Borzilleri v. Mosby et al

Filing 20

MEMORANDUM. Signed by Judge J. Frederick Motz on 5/31/2016. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

KERI L. BORZILLERI
v.
MARILYN MOSBY

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Civil No. JFM-15-3760

MEMORANDUM
Plaintiff Keri L. Borzilleri brings suit against defendant Marilyn Mosby seeking damages
for violations of the First Amendment pursuant to 42 U.S.C. § 1983, the Maryland Declaration of
Rights, and Maryland tort law, relating to Mosby’s termination of Borzilleri. Now pending is
Mosby’s motion to dismiss Borzilleri’s amended complaint. The parties have fully briefed the
motion, and no oral argument is necessary. See Local Rule 105.6. For the reasons below, I
dismiss Counts I–III of Borzilleri’s amended complaint with prejudice and dismiss Counts IV–V
without prejudice.
BACKGROUND
This dispute arises out of Baltimore City State’s Attorney Marilyn Mosby’s dismissal of
Keri Borzilleri, an Assistant State’s Attorney (“ASA”), shortly after Mosby assumed her post.
Before her termination, Borzilleri had worked as an ASA in the Baltimore City State’s
Attorney’s Office (“Baltimore City SAO”) for over nine years. 1 (ECF No. 14, ¶ 1). Borzilleri
had served as a line prosecutor for two prior Baltimore City State’s Attorneys—Patricia Jessamy
and Gregg Bernstein—and was, in her own words, a “career prosecutor” in the office. (Id. at ¶¶
5, 11). Before her termination, Borzilleri had also worked as one of the office’s three

1

Because this case is at the motion to dismiss stage, the facts are as stated in Borzilleri’s
complaint.
1

“Community Prosecutors,” who “prosecuted complex crimes and served as a liaison between the
State’s Attorney’s Office, the community, and the local police.” (Id. at ¶ 5).
In June 2013, Mosby (who had formerly worked as an ASA under Bernstein, but who
had since left for private practice) announced she would challenge Bernstein in the 2014
Democratic Party Primary for Baltimore City State’s Attorney. (Id. at ¶ 12). According to
Borzilleri, the primary “developed into a fiercely contested race and witnessed several tense
exchanges between the proponents of Mr. Bernstein and Ms. Mosby.” Id. Borzilleri supported
her boss Bernstein. (Id. at ¶ 14). Borzilleri had no official role in Bernstein’s campaign and
never donated money to him; she did, however, host a “meet and greet” event for Bernstein at
her house, which Bernstein and approximately twenty other people attended. Id. Borzilleri
publicized the event by sending electronic leaflets touting Bernstein’s record, and at the event
she gave a speech supporting Bernstein’s re-election bid, touting his term as State’s Attorney and
stating that he had helped improve Baltimore. Id. After the event, the Bernstein campaign
posted pictures of the event on its Facebook page. 2 Id. Borzilleri expressed her support for
Bernstein’s candidacy in other ways as well, including by speaking to prospective voters at
another of his campaign events and by placing a Bernstein reelection sign in front of her house.
(Id. at ¶¶ 16–17).
Prior to the campaign, Borzilleri describes her relationship with Mosby as “always
cordial and respectful.” (Id. at ¶ 10). But after Borzilleri began campaigning for Bernstein, their
relationship soured. For instance, Borzilleri alleges that on two occasions, when she
accompanied Bernstein in her official capacity at community meetings that Mosby also attended,
Mosby “glared directly” at her and “did not acknowledge or otherwise greet her.” (Id. at ¶ 18).
2

Borzilleri claims that Mosby found out about her support for Bernstein from Facebook. (Id. at
¶ 15).
2

