Love

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ARTHUR M. LOVE,

Plaintiff,

v. Civil No.: 1:21-cv-02029-JRR

STEVEN MCADAMS,

Defendant.

MEMORANDUM OPINION

This matter comes before the court on Defendant Steven McAdams’s Motion to Dismiss.

(ECF No. 49; the “Motion to Dismiss”) and Plaintiff Arthur M. Love’s Motion for Leave to File

Surreply (ECF No. 59; the “Surreply Motion”). The court has reviewed all papers; no hearing is

necessary. Local Rule 105.6 (D. Md. 2025). For the reasons that follow, by accompanying order,

the Motion to Dismiss will be granted, and the Surreply Motion will be denied.

I. BACKGROUND1

A. Relevant Factual Background

As the court set forth in its memorandum opinion at ECF No. 37, then-Governor Lawrence

J. Hogan, Jr. appointed Plaintiff as Deputy Director of Community Initiatives on January 21, 2015.

(ECF No. 1 ¶ 16; the “Complaint.”) During Plaintiff’s employment, the statutorily-created

Governor’s Office of Community Initiatives (“GOCI”) included the Governor’s Office on Service

and Volunteerism, the Commission on Indian Affairs, and the Commission on African American

History and Culture.2 MD. CODE ANN., STATE GOV’T §§ 9.5-101, 9.5-401–9.5-408; 2022 Md.

1 For purposes of resolving the Motion, the court accepts as true all well-pled facts set forth in the Complaint. (ECF

No. 1.) See Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017).

2 GOCI also now houses the Commission on LGBTQIA+ Affairs, which was established in 2021, after Plaintiff’s

termination. MD. CODE ANN., STATE GOV’T § 9.5-101; 2023 Md. Laws Ch. 99 (S.B. 551).

Laws Ch. 451 (H.B. 1048). GOCI is “comprised of staff appointed by the Governor and by staff

liaisons from State agencies.”3 MD. CODE REGS. 01.01.2007.25(C) (2007). Its activities include,

inter alia, “[d]eveloping and coordinating the Governor’s policy agenda affecting community

programs and initiatives,” and “[a]dvising the Governor on policies and measures to enhance and

improve the delivery of community and volunteerism services.” Id. 01.01.2007.25(D).

The Deputy Director “is the lead staff member on all special events and initiatives for

GOCI” and works to “establish relationships with nonprofits, government, and for profit

organizations to further GOCI’s mission.” (Position Description, ECF No. 7-4.)4 Among other

duties, the Deputy Director serves as “the administrative director of the Governor’s Commission

on Caribbean Affairs,” “[r]epresent[s] GOCI and the Governor’s Office as requested at networking

meetings, volunteer recognition, trainings, and other events,” “[l]everage[s] community

relationships and resources to advance the goals of GOCI,” “[i]nitiates, develops and implements

goals, policies and procedures for the Commission [on Caribbean Affairs],” “[a]ppears as the

Commission [on Caribbean Affairs’] representative before State, federal and local officials to

advise and discuss the needs and concerns of the Native American community in Maryland,” and

“[c]oordinates all activities of the Commission,” including “[d]evelop[ing] and promot[ing] public

education and awareness of issues and concerns of Native Americans in Maryland.” Id.

3 While not discussed by the parties, it appears that during Plaintiff’s employment, GOCI also oversaw the Governor’s

Commission on Hispanic Affairs (now known as the Governor’s Commission on Hispanic and Latin American

Community Affairs), MD. CODE REGS. 01.01.2007.25 (2007), and the Governor’s Commission on Middle Eastern

American Affairs, MD. CODE REGS. 01.01.2007.22 (2007). See also MD. CODE REGS. 01.01.2025.04 (2025)

(rescinding the previous Executive Orders).

