United States Court of Appeals For the First Circuit
No. 21-1568
THOMAS SWARTZ,
Plaintiff, Appellant,
v.
NORMAN SYLVESTER; TOWN OF BOURNE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.
Joseph L. Sulman, with whom Law Office of Joseph L. Sulman, Esq. was on brief, for appellant. Gareth W. Notis, with whom Morrison Mahoney LLP was on brief, for appellees.
November 21, 2022 GELPÍ, Circuit Judge. Plaintiff-Appellant Thomas Swartz
("Swartz") appeals from the decision of the district court for the
District of Massachusetts granting summary judgment to Defendants-
Appellees Norman Sylvester ("Sylvester") and the Town of Bourne,
Massachusetts. Swartz contends that his constitutional rights
under the Free Exercise Clause of the First Amendment were violated
when Sylvester, in his role as Fire Chief of the Bourne Fire
Department ("BFD"), ordered Swartz, a firefighter, to sit for a
photograph in violation of Swartz's religious beliefs. Swartz
refused to take the photograph and was disciplined as a result of
his refusal. Swartz brought suit against Sylvester under 42 U.S.C.
§ 1983 asserting the discipline constituted a violation of his
constitutional rights under the Free Exercise Clause. In addition,
he alleged that the Town of Bourne and Sylvester violated his
rights under the Massachusetts Wage Act, Mass. Gen. Laws ch. 149,
§ 148, by failing to pay him for certain unused vacation and other
accrued time off following his subsequent retirement from the BFD.
On the Section 1983 claim, the district court granted summary
judgment to Sylvester on qualified immunity grounds. The district
court declined to exercise supplemental jurisdiction over the
state law claim pursuant to 28 U.S.C. § 1367(c). It then dismissed
the state law claim without prejudice. We affirm.
- 2 - I. Background
When reviewing a district court's decision on a motion
for summary judgment, "we always recount [the facts] in the light
most favorable to the nonmovant (here, that's [Swartz])." Johnson
v. Johnson, 23 F.4th 136, 139 (1st Cir. 2022). Thomas Swartz was
a firefighter working for the BFD in Bourne, Massachusetts from
July 1997 until August 2018, when he retired. Norman Sylvester
began in his role as the BFD's Fire Chief in February 2015. All
members of the BFD had an identification card as well as an
accountability tag, which both featured a picture of the
firefighter.1 The photographs on the identification cards and
accountability tags were inconsistent -- some firefighters wore t-
shirts in their photographs while others wore ties. In 2016,
Sylvester, seeking consistency among the photographs on the
identification cards, began a policy of photographing the
firefighters in their Class A uniforms for these photographs. The
Class A uniform is a formal dress uniform worn at occasions such
as ceremonies, weddings, and funerals.
1 The accountability tag and the identification card looked the same but served different purposes. Accountability tags had a hole in the top of the card which was used to keep track of personnel at fire scenes and was attached to the firefighter's gear, while the identification card stayed in the firefighter's wallet and was used to identify firefighters in circumstances when they were not in their gear.
- 3 - Sylvester stated that he wanted consistent photographs
of all the firefighters in their Class A uniforms "so everybody
looked the same [and] so we had a professional department." He
also planned to hang the headshots on a bulletin board in the main
lobby of the fire station so members of the public could identify
firefighters who had done a good or bad job at a fire scene and be
aware of who worked for the BFD. He noted that the firefighters'
names would not accompany the photographs. Other members of the
BFD said they understood that the photographs would be used for
media and promotional purposes. BFD Lieutenant Richard Emberg
stated that Sylvester told him that the photographs would be used
on a display wall and could also be submitted to the media in the
case of a firefighter's death in the line of duty. BFD Lieutenant
Paul Weeks similarly stated that Emberg had told him that the
photographs would be used on a display board and also in response
to requests from the media if there was, for example, a promotion
or a tragedy.