Mosby defeated Bernstein in the June 2014 Democratic primary and went on to win the
general election for Baltimore City State’s Attorney in November of the same year. (Id. at ¶ 19).
She was sworn in as State’s Attorney on January 5, 2015. (Id. at ¶ 22). The day after Mosby’s
swearing-in, a newly minted Mosby political appointee, Joshua Rosenblatt, asked Borzilleri if
she would be interested in joining a small unit within the Baltimore City SAO that “would
collect and manage intelligence.” (Id. at ¶ 23). Borzilleri expressed interest. Two days later,
Rosenblatt again approached Borzilleri and told her he had received information that a recruit for
his new unit had campaigned for Bernstein. He asked Borzilleri to describe her connection with
the Bernstein campaign “so that he could figure out ‘how to fix the problem’ before it became
‘an issue.’” (Id. at ¶ 24). Borzilleri did not deny her support for Bernstein and admitted to
holding a Bernstein campaign event at her house. The next day, another Mosby appointee
named Steward Beckham emailed Borzilleri directing her to meet with him. (Id. at ¶ 26). On
Borzilleri’s way to the meeting, she bumped into Rosenblatt, who could only “confirm[] that the
meeting related to their conversation the day before about her support for Mr. Bernstein’s
campaign.” Id. At the meeting, Beckham fired Borzilleri but “gave no details or reasons as to
why she was being fired.” Id. As Borzilleri was collecting her belongings, Beckham delivered a
letter, signed by Mosby, stating that she was being terminated without cause, effective
immediately. (Id. at ¶ 27).
Shortly after her termination, Borzilleri contacted the City of Baltimore to determine her
eligibility for a deferred vested pension. (Id. at ¶ 51). Plaintiff was eligible for such a pension
only if she could show that she was “laid off due to no fault of her own.” (Id. at ¶ 52). She was
told by the City of Baltimore, however, that her termination letter, in which Mosby stated she
was being terminated without cause, was insufficient documentation of a layoff. When

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Borzilleri wrote the Baltimore City SAO for further documentation, Beckham wrote that her
position had not been eliminated and thus, the City of Baltimore determined she was not eligible
for the pension. (Id. at ¶¶ 54–55). It was only later, after Borzilleri sent the State of Maryland a
demand letter setting out substantially the same claims as in the current lawsuit, that the City of
Baltimore sent her a letter indicating that she was, contrary to their earlier determination, eligible
for the pension. This letter appears to indicate that the City of Baltimore re-characterized her
termination as a layoff, (see id. at ¶ 59), and Borzilleri alleges that on information and belief,
Mosby and/or other State employees instructed the City of Baltimore to reclassify Borzilleri’s
termination as such upon receiving her demand letter.
Borzilleri alleges that she was one of several State’s Attorney’s employees fired for their
support of Bernstein. (See id. at ¶¶ 30–36). In total, Borzilleri alleges Mosby fired six veteran
prosecutors for political reasons and at least thirty prosecutors left in part because of those
firings. (Id. at ¶ 43). Borzilleri now sues Mosby for violations of her First Amendment rights
pursuant to 42 U.S.C. § 1983 (Counts I and II), violations of her Article 40 rights under the
Maryland Declaration of Rights (Counts III and IV), and for abusive discharge (Count V).
STANDARD
When ruling on a motion to dismiss, a court accepts “all well-pled facts as true and
construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency
of the complaint.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009). A court, however, cannot afford the same deference to legal conclusions. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint, relying on only
well-pled factual allegations, must state at least a “plausible claim for relief.” Id. at 678. The
“mere recital of elements of a cause of action, supported only by conclusory statements, is not

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sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012). To determine whether a complaint has crossed “the line from
conceivable to plausible,” a court must employ a “context-specific inquiry,” drawing on the
court’s “experience and common sense.” Iqbal, 556 U.S. at 680.
ANALYSIS
I.

First Amendment and Article 40 Patronage Dismissal Claims (Counts I and III)
Mosby seeks to dismiss Counts I and III of Borzilleri’s complaint alleging that she

terminated Borzilleri in violation of her First Amendment and Article 40 rights against patronage
dismissal. Mosby attacks these claims on three fronts. First, she argues that Borzilleri fails to
state a claim on both counts. Second, regarding the First Amendment claim, she argues that she
is entitled to qualified immunity because she did not violate “clearly established law.” Pearson
v. Callahan, 555 U.S. 223, 243 (2009). Lastly, regarding the Article 40 patronage claim, Mosby
claims entitlement to statutory immunity pursuant to the Maryland Torts Claims Act (“MTCA”).
a. Plausibility of Borzilleri’s Patronage Claims
I first consider whether Borzilleri has stated plausible Article 40 and First Amendment
patronage dismissal claims. Mosby argues that Borzilleri fails to state a political patronage claim
because Borzilleri is a policymaker or alter ego to Mosby, as described by controlling case law,
who is exempt from the prohibition on patronage dismissals. I agree.
The First Amendment provides that, “Congress shall make no law . . . abridging the
freedom of speech,” and Article 40 provides that “every citizen of the State ought to be allowed
to speak, write and publish his sentiments on all subjects.” Article 40 is “‘co-extensive’ with the
First Amendment, and is construed in pari materia with it.” Kensington Volunteer Fire Dep’t,
Inc. v. Montgomery Cty., Md., 684 F.3d 462, 468 n.3 (4th Cir. 2012).