4 While the court generally does not consider evidence outside of the Complaint in ruling on a motion to dismiss

pursuant to Rule 12(b)(6), it may properly consider “documents integral to and relied upon in the complaint, . . . so

long as the plaintiff does not question their authenticity.” Fairfax v. CBS Corp., 2 F.4th 286, 292 (4th Cir. 2021). As

set forth in the court’s memorandum opinion at ECF No. 37, the court properly considers the relevant Facebook posts

(ECF No. 7-2), the Termination Letter (ECF No. 7-3), and Position Description (ECF No. 7-4) as integral to the

Complaint. (ECF No. 37 at pp. 6–7.) Plaintiff does not dispute the authenticity as to same and contends that the

Termination Letter and Position Description should be considered. (ECF No. 56 at p. 2.)

Plaintiff held a political special appointment position per § 6-405(b) of the Maryland State

Personnel and Pensions Article, which provides:

[A] position that is a special appointment may be filled with regard

to political affiliation, belief, or opinion if the Secretary determines

that the position:

(1) relates to political interests or concerns so as to warrant that

political affiliation be a requirement for the position; and

(2)(i) requires the provision of meaningful direct or indirect input

into the policy-making process; or

(ii) provides access to confidential information and:

1. requires substantial intervention or collaboration in the

formulation of public policy; or

2. requires the provision of direct advice or the rendering of

direct services to an appointing authority.

MD. CODE ANN., STATE PERS. & PENS. § 6-405(b). (Termination Letter, ECF No. 7-3, identifying

Plaintiff’s employment as a political special appointment position).

On August 28, 2020, using his private Facebook account, Plaintiff posted a series of memes

(here, images with overlayed text) in a private Facebook group called “Inside Maryland Politics”

regarding “a matter of great public concern and the subject of national debate”—“civil unrest

occurring in Kenosha following the police shooting of Jacob Blake on August 23, 2020,” and Kyle

Rittenhouse’s involvement “in a controversial shooting during one of the Kenosha protests.” Id.

¶¶ 20, 22, 25; see ECF No. 7-2 (including the Facebook posts). Through these memes, Plaintiff

alleges he “used his private Facebook account to discuss Mr. Rittenhouse’s case and support Mr.

Rittenhouse’s self-defense right, communicating his personal belief that Mr. Rittenhouse’s actions

may have been justified under the doctrine of self-defense.” (ECF No. 1 ¶ 25.) Plaintiff made

these Facebook posts “in his personal time, while lying on his bed in his home, using his private

personal Facebook account.” Id. (emphasis omitted).

The following day, members of the press appeared at Plaintiff’s home, prompting him to

call Defendant McAdams who was, at all times relevant, Executive Director of the Governor’s

Office of the State of Maryland. (ECF No. 1 ¶¶ 4, 27.) Defendant McAdams informed Plaintiff

that “he need not worry and that they would ‘get through this.’” Id. ¶ 28. Plaintiff contends that

the decision to terminate his employment was made on either August 28 or 29, 2021. Id. ¶ 29. On

August 29, 2021, a television news report reported that Plaintiff had been terminated from his

employment. Id. ¶ 30. On August 30, 2021, Defendant McAdams called Plaintiff and informed

him that “he had been terminated due to his Facebook posts on Mr. Rittenhouse’s potential

justification under the doctrine of self-defense.” Id. ¶ 31. The following day, Plaintiff received

his official termination letter via email from Defendant McAdams. Id. ¶ 32. (Termination Letter,

ECF No. 7-3.) Either McAdams or his representative made public statements regarding Plaintiff’s

termination, specifically: “These divisive images and statements are inconsistent with the mission

and core values of the Office of Community Initiatives. Earlier today, I relieved this employee of

his duties.” Id. ¶ 33.

B. Relevant Procedural Background

On August 11, 2021, Plaintiff initiated this action, alleging then-Defendants wrongfully

discharged him and violated his rights guaranteed under the First and Fourteenth Amendments of

the U.S. Constitution and Article 40 of the Maryland Declaration of Rights. (ECF No. 1.) Relevant

here, Plaintiff’s Count I is brought under 42 U.S.C. § 1983, alleging retaliation in violation of the

First Amendment. (ECF No. 1 ¶¶ 64–77.) Then-Defendants subsequently moved to dismiss