Sylvester enlisted Emberg to help him organize the
photographs of the firefighters in their Class A uniforms. On
November 4, 2015, Emberg sent an e-mail to all BFD employees which
read, "Anyone wishing to have a class A photo done. The
photographer will be available Friday. If interested contact me
please for times." On January 30, 2016, Deputy Fire Chief Joseph
Carrara e-mailed all BFD employees, stating that "Lt. Emberg has
- 4 - been working to arrange professional photos for all department
members." Carrara said Emberg was compiling a list in regards to
Class A uniforms and, in preparation for the photographs, implored
the firefighters to check in with their deputies if they were
missing any part of the Class A uniform that would be needed for
the photograph. On March 11, 2016, Emberg e-mailed all BFD
employees, stating "[i]n the next few weeks all members will be
getting a department photo taken by the department photographer"
in their Class A uniforms. On April 11, 2016, Emberg sent another
e-mail to all BFD employees, setting forth a schedule when the
Class A uniform photographs would be taken for all employees, which
were split into four groups. Weeks was the deputy chief
supervising group three, to which Swartz was assigned.
On May 1, 2016, Emberg sent an e-mail which read that
group three's Class A photographs would be taken the following day
at noon, and if employees were unable to make that time slot, they
should try to attend another one of the scheduled dates.2 The next
day, May 2, 2016, Weeks verbally informed the members of his group,
which included Swartz, that they would have their photographs taken
that day in their Class A uniforms. Swartz responded that he did
not want to have his photograph taken. This caught the attention
of Sylvester, who had the office next to Weeks and overheard the
It is unclear from the record whether this e-mail was sent 2
to the entire department, though it appears it was.
- 5 - exchange. Sylvester asked Swartz to step into his office to
discuss the matter further and Swartz asked if they could shut the
door and speak privately. Swartz asked whether the photographs
were going to be used for identification tags or other department
identification. Sylvester responded by asking Swartz, "What if
you get promoted and I want to send a picture of you to the
newspaper?" Swartz then informed Sylvester that he didn't want to
have his photograph taken for religious reasons. He further
explained that having his photograph taken for promotional
purposes is against his religious beliefs.3 Sylvester asked Swartz
if he had a driver's license to which Swartz responded that he
did. Sylvester asked how he took that photograph, but he did not
recall Swartz's answer.4 Sylvester then asked Swartz to put his
objection in writing.
Swartz did so. On that same day, May 2, 2016, he sent
Sylvester an e-mail, stating that he requested not to participate
in "portrait photography for use other than accountability"
because "[p]ortrait photography for personal recognition goes
against [his] religious beliefs." In response, Sylvester stated
Swartz described himself as a confirmed Catholic and stated 3
that he currently practices Christianity. He stated that he attends Mass almost every Sunday at a Catholic church. He elaborated that he derives his belief that he cannot participate in acts of self-promotion from the First Commandment. Although Sylvester testified to these facts, the district 4
court did not make a finding on them.
- 6 - that his request was respectfully denied because the "photos are
in fact for use by the [BFD] as a form of accountability and
Department Identification as a member of [BFD]," that his
participation was "a requirement as an order from the Town of
Bourne Fire Chief" and "[f]ailure to follow this order will result
in disciplinary action." On May 5, 2016, Emberg sent an e-mail
stating that May 6 and May 9 would be the last two days for
firefighters to have a photograph taken in their Class A uniform.
The e-mail further stated that "[t]he chief has mandated these
photos." The parties agree that this e-mail was sent to all BFD
employees. Swartz did not have his photograph taken on either May
6 or May 9.
For disobeying Sylvester's direct order to have his
photograph taken in his Class A uniform, Swartz was subsequently
disciplined. Swartz was placed on administrative leave for the
night shift on May 10, 2016, and the day shift on May 12, 2016,
per Sylvester's order. Following a disciplinary meeting on May
13, 2016, the disciplinary action taken against Swartz was twenty-
four hours of unpaid administrative leave (which he had already
served on May 10 and May 12) and that he would not be eligible for
"out of grade" opportunities (which result in higher pay) for a
period of at least six months, a decision which would be
reevaluated after six months. Following a discussion with
- 7 - Sylvester, Swartz opted to take the unpaid administrative leave
out of his vacation time.
