Leise v. Christie

23-574-cv (L)

Leise v. Christie

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,

on the 27th day of August, two thousand twenty-five.

PRESENT:

JOSEPH F. BIANCO,

STEVEN J. MENASHI,

EUNICE C. LEE,

Circuit Judges.

_____________________________________

ANDREW LEISE,

Plaintiff-Appellee-Cross-Appellant,

v. 23-574-cv (L);

23-1180-cv (XAP)

KEVIN CHRISTIE, BOR YANG,

Defendants-Appellants-Cross-Appellees,

VERMONT HUMAN RIGHTS COMMISSION,

Defendant-Appellee,

DA CAPO PUBLISHING, INC., JOHN AND

JANE DOE IX,

Defendants. ∗

___________________________________

∗

The Clerk of the Court is respectfully directed to amend the caption on this Court’s docket to be consistent

with the caption on this order.

FOR DEFENDANTS-APPELLANTS-

CROSS-APPELLEES AND LISA B. SHELKROT, Langrock Sperry &

DEFENDANT-APPELLEE: Wool, LLP, Burlington, VT.

FOR PLAINTIFF-APPELLEE- KAVEH S. SHAHI, Cleary Shahi & Aicher,

CROSS-APPELLANT: P.C., Rutland, VT.

Appeal from orders and a judgment of the United States District Court for the District of

Vermont (Christina Reiss, Chief Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the orders of the district court, entered on March 24, 2023 and June 29, 2023,

and the judgment of the district court, entered on August 10, 2023, are AFFIRMED as to the

dismissal of the claims against the Vermont Human Rights Commission, as well as Kevin

Christie and Bor Yang in their official capacities, and REVERSED as to the denial of qualified

immunity with respect to the federal substantive due process claim against Christie and Yang

in their individual capacities. The appeal is DISMISSED as to the challenge to the district

court’s denial of the motion to dismiss with respect to Leise’s state law claims for defamation

and invasion of privacy against Christie and Yang. The case is REMANDED for further

proceedings consistent with this summary order.

Defendants-Appellants-Cross-Appellees Kevin Christie and Bor Yang, members of the

Defendant-Appellee Vermont Human Rights Commission (“VHRC”), appeal from the district

court’s partial denial of their motion to dismiss Plaintiff-Appellee-Cross-Appellant Andrew

Leise’s amended complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), and partial

denial of their subsequent motion for reconsideration. In particular, Christie and Yang challenge

the district court’s determination that they are not entitled to: (1) federal qualified immunity as

to Leise’s individual capacity claim, pursuant to 42 U.S.C. § 1983, alleging a violation of his

substantive due process rights; or (2) qualified immunity under Vermont state law as to Leise’s

individual capacity claims for defamation and invasion of privacy. Additionally, Leise cross-

appeals from the district court’s dismissal of his claims against the VHRC on the ground that the

agency is entitled to state sovereign immunity. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal, to which we refer only as necessary

to explain our decision.

BACKGROUND 1

This case arises out of a landlord-tenant dispute between Dr. Lydia Clemmons and an

individual renting an outbuilding on her Vermont farm. In 2017, Dr. Clemmons made a number

of calls to the Vermont State Police (“VSP”) requesting that officers intervene in various disputes

between her and her tenant. In response to these calls, VSP troopers, including Leise, made

multiple visits to her property. The complaint alleges that Dr. Clemmons believed VSP troopers

disregarded her complaints, and, as a result, she filed a complaint with the VHRC, which is a

state commission responsible for investigating discrimination claims, alleging that the VSP

troopers discriminated against her on the basis of sex and race.