Plaintiff’s Complaint. (ECF No. 7.) Following briefing on the motion, the court issued its

memorandum opinion and order, granting the motion to dismiss and dismissing Plaintiff’s

Complaint with prejudice. (ECF Nos. 37, 38.) On appeal, the Fourth Circuit affirmed as modified

the dismissal of most claims, vacated the dismissal of Count I as to Defendant McAdams, and

remanded the claim to this court for further proceedings. Love v. Hogan, No. 22-1928, 2025 WL

763473, at *1 (4th Cir. Mar. 11, 2025). The Fourth Circuit modified the dismissal of Plaintiff’s

claims against the State of Maryland and Defendants in their official capacities to be without

prejudice, affirmed the court’s dismissal of the claims against all Defendants in their individual

capacities except Defendant McAdams, and affirmed dismissal of all claims against Defendant

McAdams except for Plaintiff’s § 1983 claim against him in his individual capacity, which was

vacated and remanded for further proceedings.5 Id. at *5.

Accordingly, this action now proceeds solely as to Plaintiff’s Count I, his § 1983 claim

against Defendant McAdams in his individual capacity. Upon issuance of the Fourth Circuit’s

mandate, this court ordered Defendant McAdams to answer Plaintiff’s Complaint within 21 days.

(ECF No. 47.) Thereafter, Defendant McAdams sought leave to stay his deadline to answer the

Complaint in order for the court to first adjudicate his second motion to dismiss—the Motion to

Dismiss now pending. (ECF Nos. 48, 49.) Following briefing on the motion to stay, the court

granted in part the motion, explaining that the deadline for Defendant McAdams to answer the

Complaint was stayed pending the court’s resolution of the instant Motion to Dismiss solely on

the issue of qualified immunity. (ECF No. 57.)

II. LEGAL STANDARD

“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the complaint.” In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017), as amended

5 Neither this court’s previous memorandum opinion at ECF No. 37 nor the Fourth Circuit’s opinion on appeal

addressed whether Defendant McAdams is entitled to qualified immunity.

(Jan. 20, 2017) (quoting Papasan v. Allain, 478 U.S. 265, 283 (1986)). To survive a motion to

dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A court decides whether

this standard is met by separating the legal conclusions from the factual allegations, assuming the

truth of only the factual allegations, and then determining whether those allegations allow the court

to reasonably infer that ‘the defendant is liable for the misconduct alleged.’” A Soc’y Without A

Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (citing Iqbal, 556 U.S. at 678).

A plaintiff’s “factual allegations must be enough to raise a right to relief above the

speculative level, thereby nudging its claims across the line from conceivable to plausible.” Vitol,

S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (citation modified) (quoting

Twombly, 550 U.S. at 555, 570). The plausibility requirement is not “a probability requirement

but rather a mandate that a plaintiff ‘demonstrate more than a sheer possibility that a defendant has

acted unlawfully.” In re Birmingham, 846 F.3d at 92 (quoting Francis v. Giacomelli, 588 F.3d

186, 193 (4th Cir. 2009)). Reliance on “labels and conclusions” and “a formulaic recitation of the

elements of a cause of action” are insufficient. Twombly, 550 U.S. at 555.

III. ANALYSIS

As discussed above, the court’s sole consideration on the instant Motion to Dismiss is

Defendant McAdams’ argument that he is entitled to qualified immunity.

A government official sued in his individual capacity may invoke the protection afforded

by qualified immunity. Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013). “The doctrine of

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.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine “balances two important interests—the need

to hold public officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties reasonably.”

Id. “[O]ff[icials] are entitled to qualified immunity under § 1983 unless (1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established

at the time.’” D.C. v. Wesby, 583 U.S. 48, 62–63 (2018) (quoting Reichle v. Howards, 566 U.S.

658, 664 (2012)). “In the Fourth Circuit, we have a split burden of proof for the qualified-

immunity defense”—the plaintiff bears the burden on the first prong, and the official bears the

burden on the second prong. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022). “The answer to

both questions must be in the affirmative to defeat the offic[ial’s] entitlement to immunity.”

Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546, 555 (4th Cir. 2017), as

amended (Aug. 22, 2017).