As of May 13, 2016, there were four other BFD employees
who had not had their photographs taken in their Class A uniforms.
According to Sylvester, this was because those employees were off
duty when the photographer came in, unlike Swartz, who was on duty
when the photographer was there. Sylvester also noted that none
of the other four employees who missed their photograph opportunity
declined to sit for the photograph, as Swartz had. As of October
1, 2019, all BFD employees had ID cards and accountability tags
with photographs, with the exception of a recently hired employee.
However, Sylvester was still working to ensure that the
identification photographs all depicted the firefighters in their
class A uniforms. Swartz ended his employment with the Town of
Bourne on August 22, 2018, when he retired.
Swartz filed the instant complaint against Sylvester in
December 2018 under 42 U.S.C. § 1983 for violation of his rights
under the Free Exercise Clause of the First Amendment. In March
2019, he moved to amend his complaint to add a claim against the
Town of Bourne and Sylvester under the Massachusetts Wage Act,
Mass. Gen. Laws ch. 149, § 148, for failure to pay him for certain
unused vacation time and other accrued time off following his
separation from the BFD. The motion to amend the complaint was
granted. Following discovery, in November 2020, Sylvester and the
- 8 - Town of Bourne moved for summary judgment on both counts. In June
2021, the district court granted Sylvester's motion for summary
judgment. Swartz v. Sylvester, 546 F. Supp. 3d 37, 57 (D. Mass.
2021).
The district court concluded that Sylvester was entitled
to qualified immunity on the Section 1983 claim. It found that
there was no genuine dispute of material fact and that Sylvester
satisfied both prongs of the qualified immunity analysis.
Accordingly, the district court granted summary judgment in favor
of Sylvester. The district court then declined to exercise
supplemental jurisdiction over the state court claim and dismissed
it without prejudice.
II. Discussion
A. First Amendment Claim and Qualified Immunity
1. Standard of Review
We review a district court's order granting summary
judgment de novo. Conlogue v. Hamilton, 906 F.3d 150, 154 (1st
Cir. 2018). Qualified immunity protects government officials,
such as Sylvester, from liability when they act under color of
state law, Gray v. Cummings, 917 F.3d 1, 9 (1st Cir. 2019), and
when their actions or decisions, "although injurious, 'do[] not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'" Conlogue, 906 F.3d
at 154 (alteration in original) (quoting Harlow v. Fitzgerald, 457
- 9 - U.S. 800, 818 (1982)). Qualified immunity protects "all but the
plainly incompetent or those who knowingly violate the law." City
of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (quoting District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)).
"Under the familiar two-prong framework, courts ask (1)
whether the defendant violated the plaintiff's constitutional
rights and (2) whether the right at issue was 'clearly established'
at the time of the alleged violation." Est. of Rahim by Rahim v.
Doe, 51 F.4th 402, 410 (1st Cir. 2022) (quoting Conlogue, 906 F.3d
at 155). Though we refer to them as the first and second prong,
the two prongs need not be addressed in that order. Conlogue, 906
F.3d at 155. "[A]n [official] may be entitled to immunity based
on either prong." Est. of Rahim, 51 F.4th at 410. Upon de novo
review, we agree with the district court in that Sylvester did not
violate Swartz's constitutional rights and is entitled to
qualified immunity based on the first prong.