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The First Amendment protection against patronage dismissals, established by the
Supreme Court in Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507
(1980), prohibits government employers, including elected officials, from firing
“nonpolicymaking, nonconfidential government employee[s] . . . upon the sole ground of [their]
political beliefs.” Elrod, 427 U.S. at 375 (Stewart, J., concurring). A “narrow exception” to the
prohibition on patronage dismissals, however, arises when a government employee occupies a
“policymaking position[].” Bland v. Roberts, 730 F.3d 368, 374 (4th Cir. 2013), as amended
(Sept. 23, 2013). In analyzing whether an employee occupies such a position, the dispositive
question is not whether the employee meets a formulaic definition of a policymaker, but rather
whether “[p]olitical affiliation is an appropriate [job] requirement”—that is, whether “there is a
rational connection between shared ideology and job performance.” Stott v. Haworth, 916 F.2d
134, 142 (4th Cir. 1990) (internal quotation marks omitted),
The Fourth Circuit has adopted a two-step test to determine whether a government
employee fits within the Elrod/Branti exception. First, a court considers whether “the position
involve[s] government decisionmaking on issues where there is room for political disagreement
on goals or their implementation.” Stott v. Haworth, 916 F.2d 134, 141 (4th Cir. 1990). If the
answer to the first question is in the affirmative, a court then examines “the particular
responsibilities of the position to determine whether it resembles a policymaker, a privy to
confidential information, a communicator, or some other office holder whose function is such
that party affiliation [or political affiliation] is an equally appropriate requirement.” Id.; see also
Fields v. Prater, 566 F.3d 381, 386 (4th Cir. 2009) (using political affiliation and party affiliation
interchangeably). The first step of the Stott test requires a court “to examine the issues dealt with
by the employee ‘at a very high level of generality,’ while ‘[t]he second step requires a much

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more concrete analysis of the specific position at issue.’” Bland, 730 F.3d at 375 (internal
citations omitted).
Here, plaintiff’s position as a line prosecutor satisfies the first step of the Stotts analysis.
The Fourth Circuit’s en banc decision in Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997)—
upholding a North Carolina sheriff’s politically motivated dismissal of deputy sheriffs for failing
to support him in an election—is particularly instructive. There, the court determined that
plaintiffs qualified for the first part of the Stotts test both because of the importance of the
sheriff’s position and because of the significant role of the deputy sheriffs in carrying out the
sheriff’s policy agenda. The court explained that “the electorate vests in the sheriff broad
discretion to set and implement the policies necessary to carry out his goals” and “[d]eputy
sheriffs play a special role in implementing the sheriff’s policies and goals . . . [by] exercising
significant discretion in performing their jobs . . . [and because, i]n the course of their duties,
deputies will make some decisions that actually create policy.” Id. at 1162 (internal citations and
quotation marks omitted).
Although the Jenkins court’s holding applied to “North Carolina deputy sheriffs,” id. at
1164, much of the court’s reasoning applies here as well. Like the elected sheriff in that case,
Maryland State’s Attorneys are also elected and given discretion to implement their policy
agendas; and like the deputy sheriffs in Jenkins, ASAs are also crucial to the efficacy of the
office of their boss and play a “special role” in shaping their agenda. Indeed, given the
discretion afforded to line prosecutors, one could easily conclude that ASAs play a greater role in
setting a State’s Attorney’s agenda than do deputy sheriffs in setting an elected sheriff’s agenda.
As former Attorney General and Supreme Court Justice Robert Jackson once noted, “[t]he
prosecutor has more control over life, liberty and reputation than any other person in America.”