Because one of the purposes of qualified immunity is to “protect public officials from the

‘broad-ranging discovery’ that can be ‘peculiarly disruptive of effective government,’” the

Supreme Court has “emphasized that qualified immunity questions should be resolved at the

earliest possible stage of a litigation.” Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987)

(quoting Harlow, 457 U.S. at 817). Accordingly, while “qualified immunity typically is best

addressed at the summary judgment stage after the facts have been developed through discovery,”

Riddick v. Barber, 109 F.4th 639, 650 n.5 (4th Cir. 2024) (citations omitted), dismissal pursuant

to Rule 12(b)(6) is nevertheless appropriate “when the face of the complaint clearly reveals the

existence of a meritorious” qualified immunity defense. Occupy Columbia v. Haley, 738 F.3d 107,

116 (4th Cir. 2013) (quoting Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011)). If the

court determines that a government official took action that a reasonable official would have

believed was lawful, the official is entitled to dismissal before discovery. See Anderson, 483 U.S.

at 646 n.6, supra. Nonetheless, “when asserted at this early stage in the proceedings, ‘the [qualified

immunity] defense faces a formidable hurdle’ and ‘is usually not successful.’” Owens v. Balt. City

State’s Atty’s. Off., 767 F.3d 379, 396 (4th Cir. 2014) (quoting Field Day, LLC v. Cnty. of Suffolk,

463 F.3d 167, 191–92 (2d Cir. 2006)).

Defendant McAdams urges that he is entitled to qualified immunity because “the

constitutional question presented in this case was not clearly established at the time of [Plaintiff’s]

termination.” (ECF No. 49-1 at p. 9.) Defendant McAdams’ challenge thus focuses on the second

prong—whether the right was clearly established at the time of the alleged event. Notably, “[t]he

question of whether a right is clearly established is a question of law for the court to decide.” Ray

v. Roane, 948 F.3d 222, 228–29 (4th Cir. 2020) (citing Pritchett v. Alford, 973 F.2d 307, 312 (4th

Cir. 1992)).

“For a constitutional right to be clearly established, its contours ‘must be sufficiently clear

that a reasonable official would understand that what he is doing violates that right.’” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson, 483 U.S. at 640). “The unlawfulness of an

official’s conduct must be ‘apparent in light of pre-existing law.’” Nazario v. Gutierrez, 103 F.4th

213, 230 (4th Cir. 2024) (quoting Booker v. S.C. Dept. of Corrections, 855 F.3d 533, 538 (4th Cir.

2017)). “[E]xisting precedent must have placed the statutory or constitutional question beyond

debate.” Benton v. Layton, 139 F.4th 281, 292 (4th Cir. 2025) (quoting Mullenix v. Luna, 577 U.S.

7, 12 (2015)). The court applies an “objective standard,” thus analyzing “this prong from the

perspective of a reasonable offic[ial].” deWet v. Rollyson, 157 F.4th 344, 349 (4th Cir. 2025)

(quoting Lewis v. Caraballo, 98 F.4th 521, 534 (4th Cir. 2024)).

To determine whether a right is clearly established, the court first looks to “the appropriate

level of specificity,” and then to “cases of controlling authority in this jurisdiction . . . to determine

whether a reasonable official would be on notice that his actions violate the law.” Id. (first quoting

Est. of Jones by Jones v. City of Martinsburg, 961 F.3d 661, 667 (4th Cir. 2020); then quoting

Franklin v. City of Charlotte, 64 F.4th 519, 534 (4th Cir. 2023)). The precedent need not concern

the “exact conduct at issue,” see Merch v. Bauer, 677 F.3d 656, 665–66 (4th Cir. 2012), or be

“directly on point,” see Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5–6 (2021), for a right to be

clearly established. Instead, “the existing authority must be such that the unlawfulness of the

conduct is manifest.” Merch, 677 F.3d at 665–66 (quoting Wilson v. Layne, 141 F.3d 111, 114

(4th Cir. 1998)). The inquiry “must be undertaken in light of the specific context of the case, not

as a broad general proposition.” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5–6 (2021) (quoting

Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

Of particular importance here, “in First Amendment cases, where a sophisticated balancing

of interests is required to determine whether the plaintiff’s constitutional rights have been violated,

only infrequently will it be clearly established that a public employee’s speech on a matter of

public concern is constitutionally protected.” Fowler v. Stolle, 760 F. Supp. 3d 416, 427 (E.D. Va.