The VHRC initiated an investigation to determine whether the VSP engaged in

discriminatory conduct in connection with Dr. Clemmons’s disputes with her tenant and, at the

conclusion of the investigation, compiled an “Investigative Report” recommending a finding that

the VSP’s actions were discriminatory. The Investigative Report explicitly named Leise, one of

the troopers who responded to Dr. Clemmons’s calls, criticizing his actions and determining that

1

The following facts are taken from Leise’s first amended complaint, which we accept as true for

purposes of reviewing a Rule 12(b)(6) dismissal. See Herrera v. Comme des Garcons, Ltd., 84 F.4th 110,

113 (2d Cir. 2023).

3

his conduct was discriminatory. Then, on March 25, 2021, the VHRC commissioners voted to

find there were reasonable grounds to believe that the VSP had discriminated against Dr.

Clemmons. On June 10, 2021, the VHRC released the Investigative Report to Seven Days, a

local newspaper operated by Defendant Da Capo Publishing, Inc. (“Da Capo”). On June 23,

2021, Seven Days published an article detailing the VSP’s alleged discrimination against Dr.

Clemmons and made the Investigative Report public.

In his complaint, Leise alleges that both Christie and Yang participated in providing Da

Capo with a copy of the Investigative Report. Leise further alleges that the Investigative Report

incorrectly concluded that his conduct was discriminatory based on intentionally false and

misleading versions of the facts. He also alleges that the release of the Investigative Report to

Da Capo was unlawful because Vermont state law requires that such reports remain confidential;

and, by releasing it, the VHRC, Christie, and Yang intentionally and maliciously damaged his

reputation, forced him to resign from the VSP, and inhibited his ability to pursue other law-

enforcement-related employment. Leise alleges that Yang and Christie authored the false and

misleading Investigative Report and later released it to the public so they would receive

favorable media coverage to “promote [V]HRC’s leadership” and “shape public opinion against

VSP and its troopers.” Joint App’x at 217, ¶ 5.

On January 18, 2022, Leise initiated the instant action against the VHRC, Yang, and

Christie, asserting the following six claims against the defendants in both their official and

individual capacities: (1) a liberty-interest procedural due process claim under 42 U.S.C. § 1983;

(2) a property-interest procedural due process claim under 42 U.S.C. § 1983; (3) a substantive

due process claim for arbitrary, oppressive, and conscience-shocking government action under

4

42 U.S.C. § 1983; (4) an invasion of privacy claim under Vermont law; (5) a defamation claim

under Vermont law; and (6) a tortious interference with contract claim under Vermont law. 2

On April 1, 2022, the VHRC, Christie, and Yang moved to dismiss the complaint,

pursuant to Rule 12(b)(6), on the merits and on the basis of various immunity doctrines. In

particular, for the claims brought against them in their official capacities, the VHRC, Christie,

and Yang asserted the defense of state sovereign immunity as reflected in the Eleventh

Amendment. Christie and Yang also asserted absolute and qualified immunity defenses as to all

claims brought against them in their individual capacities. The district court granted the motion

in part and denied it in part. See generally Leise v. Vt. Hum. Rts. Comm’n, No. 22-cv-9, 2023

WL 2633341 (D. Vt. Mar. 24, 2023). In doing so, the district court dismissed all claims brought

against the VHRC, Christie, and Yang in their official capacities because it determined that the

Commission and its agents were an “arm of the state,” and thus entitled to sovereign immunity.

Id. at *15. In addition, the district court dismissed the Section 1983 and state law claims against

Christie and Yang in their individual capacities on absolute immunity grounds to the extent the

claims related to the VHRC’s investigation, decision-making process, and final determination. 3

The district court, however, denied the motion to dismiss Leise’s claims brought against Christie

and Yang in their individual capacities under Section 1983 to the extent they related to the release

of the Investigative Report to Da Capo, and the state law defamation and invasion of privacy

claims. As for these remaining portions of the Section 1983 claims, the district court concluded

2

Plaintiff brought these same claims against Da Capo, and the district court dismissed them. The

dismissal of the claims against Da Capo is not at issue in this appeal.

3

The district court also granted the defendants’ motion to dismiss as to the tortious interference of

contract claim for failure to state a claim. That determination is not challenged on appeal.

