United States Court of Appeals For the First Circuit

No. 23-1238

JOSEPH A. JAKUTTIS,

Plaintiff, Appellant,

v.

TOWN OF DRACUT, a municipal corporation and public employer; DAVID J. CHARTRAND, JR., in his individual and official capacity; MICHAEL V. O'HANLON, in his individual capacity; RICHARD P. POIRIER, JR., a/k/a John Doe 2; DEMETRI MELLONAKOS, a/k/a John Doe; UNITED STATES,

Defendants, Appellees.

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

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Howard, Circuit Judges.

Laurence E. Sweeney for appellant. Michael L. Fitzgerald, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellees Michael V. O'Hanlon, Richard P. Poirier, Jr., and United States. Thomas R. Donohue, with whom Leonard Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins, & Kesten, LLP were on brief for appellee Town of Dracut, with whom Joseph A. Padolsky, Douglas I. Louison, and Louison, Costello, Condon & Pfaff were on brief for appellee David J. Chartrand, Jr., and with whom Adam Simms, Justin L. Amos, and Pierce Davis & Perritano, LLP were on brief for appellee Demetri Mellonakos.

March 7, 2024 BARRON, Chief Judge. This appeal concerns a challenge

to the dismissal of, and grant of summary judgment to the

defendants on, various federal and state claims that were brought

by Joseph A. Jakuttis -- a former member of the Dracut,

Massachusetts police department. The claims are against,

respectively, the Town of Dracut ("Dracut"), high-ranking Dracut

police officers, and members of a federal law-enforcement task

force on which Jakuttis served while he was still employed by the

Dracut Police Department ("DPD"). All the claims relate to actions

that were allegedly taken against Jakuttis in response to his

reports of wrongdoing in the DPD. We affirm in part and remand in

part.

I.

Jakuttis is a former officer and detective in the DPD.

From summer 2013 until fall 2015, he also served as a Task Force

Officer ("TFO") for the federal Drug Enforcement Administration's

("DEA") Cross Borders Initiative ("CBI"). The defendants are

Dracut, David J. Chartrand, Jr., Michael V. O'Hanlon, Richard P.

Poirier, Jr., Demetri Mellonakos, and the United States.

Jakuttis first filed the underlying suit in

Massachusetts state court in December 2016. In the operative

complaint, he brought multiple claims against Dracut, Chartrand,

O'Hanlon, Mellonakos, and Poirier, including claims under

, the Massachusetts Civil Rights Act ("MCRA"), and

- 3 - the Massachusetts Whistleblower Act. He also brought claims

against O'Hanlon and Poirier pursuant to Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics,

(1971), for

their alleged violation of his right to free speech under the First

Amendment of the U.S. Constitution.

All the claims pertain to Jakuttis's allegations that,

as "a police officer and detective for the Town of Dracut,

Massachusetts, and an officer for the DEA working on a special

drug task force," he "was removed from the DEA task force and

removed from the detective unit on the Dracut police department

and demoted to patrolman in retaliation for [him] coming forward

with information which implicated two Dracut police officers in

serious criminal activities [involving police corruption]."

Jakuttis further alleged in his complaint that he "obtained the

information implicating the two Dracut police officers from a

confidential drug informant, and . . . [he] felt compelled and

obligated as a citizen to report the alleged criminal

activity . . . to the federal government, which he did."

In December 2016, the United States removed the case to

the United States District Court for the District of Massachusetts

pursuant to

, or the Westfall Act. That statute

provides that

[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the

- 4 - time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed . . . by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending.

at § 2679(d)(2).

The Amended Notice of Removal, filed by O'Hanlon and

signed by the then-serving United States Attorney for the District

of Massachusetts, stated that both O'Hanlon and Poirier "were at

all relevant times employed by the Drug Enforcement Agency, an

agency of the United States[,]" and "[t]he acts complained of, if

they occurred at all, were acts by Defendants O'Hanlon and Poirier

within the scope of their employment as employees of the United

States." O'Hanlon and Poirier thereafter moved to substitute the

United States "as [the party] defendant" and argued that any

"litigation" of claims against O'Hanlon and Poirier would

thereafter be "governed by the Federal Tort Claims Act (FTCA)."