2024) (quoting McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998)). Indeed, officials are not

required to “resolve subtle or open issues,” and are instead liable where they “transgress[] bright

lines.” deWet, 157 F.4th at 349 (quoting McVey, 157 F.3d at 277).

Defendant McAdams contends here that “[t]he scope and contours of [Plaintiff’s] free

speech rights, informed by his decision to accept an appointment by the governor, [were] not

clearly established at a sufficient level of particularity.” (ECF No. 49-1 at p. 11.) He urges that

Plaintiff’s “title of deputy director, his classification as a political special appointee, the Office’s

statutory responsibilities, and the nature of the politically-influenced matters that the Office

addressed—render this case the type of legally uncertain terrain.”6 Id. at p. 12. The applicable

law at issue here relates to a public employee’s First Amendment rights and the applicability of the

Elrod-Branti exception.

Accordingly, consistent with the practice detailed above, the court considers with

specificity the right asserted and controlling precedent based on the facts as alleged, the undisputed

record properly considered, and the relevant statutory scheme. The First Amendment, made

applicable to the states by the Fourteenth Amendment, protects both freedom of speech and “the

right to be free from retaliation by a public official for the exercise of that right.” Bland v. Roberts,

730 F.3d 368, 373 (4th Cir. 2013), as amended (Sept. 23, 2013) (quoting Suarez Corp. Indus. v.

McGraw, 202 F.3d 676, 685 (4th Cir. 2000)); see U.S. CONST. AMEND. I (“Congress shall make no

law . . . abridging the freedom of speech.”). The Elrod-Branti exception presents a limitation on

a public employee’s First Amendment rights. Lawson v. Union Cnty. Clerk of Ct., 828 F.3d 239,

247 (4th Cir. 2016), as amended (July 8, 2016). In particular, the exception, which stems from the

Supreme Court’s decisions in Elrod v. Burns, 42 U.S. 347 (1976), and Branti v. Finkel, 445 U.S.

507 (1980), provides that “policymaking employees may be terminated for their political beliefs

if ‘party affiliation is an appropriate requirement for the effective performance of the public office

involved.’” Lawson, 828 F.3d at 247 (quoting Branti, 445 U.S. at 518). This “narrow exception”

was created “to give effect to the democratic process.” Jenkins v. Medford, 119 F.3d 1156, 1161

(4th Cir. 1997).

6 As set forth in the court’s order at ECF No. 57, the court declines at this stage to consider whether Plaintiff’s claims

are barred by the Elrod-Branti exception as a matter of law. Instead, the court’s analysis here turns on whether

Defendant McAdams’ conduct was “clearly established” as unlawful at the time of the purported violation in view of

controlling First Amendment precedent, including the Elrodi-Branti exception.

As was clearly established at the time of Plaintiff’s termination, “the ultimate inquiry”

underlying the applicability of this exception “is not whether the label ‘policymaker’ or

‘confidential’ fits a particular position; rather, the question is whether the hiring authority can

demonstrate that party affiliation [or political allegiance] is an appropriate requirement for the

effective performance of the public office involved.” Branti, 445 U.S. at 518 (alteration in

original). The Fourth Circuit has adopted a two-part test for conducting the Elrod-Branti analysis.

Bland, 730 F.3d at 375. First, the court considers whether the plaintiff’s position “involve[s]

government decisionmaking on issues where there is room for political disagreement on goals or

their implementation.” Stott v. Haworth, 916 F.2d 134, 141 (4th Cir. 1990). If so, the court next

“examine[s] the particular responsibilities of the position to determine whether it resembles a

policymaker, a privy to confidential information, a communicator, or some other office holder

whose function is such that party affiliation or political allegiance is an equally appropriate

requirement.” Bland, 730 F.3d at 375 (citation modified).