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Robert H. Jackson, The Federal Prosecutor, 24 J. AM. JUDICATURE SOC. 18 (1940). ASAs
are given a tremendous amount of discretion over their duties—they choose which cases to
investigate, which to charge, which to plead out, and which to bring to trial. And by their nature,
prosecutorial decisions often involve issues where there is space for political disagreement. Cf.
Bland, 730 F.3d at 376 (finding that sheriff’s deputies met the first step of the Stott test because
“[c]ertainly there is legitimate disagreement over the goals and implementation of the goals of a
sheriff's office”); see also Livas v. Petka, 711 F.2d 798, 801 (7th Cir. 1983) (“[A]n Assistant
State’s Attorney may, in carrying out his or her duties, make some decisions that will actually
create policy . . . . The public interest in the efficient administration of justice requires that
decisions made by such assistant prosecutors conform with the broad objectives chosen by the
prosecutor.”)
Furthermore, Borzilleri’s exercise of prosecutorial discretion as a line prosecutor would
have had a direct impact on Mosby’s performance as State’s Attorney. Even routine decisions,
such as which crimes to charge or what plea deal to offer, would reflect on the performance of
the entire SAO and would carry with them potential political consequences. One improvident
choice or misstep—like a poorly thought-out trial strategy—could seriously affect the public’s
perception of Mosby’s performance and hinder her ability to implement her agenda. Thus, like
the deputy sheriffs in Jenkins, Borzilleri’s exercise of prosecutorial discretion invariably
included “decisions that actually create policy.” Jenkins, 119 F.3d at 1162, and, as a result,
Borzilleri’s position fulfilled the first step of the Stott test.
The second step of the Stott test is also met. In Jenkins, the Fourth Circuit determined—
based on its study of North Carolina statutes and case law—that North Carolina deputy sheriffs
met the requirements of the second step of the Stott test because they were “alter egos” to and

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“acted in the name of and with powers coterminous” to the elected sheriff. 119 F.3d at 1163–64.
Maryland law, as well as Borzilleri’s own description of her position, show that, similarly to the
deputy sheriffs in Jenkins, Borzilleri was an alter ego of the State’s Attorney such that political
affiliation was an appropriate requirement for her position. Indeed, again, Jenkins’s reasoning
applies with even more force to the case at bar—in Jenkins, the court found that the deputy
sheriffs were policymakers even though the sheriff could “not delegate final responsibility for his
official duties” to them. 119 F.3d at 1163. Here, by contrast, a State’s Attorney is entitled to
delegate full and final responsibility for prosecutions to ASAs. In Maryland, a State’s Attorney
is defined as “a person authorized to prosecute an offense.” Md. Rule 4-102. And Maryland
courts have consistently found that ASAs are among those persons authorized to stand in and
prosecute an offense on behalf of the State’s Attorney, i.e., act as complete alter egos to the
State’s Attorney. See, e.g., State v. Aquilla, 309 A.2d 44, 48 (Md. 1973) (holding that because a
State’s Attorney “generally may assign to his deputies and assistants the performance, subject to
his discretion and control, of the duties required of him by law with respect to the institution and
prosecution of criminal action,” ASAs “have the same legal powers as the State's Attorney to
represent the State before grand juries”); In re Anderson, 315 A.2d 540, 550 n. 24 (Md. App.
1974) (“The attorney for the State may be construed to include Assistant State's Attorneys and
Deputy State's Attorneys as well as the State's Attorney”), aff’d, 321 A.2d 516 (1974); State v.
Brown, 24 A.3d 195, 198 (Md. App. 2011) (holding that an ASA was a “person authorized by
law” to sign a charging document).
In addition to Maryland case law describing how ASAs act as alter egos to their State’s
Attorneys, Borzilleri pleads facts showing the same. She acknowledges that on behalf of the
State’s Attorney, she made decisions such as whether to charge citizens with crimes and whether