Osborn v. Haley,

(2007).

Jakuttis filed a "Notice of Objection to Certification

by U.S. Attorney as to Scope of Employment Determination Under

(d)(2)" but later withdrew the objection and

disclaimed any challenge to Poirier's and O'Hanlon's scope of

employment moving forward. Jakuttis also voluntarily dismissed

any FTCA claims he may have had against O'Hanlon and Poirier but

explicitly stated that he was "NOT [dismissing] any state tort

- 5 - claims under Massachusetts law as to defendant Poirier." Jakuttis

claimed that the state claims remained "viable against defendant

Poirier in his capacity as a state employee and that [Poirier's]

second job as a federal task force officer does not eliminate [the]

applicability of state tort law."

In an "Order of Substitution of the United States as

Defendant" filed on April 25, 2017, the District Court dismissed

all Massachusetts state-law claims against O'Hanlon and Poirier

"on the ground that the exclusive remedy for these claims is an

action against the United States and because the United States has

been substituted as the sole defendant on these claims." Then, on

May 1, 2017, O'Hanlon and Poirier jointly filed a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(1) and (6), and on

August 9, 2017, the District Court granted their motion on

Jakuttis's § 1983 and Bivens claims against them.

Dracut, Mellonakos, and Chartrand thereafter moved on

July 31, 2019, for summary judgment on Jakuttis's remaining claims.

The District Court granted the motions on February 14, 2023.

Jakuttis timely appealed.

II.

We start with Jakuttis's challenges to the District

Court's rulings on the federal claims. Jakuttis makes no argument

on appeal that the District Court erred in granting summary

judgment to Dracut on his § 1983 claim against the town, so that

- 6 - ruling is not before us here. See Sparkle Hill, Inc. v. Interstate

Mat Corp.,

(1st Cir. 2015) ("Our precedent is

clear: we do not consider arguments for reversing a decision of a

district court when the argument is not raised in a party's opening

brief."). We also can easily dispense with Jakuttis's challenge

to the District Court's dismissal of the Bivens claims against

O'Hanlon and Poirier because those claims are plainly barred by

Egbert v. Boule,

, 499 (2022), which held that "there

is no Bivens action for First Amendment retaliation."

There remains to address with respect to Jakuttis's

challenges to the District Court's rulings on the federal claims

his challenges to (1) the dismissal of his § 1983 claim against

Poirier, in which he alleges that Poirier retaliated against him

in violation of the First Amendment for having reported misconduct

in the DPD, and (2) the grant of summary judgment to Chartrand and

Mellonakos on his § 1983 claims against them, which were for their

alleged retaliation against Jakuttis in violation of the First

Amendment for having reported such misconduct. We see no merit to

either challenge.

A.

To succeed in his challenge to the District Court's

ruling dismissing the § 1983 claim against Poirier, Jakuttis must

fend off Poirier's contention that the complaint fails to plausibly

allege that Poirier was acting under color of state rather than

- 7 - federal law at all the times relevant to the claim, as Poirier

could be liable under § 1983 for his alleged conduct only if

Poirier were acting under color of state law at those times. See

West v. Atkins,

(1988). The determination of

whether Poirier was clothed with state authority rather than

federal authority at the relevant times depends on the level of

government to which Poirier's allegedly unlawful conduct is

"fairly attributable." Lugar v. Edmondson Oil Co.,

(1982). That determination, in turn, depends on the "nature

and circumstances" of Poirier's allegedly unconstitutional

retaliatory conduct "and the relationship of that conduct to the

performance of . . . official duties." Martinez v. Colon,

(1st Cir. 1995). As we will explain, we conclude on de

novo review and reading the complaint in the light most favorable

to Jakuttis, see Vázquez-Ramos v. Triple-S Salud, Inc.,

, 293 (1st Cir. 2022); Ocasio-Hernández v. Fortuño-Burset,

(1st Cir. 2011), that the complaint fails to plausibly

allege that Poirier was acting under color of state rather than

federal law at the relevant times.