5

that Christie and Yang were not entitled to federal qualified immunity at the motion to dismiss

stage because “the record before the court [was] bereft of evidence” that would place the court

“in a position to determine, as a matter of law, whether the release of the Investigative Report in

this case violates [Vt. Stat. Ann. tit. 9, § 4555(a)(1) (2025)].” Leise, 2023 WL 2633341, at *16.

With respect to the remaining state law claims, the district court concluded they were adequately

pled and that, given the ambiguities in the factual record, it could not determine whether Christie

and Yang were entitled to state qualified immunity.

On April 5, 2023, the VHRC, Christie, and Yang filed a motion for reconsideration,

asserting, inter alia, that the district court failed to adequately address the merits of their motion

to dismiss Leise’s remaining Section 1983 claims. Upon reconsideration, the district court

concluded that Leise had plausibly alleged a substantive due process claim but dismissed his

remaining procedural due process claims. See generally Leise v. Vt. Hum. Rts. Comm’n, No. 22-

cv-9, 2023 WL 4247768 (D. Vt. June 29, 2023). The district court’s prior ruling was left

unchanged in all other respects. See id. This appeal followed.

DISCUSSION

Christie and Yang challenge the denial of their motion to dismiss and motion for

reconsideration as to the federal substantive due process claim and the state law defamation and

invasion of privacy claims, arguing that they are entitled to federal and state qualified immunity

because releasing the Investigative Report did not violate clearly established law. Leise cross-

appeals the district court’s dismissal of his claims as to the VHRC and, by extension, the official

capacity claims against Christie and Yang, on the ground that the district court erred by

6

concluding that the VHRC is an arm of the state of Vermont and thus entitled to sovereign

immunity.4

Courts of appeals have the authority under 28 U.S.C. § 1291 to “review all final decisions

of the district courts.” Will v. Hallock, 546 U.S. 345, 347 (2006) (internal quotation marks and

citation omitted). “[A] district court’s denial of a motion to dismiss, which leaves the

controversy pending, is not, technically, a final decision within the meaning of [Section 1291].”

Chasser v. Achille Lauro Lines, 844 F.2d 50, 52 (2d Cir. 1988). However, under the collateral

order doctrine, “a district court’s denial of a claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

Accordingly, we may review a decision denying a motion to dismiss “when the dismissal motion

is based on [an] assertion of . . . qualified immunity, to the extent that the denial turns on issues

of law.” Hill v. City of New York, 45 F.3d 653, 659–60 (2d Cir. 1995). By contrast, “[i]f a

factual determination is a necessary predicate to the resolution of whether immunity is a bar,

review is postponed and we dismiss the appeal.” Brown v. Halpin, 885 F.3d 111, 117 (2d Cir.

2018) (per curiam) (internal quotation marks and citation omitted). “We review a district court’s

denial of qualified immunity on a motion to dismiss de novo, accepting as true the material facts

alleged in the complaint and drawing all reasonable inferences in plaintiff[’s] favor.” Garcia v.

Does, 779 F.3d 84, 91 (2d Cir. 2015) (internal quotation marks and citation omitted). Issues of

qualified immunity should be “resolv[ed] . . . at the earliest possible stage [of the] litigation.”

4

After the district court dismissed Leise’s claims against the VHRC, it entered partial final judgment for

the VHRC, pursuant to Federal Rule of Civil Procedure 54(b). We therefore have jurisdiction to hear

Leise’s cross-appeal of that partial judgment. See Linde v. Arab Bank, PLC, 882 F.3d 314, 322–23 (2d

Cir. 2018); Fed. R. Civ. P. 54(b).

7

Horn v. Stephenson, 11 F.4th 163, 169 (2d Cir. 2021) (last alteration in original) (internal

quotation marks and citation omitted).

