UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
Nos. 95-1950
95-1951
95-1952
JANET SCOTT-HARRIS,
Plaintiff, Appellee,
v.
CITY OF FALL RIVER, ET AL.,
Defendants, Appellants.
_________________________
No. 95-2100
JANET SCOTT-HARRIS,
Plaintiff, Appellant,
v.
CITY OF FALL RIVER, ET AL.,
Defendants, Appellees.
_________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge] ___________________
_________________________
Before
Selya, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
_________________________
Harvey A. Schwartz, with whom Schwartz, Shaw & Griffith was ___________________ _________________________
on brief, for plaintiff.
Stephen C. Fulton, with whom Law Office of Bruce R. Fox was _________________ ___________________________
on brief, for defendant City of Fall River.
Bruce A. Assad for defendant Marilyn Roderick. ______________
Robert J. Marchand, with whom Driscoll, Marchand, Boyer & ___________________ ____________________________
Stanton and Mary E. O'Neil were on brief, for defendant Daniel _______ ______________
Bogan.
_________________________
January 15, 1997
_________________________
SELYA, Circuit Judge. Although America began with the SELYA, Circuit Judge. _____________
vision of a city on a hill, not every American has shared a sense
of optimism about our nation's municipalities. Indeed, one of
the most illustrious of the Framers regarded great cities as
"pestilential to the morals, the health, [and] the liberties of
man." Christopher Tunnard, The City of Man 34 (1970) (quoting ________________
Thomas Jefferson).
In this vein, American legal institutions have begun
over time to view cities with a certain constitutionally based
suspicion. Thus, in Monell v. New York City Dep't of Social ______ _______________________________
Servs., 436 U.S. 658, 691 (1978), the Supreme Court ruled that ______
municipalities could be held liable under 42 U.S.C. 1983 for
deprivations of federally protected rights which occurred
"pursuant to official municipal policy of some nature."1 Monell ______
opened the floodgates for an outpouring of such suits against
municipalities.
____________________
1The statute provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State . . ., subjects, or causes to be
subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for
redress.
42 U.S.C. 1983 (1994). The upshot of the Monell decision is ______
that a municipality is a "person" for purposes of section 1983,
and, hence, amenable to suit for violations thereof. See Monell, ___ ______
436 U.S. at 690.
2
The case at hand is one example of the genre. At
trial, a jury found the City of Fall River (the City) and two
municipal officials liable under section 1983 for the passage of
a facially neutral ordinance that abolished the plaintiff's job.
The defendants' appeals raise a tantalizing question about
whether a discriminatory animus displayed by fewer than the
minimum number of city council members whose votes would be
required to enact an ordinance can (or should) be imputed to the
municipality itself. Other interesting questions abound,
including questions dealing with causation in the context of
constitutional torts and the availability of legislative immunity
defenses in that setting. Before addressing any of these issues,
however, we must parse Fed. R. App. P. 4 (a)(6) for the first
time and determine whether the defendants have brought their
appeals in a timeous fashion.
I. A TALE OF ONE CITY I. A TALE OF ONE CITY
Many of the facts in this case are conflicted. We
present them as best they have presented themselves, occasionally
resolving disparities as the jury permissibly might have done.
See, e.g., Veranda Beach Club Ltd. Partnership v. Western Sur. ___ ____ ____________________________________ ____________
Co., 936 F.2d 1364, 1375 (1st Cir. 1991) (discussing standard for ___
appellate review of post-verdict challenges to evidentiary
sufficiency).
The City hired the plaintiff, Janet Scott-Harris, as
the administrator of the newly created Department of Health and
Human Services (HHS). When Scott-Harris entered the City's
3
service in 1987, she became the first African-American ever to
hold a managerial position in the municipal government. By all
accounts she performed quite well at HHS. Withal, she did not
enjoy a problem-free relationship with the City's political
hierarchs. In 1988, for example, she clashed with Marilyn
Roderick, the vice-president of the City Council. Scott-Harris
believed that Roderick made inappropriate references to an
aspirant's ethnicity in the course of an employment interview and
stormed out of the room. Shortly thereafter, she engaged in a
shouting match with Roderick. When Scott-Harris subsequently
attempted to apologize, Roderick hung up the telephone.
Scott-Harris' difficulties with Roderick did not end
with the aforedescribed incident. There were periodic flare-ups
by way of illustration, Roderick wrote a letter to the City
Administrator, Robert Connors, protesting Scott-Harris' use of a
City-owned motor vehicle but it was Scott-Harris' reaction to
the dysphemisms spouted by Dorothy (Dot) Biltcliffe, a nutrition
program assistant for the City's Council on Aging (COA), that
precipitated internecine warfare. In the fall of 1990, Scott-
Harris learned that Biltcliffe had been making offensive
comments. In one instance, referring to her co-worker Paula
Gousie and to Scott-Harris, Biltcliffe remarked: "That little
French bitch has her head up that nigger's ass." In another,
Biltcliffe referred to a secretary as "a little black bitch."
Scott-Harris spoke out against this racist invective and, because
COA operated under her general supervision, she consulted with
4
Connors and then drew up a set of charges against Biltcliffe as a
prelude to dismissal.
The pendency of these charges did not improve
Biltcliffe's manners; she called Scott-Harris "a black nigger
bitch" and warned that there would be repercussions because
Biltcliffe "knew people." Biltcliffe unabashedly pressed her
case with two city councilors (Roderick and Raymond Mitchell) and
a state senator who, in turn, called Roderick. After numerous
postponements the City held a hearing on March 27, 1991. This
resulted in a settlement under which Biltcliffe agreed to accept
a 60-day suspension without pay. Mayor Daniel Bogan subsequently
intervened and pared the punishment substantially.
During this time frame the City's financial outlook
worsened. Municipal officials anticipated that state aid would
decline up to 10% in the next fiscal year (July 1, 1991 to June
30, 1992). Mayor Bogan directed Connors to prepare a list of
proposed budget cuts to accommodate the anticipated reduction in
funding. Connors asked his department heads, including Scott-
Harris, for their input. Scott-Harris recommended reducing the
hours of school nurses. Bogan rejected this suggestion and, over
Connors' objection, insisted that Scott-Harris' position be
eliminated.
Because the post had been created by municipal
ordinance, its abolition necessitated the same procedural
formalities. The City Charter requires the votes of a majority
of the nine members of the City Council for passage of such an
5
ordinance. The mayor often submits proposed legislation to the
City Council, and, in addition, he must approve every enacted
ordinance (or else the Council must override his veto). In
February 1991 Bogan asked the Council to do away with Scott-
Harris' position. On March 5 the ordinance committee, chaired by
Roderick, reported out an emendatory ordinance designed to
achieve this end and recommended its passage. Three weeks later
the City Council voted six-to-two (Roderick voting with the
majority) to approve the position-elimination ordinance. Bogan
signed it into law.
At about the same time that he moved to incinerate
Scott-Harris' job, Bogan offered her a different portfolio
Public Health Director which paid approximately $12,000 less
per annum. Scott-Harris accepted the offer by letter dated
February 28, 1991, but a follow-up communiqu from Bogan added
extra duties and shifted Scott-Harris to a less desirable office.
Disappointed, Scott-Harris drafted a letter rejecting the job
offer. That letter mysteriously arrived at the mayor's office
and was acted upon by Bogan despite Scott-Harris' efforts to
retract it. Scott-Harris' tour of duty with the City ended on
March 29, 1991 two days after the hearing that led to
Biltcliffe's suspension. She filed suit several months later.