The complaint alleges that Poirier was informed of the

Confidential Source's ("CS") allegations regarding misconduct in

the DPD while Poirier was working as a federal TFO, that the CS

was interviewed in the CBI office soon after by both Poirier and

Jakuttis, that Poirier called Jakuttis a "rat" and a liar first at

- 8 - a meeting in the CBI office in July 2015, and that Poirier did so

again at another meeting, again in the CBI office, in August 2015.

Thus, the complaint alleges that Poirier learned of the police-

corruption allegations while on the job as a federal TFO,

investigated those allegations as a federal TFO, and allegedly

retaliated against Jakuttis while working as a federal TFO and in

the CBI offices.

True, the complaint alleges that Poirier was a state

trooper at all relevant times. But, from the face of the

complaint, the "nature and circumstances" of Poirier's alleged

retaliatory conduct were related to "the performance of his

official duties" to the CBI rather than to the Massachusetts state

police, Martinez,

, as the mere fact that Poirier

was also employed with the Massachusetts state police when these

events occurred does not in and of itself suffice on this record

to provide a plausible basis for attributing his conduct to

anything other than his federal role, see Yassin v. Weyker,

, 1090-91 (8th Cir. 2022) (finding no § 1983 action

available against the defendant who was working on a federal task

force rather than in her capacity as a state police officer at the

relevant times); King v. United States,

(6th.

Cir. 2019) (finding no § 1983 action available against the

defendant working full time with an FBI task force at the time of

the incident at issue rather than in her role as a state

- 9 - detective), rev'd on other grounds sub nom. Brownback v. King,

(2021). We therefore affirm on that basis the District

Court's ruling dismissing the claim.

B.

We turn our attention, then, to Jakuttis's § 1983 claims

against Chartrand and Mellonakos. Although the District Court did

not address whether either Chartrand or Mellonakos is protected by

qualified immunity against these claims, they each ask us to affirm

the grant of summary judgment to them on that basis. Given what

the summary-judgment record shows, we conclude that they are

entitled to such immunity. See John G. Danielson, Inc. v.

Winchester-Conant Props., Inc.,

(1st Cir. 2003)

(explaining that a grant of summary judgment may be affirmed on

any ground manifest in the record); see also Pleasantdale Condos.,

LLC v. Wakefield,

, 732-33 (1st Cir. 2022) (stating

that summary-judgment orders are reviewed de novo).

1.

Because Chartrand and Mellonakos are being sued in their

individual capacities under § 1983, they are liable for damages

only if "(1) they violated a federal statutory or constitutional

right, and (2) the unlawfulness of their conduct was 'clearly

established at the time.'" District of Columbia v. Wesby,

, 62-63 (2018) (quoting Reichle v. Howards,

(2012)). The qualified immunity they enjoy from such damages

- 10 - claims, the Supreme Court of the United States has explained, is

intended to "protect[] 'all but the plainly incompetent or those

who knowingly violate the law.'" White v. Pauly,

, 79

(2017) (internal quotation marks omitted) (quoting Mullenix v.

Luna,

, 12 (2015)). Accordingly, although there need

not be "a case directly on point, . . . existing precedent must

have placed the . . . constitutional question beyond debate."

Ashcroft v. al-Kidd,

, 741 (2011).

The Supreme Court has also repeatedly emphasized that

the qualified-immunity inquiry "focus[es] on 'the objective legal

reasonableness of an official's acts.'" Crawford-El v. Britton,

(1998) (quoting Harlow v. Fitzgerald,

(1982)). Thus, if an objectively reasonable official in

Chartrand's or Mellonakos's shoes "might not have known for certain

that the[ir] conduct was unlawful," then Chartrand and Mellonakos

"[are] immune from liability." Ziglar v. Abbasi,

,

152 (2017). Otherwise, neither is. See

.

The First Amendment retaliation claim that Jakuttis

brings against, respectively, Chartrand and Mellonakos turns, at

least in significant part, on whether Jakuttis made the report of

misconduct in the DPD that he claims occasioned the allegedly

unlawful retaliation while "speaking as [a] citizen[][,]" Lane v.

Franks,

, 237 (2014) (quoting Garcetti v. Ceballos,

- 11 -

(2006)), rather than as part of his "official

duties[,]" Garcetti,

. After all, Jakuttis

acknowledges that the First Amendment retaliation claim at issue

cannot proceed against either Chartrand or Mellonakos unless the

speech in question -- his report of misconduct in the DPD --

qualified as "citizen speech." Lane, 573 U.S. at 237.

