim to qualified immunity. Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 60-61 (1st Cir.2004); Mihos, 358 F.3d at 102; Suboh v. Dist. Attorney's Office, 298 F.3d 81, 90 (1st Cir.2002); see also Hope v. Pelzer, 536 U.S. 730, 735-36, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727. We first consider whether the plaintiff's allegations, if true, establish a constitutional violation. Hope, 536 U.S. at 736, 122 S.Ct. 2508; Mihos, 358 F.3d at 102. The second question is whether the right was clearly established at the time of the alleged violation. Suboh, 298 F.3d at 90. Finally, we ask whether a similarly situated reasonable official would have understood that the challenged action violated that right. Mihos, 358 F.3d at 102; Suboh, 298 F.3d at 90. We review qualified immunity determinations de novo, at least to the extent they turn on issues of law. Mihos, 358 F.3d at 102; see also Mitchell v. Forsyth, 472 U.S. 511, 528-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).⁴

A. Do the allegations add up to a constitutional violation?

Whalen contends that he had a property right in continued employment that was created by state law and that, consequently, he had a right to procedural due process that was violated when he was given neither notice of the specific reasons for his layoff nor opportunity to respond. We agree that these allegations generally describe a constitutional injury and conclude, for reasons we shall explain, that the constitutional claim remains viable even when examined more particularly.

Our court consistently has held that an employee who under state law can be terminated only for "just cause" has a constitutionally protected property interest in his employment. See, e.g., Wojcik, 300 F.3d at 102; Cronin v. Town of Amesbury, 81 F.3d 257, 260 n. 2 (1st Cir.1996); Perkins v. Bd. of Dirs., 686 F.2d 49, 51 (1st Cir.1982); see also Gilbert v. Homar, 520 U.S. 924, 928-29, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) ("[W]e have previously held that public employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and cannot be fired without due process."); Loudermill, ...