II. THE LITIGATION II. THE LITIGATION
Solon, the fabled Greek legislator, once characterized
the best type of city as one "in which those who are not wronged,
no less than those who are wronged, exert themselves to punish
6
the wrongdoers." Plutarch, Plutarch's Lives 455 (Bernadotte _________________
Perrin trans., 1914). Here, the plaintiff's complaint alleged in
substance that the City and certain municipal officials2 inverted
the Solonic ideal: when the plaintiff responded forcefully (but
appropriately) to Biltcliffe's racial slurs, the defendants sided
with the wrongdoer and instead punished Scott-Harris by ousting
her from her position under a blatant pretext. The plaintiff
alleged that, in so doing, the defendants abridged her First
Amendment rights and set the stage for redress under section
1983. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 ___ ________________________________________ _____
U.S. 274, 287 (1977) (explaining that in order to prevail on a
section 1983 claim based on the First Amendment, the plaintiff
must prove that her protected speech was a substantial or
motivating factor in the decision to eliminate her job).
At trial the defendants asserted that their motives in
passing the challenged ordinance were exclusively fiscal. The
plaintiff disagreed, contending that racial animus and a desire
to punish her for protected speech, not budgetary constraints,
spurred the introduction and passage of the ordinance. On May
26, 1994, evidently persuaded by the plaintiff's efforts to
connect Dot to her dismissal, the jury returned a verdict against
____________________
2The plaintiff originally sued a plethora of defendants.
She quickly narrowed the field to Connors, Roderick, Bogan, and
the City. During the ensuing trial, the judge directed a verdict
in Connors' favor. The plaintiff has not contested that ruling,
and we discuss these appeals as if Bogan, Roderick, and the City
were the sole defendants.
7
all three defendants.3
The verdict form memorialized the jury's conclusions
(1) that the plaintiff's constitutionally protected speech was a
substantial or motivating factor both in Bogan's decision to
recommend enactment of the ordinance and in Roderick's decision
to work for its passage, and (2) that these actions proximately
caused the extirpation of the HHS director's position. As
originally returned, the verdict form added an inconvenient
wrinkle; it indicated that the plaintiff had not proven that the
City's professed desire to enact the ordinance for budgetary
reasons was pretextual. Out of the jury's earshot, the judge
expressed her concern that the jury's findings were internally
inconsistent. After a brief colloquy, she resubmitted the case
to the jury with appropriate supplemental instructions. Shortly
thereafter the jury returned a revised verdict form which
reiterated everything except the "no pretext" finding. In that
wise, the jury, having reconsidered the matter, now concluded
that the City's stated reason for wanting the ordinance
budgetary concerns was not its true reason.
The jury assessed compensatory damages against all
three defendants, jointly and severally, in the amount of
$156,000; found Bogan liable for punitive damages in the amount
of $60,000; and found Roderick liable for punitive damages in the
____________________
3The jury found against the plaintiff on her race
discrimination claim, and she does not contest that finding here.
8
amount of $15,000.4 The court subsequently denied the
defendants' motions for judgment notwithstanding the verdict.
These appeals followed but not without a perturbing procedural
prelude.
III. THE NOTICES OF APPEAL III. THE NOTICES OF APPEAL
Rule 4(a)(1) of the Federal Rules of Appellate
Procedure requires that notices of appeal "be filed with the
clerk of the district court within 30 days after the date of
entry of the judgment or order appealed from." Compliance with
this rule is mandatory and jurisdictional; while a court may
construe the rule's strictures liberally, it may not wink at
them. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 315 ___ ______ _____________________
(1988); Air Line Pilots Ass'n v. Precision Valley Aviation, Inc., _____________________ _______________________________
26 F.3d 220, 223 (1st Cir. 1994).
In this instance the district court entered the
appealable order the order denying the defendants' post-trial
motions for judgment n.o.v. on January 30, 1995. The
defendants did not file their notices of appeal until August of
that year. Without more, Rule 4(a)(1) would bar the maintenance
of these appeals.
The appeal period denominated by Rule 4(a)(1) is,
____________________
4Although punitive damages may lie against individuals in a
section 1983 action, see, e.g., Keenan v. City of Philadelphia, ___ ____ ______ ____________________
983 F.2d 459, 469-70 (3d Cir. 1992); Davet v. Maccarone, 973 F.2d _____ _________
22, 27 (1st Cir. 1992), they are not available against a
municipality. See City of Newport v. Fact Concerts, Inc., 453 ___ ________________ ____________________
U.S. 247, 271 (1981).
9
however, subject to an occasional exception. One such exception,
added to the Appellate Rules in 1991, provides:
The district court, if it finds (a) that a
party entitled to notice of the entry of a
judgment or order did not receive such notice
from the clerk or any party within 21 days of
its entry and (b) that no party would be
prejudiced, may, upon motion filed within 180
days of entry of the judgment or order or
within 7 days of receipt of such notice,
whichever is earlier, reopen the time for
appeal for a period of 14 days from the date
of the entry of the order reopening the time
for appeal.
Fed. R. App. P. 4(a)(6). The mention of "notice" in Rule 4(a)(6)
is a reference to Fed. R. Civ. P. 77(d), which provides:
Immediately upon the entry of an order or
judgment the clerk shall serve a notice of
entry by mail in the manner provided for in
Rule 5 upon each party who is not in default
for failure to appear, and shall make a note
in the docket of the mailing. Any party may
in addition serve a notice of such entry in
the manner provided in Rule 5 for the service
of papers. Lack of notice of the entry by
the clerk does not affect the time to appeal
or relieve or authorize the court to relieve
a party for failure to appeal within the time
allowed, except as permitted in Rule 4(a) of
the Federal Rules of Appellate Procedure.
These rules lie at the center of the jurisdictional
jumble that confronts us. On the defendants' motions, the
district court held a hearing and determined that Fed. R. App. P.
4(a)(6) appropriately could be invoked to excuse the defendants'
seeming tardiness. The plaintiff's cross-appeal challenges this
determination. Because Rule 4(a)(6) is relatively new, we have
not yet had occasion to construe it. We do so today, deciding at
the outset that the standard of review which governs a district's
10
court's determinations under Rule 4(a)(6) is abuse of discretion.
Accord Nunley v. City of Los Angeles, 52 F.3d 792, 794 (9th Cir. ______ ______ ___________________
1995).
Certain elements of the Rule 4(a)(6) calculus are
essentially undisputed: the defendants were parties entitled to
notice of the entry of the appealable final order; their Rule
4(a)(6) motions, filed on April 10 and 11, 1995, came within 180
days of the entry of that order; and no party would be subjected
to cognizable prejudice by the granting of the motions. Thus,
the decisive questions in this case relate to whether the
defendants received notice of the entry of the order within 21
days, and if not, whether they filed their Rule 4(a)(6) motions
within seven days of the time when they eventually received such
notice.
Both of these questions involve an appreciation of the
kind of notice that Rule 4(a)(6) contemplates. In terms, Rule
4(a)(6) advances a unitary concept of notice; its two references
to "such notice" plainly relate back to the phrase "notice of the
entry of a judgment or order." The problem, exemplified by this
case, is that the rule does not specify whether that notice must
be written notice or actual notice. That problem defies facile
solutions, and the courts of appeals which have addressed it thus
far have not achieved consensus. Compare Avolio v. County of _______ ______ __________
Suffolk, 29 F.3d 50, 53 (2d Cir. 1994) (holding that the rule _______
contemplates written notice) with Nunley, 52 F.3d at 794 (holding ____ ______
that actual notice suffices) and Zimmer St. Louis, Inc. v. Zimmer ______________________ ______
11
Co., 32 F.3d 357, 359 (8th Cir. 1994) (same). Though we ___
acknowledge that the phrase, simpliciter, is susceptible of ___________
multiple interpretations, we believe that the references to
"notice" in Rule 4(a)(6), taken in context, are best read as
requiring written notice.