Jakuttis contends, however, that the summary-judgment

record clearly shows that Chartrand and Mellonakos retaliated

against him for engaging in speech as a citizen -- and not as part

of his official duties -- because it is clear from that record

that he was not engaging in the speech that was the target of their

allegedly adverse actions in fulfilling official duties that he

owed to either the federal Task Force or the DPD. To support his

position, Jakuttis makes various contentions about the summary-

judgment record. Specifically, he contends that the summary-

judgment record makes plain that he reported the allegations of

DPD police corruption to his CBI chain of command, not his DPD

chain of command; he reported the allegations at the CBI office

rather than at the DPD offices; and he obtained such knowledge

while he was working with the CBI, not with the DPD.

Jakuttis further contends that, because his duties at

the CBI did not involve investigating DPD corruption, his reporting

of these allegations was not part of his official duties, either

as a DPD employee or TFO. If Jakuttis were right that the summary-

- 12 - judgment record clearly showed that he had made the report of

misconduct in the DPD that was the target of the allegedly adverse

actions by Chartrand and Mellonakos independent of his official

duties as either a TFO or a DPD employee, then we would agree that

neither Chartrand nor Mellonakos would be entitled to summary

judgment based on qualified immunity on the ground that it was not

clear to them that the speech in question was "citizen speech."

Id. In that event, it would have been clear to a reasonable person

in Chartrand's or Mellonakos's shoes that Jakuttis had engaged in

the speech as a citizen because neither Chartrand nor Mellonakos

then would have had any reason to believe that the speech had been

made as part of Jakuttis's official duties in any respect. See

Ziglar, 582 U.S. at 152. But, we do not agree with Jakuttis's

characterization of the summary-judgment record.

Starting with Chartrand, it is plain from even

Jakuttis's own account of the record that a person in Chartrand's

position reasonably could have understood that the report of the

alleged misconduct was being conveyed to him as part of Jakuttis's

official duties as a member of, if not the DPD, then at least the

Task Force, and so not independent of his duties to either entity.

The record conclusively establishes that the report was conveyed

to Chartrand during an official Task Force meeting, which Chartrand

had been asked to attend in his capacity as a supervisor in the

DPD. The context in which the report was being conveyed,

- 13 - therefore, made it reasonable for Chartrand to conclude that the

report was being conveyed in connection at least with Jakuttis's

duties as a TFO, as it is not as if the speech were being made

outside the office or during a time in the office when the relevant

parties were on break. Thus, we cannot say it would have been

clear to Chartrand that Jakuttis was speaking solely as a citizen

on the ground that, when Jakuttis engaged in the speech at issue,

it was not as part of his official duties as either a TFO or DPD

employee.

The same is true as to Mellonakos. That is, based on

the summary-judgment record, a person in Mellonakos's position

reasonably could have understood that Jakuttis's report of

Mellonakos's alleged misconduct was being conveyed as part of

Jakuttis's official duties as either a TFO or DPD employee.

Indeed, there is nothing in the record to indicate that Mellonakos

would have had any reason to understand that Jakuttis had made any

statement to Chartrand regarding misconduct in the DPD in any

capacity other than in Jakuttis's capacity as a member of the DPD

or as a TFO.

In that regard, Jakuttis claims that Chartrand told

Jakuttis that Mellonakos "no longer want[ed] him in the detective

bureau, so [Jakuttis couldn't] return there" soon after Jakuttis

made Chartrand aware that he was being let go from the CBI. And

Jakuttis appears to rely solely on this statement as the predicate

- 14 - for the claim that the alleged adverse action Mellonakos took

against him constituted retaliation for his report of misconduct

in the DPD. Thus, we see no basis in the summary-judgment record

on which a reasonable juror could find that it is more likely than

not that Mellonakos would have understood Jakuttis to have been

speaking independent of any official duties Jakuttis owed as a TFO

or DPD employee in speaking in the way that occasioned Mellonakos's

allegedly adverse actions toward Jakuttis. See Ingram v. Brink's,

Inc.,

(1st Cir. 2005) ("Once the moving party

avers the absence of genuine issues of material fact, the nonmovant

must show that a factual dispute does exist, but summary judgment

cannot be defeated by relying on improbable inferences, conclusory

allegations, or rank speculation.").