2. District Court Decision
The district court found that Sylvester was entitled to
qualified immunity. As to the first prong, whether the facts are
sufficient to establish a violation of a constitutional right, the
district court found that they were not. First, the district court
noted that the parties agreed that Sylvester's order and Swartz's
subsequent discipline were facially neutral. The district court
then evaluated whether reasonable jurors could conclude that the
- 10 - purpose of the neutral directive was to coerce Swartz into
violating sincere religious principles, and found that they could
not. Despite Swartz's contention that the timing evidenced
Sylvester's hostility towards Swartz's religious beliefs
(specifically, making the photographs mandatory in response to
Swartz's denial), the district court disagreed. It concluded that
there was no evidence that Sylvester's reasons for the directive
were pretextual and that it was generally applicable to all
firefighters. The district court further found that the initial
order was mandatory, but that even if it had not been, that fact
would not permit an inference that Sylvester's order was enacted
because of his religious beliefs as opposed to in spite of them.
Because the order was facially neutral and generally applicable,
the district court applied rational basis review, and found that
the policy of taking the photographs of the firefighters in their
Class A uniforms -- namely, to promote the integrity of the BFD -
- fell within said standard. Therefore, under the first prong of
the qualified immunity analysis, the district court found no
violation of Swartz's rights under the Free Exercise Clause.
The district court proceeded to analyze the second prong
of the qualified immunity test. It concluded that, even assuming
that there was a violation of Swartz's rights under the Free
Exercise Clause, "the contours of those rights were not
sufficiently clear such that a reasonable official would have
- 11 - understood that what he was doing was a violation." The court
noted that neither party pointed to an analogous case and, in cases
where the officer was acting under "similar circumstances," City
of Escondido v. Emmons, 139 S. Ct. 500, 504 (2019) (quoting Wesby,
138 S. Ct. at 590), courts had declined to find a constitutional
violation. Finally, the court concluded that in the instant case,
"a reasonable officer would not have understood [that] his conduct
would violate the right to the free exercise of religion." The
district court elaborated that it was reasonable that Sylvester
did not immediately understand Swartz's religious beliefs.
Further, it found that once Swartz clarified that he refused to
have his photograph taken for promotional purposes, a reasonable
official would not think that a photograph taken for accountability
and identification purposes would violate Swartz's religious
beliefs. Accordingly, the district court concluded that Sylvester
was entitled to qualified immunity on the second prong as well.
3. Analysis
We first discuss the free exercise principles that will
guide our analysis of the first prong of the qualified immunity
framework, on the issue of whether Sylvester violated Swartz's
constitutional rights. The First Amendment's Free Exercise Clause
provides: "Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof . . . ." It
has been incorporated against the states by the Fourteenth
- 12 - Amendment. Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531 (1993) (citing Cantwell v. Connecticut,
310 U.S. 296, 303 (1940)). "[Swartz]'s claim was properly brought
pursuant to 42 U.S.C. § 1983, which allows individuals to 'sue
certain persons for depriving them of federally assured rights'
under color of state law." Fincher v. Town of Brookline, 26 F.4th
479, 485 (1st Cir. 2022) (quoting Gagliardi v. Sullivan, 513 F.3d
301, 306 (1st Cir. 2008)). The parties do not dispute, and we
agree, that Sylvester, as Fire Chief of the BFD, could be held
liable under Section 1983 if he did indeed violate Swartz's
constitutional rights. We turn to that question now.
"[T]he right of free exercise does not relieve an
individual of the obligation to comply with a 'valid and neutral
law of general applicability on the ground that the law proscribes
(or prescribes) conduct that his religion prescribes (or
proscribes).'" Emp. Div., Dep't of Hum. Res. of Or. v. Smith, 494
U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252,
263 n.3 (1982) (Stevens, J., concurring in judgment)). Therefore,
we decline to find a constitutional violation when a neutral and
generally applicable law or policy "incidentally burdens free
exercise rights . . . if it is rationally related to a legitimate
governmental interest." Does 1-6 v. Mills, 16 F.4th 20, 29 (1st
Cir. 2021), cert. denied sub nom. Does 1-3 v. Mills, 142 S. Ct.