I. Federal Qualified Immunity

Christie and Yang contend that the district court erred in denying them qualified

immunity as to Leise’s substantive due process claim. We agree. Leise’s substantive due

process claim is based on the allegation that releasing the Investigative Report violated Vermont

law. Because Vermont law is ambiguous as to whether releasing the Report was prohibited,

Christie and Yang did not violate a clearly established federal right.

Qualified immunity protects government officials “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).

A qualified immunity analysis considers whether: “(1) . . . the official violated a statutory right

or constitutional right, and (2) . . . the right was ‘clearly established’ at the time of the challenged

conduct.” Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 735 (2011)). “A right is clearly established if the contours of the right are

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” McKinney v. City of Middletown, 49 F.4th 730, 738 (2d Cir. 2022) (alterations adopted)

(internal quotation marks and citation omitted). “This requires that controlling authority or a

robust consensus of cases of persuasive authority have recognized the right at issue.” Linton v.

Zorn, 135 F.4th 19, 32 (2d Cir. 2025) (internal quotation marks and citation omitted). In other

words, “if reasonable [state officials] could disagree on the legality of the action at issue in its

particular factual context, the [official] is entitled to qualified immunity.” Guan v. City of New

York, 37 F.4th 797, 806 (2d Cir. 2022) (internal quotation marks and citation omitted).

8

We have held that an individual has a substantive due process right to be free from

government action that shocks the conscience, including “malicious and sadistic abuses of power

by government officials, intended to oppress or to cause injury and designed for no legitimate

government purpose.” Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005) (internal quotation marks

and citation omitted). Here, Leise argues that his substantive due process rights were violated

by Christie and Yang because they engaged in oppressive conduct by “deliberately and

intentionally devis[ing] a plan that manipulated and falsified” the Investigative Report and

“unlawfully released” it. Joint App’x at 280, ¶ 152. Moreover, Leise contends that Christie and

Yang are not entitled to qualified immunity because the release of the Investigative Report was

unlawful under Vermont law, and thus, the constitutional violation is “clear.” As acknowledged

by Leise’s counsel at oral argument, under this theory, if Christie and Yang reasonably believed

that the release of the Investigative Report was not unlawful under Vermont law, then the

constitutional right against its release cannot be clearly established. Furthermore, even if the

release of the report clearly violated Vermont law, we would separately need to assess whether

Leise has plausibly alleged that the violation shocks the conscience such that it clearly violates

substantive due process. See Tooly v. Schwaller, 919 F.3d 165, 173 (2d Cir. 2019) (“To

determine whether a violation of state law overcomes federal qualified immunity, then, the court

must determine whether the conduct that violated the state statute also violates clearly

established federal law, and this is a distinct and separate inquiry.”).

We conclude that the district court erred in denying qualified immunity as to the

substantive due process claim because it was reasonable for Christie and Yang to believe that

9

releasing the Investigative Report was not unlawful. 5 Vermont law states that “[e]xcept as

provided in this subsection, the [VHRC]’s complaint files and investigative files shall be

confidential.” Vt. Stat. Ann. tit. 9, § 4555(a)(1) (2025) (emphasis added). The subsection later

provides that “[i]f the [VHRC] determines that there are reasonable grounds to believe that

discrimination has occurred, that determination and the names of the parties may be made public

. . . .” Id. § 4555(c). Importantly, although these statutory provisions reference the complaint,

investigative files, and determination, they make no mention of an investigative report. VHRC

rules, however, define the investigative report as an entirely separate type of document from the

complaint or the investigative file. 6 11-1 Vt. Code R. § 1.21 (2025). Indeed, VHRC rules

explain that the investigative report is a document that (1) is prepared at the completion of a

VHRC investigation, (2) is submitted to the Executive Director of the Commission for approval,

and (3) contains “a listing of documents reviewed, witnesses interviewed, a statement of facts, a

legal analysis, and a preliminary recommendation to the commissioners.” Id. By comparison,

the investigative file “does not include analysis, such as . . . statistical analysis that the

investigator has created with information provided by either party” or “materials submitted by

the complainant or gathered by the Commission’s intake worker during the intake process,” id.