Jakuttis appears to be separately contending, however,

that it is at least clear from the summary-judgment record that he

was engaged in the speech at issue solely as part of his official

duties for the Task Force, not the DPD. And that is so, he

contends, based on the same record evidence he identifies in

contending that it was clear he was speaking solely independent of

any such duties. He then appears to be contending that, because

the record is clear in showing that, at most, he engaged in the

speech in his capacity as a TFO, the speech still clearly was, as

to Chartrand and Mellonakos, merely citizen speech, precisely

because neither Chartrand nor Mellonakos had any role as members

- 15 - of the Task Force, as each of them was instead affiliated solely

with the DPD.

We may assume for present purposes that Jakuttis is right

that it is clearly established that a police supervisor or fellow

police officer may not retaliate against an employee in their

police department for speech that employee made as part of their

official duties owed to a different law-enforcement agency (a

proposition about which we express no view). For, even accepting

that proposition, we conclude that the record establishes that it

would not have been clear to a reasonable person in either

Chartrand's position or Mellonakos's position that Jakuttis was

conveying the report of misconduct in his capacity as a TFO rather

than in his capacity as a DPD employee. And, because Chartrand

and Mellonakos reasonably could have understood Jakuttis to have

been making the report of misconduct in the DPD as part of his

official DPD duties, they are entitled to summary judgment based

on qualified immunity on the ground that it was not clear to them

that the speech that allegedly occasioned their unlawful

retaliation was "citizen speech." Lane, 573 U.S. at 237.

Our decision in Eves v. LePage regarding the First

Amendment retaliation claim under § 1983 there at issue is

instructive as to this last point.

(1st Cir. 2019)

(en banc). In that case, the defendant, a state governor, was

alleged to have violated the plaintiff's First Amendment rights to

- 16 - political affiliation and freedom of association when the

defendant threatened to withhold state discretionary funding from

a nonprofit organization that operated a charter school for at-

risk children if the nonprofit organization did not terminate its

employment contract with the plaintiff, a state representative.

The question turned on whether the plaintiff's

employment position was a "policymaking position."

.

We explained that the defendant could have reasonably believed

that the employment position was a policymaking position, and a

"policymaker" can be lawfully discharged based on their political

affiliation.

. Thus, we concluded that the defendant

was entitled to qualified immunity,

, because, even if

the defendant was mistaken in thinking that the position in

question was a policymaking position, it was not clear that the

position was not a position of that kind, thereby rendering any

misjudgment on that score a reasonable mistake, see

.

Here, the situation is similar. And that is true as to

both Chartrand and Mellonakos.

Starting with Chartrand, as we have explained, the

summary-judgment record conclusively establishes that Jakuttis

(while a DPD employee) asked Chartrand to come to the CBI office

to be informed of the report in a meeting in which Jakuttis was

present and that Chartrand did so as a supervisor in the DPD.

- 17 - Thus, Chartrand reasonably could have understood that

Jakuttis -- though detailed out to the DEA's CBI at the time -- had

a continuing duty to report any police-corruption allegations

Jakuttis learned of as part of his official DPD job duties, given

that Jakuttis was still rostered to the DPD and paid by the DPD,

and so was reporting the misconduct to Chartrand as his DPD

supervisor as part of Jakuttis's official DPD duties rather than

as part of Jakuttis's official TFO duties. And even if Chartrand

may have been mistaken in that understanding, qualified immunity

still protects him in making that reasonable assessment just as it

protected the defendant in Eves in reasonably making the analogous

assessment at issue there.