Our starting point is our perception that Appellate
Rule 4(a)(6) and Civil Rule 77(d) must be read in pari passu. __ ____ _____
Accord Nunley, 52 F.3d at 795. The text of Rule 77(d) requires ______ ______
the clerk to serve the notice of entry of an order or judgment
"by mail." Because a mailed notice is invariably written, it
seems logical to conclude that when reference is made later in
the text to "lack of notice of the entry," that reference
contemplates lack of written notice. _______
We think that further evidence to the same effect can
be gleaned from the scrivenings of the Advisory Committee. The
Advisory Committee's Notes are entitled to weight in interpreting
federal rules of practice and procedure. See Whitehouse v. U.S. ___ __________ ____
Dist. Ct. for Dist. of R.I., 53 F.3d 1349, 1364-65 (1st Cir. _____________________________
1995). Here, they tell us that Rule 4(a)(6)
provides a limited opportunity for relief in
circumstances where the notice of entry of a
judgment or order, required to be mailed by
the clerk of the district court pursuant to
[Rule 77(d)], is either not received by a
party or is received so late as to impair the
opportunity to file a timely notice of
appeal.
Fed. R. App. P. 4(a)(6), Advisory Committee's Notes. The
statement "required to be mailed" refers to "notice of entry of a
judgment or order," again suggesting that the notice must be in
12
writing. We believe that when a procedural rule uses the precise
phrase employed by the Advisory Committee, it can reasonably be
inferred that the phrase means the same thing in both contexts.
Policy concerns point us in the same direction.
Reading Rule 4(a)(6) to require written notice will simplify
future proceedings. As the familiar request to "put it in
writing" suggests, writings are more readily susceptible to proof
than oral communications. In particular, the receipt of written
notice (or its absence) should be more easily demonstrable than
attempting to discern whether (and, if so, when) a party received
actual notice. Such a scheme not only takes much of the
guesswork out of the equation, but also, because Rule 77(d)
specifically provides that parties who do not wish to rely upon
the clerk to transmit the requisite written notice may do so
themselves, the scheme confers certitude without leaving a
victorious litigant at the mercy of a slipshod clerk.
To sum up, we hold that written notice is required to
trigger the relevant time period under Rule 4(a)(6); oral
communications or other forms of actual notice will not serve.
We now apply this holding to the facts at hand.
The district court found that the defendants did not
receive written notice of the entry of the operative order until
April 7, 1995, when the plaintiff's counsel sent them a demand
letter seeking satisfaction of the judgments. The court made
this finding against a backdrop of unusual events. The
defendants' motions for judgment n.o.v. were argued on September
13
29, 1994. During that session, an unrecorded sidebar conference
occurred. The court's comments at that conference left all
counsel with the distinct impression that an appealable final
judgment would not enter until the court decided the plaintiff's
pending application for attorneys' fees. Although the impression
was mistaken, see Budinich v. Becton Dickinson & Co., 486 U.S. ___ ________ _______________________
196, 202-03 (1988) (holding that the appeal period commences once
a final decision on the merits has been entered, irrespective of
any claim for attorneys' fees), it proved persistent. The
plaintiff's lawyer, no less than defense counsel, labored under
the misimpression; he wrote to the defense team on February 2,
1995, stating in relevant part: "I received the Court's
memorandum and order on the defendants' motion for J.N.O.V. The
only remaining issue before judgment can be entered is the _________________________________
plaintiff's unopposed motion for attorney's fees." (Emphasis
supplied).
Unbeknownst to the parties, however, the court had
granted the plaintiff's motion for attorneys' fees in late 1994.
The clerk entered this order on the docket but, apparently,
neglected to serve copies of the order or the docket entry on
counsel. To complicate matters further, when defense counsel
made inquiries to the clerk in February and March of 1995 as to
whether an order had been entered disposing of the fee
application, the clerk said that one had not.
Last but not least, although all counsel in one way or
another had actual notice of the order that denied the
14
defendants' motions for judgment n.o.v. by February 1, 1995,
cases discussing Rule 4(a)(6) differentiate between notice of an
order and notice of the entry of the order, indicating that the
rule contemplates the latter. See Virella-Nieves v. Briggs & ___ ______________ _________
Stratton Corp., 53 F.3d 451, 452-54 (1st Cir. 1995). In this ______________
instance the clerk attempted to furnish such notice, but one copy
of the court's order was addressed incorrectly and returned by
the Post Office as undeliverable, while another copy, plucked by
a different lawyer from the clerk's office, bore no notation that
it had been entered on the docket. From this tangled record the
district court concluded that, though at least one defense
attorney received actual notice of the entry of the order on
February 24, 1995,5 it was not until April 7, 1995 when the
plaintiff's attorney demanded satisfaction of the judgments
that the defendants received a written notice sufficient to
animate Rule 4(a)(6). They filed their excusatory motions within
seven days of their receipt of this notice.
Given these facts, and given the confused circumstances
that contributed to the muddle, the district court did not abuse
its discretion in finding that the requirements of Rule 4(a)(6)
had been met and in reopening the time for appeal. Since the
defendants all filed their notices of appeal within the 14-day
period that began on August 14, 1995, when Judge Saris entered
her order reopening the time for doing so, we conclude that the
____________________
5We note, parenthetically, that even this notice came after
the 21-day period specified by Rule 4(a)(6) had elapsed.
15
appeals are properly before us.
IV. THE VERDICT FORM IV. THE VERDICT FORM
The defendants collectively assert that the district
court erred in refusing to declare a mistrial when presented with
the original verdict form and added impudence to injury by
resubmitting the case for further deliberation. We review the
district court's denial of the defendants' motions for a mistrial
for abuse of discretion. See Clemente v. Carnicon-P.R. Mgmt. ___ ________ ____________________
Assocs., 52 F.3d 383, 388 (1st Cir. 1995). We evaluate the _______
judge's related actions, namely, her decisions to reject the
original verdict form and to resubmit the matter, under the same
standard of review. See Santiago-Negron v. Castro-Davila, 865 ___ _______________ _____________
F.2d 431, 444 (1st Cir. 1989).
The defendants' argument on this point boils down to a
claim that the district court crafted a verdict form that was
structurally flawed; that the jury responded to it by returning
two irreconcilable findings; and that, therefore, Judge Saris
should have granted the defendants' motions for a mistrial. But
it is not enough to preserve the defendants' point that, after
the jury first returned with the verdict form, the defendants
pounced on the perceived inconsistency and moved to pass the
case. Rather, the viability of this assignment of error harks
back to the circumstances surrounding the emergence of the
verdict form. Although the defendants now say that the form
tempted potential confusion, they failed to object when the judge
initially submitted it to the jury. The failure to object to the
16
structure of a verdict form before the jury retires, like the
failure to object to any other portion of the judge's charge,
constitutes a waiver. See Fed. R. Civ. P. 51; see also Phav v. ___ ___ ____ ____
Trueblood, Inc., 915 F.2d 764, 769 (1st Cir. 1990) (holding that ________________
Rule 51 applies to verdict forms as well as to the trial court's
oral instructions); Anderson v. Cryovac, Inc., 862 F.2d 910, 918 ________ _____________
(1st Cir. 1988) ("If a slip has been made, the parties
detrimentally affected must act expeditiously to cure it, not lie
in wait and ask for another trial when matters turn out not to
their liking.").