§ 1.34, and the complaint file contains “allegations and complaints,” id. § 1.7.

5

Because we conclude that Leise lacked a clearly established right to the confidentiality of the

Investigative Report, we need not address whether its release, even if not contrary to state law, is a

substantive due process violation or whether Liese has plausibly alleged that Christie and Yang in fact

violated his constitutional rights. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that courts

have “discretion in deciding which of the two prongs of the qualified immunity analysis should be

addressed first”).

6

The VHRC is statutorily authorized to “adopt procedural and substantive rules in accordance with the

provisions of [Vermont’s Administrative Procedure Act].” Vt. Stat. Ann. tit. 9, § 4553(c) (2025).

10

In light of the ambiguity under Vermont law about whether an investigative report is

confidential, it was reasonable for Christie and Yang to have believed that releasing the

Investigative Report was lawful. Because Leise bases his substantive due process claim on the

alleged violation of Vermont law, he cannot show that Christie and Yang violated a clearly

established federal constitutional right. Accordingly, we conclude that Christie and Yang are

entitled to qualified immunity. See Ehrlich v. Town of Glastonbury, 348 F.3d 48, 61–62 (2d Cir.

2003) (finding qualified immunity where the federal right at issue was based on unclear

Connecticut state conservatorship law and the defendant officers could have reasonably believed

their actions were lawful).

II. State Qualified Immunity

The parties also dispute whether Christie and Yang are entitled to qualified immunity

under Vermont law for Leise’s defamation and invasion of privacy claims. As set forth below,

we decline to consider the state qualified immunity issue on this appeal given the dismissal of

all federal claims and the fact that additional analysis is required to make that determination

under Vermont law. Cf. Kass v. City of New York, 864 F.3d 200, 213–14 (2d Cir. 2017) (deciding

the state law immunity issue where it was identical to the federal law analysis).

Under Vermont law, state officials are entitled to qualified immunity if they were

“1) acting during the course of their employment and within the scope of their authority;

2) acting in good faith; and 3) performing discretionary, as opposed to ministerial acts.”

O’Connor v. Donovan, 48 A.3d 584, 587 (Vt. 2012) (alterations adopted) (internal quotation

marks and citation omitted). This standard does not “sufficient[ly] overlap” with our federal

qualified immunity standard and would require “additional . . . analysis.” McCullough v.

Wyandanch Union Free Sch. Dist., 187 F.3d 272, 281–82 (2d Cir. 1999). Indeed, although

11

Christie and Yang argue that they are entitled to qualified immunity under Vermont law for

substantially the same reasons as federal law, they acknowledge that “qualified immunity under

Vermont law is somewhat differently formulated from federal qualified immunity.” Appellants’

Br. at 34.

Therefore, under these circumstances, we will remand to the district court to consider,

given the dismissal of all claims over which the district court has original jurisdiction, whether

to exercise supplemental jurisdiction over the remaining state law claims for defamation and

invasion of privacy against Christie and Yang. See 28 U.S.C. § 1367(c)(3); see also Valencia ex

rel. Franco v. Lee, 316 F.3d 299, 304–05 (2d Cir. 2003).

III. Sovereign Immunity

On cross-appeal, Leise argues that the district erred by concluding that the VHRC was

entitled to state sovereign immunity because the VHRC is an “independent entity,” rather than

an arm of the State of Vermont (the “State”). Appellee’s Br. at 10. We are unpersuaded.

“[A] federal court generally may not hear a suit brought by any person against a

nonconsenting State.” Allen v. Cooper, 589 U.S. 248, 254 (2020). State sovereign immunity

precludes “a citizen from suing his own state under federal question jurisdiction.” McGinty v.

