Roe v. Lynch

          United States Court of Appeals
                     For the First Circuit


No. 20-1702

                          RICHARD ROE,

                      Plaintiff, Appellant,

                               v.

 MARIANNE LYNCH, District Attorney for Prosecutorial District V,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. Lance E. Walker, U.S. District Judge]


                             Before

                    Lynch, Lipez, and Barron,
                         Circuit Judges.


     Michael A. Cunniff, with whom McCloskey, Mina, Cunniff &
Frawley, LLC was on brief, for appellant.
     Jonathan R. Bolton, Assistant Attorney General, with whom
Aaron M. Frey, Attorney General of the State of Maine, was on
brief, for appellee.


                          May 12, 2021
             LYNCH, Circuit Judge.     Richard Roe was terminated from

his employment with a police department ("the Department") by the

Town Manager in a town in Penobscot County, Maine, in July 2019.

His suit is based on his allegations that the local District

Attorney, defendant Marianne Lynch, who was not his employer, sent

a letter to the Department's police chief which led the Town to

its decision.     Roe alleges the letter from Lynch stated that in

light   of    allegations   made    about   Roe's   misconduct   and   the

prosecutor's constitutional obligations under the Supreme Court

decisions in Brady v. Maryland, 

 (1963), and Giglio v.

United States, 

 (1972), Lynch had determined that Roe

lacked credibility and so          her office would "be unwilling to

prosecute cases in which Officer [Roe] has involvement in the

future."

             Roe's state court complaint against Lynch alleged that

Lynch violated his Due Process rights under the U.S. and Maine

Constitutions by failing to provide him with meaningful notice and

opportunity to dispute those allegations before she sent her letter

to the police chief.     As to relief for the alleged violations, he

sought issuance of mandamus and a declaratory judgment.

             Lynch removed the case to federal court and Roe did not

oppose or contest that removal then or at any time.          Lynch moved

to dismiss under Federal Rules of Civil Procedure 12(b)(6) and




                                    - 2 -
12(b)(1).    The district court dismissed on state law grounds.   We

affirm the dismissal, albeit on different grounds.

                                 I.

A.   Facts

            In reviewing a motion to dismiss, "we accept as true all

well-pleaded facts alleged in the complaint and draw all reasonable

inferences therefrom in the pleader's favor."        Lee v. Conagra

Brands, Inc., 

 (1st Cir. 2020) (quoting Lanza v.

Fin. Indus. Regul. Auth., 

, 162 (1st Cir. 2020)).

            Roe was a veteran police officer who had served in

different departments over about seventeen years when he applied

for a patrol officer position with the Department in July 2018.

The Department is located within Lynch's prosecutorial district.

During a polygraph examination conducted as part of the hiring

process, Roe disclosed incidents reflecting adversely on him which

he had not disclosed in his application.   He disclosed that (1) he

had used unclaimed knives stored at a police station when he had

previously worked for a different police department which he

alleged never resulted in any allegation of misconduct; (2) he had

been investigated by law enforcement and prosecutors for an on-

duty use of force, which he alleges was resolved in his favor; and

(3) he had been terminated from a prior police job for allegedly

misusing a municipal credit card, but alleged the termination had

been rescinded as part of a civil settlement with the municipal


                                - 3 -
employer and that he agreed to resign from the police department.

Nonetheless, he was hired to the Department.

             A new police chief ("the Chief") took over the Department

in April 2019.      Sometime before May 3, 2019, the Chief reviewed a

report of Roe's polygraph examination which had been submitted to

the former police chief.        On May 3, 2019, based on the disclosures

made   in    that   polygraph    examination,   the   Chief   contacted   a

prosecutor in the District Attorney's Office and the prosecutor

told the Chief to submit a form to the District Attorney's Office

reporting those incidents.

             The source of the Chief's concern was two Supreme Court

cases.      Under Brady, the prosecution is constitutionally required

to disclose to a criminal defendant upon request "evidence that is

both favorable to the accused and 'material either to guilt or to

punishment.'"       United States v. Bagley, 

 (1985)

(quoting Brady, 

).            In Giglio, the Supreme Court

recognized that the prosecution's Brady obligation includes the

disclosure of information potentially useful to impeaching the

credibility of a government witness where that information is

favorable and material to guilt or punishment.          