We need not probe this point too profoundly, for in all
events the judge handled the perceived incongruity in an
agreeable manner. When a verdict appears to be internally
inconsistent, the safest course in the absence of irreparable
damage, and none appears here is to defer its acceptance,
consult with counsel, give the jury supplemental instructions,
and recommit the matter for further consideration. See Hafner v. ___ ______
Brown, 983 F.2d 570, 575 (4th Cir. 1992) ("If the district judge _____
concludes that an inconsistent verdict reflects jury confusion or
uncertainty, he or she has the duty to clarify the law governing
the case and resubmit the verdict for a jury decision."); Poduska _______
v. Ward, 895 F.2d 854, 856 (1st Cir. 1990) (deeming it "precisely ____
correct" for a judge, faced with an unclear and inconsistent jury
verdict, to provide supplemental instructions and then recommit
the matter to the jury). This is exactly the course of action
that Judge Saris followed. The actual instructions that she
17
gave, first orally and then in a written response to a jury
question, were unimpugnable.6 We discern no error, no
unfairness, and no abuse of discretion either in the judge's
handling of matters related to the verdict form or in her denial
of the defendants' motions for a mistrial.
V. MUNICIPAL LIABILITY V. MUNICIPAL LIABILITY
We turn now to the City's principal assignment of
error. Clearly, a municipality may be held liable under section
1983 for the passage of a single ordinance or piece of
legislation. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. ___ ____ _______ __________________
469, 480 (1986). Although municipal liability cannot be based on
the doctrine of respondeat superior in this context, see Monell, ___ ______
436 U.S. at 691, such liability can flow from a finding that the
city itself has acted through an official decision of its
legislative body.7 Hence, from a purely theoretical standpoint,
nothing prevents a determination that, if the ordinance here in
question which was passed by a majority vote of the Fall River
City Council and approved by the mayor violates the plaintiff's
First Amendment rights, then the City is liable for the violation
____________________
6Neither Bogan nor Roderick voiced any objection to the
court's supplemental instructions. The lone objection lodged by
the City challenged the judge's interchanging of "real reason"
and "true reason" during her supplemental instructions. The
judge understandably dismissed this objection as nitpicking, and
the City (wisely, in our view) has not resuscitated it on appeal.
7Such a decision can be manifested either through the
enactment of an ordinance or through the adoption of a municipal
policy. See, e.g., Pembaur, 475 U.S. at 479-81; Monell, 436 U.S. ___ ____ _______ ______
at 690. Thus, adoption-of-policy cases are pertinent to a survey
of enactment-of-ordinance cases.
18
under section 1983.
We pause at this juncture. We think it is important to
note early on that the defendants have not challenged the
premise, or the district judge's confirmatory ruling, that Scott-
Harris' speech was protected by the First Amendment in the sense
needed to give rise to a claim under section 1983. Yet the
Supreme Court has laid down important restrictions: to give rise
to a section 1983 action, a plaintiff's speech must have been on
a matter of public concern, and her interest in expressing
herself must not be outweighed by the state's interest as
employer in promoting the efficiency of the services that it
performs. See Waters v. Churchill, 114 S. Ct. 1878, 1884 (1994); ___ ______ _________
Connick v. Myers, 461 U.S. 138, 142 (1983). _______ _____
Given the Supreme Court's application of these tests in
Connick, 461 U.S. at 147-54, one could argue that Scott-Harris' _______
comments about, and efforts to discipline, a particular employee
do not qualify as speech on a matter of public concern. We do
not pursue this point because it has not been argued to us; it
has, therefore, effectively been waived. We mention it, however,
because we do not intend our opinion to be taken as deciding that
the facts here asserted comprise protected speech.
We note, moreover, that there is another unusual twist
to this case. In most similar instances, the constitutional
deprivation is apparent on the face of the ordinance or in the
text of the challenged municipal policy, thus eliminating any
need for a predicate inquiry into the motives of individual
19
legislators. See, e.g., City of Oklahoma City v. Tuttle, 471 ___ ____ ______________________ ______
U.S. 808, 822-23 (1985); City of Newport v. Fact Concerts, Inc., _______________ ___________________
453 U.S. 247, 251-53 (1981); Bateson v. Geisse, 857 F.2d 1300, _______ ______
1303 (9th Cir. 1988); Little v. City of N. Miami, 805 F.2d 962, ______ _________________
967 (11th Cir. 1986); 18A James Perkowitz-Solheim et al.,
McQuillin Mun. Corp. 53.173 (3d ed. 1993). Here, by contrast, ____________________
the City enacted an ordinance which, on its face, is benign. In
cases like this one, implicating the exercise of First Amendment
rights, liability under section 1983 can attach to the passage of
a facially benign law only if one peers beneath the textual
facade and concludes that the legislative body acted out of a
constitutionally impermissible motive. This is a delicate
business, but this court previously has sanctioned an
investigation into the motives that underlay the enactment of a
facially neutral ordinance for the purpose of assessing liability
under section 1983, see Acevedo-Cordero v. Cordero-Santiago, 958 ___ _______________ ________________
F.2d 20, 23 (1st Cir. 1992), and we are bound by that precedent.
Still, the accumulated jurisprudence leaves perplexing
problems of proof unanswered. The baseline principle is well-
settled: legislators' bad motives may be proven by either direct
or circumstantial evidence. See, e.g., United States v. City of ___ ____ _____________ _______
Birmingham, 727 F.2d 560, 564-65 (6th Cir.), cert. denied, 469 __________ _____ ______
U.S. 821 (1984); Smith v. Town of Clarkton, 682 F.2d 1055, 1064- _____ ________________
65 (4th Cir. 1982). But this principle speaks to the qualitative ___________
nature of the evidence that is gathered; it does not address the
quantitative question. That question is best framed as follows: ____________
20
How many municipal legislators (or, put another way, what
percentage of the legislative body) must be spurred by a
constitutionally impermissible motive before the municipality
itself may be held liable under section 1983 for the adoption of
a facially neutral policy or ordinance? This is a difficult
question, and the case law proves a fickle companion.
Some courts appear to have held that the plaintiff must
adduce evidence sufficient to show that a majority of the members
of the legislative body acted from a constitutionally proscribed
motive before this kind of municipal liability can attach. Often
this position is implied rather than specifically articulated.