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to extend plea offers. (See ECF No. 14, ¶¶ 6, 8). She underscores the importance of her duties
by describing how, as a line prosecutor, she was “responsible for prosecuting some of
Baltimore’s most violent and serious crimes” on behalf of the Baltimore City SAO. (Id. at ¶ 5).
Moreover, perhaps more importantly to the Stotts analysis, Borzilleri admits she was one of the
SAO’s three Community Prosecutors, a role in which she represented the State’s Attorney to the
public and fellow law enforcement officials. As Borzilleri recognizes, not only were Community
Prosecutors tasked with prosecuting “complex crimes,” but they were also required to
communicate to the public on behalf of the SAO: Borzilleri describes in her complaint how she
often attended community events “to communicate with Baltimore residents about the concerns
and needs of their community.” (Id. at ¶¶ 5, 18). In Borzilleri’s words, being a Community
Prosecutor involved serving “as a liaison between the State’s Attorney’s Office, the community,
and the local police.” 3 (Id. at ¶ 5). Because Borzilleri—if she had continued in this role—would
have been “involved in communicating [Mosby’s] policies or positions to the public,” Knight v.
Vernon, 214 F.3d 544, 550 (4th Cir. 2000), and would have had at least some degree of
discretion in doing so, “loyalty to [Mosby was] an appropriate requirement for the job.” Jenkins,
119 F.3d at 1164.
Finally, Borzilleri has failed to distinguish her position in any meaningful sense from the
wide range of cases holding that prosecutors fall within the Elrod/Branti exception. See, e.g.,
Aucoin v. Haney, 306 F.3d 268 (5th Cir. 2002). In Aucoin, the Fifth Circuit held that a plaintiff
assistant district attorney’s position fell within the Elrod/Branti exception because he “had great

3

While, when analyzing Borzilleri’s position under Stott, I am directed to “focus on the powers
inherent in a given office, as opposed to the functions performed by a particular occupant of that
office,” 916 F.2d 134 at 142, Borzilleri appears to concede that the powers inherent in the office
of the Community Prosecutor included “represent[ing] the State’s Attorney’s Office” and
“answer[ing] questions on criminal law from the public.” (ECF No. 17, p. 28).
10

discretion” in handling his docket; he exercised “judgment and discretion on a daily basis,
without much contact with the district attorney;” and he was “a visible representative of the
district attorney’s office.” Id. at 726. The court also found significant the fact that a number of
its sister circuits had determined that government attorneys qualified for the Elrod/Branti
exception. Id. at 275; see also Gordon v. Cty. of Rockland, 110 F.3d 886 (2d Cir. 1997)
(involving assistant county attorneys); Fazio v. City & County of San Francisco, 125 F.3d 1328
(9th Cir. 1997) (involving an assistant district attorney); Monks v. Marlinga, 923 F.2d 423 (6th
Cir. 1991) (involving assistant prosecuting attorneys); Livas v. Petka, 711 F.2d 798 (7th
Cir.1983) (involving an ASA); Mummau v. Ranck, 687 F.2d 9 (3d Cir. 1982) (involving an
assistant district attorney); Vanterpool v. Cuccinelli, 998 F. Supp. 2d 451 (E.D. Va. 2014)
(involving an assistant attorney general); Susan Lorde Martin, A Decade of Branti Decisions: A
Government Official’s Guide to Patronage Dismissals, 39 AM. U. L. REV. 11, 46–47 (1989)
(“All circuit court decisions—and almost all other court decisions—involving attorneys in
government service, other than public defenders, have held that Elrod/Branti do not protect these
positions”). The result is no different here: Borzilleri exercised a significant degree of discretion
in handling cases on behalf of the Baltimore City SAO, was a visible representative of the SAO,
and her work required her to act in the name of the State’s Attorney.
For these reasons, I find, as a matter of law, that Borzilleri occupied a position for which
political affiliation was an appropriate requirement. Accordingly, Mosby, as a newly elected
official, was within her rights to terminate Borzilleri to ensure decisive and faithful
implementation of her policies, and I dismiss Counts I and III of plaintiff’s amended complaint.
b. Federal Qualified Immunity