As for Jakuttis's First Amendment retaliation claim

against Mellonakos, as we have already explained, Jakuttis

contends that the summary-judgment record, when read in the light

most favorable to Jakuttis, shows that Chartrand told Jakuttis

that Mellonakos "no longer want[ed] him in the detective bureau,

so [Jakuttis could not] return there." And Jakuttis appears to

rely solely on this statement as the predicate for the claim that

the alleged adverse action Mellonakos took against him constituted

retaliation for his report of misconduct in the DPD. But, the

record is such that Mellonakos reasonably could have believed that

Chartrand conveyed the misconduct allegations to him in

Chartrand's capacity as a DPD supervisor and that Chartrand had

- 18 - learned of the allegations by the fact of Jakuttis having made

them to Chartrand as part of Jakuttis's duty as a DPD employee to

report DPD misconduct to his DPD supervisor. See

Indeed,

there is nothing in the record to indicate that Mellonakos would

have had any reason to understand that Jakuttis had made any

statement to Chartrand regarding misconduct in the DPD in any

capacity other than in Jakuttis's capacity as a member of the DPD.

See Ingram,

.

Thus, the record compels the conclusion that Mellonakos,

like Chartrand, reasonably could have understood that Jakuttis was

reporting the corruption allegations as part of his official DPD

job duties, despite being detailed out to the DEA's CBI at the

time. As a result, we conclude that Mellonakos is entitled to

summary judgment based on qualified immunity on Jakuttis's First

Amendment § 1983 claim as well, based on the same Eves-based

reasoning that leads us to reach that conclusion as to Chartrand.

III.

We turn now to the merits of Jakuttis's challenges to

the District Court's rulings on the various state-law claims. As

we will explain, we may affirm the rulings as to many of them

because it is evident there is no merit to Jakuttis's challenges

to those rulings. But, as to a couple of the claims at issue, we

conclude that the prudent course is for us to exercise our

discretion to remand them to the District Court so that it may

- 19 - then exercise its discretion to remand them to state court, as

there is federal-court jurisdiction over these claims solely as a

matter of our supplemental jurisdiction under

.

See Rodriguez v. Doral Mortg. Corp.,

(1st Cir.

1995) ("As a general principle, the unfavorable disposition of a

plaintiff's federal claims at the early stages of a suit . . . will

trigger the dismissal without prejudice of any supplemental state-

law claims."); United Mine Workers of Am. v. Gibbs,

(1966) ("Needless decisions of state law should be avoided

both as a matter of comity and to promote justice between the

parties, by procuring for them a surer-footed reading of applicable

law."); Wilber v. Curtis,

(1st Cir. 2017) ("[I]t

can be an abuse of discretion -- if no federal claim remains -- for

a district court to retain jurisdiction over a pendent state law

claim when that state law claim presents a substantial question of

state law that is better addressed by the state courts.").

A.

First up is Jakuttis's challenge to the District Court's

grant of summary judgment to Chartrand and Mellonakos on Jakuttis's

claims against them under the MCRA. To establish a claim under

the MCRA, Jakuttis "must prove that (1) [his] exercise of enjoyment

of rights secured by the Constitution or the laws of either the

United States or the Commonwealth, (2) [has] been interfered with,

or attempted to be interfered with, and (3) that the interference

- 20 - or attempted interference was by threats, intimidation or

coercion." Buster v. George W. Moore, Inc.,

, 408

(Mass. 2003) (internal quotation marks omitted) (quoting Freeman

v. Plan. Bd. of W. Boylston,

(Mass. 1995)).

Jakuttis argues that Chartrand and Mellonakos interfered

with his federal constitutional right to free speech by retaliating

against him "for exercising that right by removing [him] from his

role as a detective and demoting him back to patrol following his

disclosure of corruption within the Dracut police." In other

words, Jakuttis's claim under the MCRA is, in essence, the same as

his claim for First Amendment free-speech retaliation under § 1983

discussed previously. Indeed, Jakuttis incorporates many of the

same arguments in challenging the District Court's summary-

judgment ruling as to this claim that he makes in challenging the

District Court's grant of summary judgment on the § 1983 claim.

But just as a § 1983 defendant may be entitled to

qualified immunity, a MCRA defendant may be as well. As the

Massachusetts Supreme Judicial Court (SJC) has explained,

"Government officials . . . generally are shielded 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." Barron v. Kolenda,

, 1141 (Mass. 2023) (alteration omitted) (quoting LaChance v.

Comm'r of Corr.,

(Mass. 2012)). "More

- 21 - specifically, a right is only clearly established if, at the time

of the alleged violation, the contours of the right allegedly

violated were sufficiently definite so that a reasonable official

would appreciate that the conduct in question was unlawful."