-

55; see also United States v. Misla-Aldarondo, 

(1st Cir. 2007).

             On May 7, 2019, the Chief spoke with Roe about some of

the disclosures Roe had made during the polygraph examination and


                                    - 4 -
told Roe that he would be submitting a letter of concern regarding

those incidents to the District Attorney's Office.       The Chief also

requested that Roe complete a form providing further information

as to those incidents, which would be submitted with any letter of

concern.   Roe did so; he also denied that the incidents reflected

adversely on him.

           On May 10, 2019, the Chief submitted the letter of

concern,   enclosing   Roe's   filled-out   form,   to   the   District

Attorney's Office reporting the prior incidents and stating they

reflected adversely on Roe's character and credibility.             Roe

alleges that the Chief's letter of concern mischaracterized those

prior incidents and that he did not adequately investigate them or

give Roe an opportunity to respond to the allegations before

reporting them to the District Attorney's Office.

           On May 30, 2019, Lynch sent a first letter to the Chief

informing him that her office would disclose to defendants some of

the prior incidents reported in the Chief's letter of concern as

Giglio materials in cases where Roe would appear as a government

witness.   She did not determine at that time that Roe was "Giglio-

impaired," i.e., that she would be unwilling to prosecute cases in

which Roe was involved as an investigating officer.        Roe alleges

that neither Lynch nor the Chief notified him of Lynch's first

letter and that Lynch did not notify him of or give him an

opportunity to respond to the Chief's allegations in the letter of


                                - 5 -
concern before she sent the first letter.                He alleges that if he

had been given such an opportunity, he could have shown the

allegations      were   false     or    unsubstantiated.         There     are   no

allegations that the Town took any action based on this first

letter with respect to Roe's employment.

           On June 27, 2019, the Chief sent a second letter of

concern to the District Attorney's Office regarding new alleged

misconduct    by   Roe.     That       second   letter   set   forth   a   further

statement that Roe had lied to the Chief and an allegation that he

lied on a probable cause affidavit submitted to a court as to

whether he had attempted to photograph a domestic violence victim's

injuries when he first responded to the scene of the assault.                    The

victim stated that Roe had not attempted to photograph her injuries

the first time he responded.             Roe alleges that the Chief did not

adequately investigate the allegation or give him an opportunity

to respond to the second letter of concern before it was sent to

the District Attorney's Office.

           On July 23, 2019, Lynch sent a letter to the Chief

informing him that based on his second letter of concern, she had

determined "that her office could 'be unwilling to prosecute cases

in which Officer [Roe] has involvement in the future.'"                          Roe

alleges   that     Lynch   made    this    Giglio-impairment      determination

without first giving him notice of or an opportunity to respond to

the allegations made in the Chief's second letter of concern.


                                        - 6 -
          On July 30, 2019, the Town Manager terminated Roe's

employment as an officer with the Department.    Roe alleges that

the decision to terminate his employment was made "because the

District Attorney's Office would not prosecute cases in which he

was involved and that he was therefore 'not able to discharge this

essential function of [his] job.'"    The Town Manager gave Roe a

copy of Lynch's Giglio-impairment decision letter at the meeting

in which his employment was terminated, and Roe later obtained a

copy of Lynch's first Giglio-related determination letter.    After

he was terminated, Roe wrote to Lynch several times requesting

that she rescind her Giglio-impairment decision and provide him an

opportunity to respond to the allegations in the Chief's second

letter of concern, but she did not respond to his requests.     Roe

does not allege that Lynch requested, encouraged, or directly

participated in the termination by the Town of Roe's employment

with the Department.

B.   Procedural History

          On January 24, 2020, Roe filed a complaint against Lynch

in Maine state court alleging due process violations under the

U.S. and Maine Constitutions. His complaint did not name the Town,

the Department, the Town Manager, or the Chief as defendants.   Roe

alleged two counts for mandamus relief under Maine state law,

seeking to compel Lynch (1) to rescind the two Giglio-related

determinations which allegedly failed to comply with due process


                              - 7 -
and    (2)   to   provide    Roe   meaningful    notice    and    a    meaningful

opportunity to respond to allegations before any further Giglio-

related determinations are made.            See 

.