See generally United States v. City of Yonkers, 856 F.2d 444, ___ _________ ______________ _______________
457-58 (2d Cir. 1988). But some courts have been more
forthcoming. In Church v. City of Huntsville, 30 F.3d 1332 (11th ______ __________________
Cir. 1994), a group of homeless persons alleged that the city had
adopted a policy of excluding them from the community. The
plaintiffs based their section 1983 action on the acts and
statements of one individual on a five-member city council. The
court observed that a single council member did not have any
authority either to establish municipal policy or to bind the
municipality. See id. at 1343-44. It therefore examined the ___ ___
evidence against the other four councilors, finding that two had
opposed the alleged policy and that two had expressed no views on
the subject. The court refused to draw an inference of
discriminatory intent from the silence of council members, see ___
id. at 1344 n.5, and rejected the plaintiffs' claim. ___
21
Other courts, acting principally in the areas of race
and gender discrimination, have not required evidence of the
motives of a majority of the legislative body before imposing
liability on the municipality under section 1983. Representative
of this line of cases is United States v. City of Birmingham, 538 _____________ __________________
F. Supp. 819 (E.D. Mich. 1982), aff'd, 727 F.2d 560 (6th Cir. _____
1984). There, the district court held a city liable for
violations of the Fair Housing Act, 42 U.S.C. 3604(a), 3617
(1994), based on the actions of a seven-member municipal
commission which had blocked the construction of racially-
integrated housing by a four-to-three vote. While opponents of
the project had attributed their position to a series of
articulated nondiscriminatory rationales, the court looked behind
their avowals and ruled, based on a combination of direct and
circumstantial evidence, that racial considerations actually
propelled the commission's action. 538 F. Supp. at 826-27. The
court concluded that the city could be held liable for the
commissioners' animus even though there was no proof of the
motives of all four commissioners who voted to kill the project;
it was enough, the court suggested, if "racial considerations
were a motivating factor among a significant percentage of those
who were responsible for the city's [rejection of the project]."
Id. at 828. Explicating this construct, the court indicated that ___
a "significant percentage" would not have to encompass the entire
four-person majority. See id. at 828-29. Noting evidence that ___ ___
racial concerns motivated "at least two of the four members of
22
the majority faction," the court declared that "[t]hat fact alone
may be sufficient to attribute a racially discriminatory intent
to the City." Id. at 829.8 ___
Two Massachusetts cases also premise municipal
liability on evidence concerning less than a majority of the
relevant legislative body. In Southern Worcester County Regional __________________________________
Voc. Sch. Dist. v. Labor Relations Comm'n, 436 N.E.2d 380 (Mass. ________________ ______________________
1982), the Supreme Judicial Court (SJC) upheld a lower court's
finding that the plaintiffs had been discharged based on their
union activity. The SJC declared that "it is not fatal to the
[plaintiffs'] claims that only three of the seven members of the
school committee made anti-union statements." Id. at 385. The ___
court concluded that the three members' statements, coupled with
evidence of bias on the part of the school superintendent (who
had no vote), sufficed to support the finding of liability. See ___
id. Similarly, in Northeast Metro. Regional Voc. Sch. Dist. Sch. ___ ______________________________________________
Comm. v. MCAD, 575 N.E.2d 77 (Mass. App. 1991), a gender _____ ____
discrimination case involving a refusal to hire, the court noted
that direct evidence of bias had been exhibited by only two of
the twelve members of the school committee. See id. at 81. The ___ ___
____________________
8This rationale finds succor in United States v. Yonkers Bd. _____________ ___________
of Educ., 837 F.2d 1181, 1221-23 (2d Cir. 1987), cert. denied, _________ _____ ______
486 U.S. 1055 (1988), in which the court of appeals held the city
liable for Fair Housing Act violations. Though the city's
liability derived from the actions of a 12-member city council,
the court focused almost exclusively on statements by the mayor
(who had only one vote on the council) and race-based opposition
expressed by a few other councilors. The court did not premise
its decision on a requirement that a majority of the council had
acted out of impermissible motives.
23
court upheld a finding of liability based on this evidence and on
statements by three other committee members that the plaintiff
had been a victim of discrimination and/or had been the best
qualified candidate for the job. See id. at 81-82. ___ ___
The precedent in this area is uncertain, and persuasive
arguments can be made on both sides. On the one hand, because a
municipal ordinance can become law only by a majority vote of the
city council, there is a certain incongruity in allowing fewer
than a majority of the council members to subject the city to
liability under section 1983. On the other hand, because
discriminatory animus is insidious and a clever pretext can be
hard to unmask, the law sometimes constructs procedural devices
to ease a victim's burden of proof. See, e.g., McDonnell-Douglas ___ ____ _________________
Corp. v. Green, 411 U.S. 792, 802-05 (1973) (establishing _____ _____
presumptions for use in Title VII cases); Mesnick v. General _______ _______
Elec. Co., 950 F.2d 816, 823-24 (1st Cir. 1991) (adopting __________
comparable format for age discrimination cases), cert. denied, _____ ______
504 U.S. 985 (1992). Where, as here, a plaintiff alleges that a
city's councilors connived to victimize her by the pretextual
passage of a facially neutral ordinance, it may be overly
mechanistic to hold her to strict proof of the subjective
intentions of a numerical majority of council members.
Cognizant of these competing concerns, we eschew for
the time being a bright-line rule. Rather, we assume for
argument's sake (but do not decide) that in a sufficiently
compelling case the requirement that the plaintiff prove bad
24
motive on the part of a majority of the members of the
legislative body might be relaxed and a proxy accepted instead.
Nevertheless, any such relaxation would be contingent on the
plaintiff mustering evidence of both (a) bad motive on the part
of at least a significant bloc of legislators, and (b)
circumstances suggesting the probable complicity of others. By
way of illustration, evidence of procedural anomalies, acquiesced
in by a majority of the legislative body, may support such an
inference. See, e.g., City of Birmingham, 727 F.2d at 564-65; ___ ____ ___________________
Town of Clarkton, 682 F.2d at 1066-67. By like token, evidence ________________
indicating that the legislators bowed to an impermissible
community animus, most commonly manifested by an unusual level of
constituent pressure, may warrant such an inference. See, e.g., ___ ____
United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1221-25 (2d _____________ ____________________
Cir. 1987), cert. denied, 486 U.S. 1055 (1988); City of _____ ______ ________
Birmingham, 538 F. Supp. at 824-27. The key is likelihood: Has __________
the plaintiff proffered evidence, direct or circumstantial,
which, when reasonable inferences are drawn in her favor, makes
it appear more probable (i.e., more likely than not) that
discrimination was the real reason underlying the enactment of
the ordinance or the adoption of the policy?
The facts of this case do not require that we refine
the point to any further extent. Scott-Harris has not only
failed to prove that a majority of the councilors possessed a bad
motive, but she also has failed to furnish enough circumstantial
evidence to ground a finding that, more likely than not, a
25
discriminatory animus propelled the City Council's action.
The evidence, viewed most hospitably to the plaintiff,9
reveals that six of the nine councilors voted in favor of the
challenged ordinance and two opposed it. The plaintiff presented
sufficient evidence from which a jury could deduce that one of
these six, Roderick, along with Mayor Bogan (who did not have a
vote), acted out of a bad motive.10 The plaintiff also produced
some glancing evidence apropos of Councilor Mitchell: he and
Roderick were friends; Roderick spoke to him about the
Biltcliffe/Scott-Harris imbroglio; and Biltcliffe called him,
presumably to protest her treatment. The jury could have found
from other evidence in the case that Mitchell probably voted in
favor of the ordinance (although the record does not eliminate
the possibility that he abstained). Even though Mitchell did not
testify and the substance of his conversations with Roderick and
Biltcliffe are unknown, we assume arguendo that a jury reasonably
could infer that Mitchell, too, acted for a proscribed reason.