(cleaned up) (quoting LaChance,

).

In Section II.B, we explained that Chartrand's and

Mellonakos's alleged conduct did not violate "clearly established"

federal law as to a First Amendment retaliation claim, Wesby, 583

U.S. at 63, because a reasonable person in their situations would

not have concluded that the constitutional question was placed

beyond doubt in Jakuttis's favor, given that Chartrand could have

understood Jakuttis's report to him of misconduct in the DPD to

have been made as part of Jakuttis's official duties as a DPD

employee and that Mellonakos learned of the report from Chartrand.

Thus, we granted qualified immunity to Chartrand and Mellonakos on

Jakuttis's § 1983 claim against them on that basis.

Chartrand expressly incorporates his arguments in

defense of the § 1983 claim against him in response to Jakuttis's

challenge to the grant of summary judgment on the MCRA claim

against Chartrand. And Mellonakos also asserts qualified immunity

as a defense to the MCRA claim against him. Thus, because

Jakuttis's MCRA claim against Chartrand and Mellonakos is premised

on the same right -- a federal First Amendment right to free speech

-- and the same allegedly retaliatory actions as his claim against

- 22 - Chartrand and Mellonakos under § 1983 is, we incorporate the same

analysis of qualified immunity discussed in Section II.B here to

Jakuttis's MCRA claim against Chartrand and Mellonakos. For those

reasons, we hold that Chartrand and Mellonakos are entitled to

qualified immunity against Jakuttis's MCRA claim. See Barron, 203

N.E.3d at 1141.

B.

Jakuttis also appeals the dismissal of counts four

through six of his operative complaint. As relevant for our

purposes, those claims are Massachusetts-law tort claims against

Poirier for Intentional Interference with Advantageous Economic

Relationship, Intentional Interference with Contractual Relations

and/or Advantageous Relationship, and Intentional Infliction of

Emotional Distress. There is no merit to any of these challenges.

As we noted in Part I, the District Court determined

that these claims had to be dismissed pursuant to the Westfall Act

because the Attorney General's designee certified that Poirier was

acting within the scope of his federal employment during all the

relevant times. And while Jakuttis could have objected to that

certification, De Martinez v. Lamagno,

(1995),

he ultimately chose not to do so. Moreover, to the extent that

Jakuttis attempts to object to the scope-of-employment

certification on appeal, he not only has forfeited his right to

raise this issue on appeal but also explicitly waived it when he

- 23 - filed a "Plaintiff's Notice of Withdrawal of Objection to the U.S.

Attorney's Certification as to Scope of Employment" with the

District Court. See, e.g., Dávila v. Corporación de P.R. para la

Difusión Pública,

, 14 n.2 (1st Cir. 2007) ("A party

waives a right only if he intentionally relinquishes or abandons

it; he forfeits a right by failing to assert it in a timely

manner."). And, to the extent that Jakuttis contends that the

Massachusetts-law tort claims against Poirier could somehow

persist despite the scope-of-employment certification, we see no

basis for so concluding, as the certification does not provide for

any exceptions to its scope. Thus, the District Court was correct

to have dismissed the claims.

C.

There remains to be addressed the District Court's

awards of summary judgment to Dracut for the Massachusetts

Whistleblower Act claim and to Chartrand and Mellonakos for the

Intentional Interference with Advantageous Economic Relationship

claim against them. As we will explain, we conclude that the

prudent course is for us to exercise our discretion to remand these

claims to the District Court so that the District Court may then

exercise its discretion to remand them to state court, as there is

federal-court jurisdiction over the claims solely as a matter of

supplemental jurisdiction under

. See Rodriguez,

.

- 24 - With respect to the Massachusetts Whistleblower Act

claim,

(b)(2) protects, in relevant

part, employees who "[p]rovide[] information to, or testif[y]

before, any public body conducting an investigation, hearing or

inquiry into any violation of law." Though Jakuttis's initial

report of the CS's allegations to O'Hanlon arguably cannot be the

basis for a whistleblower action under § 185(b)(2), as the report

predated any DEA or other investigation into the officers' drug

activity, Jakuttis's later participation in the DEA investigation

of the CS's allegations may constitute protected action as defined

by § 185(b)(2). And there is arguably a basis to conclude that

Jakuttis's speech, assuming it is protected activity under the

Act, was a "determinative cause" of Dracut's decision to take the

allegedly adverse employment action against him of moving him from

the detective unit to the patrol unit. Edwards v. Commonwealth,

, 1168 (Mass. 2021). Accordingly, it would be

prudent for reasons of comity for the state-law question on which

the claim turns to be resolved by a state court. See Gibbs,

.