He made a similar request for declaratory relief under the Maine

Declaratory Judgments Act.         See 

.

             Based on the assertion in Roe's complaint of a federal

due process claim, Lynch removed to federal court.                    Roe did not

oppose the motion.       Lynch then filed a single motion arguing the

complaint must be dismissed for failure to state a claim and for

lack of subject matter jurisdiction, citing to Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). The motion focused on Roe's

failure to state any due process claim; it also argued that Roe's

claims for mandamus relief were untimely under state law.                   Lynch

did not challenge Roe's Article III ability to bring the case.

             On May 8, 2020, the district court granted Lynch's motion

to dismiss.       Roe v. Lynch, No. 1:20-cv-00050-LEW, 

,

at *1-3 (D. Me. May 8, 2020).              It held that Roe had not met a

limitation period for the filing of mandamus which was considered

to    be   jurisdictional     under   state    law   and   that    also    barred

declaratory relief.         Id. at *2-3.    The court did not rule that it

lacked Article III jurisdiction.              It also did not address the

merits of the due process claims.           Id. at *1.




                                      - 8 -
            On May 18, 2020, Roe filed a motion for reconsideration,

which the district court denied on June 22, 2020.        Roe timely

appealed.

                                 II.

            Roe argues on appeal that the district court erred in

its ruling that his claims for relief under Maine statutes were

time-barred.    He also argues that he has alleged plausible claims

for federal and state constitutional due process violations based

on his asserted property interest in continued public employment.

            There is federal question jurisdiction over this case

under 

(a) and 1331 because Roe explicitly asserted

on the face of his complaint due process claims under the U.S.

Constitution.   See Ortiz-Bonilla v. Federación de Ajedrez de P.R.,

Inc., 

 (1st Cir. 2013).1   Roe has never contended

that he was relying only on state-law causes of action to vindicate

his asserted rights.     And the defendant clearly understood that

Roe was asserting a federal cause of action.

            We hold that Roe has not stated any claim against the

District Attorney for a due process violation under either the

U.S. or Maine Constitution, see Doe I v. Williams, 

,




     1    Ortiz-Bonilla v. Federación de Ajedrez de Puerto Rico,
Inc., 

 (1st Cir. 2013), was explicitly cited by the
defendant in successfully seeking removal and neither party
contends that decision does not control.



                                - 9 -
736-37 (Me. 2013) (holding that the Maine Constitution and the

U.S. Constitution "create coextensive due process rights" and

applying federal due process law), and so affirm the district

court's   dismissal   of   the   complaint.   "The   district   court's

rationale is not binding upon us, and we may affirm an order of

dismissal on any ground made manifest by the record."2      Alston v.

Spiegel, 

, 571 (1st Cir. 2021) (citing Santiago v.

Puerto Rico, 

 (1st Cir. 2011)); see also Chiplin

Enters., Inc. v. City of Lebanon, 

 (1st Cir.

1983) (affirming the district court's dismissal made under Rule

12(b)(1) on the ground that the plaintiff failed to state a claim

under Rule 12(b)(6)).3



     2    Roe has waived any argument based on any purported
distinction between a ruling on a failure to state a claim and a
ruling on jurisdiction. Lynch's motion to dismiss was filed under
both Rule 12(b)(1) and Rule 12(b)(6).
     3    Because we have Article III jurisdiction and because
under Maine law the Maine Constitution's Due Process Clause is
coextensive with that of the U.S. Constitution, we have no need
and do not reach the state law grounds on which the district court
relied. See Nisselson v. Lernout, 

 (1st Cir.
2006).
          We have Article III jurisdiction to reach the merits
here because at least Roe's pursuit of relief with respect to past
Giglio-related determinations is justiciable. Because we reject
those due process claims on the merits, and because Roe's due
process claims for relief going forward as to any potential future,
adverse Giglio-related determinations rely on the same legal
theory, we need not reach whether those prospective claims are
justiciable as he cannot state a claim for relief in any event.
See In re Fidelity ERISA Fee Litig., 

, 60 (1st Cir.
2021).



                                  - 10 -
            Before the plaintiff can state a claim for procedural

due process protections, he must first state that he has been

deprived of some protected liberty or property interest.                        See Bd.

of Regents of State Colls. v. Roth, 

 (1972).