1112 (2022). We utilize heightened scrutiny when a law or policy
- 13 - is not neutral or generally applicable, "sustain[ing] it only if
it is narrowly tailored to achieve a compelling governmental
interest." Id. To qualify as neutral, a policy must not target
religious beliefs or practices "because of their religious
nature." See Fulton v. City of Philadelphia, 141 S. Ct. 1868,
1877 (2021) (first citing Masterpiece Cakeshop, Ltd. v. Colo. C.R.
Comm'n, 138 S. Ct. 1719, 1730-32 (2018); and then citing Lukumi,
508 U.S. at 533). If the policy's objective is to impede or
constrain religion, the policy is not neutral. See Lukumi, 508
U.S. at 533 (citation omitted). Additionally, a policy must be
generally applicable to avoid heightened scrutiny. To qualify as
generally applicable, a policy cannot selectively burden conduct
motivated by religion while simultaneously exempting the conduct's
secular counterpart. See Lukumi, 508 U.S. at 543. If a policy
permits "individualized governmental assessment of the reasons for
the relevant conduct," it is not generally applicable. See Dep't
of Hum. Res. of Or., 494 U.S. at 884.
Swartz argues that a reasonable juror could find that
Sylvester's conduct (i.e., his directive regarding the photograph
and Swartz's subsequent discipline) was not neutral or generally
applicable. As to the evidence supporting this contention, Swartz
cites the sequence of events surrounding his refusal to be
photographed and his subsequent discipline. Specifically, he
contends that Sylvester's directive to have a photograph taken
- 14 - only became a mandatory order when Swartz objected on religious
grounds, and that fact raises an inference of discriminatory intent
and hostility towards Swartz's religious beliefs. Swartz contends
that the evidence, viewed in the light most favorably to him,
permits a reasonable juror to infer that
Sylvester's decision to order Swartz and the rest of the BFD to participate in the Class A photograph was predicated on Sylvester's hostility towards Swartz's religious-based objection and thus to his religious beliefs, or in the alternative, that the purpose of Sylvester's order was to coerce Swartz into violating his sincerely held religious beliefs.
Accordingly, Swartz argues, Sylvester's conduct should be analyzed
under strict scrutiny and, when so analyzed, Sylvester cannot
establish that his conduct furthered a compelling government
interest and was narrowly tailored.
First, we cannot agree that Sylvester's conduct was not
neutral. Clearly, it was facially neutral. See Swartz, 546 F.
Supp. 3d at 50 ("Here, the parties agree that Sylvester's
directive, and the subsequent discipline administered to Swartz,
were facially neutral."). Swartz must therefore prove that
Sylvester's conduct was undertaken because of Swartz's religious
beliefs. See Fulton, 141 S. Ct. at 1877 ("[The g]overnment fails
to act neutrally when it proceeds in a manner intolerant of
religious beliefs or restricts practices because of their
religious nature."); Lukumi, 508 U.S. at 533 ("[I]f the object of
- 15 - a law is to infringe upon or restrict practices because of their
religious motivation, the law is not neutral"). We are mindful
that the Free Exercise Clause "'forbids subtle departures from
neutrality' and 'covert suppression of particular religious
beliefs.'" Lukumi, 508 U.S. at 534 (first quoting Gillette v.
United States, 401 U.S. 437, 452 (1971); and then quoting Bowen v.
Roy, 476 U.S. 693, 703 (1986)). When assessing neutrality, "a
court must 'survey meticulously' the totality of the evidence,
'both direct and circumstantial.'" New Hope Fam. Servs., Inc. v.
Poole, 966 F.3d 145, 163 (2d Cir. 2020) (quoting Lukumi, 508 U.S.
at 534, 540). This includes the series of events leading to the
conduct, as well as the historical background. Id.