The first step “examine[s] the issues dealt with by the employee ‘at a very high level of

generality,’ while ‘[t]he second step requires a much more concrete analysis of the specific position

at issue.’” Bland, 730 F.3d at 375 (quoting Fields v. Prater, 566 F.3d 381, 386 (4th Cir.

2009)). “At the second step, ‘courts focus on the powers inherent in a given office, as opposed to

the functions performed by a particular occupant of that office.’” Id. (quoting Stott, 916 F.2d at

142.) Accordingly, under the second step, the inquiry “focus[es] on the job description for the

position in question and ‘only look[s] past the job description where the plaintiff demonstrates

some systematic unreliability, such as where the description has been manipulated in some manner

by officials looking to expand their political power.’” Id. (quoting Nader v. Blair, 549 F.3d 953,

961 (4th Cir. 2008)). In the context of qualified immunity in view of Bland, the law is clearly

established that an official “must carefully evaluate the job duties of” the employee “in order to

determine whether the Elrod-Branti exception applies.” See Claridy v. Anderson, No. CIV.A.

ELH-13-02600, 2015 WL 1022401, at *22 (D. Md. Mar. 9, 2015).

The question here then is whether, based on the allegations and the undisputed record

before the court, a reasonable official would have been on notice that terminating Plaintiff for his

Facebook posts was manifestly unlawful. See deWet, 157 F.4th at 349, supra. Upon consideration

of the allegations at issue here (accepted as true), against the backdrop of the Elrod-Branti

exception and the sophisticated balancing of interests required under the First Amendment, see

Fowler, 760 F. Supp. 3d at 427, supra, the court is persuaded, as Defendant McAdams argues, that

the parameters of Plaintiff’s First Amendment right were not “clearly established” such that a

reasonable person in Defendant McAdams’ position would understand that Plaintiff’s termination

violated the law. The court finds disposition of Defendant McAdams’ qualified immunity defense

to be warranted at the present stage based on the relevant statutory scheme and the presently

undisputed allegations and record at issue. Importantly, while the parties disagree about what legal

conclusions should be drawn from the applicable facts, the material facts themselves are

undisputed.

In particular, it is undisputed that Plaintiff held a political special appointment and that,

according to Maryland’s statutory designation, such positions, inter alia, “relate[] to political

interests or concerns,” and either “require[]the provision of meaningful direct or indirect input into

the policy-making process” or “provide[] access to confidential information.”7 See ECF No. 7-3;

ECF No. 56 at p. 3; MD. CODE ANN., STATE PERS. & PENS. § 6-405(b). Of note, while not entitled

7 Although Plaintiff does not dispute that his position was a political special appointment or the Position Description

detailing the duties of the Deputy Director, Plaintiff does dispute that such duties involved policymaking or formation.

(ECF No. 56 at pp. 4–5.)

to “absolute deference,” See McCrerey v. Allen, 118 F.3d 242, 245 (4th Cir. 1997), Plaintiff’s

position as a political special appointee “creates a presumption at law that discharge or demotion

was proper.” Stott, 916 F.2d at 142.

While Plaintiff urges that GOCI “oversees non-partisan functions,” a reasonable official

could certainly find that at least some of the work of GOCI, including that which pertains to racial

minority communities and, as Defendant McAdams frames it, “cultural values and public policy,”

“involve[s] government decisionmaking on issues where there is room for political disagreement

on goals or their implementation.” See Stott, 916 F.2d at 141; ECF No. 49-1 at p. 4. The position

of Deputy Director similarly deals in these sorts of topics. Not only is the position statutorily

designated as one that either provides input into the policy-making process or has access to

confidential information, see MD. CODE ANN., STATE PERS. & PENS. § 6-405(b), but it also includes

duties of representing GOCI and the Governor’s office at relevant meetings and trainings,

leveraging community relationships to advance GOCI’s goals, developing and initiating the goals

of the Commission on Caribbean Affairs, including coordinating its activities and operations, and

promoting “public education and awareness of issues and concerns of Native Americans in