Roe has not stated a claim that he has been deprived of any such

interest, for several different reasons.

            Roe   does    not    have       a    protected    liberty    or   property

interest    in    the    prosecutor's            charging    decisions,       decisions

regarding what materials are disclosed to criminal defendants

during discovery, or decisions as to who to call to testify at

trial.      All    of    these     decisions          involve    the    prosecutor's

discretionary judgment and independence, which are protected from

interference.      See Harrington v. Almy, 

 (1st

Cir. 1992).       Roe cannot have a protected interest in something

that government officials can grant or deny in their discretion.

See Town of Castle Rock v. Gonzales, 

(2005).     And discouraging broad disclosure is contrary to the

Supreme Court's recognition that a prudent prosecutor should err

in favor of disclosure under Brady and Giglio.                          See Kyles v.

Whitley, 

 (1995).

            The parties agree that a public employee may under

certain    circumstances        have    a       protected    property   interest     in

continued employment.       See Cleveland Bd. of Educ. v. Loudermill,

 (1985); Clukey v. Town of Camden, 717 F.3d


                                        - 11 -
52, 56 (1st Cir. 2013).      But Roe's assertion fails in any event

for a different reason: Lynch was not his employer and she did not

make the decision to terminate his employment -- the Town Manager

did.

           Roe   also   cannot   establish   a   due   process   violation

through a "stigma plus" claim.       See Siegert v. Gilley, 

 (1991); URI Student Senate v. Town of Narragansett, 

 (1st Cir. 2011).     To state such a claim, the plaintiff

must show that the alleged stigma from the government actor's

conduct has had an adverse effect on some other protected interest

"more tangible" than the plaintiff's mere reputation.        URI Student

Senate, 

 (quoting Paul v. Davis, 

(1976)).   "Where the stigma and the incremental harm -- the 'plus'

factor -- derive from distinct sources, a party cannot make out a

viable procedural due process claim . . . even if both sources are

government entities."     Id. at 10; see also Hawkins v. R.I. Lottery

Comm'n, 

 (1st Cir. 2001).            The termination

decision was made by a different governmental actor than Lynch.4

See Siegert, 

 (holding that the plaintiff




       4  The Ninth Circuit in Espinosa v. Whitaker, 

 (9th Cir. 2019) (unpublished), also held that a Giglio-related
determination did not establish a "stigma plus" claim where the
government entity that issued the determination was not the
plaintiff's employer and so any damage to his reputation was not
caused "in the course of terminating his employment." Id. at 599.



                                 - 12 -
failed to state a "stigma plus" due process claim where "[t]he

alleged defamation was not uttered incident to the termination of

[the plaintiff]'s employment [with a federal] hospital" but was

made in a letter of reference to a different federal employer

several weeks later); Hawkins, 

.

                                 III.

          We   affirm   the   district   court's   dismissal   of   Roe's

complaint.

                   -Concurring Opinion Follows-




                                - 13 -
           Lipez, Circuit Judge, concurring.          I agree with my

colleagues that appellant's due process claim against District

Attorney Lynch fails.      I write separately because I believe it is

important to acknowledge the high stakes in a case such as this

for all of the parties. A prosecutor's determination that a police

officer   is   generally    Brady-   or   Giglio-impaired   has   serious

consequences for the police officer's reputation and employment.

That determination -- which effectively renders an officer unable

to testify not only in a particular case, but also in future cases

-- will likely, at a minimum, result in loss of the officer's

duties as an investigator and, as here, may lead to the termination

of employment.     The potential for abuse also exists.           As one

observer has noted, the prosecutor's power to make such a general-

purpose determination provides "potential for police management to

misuse Brady [or Giglio] in clashes with police labor," with

prosecutors able to "us[e] the Brady designation to aid police

chiefs in punishing disfavored officers."       Jonathan Abel, Brady's

Blind Spot: Impeachment Evidence in Police Personnel Files and the

Battle Splitting the Prosecution Team, 

, 781-

82 (2015).     I am not suggesting that such misuse occurred here.

My point is that the potential for misuse highlights the need for

due process protections for police officers affected by Brady- and

Giglio-determinations.




