At long last, the First Circuit has issued its en banc decision in Eves v. LePage. Cutting to the chase, the Court affirmed Judge Singal’s dismissal of the action on qualified immunity grounds.

Six judges heard the case: CJ Howard, and Judges Torruella, Stahl, Lynch, Thompson and Barron (Judge Kayatta recused). There were two opinions, one written by Judge Lynch, joined by CJ Howard and Judge Stahl, and a concurrence written by Judge Thompson, joined by Judges Torruella and Barron. The Judge Lynch opinion is the ruling, because it is the narrowest opinion, holding that Governor LePage was immune because a reasonable governor in his situation could have believed that Eves’ position as the new President of Good Will-Hinckley was to be a policymaking position for which political affiliation was relevant.

The concurrence agreed, but wrote an opinion discussing why absent that policymaking issue, they would have found no immunity.

All of that discussion from Judge Thompson in the concurrence sounds contrary to the usual position of judges disinclined to provide advisory dicta – indeed, Judge Lynch rejected an argument by Eves’ counsel, David Webbert, that Eves should still be entitled to declaratory relief as to whether Governor LePage’s conduct was right or wrong as moot, because any opinion on that issue would be “merely advisory” and “[f]ederal courts should not issue such advisory opinions.”

Judge Thompson, however, after stating she was “fully on board with the opinion’s policymaker-driven conclusion,” went on to discuss how “if the policymaker exception hadn’t been in play, I’d have no trouble concluding that in the circumstances of this case, Eves sufficiently plead a violation of his constitutional right,” and that she believes that when you have a qualified immunity claim, the court should decide whether there’s any violation of the constitution and then decide whether there’s immunity, to avoid “constitutional stagnation,” i.e., a lack of guidance from courts as to whether conduct does violate the law. “Having thought about this case a lot,” she writes, “I believe deciding whether LePage infracted the Constitution would advance the law’s development[.]”

Because there’s a 3-3 split here, how useful is Judge Thompson’s opinion in advancing the law’s development? Well, as noted, Judge Kayatta wasn’t on the appeal, so we don’t know what three of the six judges on the First Circuit bench think about this issue (CJ Howard, Judges Lynch and Kayatta.) Ditto senior Judge Stahl, and the other seniors or frequent visitors to the Circuit – Judges Selya, Boudin, and Justice Souter. And, a visiting judge, either from the district court or another Circuit, could sit on a panel. What does this mean? Is this three-judge concurrence sufficient notice that it is no longer reasonable for immunity purposes to think this type of action is constitutional – is it enough to strip away immunity the next time a case arrives with no policymaker issue? Can it constitute useful guidance defeating “constitutional stagnation,” given the opinion isn’t the ruling, but dicta from three of six judges in a circuit?

This is a blog, so I’m just here to raise questions, not to offer any definitive answers.

All I know for sure is this 2015 case, absent a petition and grant of certiorari, is over.