Finally, we conclude that the Intentional Interference

with Advantageous Economic Relationship claim against Chartrand

and Mellonakos should also be remanded to the District Court such

that the District Court may then exercise its discretion to remand

the claim to state court.

- 25 - "To make a successful claim for intentional interference

with advantageous [economic] relations," Jakuttis has to prove

that "(1) he had an advantageous relationship with a third party

(e.g., a[n] . . . employment relationship); (2) [defendants]

knowingly induced a breaking of the relationship; (3)

[defendants'] interference with the relationship [was] intentional

[and] improper in motive or means; and (4) [Jakuttis] was harmed

by [defendants'] actions." Blackstone v. Cashman,

(Mass. 2007).

In addition, under the third prong, "[p]roof of actual

malice is required when an employee is claiming a supervisor has

intentionally interfered with the employee's advantageous

relationship with the employer or a corporate official is acting

in an official capacity." Fountain v. City of Methuen,

, 317 n.4 (D. Mass. 2022). The SJC has defined "actual

malice" as "a spiteful, malignant purpose, unrelated to the

legitimate corporate interest[,]" Blackstone,

(quoting Wright v. Shriners Hosp. for Crippled Child.,

(Mass. 1992)), and has clarified that, at least in some

circumstances, evidence of retaliation alone is not enough to

warrant a finding of improper motive, see Wright,

.

As to Chartrand, Jakuttis concedes that Chartrand "is

arguably a 'corporate official'" such that actual malice must be

- 26 - shown for Jakuttis's claim against Chartrand to succeed. However,

although the summary-judgment record read in the light most

favorable to Jakuttis arguably shows at least that Chartrand

retaliated against Jakuttis for reporting misconduct in the DPD,

it is unclear whether that retaliation rises to the level of

"actual malice" required of a corporate official -- that is,

whether Chartrand acted with "a spiteful, malignant purpose,

unrelated to the legitimate corporate interest." Blackstone,

(quoting Wright,

). Accordingly,

it would be prudent for reasons of comity for the state-law

question on which this claim turns to be resolved by a state court.

See Gibbs,

.

As to Mellonakos, there is an open question as to whether

he was Jakuttis's "supervisor" or a "corporate official" at the

relevant times such that the "actual malice" standard applies to

him. Fountain, 630 F. Supp. 3d at 317 n.4. Mellonakos appears to

contend that the "actual malice" standard applies, id., because he

was (and still is) employed as a lieutenant detective in the DPD.

Jakuttis contends, however, that the "actual malice" standard,

id., does not apply to Mellonakos. To the District Court, Jakuttis

argued that Mellonakos was not his supervisor because Mellonakos

"was out on injury" during the relevant times. We think it prudent

to leave it to the state court to resolve whether Mellonakos was

- 27 - a "supervisor" or "corporate official" such that the "actual

malice" standard applies here. Id.; see Gibbs,

.

IV.

The District Court's award of summary judgment to

Dracut, Chartrand, and Mellonakos and grant of Poirier's motion to

dismiss for the § 1983 claim are affirmed. The District Court's

grant of Poirier's and O'Hanlon's motion to dismiss for the Bivens

claim is affirmed. The District Court's dismissal of the

Intentional Interference with Advantageous Economic Relationship,

Intentional Interference with Contractual Relations and/or

Advantageous Relationship, and Intentional Infliction of Emotional

Distress claims against Poirier is affirmed. The District Court's

award of summary judgment to Mellonakos and Chartrand for the MCRA

claim is affirmed. Finally, we remand the Massachusetts

Whistleblower Act claim against Dracut and the Intentional

Interference with Advantageous Economic Relationship claim against

Chartrand and Mellonakos to the District Court. The parties shall

bear their own costs.

- 28 -