New York, 251 F.3d 84, 91 (2d Cir. 2001). This immunity “extends beyond the states themselves

to ‘state agents and state instrumentalities’ that are, effectively, arms of a state.” Woods v.

Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (quoting Regents

of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)).

To determine whether a state entity is an “arm of the state,” this Court considers four

factors: (1) the extent to which the state would be responsible for satisfying any judgment that

might be entered against the defendant entity; (2) the degree of control exercised by the state

12

over the defendant entity; (3) how the entity is referred to in the documents that created it; and

(4) whether the entity’s function is traditionally one of local or state government. See Leitner v.

Westchester Cmty. Coll., 779 F.3d 130, 135–40 (2d Cir. 2015).

The first and “most important” factor, whether the state must satisfy a judgment against

the entity, considers “how the entity is funded and whether the entity’s obligations are binding

upon the state.” Id. at 137. Here, we agree with the district court that the source of the VHRC’s

funding and the State’s indemnification obligations to its employees weigh in favor of sovereign

immunity. See Leise, 2023 WL 2633341, at *12–13. As an initial matter, between eighty-five

and ninety percent of the VHRC’s budget is appropriated by the Vermont Legislature from

Vermont’s General Fund. See VHRC, Fiscal Year 2024 Budget Request,

https://ljfo.vermont.gov/assets/Uploads/65e986c0d9/Human-Rights-Commission-FY24-

Budget-Book_012023.pdf (last accessed Aug. 5, 2025) (providing figures from the 2022 and

2023 budgets as passed by Vermont Legislature). 7 Moreover, under Vermont law, the

commissioners of the VHRC “shall receive [state] compensation as provided by 32 V.S.A.

§ 1010” and “shall be entitled to expenses actually and necessarily incurred in the performance

of his or her duties.” Vt. Stat. Ann. tit. 9, § 4551(d) (2025); see Vt. Stat. Ann. tit. 32, § 1010

(2025). The State also classifies VHRC staff as state employees and compensates them as such.

See State of Vermont Employee Salaries 2025, https://data.vermont.gov/Government/State-of-

Vermont-Employee-Salaries/jgqy-2smf/data_preview (last accessed Aug. 5, 2025). Given their

7

The reporting of the budget is required by Vermont statute. See Vt. Stat. Ann. tit. 32, § 301(a) (2025).

We therefore may take judicial notice of this public record, and others cited in this summary order, as

they are published on an official government website. See Vill. Green at Sayville, LLC v. Town of Islip,

43 F.4th 287, 299 n.7 (2d Cir. 2022) (“A court may take routine judicial notice of documents retrieved

from official government websites.” (alteration adopted) (internal quotation marks and citation omitted));

accord Cangemi v. United States, 13 F.4th 115, 124 n.4 (2d Cir. 2021) (same).

13

status as employees, Vermont is statutorily obligated to defend and indemnify these staff

members in civil actions that relate to the performance of their duties. See Vt. Stat. Ann. tit. 3,

§ 1101 (2025) (obligation of state to defend state employees); Vt. Stat. Ann. tit. 12, § 5606 (2025)

(indemnification of state employees). Finally, “all State agencies, Legislature, departments,

State colleges, Judiciary, quasi-State agencies, boards, commissions, and employees” must

participate in and contribute to the “State Liability Self-Insurance Fund” which covers the

payment of “judgments.” Vt. Stat. Ann. tit. 29, § 1406(c) (2025) (emphasis added). Taken

together, Vermont law supports the district court’s conclusion that the first factor favors

sovereign immunity.

The second factor, the degree of supervision exercised by the state over the defendant

entity, “consider[s] how the governing members of the entity are appointed and whether the state

has veto power over the entity’s actions.” Leitner, 779 F.3d at 138. Here, all five commissioners

of the VHRC are “appointed by the Governor, with the advice and consent of the Senate.” Vt.