Maryland.” (Position Description, ECF No. 7-4.) Contrary to Plaintiff’s contention, such duties

are not merely logistical in nature. (ECF No. 56 at p. 4.) A reasonable official could conclude,

consistent with established precedent, that such duties instead resemble those of “a policymaker,

a privy to confidential information, a communicator, or some other office holder whose function

is such that party affiliation or political allegiance is an equally appropriate requirement,” see

Bland, 730 F.3d at 375, supra (citation modified), especially against the relevant statutory

backdrop confirming same.8 See MD. CODE ANN., STATE PERS. & PENS. § 6-405(b).

Simply put, in view of the foregoing, controlling authority on a public employee’s First

Amendment rights and application of the Elrod-Branti exception at the relevant time would not

have put a reasonable official on notice that the conduct alleged violated clearly established law.

See deWet, 157 F.4th at 349, supra. The relevant caselaw as applied to the allegations here can

hardly be said to present a “bright line.” See Fields v. Prater, 566 F.3d 381, 389 (4th Cir. 2009)

(noting that “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing

bright lines”) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).

The authority on which Plaintiff relies in support of his assertion that applicable law was

sufficiently clearly established is unavailing. (ECF No. 56 at pp. 4–5.) It is certainly clearly

established that the Supreme Court has recognized “the right of employees to speak on matters of

public concern.” City of San Diego, Cal. v. Roe, 543 U.S. 77, 80 (2004) (citing Pickering v. Bd.

of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563 (1968); Connick v. Myers,

461 U.S. 138 (1983)). This is also true where an employee “decides to express his views privately

rather than publicly.” Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414 (1979). The

precedent also supports, as Plaintiff argues, First Amendment protection of speech in the context

of social media. See Packingham v. North Carolina, 582 U.S. 98 (2017) (holding that “to foreclose

access to social media altogether is to prevent the user from engaging in the legitimate exercise of

First Amendment rights”).

8 Plaintiff does not allege that the Position Description is “systematical unreliab[le]” or “has been manipulated in some

manner by officials.” Bland v. Roberts, 730 F.3d 368, 375 (4th Cir. 2013), as amended (Sept. 23, 2013). Indeed, he

contends the court “must” consider the Termination Letter. (ECF No. 56 at p. 2.)

But the fact that these cases generally pertain to or acknowledge First Amendment rights

of public employees or protection of free speech on social media is of no moment here. Binding

precedent is clear that “certain public employees can be terminated for political association in order

to give effect to the democratic process.” McCaffrey v. Chapman, 921 F.3d 159, 164 (4th Cir.

2019) (citing Branti v. Finkel, 445 U.S. 507 (1980), and Elrod v. Burns, 427 U.S. 347 (1976)).

The court’s consideration of qualified immunity here instead turns on whether it was clearly

established by applicable law, including the Elrod-Branti exception, that termination of Plaintiff

based on his social media posts violated his First Amendment rights. The cases cited by Plaintiff

do not show that it was “clearly established” that Plaintiff’s termination was unlawful based on

existing precedent.

Accordingly, based on the foregoing—namely, Plaintiff’s political special appointment,

the role of GOCI and its Deputy Director, and binding precedent discussing the Elrod-Branti

exception at the time, the court agrees that Defendant McAdams is immune from suit by operation

of qualified immunity because a reasonable person in Defendant McAdams position would not

have been on notice that termination of Plaintiff was manifestly unlawful (based on controlling

authority at the time). See deWet, 157 F.4th at 349 and Merch, 677 F.3d at 665–66, supra. Even

assuming without deciding that “the record at this stage does not permit an ultimate decision as to

whether” Plaintiff’s position was a policymaker, a privy to confidential information, a

communicator, or otherwise had a function such that party affiliation or political allegiance is an

equally appropriate requirement, the record nonetheless “adequately supports” Defendant

McAdams’ contention “that it was objectively reasonable for [him] to believe that it was.”9 See

9 Plaintiff’s contention that “claims of mission consistency . . . may require discovery” is speculative and not

compelling when the court’s assessment of qualified immunity turns on the presently undisputed allegations and

record before the court. (ECF No. 56 at p. 5.)