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Even if Borzilleri had stated a First Amendment claim, which I conclude she has not,
Mosby would be entitled to qualified immunity on Count I. 4
The doctrine of qualified immunity shields public officials—including state prosecutors,
see Wiley v. Doory, 14 F.3d 993, 995 (4th Cir. 1994)—“from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal
quotation marks omitted). An official is shielded from liability when she shows either that her
conduct did not violate a constitutional right or that the right at issue was not “clearly established
in the specific context of the case.” Merch. v. Bauer, 677 F.3d 656, 662 (4th Cir. 2012). For a
rule to be “clearly established,” existing appellate precedent must have “placed the statutory or
constitutional question beyond debate” so that it is “sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012) (internal quotation marks and alterations omitted). Here, assuming
that Mosby fired Borzilleri for political reasons and that Borzilleri has stated a plausible political
patronage claim, the dispositive question for the qualified immunity analysis would thus be
whether Mosby’s firing of Borzilleri violated clearly established constitutional law. It did not.
Borzilleri argues that at the time of her termination, “it was clearly established that the
First Amendment protects career government employees from being fired during a political
transition by a State official merely because of their support for the incoming State official’s
political rivals.” (ECF No. 14, ¶ 65). But Borzilleri overstates the breadth of the Elrod/Branti
line of cases and does not articulate the right Mosby allegedly violated “at a high level of
particularity.” Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999).
4

The qualified immunity analysis applies only to Count I because, under Maryland law, federal
qualified immunity is not a defense for state constitutional torts.
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Borzilleri fails to point to any case law, binding or even persuasive, showing that line
prosecutors, or “closely analogous” government employees, Clem v. Corbeau, 284 F.3d 543, 553
(4th Cir. 2002), enjoyed a clearly established constitutional right against patronage dismissals at
the time of her dismissal. Indeed, as discussed in part supra, the caselaw existing at the time of
Borzilleri’s termination weakens, rather than strengthens, her position. For instance, in Clark v.
Brown, 861 F.2d 66 (4th Cir. 1988), the Fourth Circuit considered a nearly identical question to
the one presented here. There, a former assistant county district attorney asserted First
Amendment violations arising out of his politically motivated termination at the hands of his
boss, the county district attorney. The court, citing Branti, and cases from the Third and Seventh
Circuits holding that assistant prosecutors fit within the Elrod/Branti exception, upheld a district
court’s finding of qualified immunity because “[a]t the very least, [existing caselaw]
establish[ed] that dismissal of an assistant prosecutor for political reasons was not clearly
prohibited.” Id. at 68. Plaintiff, who relies almost exclusively on Elrod and Branti for her
qualified immunity argument—both cases that were decided pre-Clark—fails to show that the
state of the law has changed since Clark. On this ground alone, Mosby is entitled to qualified
immunity on plaintiff’s federal patronage claim.
Furthermore, Branti itself shows the unsettled state of the law relating to politically
motivated terminations of prosecutors. Although the Branti Court held that an assistant public
defender did not fit within the Elrod/Branti exception, it also noted that its holding did not
necessarily apply to prosecutors like Borzilleri: “This is in contrast to the broader public
responsibilities of an official such as a prosecutor. We express no opinion as to whether the
deputy of such an official could be dismissed on the grounds of political party affiliation or
loyalty.” 445 U.S. at 519 n.13 (citing a case upholding the dismissal of a deputy city attorney).

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Therefore, for Borzilleri, the existing case law at worst precludes her federal political
patronage claim and at best leaves the law unsettled in the circumstances presented here. Either
outcome leads to only one conclusion: that no clearly established right prohibiting the politically
motivated firings of prosecutors exists. Because the weight of case law shows that prosecutors
did not have a clearly established right against politically motivated terminations at the time of
Borzilleri’s dismissal, Mosby is entitled to qualified immunity on Borzilleri’s First Amendment
patronage claim. Therefore, Count I is also dismissed on this basis.
II.

First Amendment Retaliation Claim (Count II)
Mosby also seeks dismissal of Count II, which alleges that Mosby unlawfully terminated

Borzilleri in retaliation for exercising her First Amendment free speech rights. Mosby argues
first that Borzilleri fails to state a claim; and second, that she is entitled to qualified immunity on
her First Amendment claim because she did not violate “clearly established law.”
a. Plausibility of Borzilleri’s First Amendment Retaliation Claim
The parties initially dispute which standard to apply to Borzilleri’s First Amendment
retaliation claim. Typically, courts begin their analysis of free speech retaliation claims with two
Supreme Court cases: Connick v. Myers, 461 U.S. 138 (1983) and Pickering v. Bd. of Ed. of Twp.
High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563 (1968). See Jenkins v. Medford, 119 F.3d
1156, 1160 n.20 (4th Cir. 1997). The analysis involves three steps—initially, a court asks
whether the plaintiff employee spoke as a citizen on a matter of “public concern.” Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006). If so, the court must balance “the interests of the [plaintiff],
as a citizen, in commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its employees.”
Pickering, 391 U.S. at 568. Lastly, “if the employee’s claim satisfies both of these legal criteria,