Stat. Ann. tit. 9, § 4551(a) (2025). Under Vermont law, appointees “serve at the pleasure of the

Governor,” or, in other words, under the Governor’s authority. Vt. Stat. Ann. tit. 3, § 2004

(2025). In addition, the VHRC must submit an annual report to the Vermont Legislature “on the

status of Commission program operations, the number and type of calls received, complaints

filed and investigated, closure of litigated and nonlitigated complaints, public educational

activities undertaken, and recommendations for improved human rights advocacy and

activities.” Vt. Stat. Ann. tit. 9, § 4553(b) (2025). The VHRC is also required to submit an

annual proposed budget to the Legislature. See Vt. Stat. Ann. tit. 32, § 301(a) (2025); see also

VHRC, Fiscal Year 2024 Budget Request,

https://ljfo.vermont.gov/assets/Uploads/65e986c0d9/Human-Rights-Commission-FY24-

14

Budget-Book_012023.pdf (last accessed Aug. 5, 2025). Given this, as the district court correctly

concluded, the VHRC is subject to considerable oversight by the State, and therefore, the second

factor favors sovereign immunity.

The third factor considers “how [an] entity is referred to in the documents that created

it.” Leitner, 779 F.3d at 139. Leise argues that this factor weighs against the State because the

VHRC is not referred to as an “agency” in the statute that created it. Appellee’s Br. at 49. This

argument misses the mark. As the district court correctly noted, this inquiry is not focused on

the specific title of the agency, but on whether the entity resembles a “state agency” rather than

“a municipal corporation or other political subdivision.” Mancuso v. N.Y. State Thruway Auth.,

86 F.3d 289, 292 (2d Cir. 1996) (internal quotation marks and citation omitted). Here, the VHRC

is classified by Vermont law as a “[c]ommission” and is composed of members appointed by the

Governor, with the advice and consent of the Senate, who serve at the Governor’s pleasure. Vt.

Stat. Ann. tit. 9, § 4551(a) (2025); see Vt. Stat. Ann. tit. 3, § 2004 (2025). As a State commission,

VHRC is accountable to the State government and has statewide jurisdiction. See Vt. Stat. Ann.

tit. 9, §§ 4552(b), 4553(a), (b) (2025). It is not a “unit[] of local government, such as cities and

counties.” Woods, 466 F.3d at 243 (internal quotation marks and citation omitted). Thus, this

factor also weighs in favor of sovereign immunity.

Lastly, the fourth factor looks to “whether the entity’s function is state[wide] or local.”

Leitner, 779 F.3d at 139. Here, the VHRC’s function is statewide. See Vt. Stat. Ann. tit. 9,

§§ 4552, 4553. With its statewide jurisdiction, the VHRC’s duties include “increas[ing]

awareness of the importance of full civil and human rights for each inhabitant of this State” and

“recommend[ing] measures designed to protect those rights” throughout the State. Id. § 4552(a).

In addition, the VHRC may “maintain a principal office and such other offices within the State”

15

and “[m]eet and hold hearings at any place within the State.” Id. § 4553(a)(1), (2). These

characteristics of the VHRC are indicative of its status as a state entity.

In sum, the Leitner factors support the determination that the VHRC is an arm of the

State. Accordingly, the district court was correct in determining that VHRC is entitled to state

sovereign immunity and dismissing all claims against the VHRC, as well as those against

Christie and Yang in their official capacities.

* * *

We have considered the parties’ remaining arguments and find them to be without merit.

Accordingly, the district court’s orders and judgment are AFFIRMED as to the dismissal of

the claims against the VHRC, as well Christie and Yang in their official capacities, and

REVERSED as to the denial of qualified immunity with respect to the substantive due process

claim against Christie and Yang in their individual capacities. The appeal is DISMISSED as

to the challenge to the district court’s denial of the motion to dismiss with respect to Leise’s

state law claims for defamation and invasion of privacy against Christie and Yang. The case is

REMANDED for further proceedings consistent with this summary order.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

16