The remaining gaps in the plaintiff's proof are
____________________
9On the question of evidentiary sufficiency, we review de
novo the denial of the City's motion for judgment n.o.v. Gibson ______
v. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994). We are ________________
bound by the same decisional standards that bound the court
below: we must evaluate the record without regard to witness
credibility, testimonial conflicts, or unevenness in the weight
of the evidence, see id., and we must affirm unless, after ___ ___
surveying the evidence and the inferences derivable therefrom in
the light most flattering to the plaintiff, we determine that a
rational factfinder could not have resolved liability in her
favor, see Veranda Beach Club, 936 F.2d at 1375. ___ __________________
10We discuss the evidence against Roderick and Bogan in Part
VI(C), infra. _____
26
considerably more difficult to overlook. None of the other seven
city council members uttered any untoward statements or engaged
in any suspicious actions. The "we must slash the budget"
pretext had a ring of plausibility, and from aught that appears,
none of these seven individuals had any way of knowing that the
position-elimination ordinance would not save the City sorely
needed funds. Nor is there strong circumstantial evidence of
complicity; indeed, the record tells us almost nothing about the
inclinations of the silent seven.11 Moreover, the plaintiff made
virtually no effort to adduce such evidence. She neither deposed
any of the seven nor called them as witnesses at trial. She did
not attempt to show that any of the other four councilors who
voted for the ordinance had any basis for doubting the truth of
the party line ("we must slash the budget") or that they
possessed ties to Roderick or Bogan, or that they were beholden
to Biltcliffe, or that they were hostile to Scott-Harris. The
stark fact is that the motivations of the council members other
than Roderick and Mitchell did not receive individualized
scrutiny. By any responsible standard, this sparse evidence
falls short of providing a proper predicate for a finding of
municipal liability.
We do not think it is a coincidence that in every
____________________
11The record does show that one council member who voted
against the ordinance, John Medeiros, called the plaintiff and
asked why "they" were trying to get rid of her. But the
plaintiff provided no insight into who "they" might be and no
evidence that "they" comprised a majority, or even a significant
bloc, of the City Council.
27
analogous case in which municipal liability has been imposed on
evidence implicating less than a majority of a legislative body,
substantial circumstantial evidence existed from which the
requisite discriminatory animus could be inferred. In City of ________
Birmingham, the evidence showed that the race-based opposition of __________
constituents to integrated housing was widespread, pronounced,
and vociferously articulated. After several members who
supported the racially integrated development were ousted from
office, the commission responded to this unremitting pressure and
took the unprecedented step of submitting the proposal to a
community referendum. 538 F. Supp. at 826-29. In Yonkers Bd. of ______________
Educ., the requisite inference was supported by evidence of _____
massive constituent agitation as well as by "departures from the
normal procedural sequence" in respect to the challenged
proposal. 837 F.2d at 1221.
In this case no such evidence exists. Nothing suggests
the City Council deviated from its standard protocol when it
received and enacted the ordinance that abolished the plaintiff's
job. Nothing suggests that the vote took place in an atmosphere
permeated by widespread constituent pressure.12 Putting
speculation and surmise to one side, it simply cannot be inferred
that more than two of the council members who voted to abolish
____________________
12The plaintiff's assertion that the publication of front-
page articles about her plight in the local newspaper shows
constituent coercion will not wash. There is a significant
difference between heightened public interest an environmental
phenomenon with which legislatures grapple constantly and
pervasive constituent pressure.
28
the plaintiff's position did so to punish her for protected
speech. We cannot rest municipal liability on so frail a
foundation. Because no reasonable jury could find against the
City on the proof presented, Fall River's motion for judgment as
a matter of law should have been granted.
VI. INDIVIDUAL LIABILITY VI. INDIVIDUAL LIABILITY
Roderick and Bogan advance a different constellation of
arguments in support of their motions for judgment n.o.v. We
treat these arguments sequentially.
A. Legislative Immunity. A. Legislative Immunity. ____________________
The individual defendants concentrate most of their
fire on the district court's rendition of the doctrine of
legislative immunity. While municipalities do not enjoy immunity
from suit under section 1983, see Leatherman v. Tarrant County ___ __________ ______________
Narcotics Intell. & Coord. Unit, 507 U.S. 163, 166 (1993), __________________________________
lawmakers have absolute immunity from civil liability for damages
arising out of their performance of legitimate legislative
activities. See Tenney v. Brandhove, 341 U.S. 367, 376 (1951); ___ ______ _________
National Ass'n of Social Workers v. Harwood, 69 F.3d 622, 629-30 _________________________________ _______
(1st Cir. 1995). This immunity derives from federal common law
and, under existing Supreme Court precedents, embraces state
lawmakers, see Tenney, 341 U.S. at 376, and regional officials, ___ ______
see Lake Country Estates, Inc. v. Tahoe Regional Plan. Agency, ___ ___________________________ ____________________________
440 U.S. 391, 405 (1979).13
____________________
13Members of Congress enjoy a parallel immunity from
liability for their legislative acts under the Speech or Debate
Clause, U.S. Const. art. I, 6, cl. 1. See Doe v. McMillan, 412 ___ ___ ________
29
The Court has yet to decide whether local legislators
are protected by this strain of absolute immunity, see Lake ___ ____
Country Estates, 440 U.S. at 404 n.26 (reserving the question), ________________
but the lower federal courts, including this court, have shown no
reticence in holding that the doctrine of legislative immunity is
available to such persons. See, e.g., Acevedo-Cordero, 958 F.2d ___ ____ _______________
at 22-23; Aitchison v. Raffiani, 708 F.2d 96, 98-100 (3d Cir. _________ ________
1983); Reed v. Village of Shorewood, 704 F.2d 943, 952-53 (7th ____ _____________________
Cir. 1983); Bruce v. Riddle, 631 F.2d 272, 274-80 (4th Cir. _____ ______
1980). We reaffirm today that the shield of legislative immunity
lies within reach of city officials.
This holding does not end our inquiry. Although
legislative immunity is absolute within certain limits,
legislators are not immune with respect to all actions that they
take. The dividing line is drawn along a functional axis that
distinguishes between legislative and administrative acts. The
former are protected, the latter are not. See Acevedo-Cordero, ___ _______________
958F.2d at 23. We have useda pair of testsfor separating the two:
The first test focuses on the nature of the
facts used to reach the given decision. If
the underlying facts on which the decision is
based are "legislative facts," such as
"generalizations concerning a policy or state
of affairs," then the decision is
legislative. If the facts used in the
decision making are more specific, such as
those that relate to particular individuals
or situations, then the decision is
administrative. The second test focuses on
"the particularity of the impact of the state
of action." If the action involves
____________________
U.S. 306, 324 (1973); Harwood, 69 F.3d at 629. _______
30
establishment of a general policy, it is
legislative; if the action "single[s] out
specifiable individuals and affect[s] them
differently from others," it is
administrative.
Cutting v. Muzzey, 724 F.2d 259, 261 (1st Cir. 1984) (citations _______ ______
omitted).
When the relevant facts are uncontroverted and
sufficiently developed, the question whether an act is
"administrative" as opposed to "legislative" is a question of
law, and it may be decided by the judge on a pretrial motion.
See Acevedo-Cordero, 958 F.2d at 23. When the material facts are ___ _______________
genuinely disputed, however, the question is properly treated as
a question of fact, and its disposition must await the trial.