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the court turns to the factual question of whether the employee's speech was a substantial factor
in the employee’s termination decision.” Durham v. Jones, 737 F.3d 291, 299 (4th Cir. 2013)
(internal quotation marks omitted).
The second step of the Pickering analysis—Pickering balancing—changes, however,
when political affiliation is an appropriate requirement for a government employee’s position,
thus implicating the Elrod/Branti line of cases. That is, where political affiliation is a proper
requirement for a government employee and the alleged speech relates to that political affiliation,
as here, the Pickering balance tips decisively in favor of the government. As the Fourth Circuit
has explained, the Pickering analysis in such cases tends “to merge with the established
jurisprudence governing the discharge of public employees because of their political beliefs and
affiliation.” Bland, 730 F.3d at 374. And for a position to “which the Elrod–Branti exception
applies, and an employer therefore does not violate his employee’s association rights by
terminating him for political disloyalty, the employer also does not violate his employee's free
speech rights by terminating him for speech displaying that political disloyalty.” Id. at 394
(citing Jenkins, 119 F.3d at 1164); see also Rose v. Stephens, 291 F.3d 917, 923 (6th Cir. 2002)
(“[W]hen an employee occupies a position for which political loyalty is a legitimate criterion, the
nature of the position itself weights the balance in favor of the government.”); Fazio v. City &
Cty. of San Francisco, 125 F.3d 1328, 1332 (9th Cir. 1997) (same); cf. Embry v. City of Calumet
City, Ill., 701 F.3d 231, 235 (7th Cir. 2012) (holding that “Elrod–Branti applies when the public
speech is nothing more than public political affiliation”); Wilbur v. Mahan, 3 F.3d 214, 218 (7th
Cir. 1993) (holding that a government employer can dismiss a policymaking employee for their
political free speech); Vanterpool v. Cuccinelli, 998 F. Supp. 2d 451, 461 (E.D. Va. 2014)

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(concluding that “whether the Elrod–Branti exception applie[d]” to a plaintiff’s position was
conclusive of both the plaintiff’s political patronage and free speech retaliation claims).
In this case, taking Borzilleri’s allegations as true, her alleged speech constituted political
disloyalty towards Mosby for which Mosby could dismiss Borzilleri. Borzilleri’s political
support of Bernstein, Mosby’s opponent, included hosting a campaign event for him; giving a
speech supporting him at that campaign event; distributing electronic leaflets to publicize the
event; speaking to prospective voters at another Bernstein campaign event; and placing a
Bernstein campaign sign on her front lawn. Accordingly, because I have previously concluded
that the Elrod/Branti exception applies to Borzilleri’s position, the Pickering scale tips decisively
in favor of Mosby on Borzilleri’s retaliation claim and I dismiss Count II of the amended
complaint.
b. Federal Qualified Immunity
Alternatively, even if, under Fourth Circuit precedent, an employer could not terminate
an employee for politically disloyal speech where the Elrod/Branti exception applies, Mosby
would still be entitled to qualified immunity on the First Amendment retaliation claim. Other
circuits have noted, in contrast to Bland, that the “policymaking status of the discharged or
demoted employee is very significant in the Pickering balance, but not conclusive.” McEvoy v.
Spencer, 124 F.3d 92, 103 (2nd Cir. 1997) (emphasis added). In McEvoy, the Second Circuit
upheld dismissal of plaintiff’s complaint on Rule 12(b)(6) grounds, but also noted that, in the
alternative, defendants were entitled to qualified immunity since it was objectively reasonable
for them to believe that plaintiff’s position fell within the Elrod/Branti exception and that the law
was unsettled as to whether plaintiff’s policymaking status controlled the disposition of his free
speech retaliation claim. See id. at 104–105. Similarly, in Leslie v. Hancock Cty. Bd. of Educ.,