McEvoy v. Spencer, 124 F.3d 92, 105 (2d Cir. 1997). The court will therefore grant Defendant

McAdams’ Motion to Dismiss and dismiss Plaintiff’s sole remaining claim.10

IV. SURREPY MOTION

On August 11, 2025, more than two months after the briefing for the Motion to Dismiss

had concluded, Plaintiff filed his Surreply Motion based on what Plaintiff refers to as “new factual

assertions and characterizations” raised in Defendant McAdams’ reply. (ECF No. 59 ¶ 2.)

Plaintiff purports to attach the Surreply as Exhibit 1, but Exhibit 1 is a series of attachments. (ECF

No. 59-1.)

Pursuant to Local Rule 105.2(a), “[u]nless otherwise ordered by the Court, surreply

memoranda are not permitted to be filed.” Even disregarding the timeliness concern of Plaintiff’s

Surreply Motion, the court is not persuaded to grant Plaintiff’s Surreply Motion for a number of

reasons. First, Plaintiff has not actually filed any surreply; instead, he has submitted a series of

documents, the bases for which are unclear. Moreover, as set forth above and in the court’s earlier

opinion, courts generally do not consider matters outside the pleadings when ruling on a Rule

12(b)(6) Motion. In the absence of the proposed surreply, the court is unable to discern the purpose

of the proffered exhibits or any basis on which Plaintiff contends they should be considered.11

Further still, Plaintiff’s challenge concerns what he purports are disputed facts, but adjudication of

the Motion to Dismiss does not bear on, or involve, disputes of fact. As made clear, supra, the

court accepts Plaintiff’s allegation as true in ruling on the instant Motion to Dismiss; the court’s

10 Plaintiff contends qualified immunity is unavailable to Defendant McAdams because the Complaint alleges he

intentionally targeted Plaintiff’s speech. (ECF No. 56 at p. 5.) Plaintiff mistakes the point. The Elrod-Branti

exception of course contemplates the intentional act of employment termination; this does not bar application of the

qualified immunity doctrine. See, e.g., Bland v. Roberts, 730 F.3d 368, 394 (4th Cir. 2013), as amended (Sept. 23,

2013) (concluding defendant was entitled to qualified immunity); Claridy v. Anderson, No. CIV.A. ELH-13-02600,

2015 WL 1022401, at *23 (D. Md. Mar. 9, 2015) (same).

11 Plaintiff’s Surreply Motion notes that it is “supported by Plaintiff’s sworn declaration and exhibits,” but the court

is unable to locate same. (ECF No. 59 ¶ 4.)

analysis solely turns on whether, based on the allegations of the Complaint and unchallenged

documents properly considered on the instant Motion, Defendant McAdams has shown an

entitlement to qualified immunity. Accordingly, the court will deny the Surreply Motion.

V. CONCLUSION

For the reasons set forth herein, Defendant McAdams’s Motion to Dismiss (ECF No. 49)

will be granted, and Plaintiff’s Surreply Motion (ECF No. 59) will be denied.12

December 15, 2025 /s/

Julie R. Rubin

United States District Judge

12 Defendant seeks dismissal with prejudice. Consistent with Fourth Circuit precedent, the court will dismiss

Plaintiff’s § 1983 claim against Defendant McAdams in his individual capacity with prejudice because it concludes

he is entitled to qualified immunity. See Hong Tang v. Univ. of Baltimore, 782 F. App’x 254, 255 (4th Cir. 2019)

(citing Moore ex rel. Moore v. Briggs, 381 F.3d 771, 775 (8th Cir. 2004) and explaining that “dismissal for . . .

qualified immunity would be with prejudice”); Allen v. Cooper, 895 F.3d 337, 358 (4th Cir. 2018), aff’d, 589 U.S.

248 (2020) (concluding that state officials sued in their individual capacities were entitled to qualified immunity and

remanding with instructions to the district court “to dismiss with prejudice” such claims).