See id. ___ ___
In some ways, Acevedo-Cordero and this case are fair _______________
congeners. There, as here, the defendants asserted that
budgetary woes sparked the enactment of a facially benign
position-elimination ordinance. There, as here, the plaintiff(s)
countered with a charge that, in fact, a constitutionally
proscribed reason lurked beneath the surface. There, as here,
conflicted evidence as to the defendants' true motives raised
genuine issues of material fact. Acevedo-Cordero teaches that in _______________
such situations the issue of immunity must be reserved for the
trial. See id. ___ ___
Judge Saris faithfully applied these teachings,
refusing to reward premature attempts by the individual
defendants to dismiss the action on the basis of legislative
31
immunity. At the end of the trial, the jury made two crucial
findings. First, it found that the defendants' stated reason for
enacting the position-elimination ordinance was not their real
reason. Second, it found that the plaintiff's constitutionally
sheltered speech was a substantial or motivating factor in the
actions which Roderick and Bogan took vis- -vis the ordinance.
These findings reflect the jury's belief that the individual
defendants relied on facts relating to a particular individual
Scott-Harris in the decisionmaking calculus and devised an
ordinance that targeted Scott-Harris and treated her differently
from other managers employed by the City.
We think that in passing on the individual defendants'
post-trial motions, the judge in effect accepted these findings
and concluded that the position-elimination ordinance (which,
after all, constituted no more in this case than the means
employed by Scott-Harris' antagonists to fire her) constituted an
administrative rather than a legislative act. As long as the
quantum of proof suffices a matter to which we shall return
both this conclusion and its natural corollary (that Roderick and
Bogan are not shielded from liability by operation of the
doctrine of legislative immunity) rest on solid legal ground.14
See, e.g., Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27- ___ ____ _________________ ________________
____________________
14The defendants do not assert a claim of qualified
immunity, nor would such a claim be fruitful here. It was
clearly established at the time of the plaintiff's ouster that
public officials could not constitutionally punish a public
employee for protected speech. See Mt. Healthy, 429 U.S. at 283- ___ ___________
84.
32
28 (1st Cir. 1994), cert. denied, 115 S. Ct. 1098 (1995); Vacca _____ ______ _____
v. Barletta, 933 F.2d 31, 33 (1st Cir.), cert. denied, 502 U.S. ________ _____ ______
866 (1991).
B. Causation. B. Causation. _________
Roderick has another string to her bow. She posits
that, as a matter of law, her actions in respect to the position-
elimination ordinance cannot be deemed the proximate cause of the
harm to Scott-Harris.15 She bases this claim on the fact that
her vote alone was impuissant: five votes would ensure enactment
of the ordinance, but six legislators voted for passage. Thus,
not only was she unable to get the ordinance enacted by herself,
but it also would have been passed without her cooperation. This
thesis has a patina of plausibility, but it misstates the
question before us (and, consequently, we take no view of it).
According to accepted lore, section 1983 actions are to
be considered against the background of traditional tort
principles. See Monroe v. Pape, 365 U.S. 167, 187 (1961); ___ ______ ____
Wagenmann v. Adams, 829 F.2d 196, 212 (1st Cir. 1987). In tort _________ _____
law, determinations relating to causation are customarily
"question[s] of fact for the jury, to be solved by the exercise
____________________
15Bogan does not press a comparable claim, probably because,
as he concedes in his brief, the plaintiff's ouster required two
distinct steps: (1) the mayor's proposal of the ordinance, and
(2) a favorable vote by a majority of the city council. Although
both events were necessary, Bogan's actions could properly be
considered a proximate cause of the ultimate harm. See Wagenmann ___ _________
v. Adams, 829 F.2d 196, 212 (1st Cir. 1987) (upholding a jury _____
finding that a police officer's characterization of plaintiff's
conduct was a proximate cause of excessive bail, even though a
judicial officer was responsible for the ultimate bail decision).
33
of good common sense in the consideration of the evidence of each
particular case." Springer v. Seamen, 821 F.2d 871, 876 (1st ________ ______
Cir. 1987) (citations omitted). Phrased another way,
"[a]pplication of the legal cause standard to the circumstances
of a particular case is a function ordinarily performed by, and
peculiarly within the competence of, the factfinder." Swift v. _____
United States, 866 F.2d 507, 510 (1st Cir. 1989). _____________
In this instance, the judge charged the jury as
follows:
The defendant's actions are the legal cause
of the plaintiff's injuries if [they were] a
substantial factor in bringing about the
harm. . . . It does not matter whether other
concurrent causes contributed to the
plaintiff's injuries so long as you find that
the defendant's actions were a substantial
factor in producing them. If defendant's
actions were a substantial factor, then they
were the legal cause or what we call the
proximate cause.
Because no one objected to these instructions, they, whether or
not entirely accurate, are the law of the case.16 See Moore v. ___ _____
Murphy, 47 F.3d 8, 11 (1st Cir. 1995); Milone v. Moceri Family, ______ ______ ______________
Inc., 847 F.2d 35, 38-39 (1st Cir. 1988). ____
We believe that the jury, applying this standard to the
facts before it, could reasonably have concluded that Roderick's
overall conduct was a substantial factor in depriving the
____________________
16We do not mean to suggest that the particular instructions
given here are problematic. To the contrary, they appear at
first blush to comport with precedent. See Furtado v. Bishop, ___ _______ ______
604 F.2d 80, 89 (1st Cir. 1979) (discussing causation in the
context of section 1983), cert. denied, 444 U.S. 1035 (1980); see _____ ______ ___
also O'Brien v. Papa Gino's of Am., Inc., 780 F.2d 1067, 1072 ____ _______ _________________________
(1st Cir. 1986).
34
plaintiff of her constitutional rights. After all, Roderick was
not just another face in the crowd: she served as vice-president
of the City Council and chaired its ordinance committee; as a
result, the jury easily could find that she played a role in the
passage of the ordinance that was disproportionate to her single
vote. In order to gain approval, the ordinance had to go through
the five-member ordinance committee. Roderick established this
committee's agenda, and its favorable report on March 5 cleared
the way for the ordinance's enactment.17
Although the plaintiff's evidence in this regard is not
robust, it suffices in the context of the record as a whole to
render the issue of causation susceptible to differing evaluative
determinations. Thus, the district judge did not err in
submitting the causation question to the jury. And because the
jury reasonably could have adopted one such view of the evidence
and concluded that Roderick made a successful effort to have the
plaintiff ousted, the liability finding must stand.
C. Sufficiency of the Evidence. C. Sufficiency of the Evidence. ___________________________
Roderick and Bogan, in chorus, assert that insufficient
evidence exists from which a jury lawfully could find that the
____________________
17The fact that other causes (i.e., the votes of fellow
council members) concurrently contributed to the harm neither
insulates Roderick's conduct nor undercuts the jury's verdict.
See Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir. ___ ________ _________________
1994), cert. denied, 115 S. Ct. 1838 (1995); Wagenmann, 829 F.2d _____ ______ _________
at 211-13; see generally Marshall v. Perez Arzuaga, 828 F.2d 845, ___ _________ ________ _____________
848 (1st Cir. 1987) (stating that a "defendant is liable if his
negligence is a proximate cause of the damage although it might
not be the sole proximate cause of such damage") (emphasis in ___ ____
original; citations omitted), cert. denied, 484 U.S. 1065 (1988). _____ ______
35
desire to punish the plaintiff for her protected speech was a
substantial or motivating factor behind the actions which they
took. This assertion is easily refuted.
In challenging a jury verdict on sufficiency grounds, a
defendant labors under a heavy burden. See supra note 9 ___ _____
(elucidating applicable legal standard and citing cases).
Because the evidence in this case is capable of supporting two
sets of divergent inferences, Roderick and Bogan cannot carry
their burden.
We choose not to tarry. It suffices to say that, on
this pleochroic record, the jury could have found that Biltcliffe
used political connections to hinder the investigation of Scott-
Harris' accusations by, inter alia, banishing the accuser, and _____ ____
that Roderick and Bogan were the instruments of her vengeance.