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720 F.3d 1338 (11th Cir. 2013), the Eleventh Circuit upheld a district court’s finding that
defendants were entitled to qualified immunity because “[n]o clearly established law bars the
termination of a policymaking or confidential employee for speaking about policy.” Id. at 1349.
So too here. As discussed above, a large volume of case law holds that prosecutors fit within the
Elrod/Branti exception, and Mosby was therefore reasonable in believing that Borzilleri’s
position was one where political affiliation was an appropriate requirement. Furthermore, as
Bland shows, it was at minimum, an open question as to whether Borzilleri’s policymaking
status controlled the disposition of her retaliation claim. For these reasons, Mosby is also
entitled to qualified immunity on Count II.
III.

Remaining State Law Claims (Counts IV and V)
In light of my dismissal of the first three claims asserted by Borzilleri, the only remaining

claims are her state law claims (Counts IV and V). A district court has discretion to dismiss a
case where, as here, it “has dismissed all claims over which it has original jurisdiction.” 28
U.S.C. § 1367(c)(3). The supplemental jurisdiction doctrine is one of “flexibility,” and
therefore, a court’s exercise of discretion under § 1367(c)(3) is afforded “wide latitude.”
Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (internal quotation marks omitted). The
four factors a court considers in deciding whether to exercise supplemental jurisdiction are:
“convenience and fairness to the parties, the existence of any underlying issues of federal policy,
comity, and considerations of judicial economy.” Id. “When the balance of these factors
indicates that a case properly belongs in state court, as when the federal-law claims have dropped
out of the lawsuit in its early stages and only state-law claims remain, the federal court should
decline the exercise of jurisdiction by dismissing the case without prejudice.” Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 (1988).

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Here, after considering the aforementioned factors, I decline to exercise supplemental
jurisdiction over Borzilleri’s remaining state law claims and dismiss them without prejudice.
Borzilleri’s state claims—an Article 40 retaliation claim and an abusive discharge claim—
involve interpretations of the Maryland Declaration of Rights and Maryland tort law
respectively, which are best reserved for Maryland state courts. 5 Moreover, because both
Borzilleri and Mosby are Maryland residents, declining to exercise jurisdiction would be neither
unfair nor inconvenient to the parties. And lastly, in view of the early stage of litigation, Mosby
and Borzilleri would not be burdened by a change in jurisdiction. 6
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss plaintiff’s amended complaint is
granted. Counts I–III of plaintiffs’ amended complaint are dismissed with prejudice and Counts
IV–V are dismissed without prejudice. A separate order follows.

5

Because I believe that the controlling state law governing Borzilleri’s Article 40 retaliation
claim (Count IV) diverges from the federal law governing her First Amendment retaliation claim
(Count II), I do not find that Borzilleri has failed to state a claim on Count IV. While, as noted
above, Article 40 and the First Amendment are read in pari materia, there are cases in which
Maryland state courts read Maryland constitutional provisions and their federal counterparts
differently. See Pack Shack, Inc. v. Howard Cty., 832 A.2d 170, 176 n.3 (Md. 2003). The
intersection of the Elrod/Branti line of cases and free speech retaliation claims appears to be one
such instance. In contrast to Bland, the Maryland Court of Appeals has held that where political
speech, and not just political affiliation, is at issue, a determination that the Elrod/Branti
policymaking exception applies does not control the outcome of a plaintiff’s free speech
retaliation claim. See Newell v. Runnels, 967 A.2d 729, 746–761 (Md. 2009) (holding that even
if plaintiffs “were policymakers, we nonetheless are unable to conclude, as a matter of law, that
the Elrod/Branti test would shield them from liability”); O’Leary v. Shipley, 545 A.2d 17, 20–25
(Md. 1988). Accordingly, this case appears to be the rare instance in which the applicable law is
different for the First Amendment and Article 40 claims, and thus, I do not dismiss Count IV on
12(b)(6) grounds.
6
If Borzilleri chooses, she may file her claim in a state court “within thirty days of the entry of
this court's order of dismissal without it being time-barred.” Farmer v. Kavanagh, 494 F. Supp.
2d 345, 371 n.51 (D. Md. 2007) (citing Md. Rule 2–101(b)(2)).
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May 31, 2016
Date

__/s/__________________
J. Frederick Motz
United States District Judge

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