First Circuit round-up – privileges and immunities


So happy holidays, and let's conclude the year by noting a two First Circuit decisions, Bergemann v. R.I. Dep't of Environmental Management, No. 11-1407,, and Collins v. UNH, No. 10-2316,  The first deals with sovereign immunity, the second with a qualified privilege to speak.   

In Bergemann, the Court weighed in on an issue splitting the circuits – whether a state waives its sovereign immunity to a claim by removing the claim to federal court.  The answer depends on how the circuit interprets a Supreme Court decision, Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002) ??  The First Circuit leaned toward how the 4th and DC Circuits have ruled, finding no waiver unless "removal confers an unfair advantage on the removing state."  Other circuits hold that removal always waives immunity (the 7th, 9th and 10th circuits), and two find no waiver if damages are involved, but waiver as to suit (3d and 5th Circuits).   Because the State in Bergemann had asserted immunity to the plaintiff's FLSA claim consistently in state and federal court, the First Circuit found no waiver and affirmed dismissal of the claim on immunity grounds.  There's a nice discussion in the decision (by Judge Selya, joined by Judges Lipez and Howard) explaining why the Court sided with the no-waiver-absent-unfair-advantage-school, including citations of previous decisions showing that this position was consistent with precedent in the circuit.  Congratulations to the RI AAG, Thomas Palombo.   

Collins relates to an incident at the University of New Hampshire in which a tenured biology professor was arrested and charged with stalking and disorderly conduct "after unleashing an expletive-filled tirade against a colleague whom he suspected of causing him to receive a parking ticket."  (The details are in the decision – he kicked a large trash can, and threatened, using nasty language, to kill the professor whom he suspected had reported his car to parking services).  He was ultimately stripped of his position as department chair, and spent @6 months suspended with pay before returning, during which period he was banned from campus, with some exceptions when requested.  He sued for false arrest, due process violation and defamation.  The district court granted judgment on the pleadings for the defendants as to the false arrest counts, and summary judgment on the due process and defamation counts.  Basically, the court found enough to show probable cause, so no false arrest; and the period in which no process was provided (around 2 months) too short to require predeprivation process, given that the suspension was with pay, and sufficient overall process regarding the loss of the plaintiff's position as chair. 

As to the defamation count, plaintiff contended that a statement that "[a]nyone who sees Dr. Collins anywhere on campus should avoid contact with him and immediately notify the UNH Police Department" falsely implied that he was armed and dangerous.  The Court held that, even if one assumed that the statement did so imply, and even assuming the implication was false, there's a privilege in NH if the statement was "published on a lawful occasion, in good faith, for a justifiable purpose, and whith a belief, founded on reasonable grounds of its truth, provided that the statement  [is] not made with actual malice."  The plaintiff argued that these types of findings had to be made by a jury.  The Court disagreed, given the nature of his statements and actions, the context, and the lack of any evidence in the record that the defendants acted with malice.  The contention that the question of qualified privilege must always be left to the jury, the Court said, "is flatly wrong."  While ordinarily the question whether the privilege applies is a question of fact, the purpose of summary judgment is "to pierce the boilerplate of the pleadings and assay the partis' proof in order to determine whether trial is actually required."  Where, the Court said, "as here, no reasonable jury could have found that the privilege did not apply, a trial is not necessary."  Notably, this incident occurred not too long after the horrendous Virginia Tech killings, so schools were particularly sensitive to violent acts.   

Following the lesson of Collins, let's all manage our anger in the new year, and have a calm and cordial 2012.  


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