                                 - 14 -
            However, despite the importance of the police officer's

interest, a lawsuit like this one -- a federal suit brought against

a state prosecutor -- faces doctrinal obstacles.                 In addition to

the merits issues identified by my colleagues, a federal suit

challenging a prosecutor's Brady- or Giglio-determination might

falter on immunity and related equitable grounds, as we recognized

in Harrington v. Almy, 

 (1st Cir. 1992).                   There, we

concluded   that   a    state    prosecutor's       "individualized    judgment

regarding   whether     the    presence    of   a   particular    policeman   as

investigating officer or otherwise as a witness would burden or

compromise the prosecution's cases" might be "wrongheaded," but

that judgment is ultimately "the prosecutor's to make free from

damage actions or injunctive oversight in the federal court."                 

.

            If Roe's complaint had included allegations against his

employer,    however,    his     due    process     claim   might    have   been

strengthened.5     Indeed, some courts have entertained due process

claims against the officer's employer on the theory that the loss

of a job can qualify as a deprivation of a protected property

interest and thereby trigger the obligation to provide the officer




     5 To be clear, I am not suggesting a strategic misstep by Roe
or his counsel in choosing to pursue this action only against the
District Attorney.   It is possible that Roe reached a separate
resolution or settlement with his employer (i.e., the Town and/or
Town Manager).


                                       - 15 -
with an opportunity to probe the prosecutor's general Giglio-

impairment decision.    See, e.g., Stockdale v. Helper, No. 3:17-

cv-0241, 

, at *5-6    (M.D. Tenn. Aug. 16, 2017); see

also Abel, supra, at 785 (noting that some officers' litigation

"targets the employment consequences of the Brady designation,

rather than the Brady designation itself").

          Recognizing the competing interests at stake, at least

two states have adopted laws or procedures that provide protection

against the impact of a Brady- or Giglio-determination while still

guaranteeing prosecutors' freedom to comply with their important

disclosure    obligations.   For    example,   a   California   statute

mandates that an adverse employment action "shall not be undertaken

by any public agency against any public safety officer solely

because that officer's name has been placed on a Brady list, or

[because] the officer's name may otherwise be subject to disclosure

pursuant to Brady v. Maryland.";     

.

          In New Jersey, the Attorney General's Office discourages

general-purpose Brady- or Giglio-determinations and allows police

officers to seek review of a prosecutor's determination from the

prosecutor or the Office of the Attorney General.       See New Jersey

Attorney General Law Enforcement Directive No. 2019-6 at 8-9 (Dec.

4,   2019),    www.nj.gov/oag/dcj/agguide/directives/ag-Directive-

2019-6.pdf.    Importantly, the New Jersey directive makes clear

that such review "shall not interrupt or interfere with the


                              - 16 -
prosecutor's obligation to disclose information in the ongoing

case."    Id. at 8.

              Additionally, as we recognized in                      Harrington, Maine

itself    "provides        a    highly    specific      mechanism          to   evaluate   a

prosecutor's        work,"      permitting      "a    judicial       proceeding      to    be

commenced against a District Attorney, upon complaint by the

Attorney General, to determine whether the District Attorney is

'performing the duties of office faithfully and efficiently' and

to remove him if he is not."                  

 (quoting Me. Stat.

tit. 30–A, § 257).              While this procedure is not limited to the

Brady    or   Giglio    context,         we   suggested       that    an    unjustifiable

decision by a prosecutor not to prosecute a particular officer's

cases could "amount[] to a performance less than faithful to the

office."      Id.

              Again, I am not suggesting that there is any basis for

such a proceeding here.            And I am not endorsing the ultimate wisdom

or viability of any of the judicial, legislative, and executive

approaches     I    have       described.       I    simply    note    that      there    are

potential ways to reconcile defendants' Brady and Giglio rights

with police officers' due process rights.6                       Those possibilities

merit attention.


     6I also express no judgment on what specific kind of "process"
-- hearings or the like -- might be "due" to a police officer in
this context. The Supreme Court has repeatedly stressed that due
process is "flexible" and "calls for such procedural protections


                                          - 17 -
as the particular situation demands." Jennings v. Rodriguez, 

 (2018) (quoting Morrissey v. Brewer, 

 (1972)).


                             - 18 -