Roderick bore an animosity toward Scott-Harris based on a history
of friction between the two women, and the jury permissibly could
have found that when Biltcliffe complained to her about Scott-
Harris' charges, she spoke to Connors; that when Scott-Harris
persisted, Roderick agreed to push the position-elimination
ordinance despite the fact that Scott-Harris was performing her
duties well; that the asserted budgetary basis for the ordinance
was a sham;18 and that Roderick knew as much.
As to Bogan, much of the same evidence is relevant. In
____________________
18On this point, the evidence permitted the jury to conclude
that, rather than saving money, the position-elimination
ordinance actually cost more because it necessitated the hiring
of three new administrators to manage agencies that the plaintiff
had been supervising single-handed.
36
addition, the jury could have found that he knew Biltcliffe and
resented Scott-Harris' outspoken efforts to cashier her; that he
abetted the effort to save Biltcliffe's sinecure by terminating
Scott-Harris (and no other manager) for a bogus reason; that he
proposed the position-elimination ordinance to that end,
notwithstanding Connors' opposition; that he happily signed it
into law; that when he learned of Scott-Harris' intention to
accept a different municipal position at a reduced salary, he
pulled the rug from under her by increasing the responsibilities
of the job and shifting her to a dingy office; that when Scott-
Harris tried to retract her rejection of this diminished
position, he foiled her efforts to do so; and that in all events
Bogan showed his true colors by shortening Biltcliffe's
suspension.
To be sure, this set of conclusions does not flow
ineluctably from the evidence, but it represents a permissible
construction of the record. Consequently, the evidence is
adequate to support the verdicts against both Roderick and Bogan.
VII. ATTORNEYS' FEES VII. ATTORNEYS' FEES
Our journey is not yet ended. The last leg requires us
to revisit the lower court's order awarding the plaintiff
$83,179.70 in counsel fees and associated expenses against three
defendants (Roderick, Bogan, and the City), jointly and
severally.
In a section 1983 action a court, "in its discretion,
may allow the prevailing party . . . a reasonable attorney's fee
37
as part of the costs." 42 U.S.C. 1988 (1994). Despite its
seemingly precatory tone, we have interpreted this language to
mean that "a prevailing plaintiff is presumptively entitled to
fee-shifting" in a section 1983 case. Casa Marie Hogar __________________
Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir. _________________ _____________
1994); accord Foster v. Mydas Assocs., Inc., 943 F.2d 139, 145 ______ ______ ____________________
(1st Cir. 1991) (stating that a prevailing civil rights
plaintiff's entitlement to a fee award "comes almost as a matter
of course"). For this purpose, a party prevails if she succeeds
on a significant issue in the litigation and thereby achieves all
or some meaningful part of the benefit that she envisioned when
she brought suit. See Hensley v. Eckerhart, 461 U.S. 424, 433 ___ _______ _________
(1983); Pearson v. Fair, 980 F.2d 37, 43 (1st Cir. 1992). The _______ ____
converse, of course, is equally true: if a plaintiff's claims
against a particular defendant come to naught, she is not a
prevailing party and is not entitled to reap a harvest under
section 1988. See Nunez-Soto v. Alvarado, 956 F.2d 1, 3 (1st ___ __________ ________
Cir. 1992). Moreover, if a plaintiff succeeds in the trial court
but the judgment she obtains is reversed on appeal, she is no
longer entitled to a fee award. See Globe Newspaper Co. v. ___ ____________________
Beacon Hill Arch. Comm'n, 100 F.3d 175, 195 (1st Cir. 1996). ________________________
Applying these standards to the case at bar, it is
evident that the matter of attorneys' fees must be rethought.
Because the plaintiff prevailed below on claims against all three
defendants, none of them opposed her application for fees. In
their appeals, however, they preserved the issue of whether (and
38
to what extent) the fee award could withstand the reversal on
appeal of all or some part of the judgments. This precaution
serves the City in good stead; because the judgment against it
must be reversed, see supra Part V, the fee award against it must ___ _____
be nullified.
This leaves a nagging question as to the status of the
award vis- -vis Roderick and Bogan. On the one hand, the
judgments against those two defendants remain intact, see supra ___ _____
Part VI, and, thus, as to them, the plaintiff remains a
prevailing party presumptively entitled to reasonable attorneys'
fees. On the other hand, the record before us is opaque as to
the proper extent of that entitlement. This opacity is
particularly pronounced because we do not know how much (if any)
of the work performed by the plaintiff's lawyer in respect to
Scott-Harris' unsuccessful claims against the City paved the way
for her successful claims against the individual defendants.
This is an important datum because a court may allow fees for
time spent on unsuccessful claims only if those claims are
sufficiently linked to successful claims. See Lipsett v. Blanco, ___ _______ ______
975 F.2d 934, 940-41 (1st Cir. 1992); Aubin v. Fudala, 782 F.2d _____ ______
287, 290-92 (1st Cir. 1986).
We need go no further. From what we have said to this
juncture, it is apparent that the matter of fees must be more
fully explored and it is preferable for obvious reasons that
the trial court, as opposed to this court, undertake what amounts
to an archeological dig into counsel's time sheets and make the
39
necessary factual determinations. We therefore vacate the fee
award against the City and remand so that the district court can
reconsider the amount of fees and costs that should properly be
assessed against the remaining defendants.
The plaintiff also has prevailed on appeal against two
of the defendants, and she is entitled to a reasonable counsel
fee for the work that yielded this victory. Though we often
entertain such fee applications directly, we have sometimes opted
to have the district court handle them. See, e.g., Rodi v. ___ ____ ____
Ventetuolo, 941 F.2d 22, 31 (1st Cir. 1991); see also 1st Cir. __________ ___ ____
Loc. R. 39.2 (permitting use of this alternative). Because the
district court must in any event reopen its inquiry into the
overall question of fees, we deem it expedient for the plaintiff
to file her application for fees on appeal with that court, and
for that court to make the supplementary award. We leave to
Judge Saris the procedure to be followed on remand in respect to
both reexamination of the original award and initial
consideration of the supplementary award for services rendered
and expenses (apart from ordinary costs) incurred on appeal.
The plaintiff's cross-appeal (No. 95-2100) is denied The plaintiff's cross-appeal (No. 95-2100) is denied _______________________________________________________
and the district court's order permitting the reopening of the and the district court's order permitting the reopening of the _________________________________________________________________
appeal period is affirmed. The judgment against the City of Fall appeal period is affirmed. The judgment against the City of Fall _________________________ _____________________________________
River is reversed, and the fee award against it is vacated. The River is reversed, and the fee award against it is vacated. The ___________________________________________________________ ___
judgments against the remaining defendants are affirmed and the judgments against the remaining defendants are affirmed and the _________________________________________________________________
case is remanded to the district court for further proceedings in case is remanded to the district court for further proceedings in _________________________________________________________________
40
respect to both the previous fee award against these defendants respect to both the previous fee award against these defendants _________________________________________________________________
and the question of fees on appeal. No costs are awarded in Nos. and the question of fees on appeal. No costs are awarded in Nos. __________________________________ ____________________________
95-1950 and 95-2100; costs are awarded to the plaintiff in Nos. 95-1950 and 95-2100; costs are awarded to the plaintiff in Nos. _________________________________________________________________
95-1951 and 95-1952. 95-1951 and 95-1952. ___________________
41