Swartz's evidence on this point is primarily the
sequence of events leading to the Class A photographs becoming
mandatory -- specifically, the speed with which they became
mandatory after he objected on religious grounds, which he claims
raises an inference that the order was because of his religious
exemption.5 Even assuming arguendo that it is true the photographs
became mandatory immediately after Swartz objected to them, that
fact alone does not establish that Sylvester took that action
because of Swartz's religious beliefs. See Lukumi, 508 U.S. at
5 We note that Swartz's argument on this point contradicts the district court's finding that communications sent before Swartz objected indicate that the photographs were in fact mandatory prior to his objections. Swartz, 546 F. Supp. 3d at 50.
- 16 - 540-41 (determining object of ordinances was discriminatory as
they "were enacted '"because of," not merely "in spite of"' their
suppression of [the relevant] religious practice" (quoting
Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979))).
Unlike in Lukumi, where hostile statements were made regarding the
religious practice prior to the law's enactment, 508 U.S. at 540-
41, Sylvester did not show hostility toward Swartz's religious
beliefs, but instead asked further questions about it to determine
if he could implement the policy without infringing on Swartz's
beliefs. When Swartz clarified that he could not have his
photograph taken for promotional purposes (for example, to be sent
to the media), Sylvester attempted to avoid infringing on Swartz's
religious beliefs by clarifying that the photographs would be used
for identification and accountability purposes.
Additionally, in Lukumi, both the text of the ordinances
and their effect "compel[led] the conclusion that suppression of
the central element of the [religious practice] was the object of
the ordinances." 508 U.S. at 534. The record before us does not
compel such a finding. Beyond pure speculation, Swartz offers no
evidence that would allow a reasonable juror to conclude that the
requirement to have Class A photographs taken became mandatory
because of his religiously motivated objection to having his
photograph taken, rather than simply because he objected. See
Medina-Rivera v. MVM, Inc., 713 F.3d 132, 140 (1st Cir. 2013) ("[A
- 17 - plaintiff] cannot deflect summary judgment with pure speculation
. . . ."); Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010) ("A
properly supported summary judgment motion cannot be defeated by
relying upon conclusory allegations, improbable inferences,
acrimonious invective, or rank speculation."). Swartz has not
proffered sufficient evidence that would permit a reasonable juror
to conclude that the rule was not neutral.6
Sylvester's conduct was also generally applicable.
"[Policies] burdening religious practice must be of general
applicability." Lukumi, 508 U.S. at 542. "To be generally
applicable, a law may not selectively burden religiously motivated
conduct while exempting comparable secularly motivated conduct."
Mills, 16 F.4th at 29. A policy or course of conduct may run afoul
of general applicability if it "'invite[s]' the government to
consider the particular reasons for a person's conduct by providing
6 We note that, although Swartz mentions that other employees in his department did not get their photographs taken on the initial dates set by the department and were not subsequently disciplined, he does not develop an argument that explains how that fact could support a finding that the policy at issue was not neutral. Therefore, any such argument is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Nevertheless, even if Swartz had developed such an argument, it would not succeed. As we will explain in our discussion below regarding Swartz's contention that the policy was not generally applicable, there is no evidence in the record that anyone else in the department objected to it, and so the treatment of those employees does not support a finding that the policy was enacted because Swartz objected for religious reasons rather than the fact that Swartz objected, independent of the reason for the objection.
- 18 - 'a mechanism for individualized exemptions.'" Fulton, 141 S. Ct.
at 1877 (quoting Smith, 494 U.S. at 884).
As the district court found, the directive was generally
applicable to all firefighters in the BFD. Swartz, 546 F. Supp.
3d at 52. By the time Swartz was disciplined on May 10, when he
was placed on administrative leave, all firefighters had been
informed that Sylvester mandated the photographs. Insofar as
Swartz can be read to argue that Sylvester granted an exemption
from the photograph requirement to the other firefighters who did
not get their photographs taken on the initial dates set by the
department and were not subsequently disciplined, and that this
rendered the policy not generally applicable, we disagree. As a
preliminary matter, Swartz develops no argument on how the fact
that other firefighters were not disciplined created an exemption
and, if so, how the presence of this exemption would bear on
whether the policy was generally applicable, so these arguments
are waived. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990). But even addressing these arguments on the merits
would not help Swartz. Swartz failed to bring forth any evidence
of Sylvester granting exemptions from the photograph requirement
to other firefighters (if any) that objected, and indeed conceded
in his briefing to us that though "Sylvester disciplined Swartz
and no other BFD members," "it is not in dispute that these other
BFD employees did not object to having their Class A photograph
- 19 - taken." The fact that some BFD employees did not have their
photographs taken because they were not on duty when the
photographer came to the station does not change our conclusion
that the directive was generally applicable, because they did not
object to having their photographs taken as Swartz did. Further,
Swartz did not bring forth any evidence that there was a mechanism
for individualized exemptions within Sylvester's directive or that
the directive invited Sylvester to consider the reasons for
requesting an exemption.
Accordingly, finding that Sylvester's conduct was both
neutral and generally applicable, we do not apply heightened
scrutiny, but will "sustain the [policy] against constitutional
challenge if it is rationally related to a legitimate governmental
interest." Mills, 16 F.4th at 29. Sylvester's directive passes
rational basis review. As both parties agree that one purpose of
the photographs was for a public bulletin board and for media
requests as needed, Swartz, 546 F. Supp. 3d at 53, the photograph
policy is rationally related to the legitimate governmental
interest of publicizing the BFD and promoting the integrity of
government institutions. In his brief, Swartz does not challenge
the district court's conclusion that Sylvester's directive would
pass rational basis review. Instead, he focuses his briefing on
whether the directive would pass strict scrutiny and argues that
it would not. We agree with the district court that the directive
- 20 - easily satisfies rational basis review. See Gonzalez-Droz v.
Gonzalez-Colon, 660 F.3d 1, 9 (1st Cir. 2011) ("Rational basis
review 'is a paradigm of judicial restraint.'" (quoting FCC v.
Beach Commc'ns, Inc., 508 U.S. 307, 314 (1993))). Moreover, as we
explained supra, strict scrutiny is not triggered in this instance.
See Mills, 16 F.4th at 30-32 (declining to apply strict scrutiny
when emergency rule was both neutral and generally applicable).
Upon de novo review, we agree with the district court's
conclusion that Sylvester did not violate Swartz's constitutional
rights as required by the first prong of the qualified immunity
analysis. Because we may find qualified immunity under either
prong of the two-prong test, Est. of Rahim, 51 F.4th at 410, we
accordingly affirm the district court's decision that Sylvester
was entitled to qualified immunity as to the federal claim against
him.
B. Supplemental State Law Claim
"We review a district court's decision regarding the
exercise of supplemental jurisdiction for abuse of discretion."
Allstate Interiors & Exteriors, Inc. v. Stonestreet Constr., LLC,
730 F.3d 67, 72 (1st Cir. 2013). "[I]n any civil action of which
the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original
- 21 - jurisdiction that they form part of the same case or controversy
. . . ." 28 U.S.C. § 1367(a). The district court may decline to
exercise said jurisdiction when it "has dismissed all claims over
which it has original jurisdiction." Id. § 1367(c)(3).
2. Analysis
Swartz argues that because the district court erred in
dismissing his Section 1983 claim, it also abused its discretion
in dismissing his Massachusetts Wage Act claim against Sylvester
and the Town of Bourne. Concluding, as we do, that the district
court did not err in granting Sylvester's motion for summary
judgment on the federal law claim, we see no abuse of discretion
in its decision to decline to exercise supplemental jurisdiction
over the remaining state law claim. See Signs for Jesus v. Town
of Pembroke, NH, 977 F.3d 93, 114 (1st Cir. 2020) ("We have held
that a district court may decline to exercise supplemental
jurisdiction when it has dismissed all claims over which it has
original jurisdiction, 28 U.S.C. § 1367, and absent certain
circumstances inapplicable here, doing so is not an abuse of
discretion.").
III. Conclusion
The judgment of the district court is
AFFIRMED.
- 22 -