Don BLANKENSHIP Plaintiff v. Joe MANCHIN, III, in his individual capacity and in his official capacity as Governor of the State of West Virginia, Defendant, 410 F. Supp. 2d 483

MEMORANDUM OPINION AND ORDER COPENHAVER, District Judge. Pending are defendant’s motions (1) to dismiss, and (2) to stay discovery pending a ruling on the motion to dismiss. The motions were filed respectively on September 13 and October 31, 2005. The court ORDERS that plaintiffs motion for leave to file a surreply, filed November 4, 2005, be, and it hereby is, granted. I. The defendant contends that this “action is a politically motivated publicity stunt with no basis in law or fact .... [that] should be dismissed at the threshold.” (Def.’s Mem. in Supp. at 1).

At this early stage of the litigation, the court is not at liberty to make value judgments concerning the parties’ respective factual positions. As discussed more fully within, the court is required instead to “ ‘assume the truth of the material facts as alleged in the complaint.’ ” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 125 S.Ct. 1497, 1503, 161 L.Ed.2d 361 (2005) (quoting Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991)).

As noted by the leading commentators on the Federal Rules of Civil Procedure, “the purpose of a motion under Federal Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; the motion is not a procedure for resolving a contest between the parties about the facts or the substantive merits of the plaintiffs case.” 5B Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.2004). In accordance with these principles for handling defenses interposed during the infancy of a civil action, the court fully credits, as it must, plaintiffs version of the events.

II. Plaintiff Don Blankenship is a citizen of Mingo County, West Virginia. (Comply 6). He is the chairman, chief executive officer, and president of Massey Energy Company (“Massey”). (Id.). Massey, a non-party, is one of the largest coal producers and employers in West Virginia. (Id. ¶ 9). Defendant Joe Manchin III is the governor of the State of West Virginia and residing necessarily in Kana-wha County. (CompIV 7). Plaintiff has been a very active, recent participant in West Virginia politics.

In 2004, he contributed substantial sums of money to oppose the re-election bid of Warren McGraw, then a sitting justice on the West Virginia Supreme Court of Appeals. (Id. ¶ 9) In 2005, plaintiff publicly opposed legislation supported by the defendant to finance workers’ compensation benefit plans through an increased coal severance tax. (Id.) Later in 2005, plaintiff distinguished himself as a vocal, and well-financed, opponent of the defendant’s plan to sell $5.5 billion in bonds to cover state pension programs (“bond proposal” or “plan”). (Id. ¶ 10).

The bond proposal required voter ratification at a special election on June 25, 2005. (Id.) In the months leading up to the special election, a “contentious statewide campaign was waged between proponents of the ... [bond proposal] and those who opposed” it. (Id. ¶ 13). Beginning in early June 2005, plaintiff voiced his opposition to the bond proposal through a variety of media outlets and interviews. (Id. ¶ 14).

Among other things, he personally financed television, radio, and direct mail advertisements encouraging rejection of the bond proposal. (Id.) Plaintiff also personally phoned the defendant to inform him of his opposition to the plan. (Id.) The defendant launched a corresponding campaign in support of the plan. (Id. ¶ 15).

As part of that effort, it is alleged that the defendant: devoted a disproportionate amount of ... resources to negative public comments and advertisements against Plaintiff, including inaccurate characterizations of Plaintiff as an outsider who was simply interested in raising taxes and who sought revenge for the recent raise in severance taxes. Upon information and belief, during the course of the campaign, members of the Governor’s staff even made inquiries at the office of the West Virginia Secretary of State regarding Plaintiffs residency. (Id.).

Some of the referenced public comments came on June 17, 2005, during defendant’s appearance at American Electric Power Company’s John Amos plant in Putnam County. (Id. ¶ 16). Following a brief speech, the defendant entertained media inquiries.

During those comments, “the Governor threatened Plaintiff by warning that the government would scrutinize the affairs of Plaintiff and Massey even more closely in light of Plaintiffs decision to participate in the public debate over” the bond proposal. (Id.) The defendant was quoted as saying “ ‘I think that is justified now, since Don has jumped in there with his personal wealth trying to direct public policy.’ ” (Id. ¶ 16) (quoting Ken Ward, Jr., Manchin Still Sparring Over Pension Bond Bid, Charleston Gazette, 2005 WLNK 9764145 (Jun. 18, 2005)). In context, the above-cited news

article provides as follows: Gov. Joe Manchin continued Friday to spar with Massey Energy President Don Blankenship over the governor’s multimillion-dollar pension bond proposal. The governor said Blankenship, who has launched a personal campaign against the bond plan, should expect tougher scrutiny of his business affairs. “I think that is justified now, since Don has jumped in there with his personal wealth trying to direct public policy,” Manchin said. After his brief speech at AEP’s pollution-control project announcement at its John Amos Power Plant outside St.

Al-bans, Manchin was quizzed repeatedly by reporters about his pension bond battle with Blankenship.

In a later interview, Manchin declined to say if he thought Blankenship was “a good corporate citizen.” “I’m not going to sit here and try to rag on anyone,” Manchin said. “I truly appreciate and value every business person who creates jobs in our state,” the governor said. “[But] I want Don to use his creative energies in a good, positive manner.” Manchin said he was puzzled that Blankenship would not agree to serve on a pension bond advisory committee before launching his campaign against the governor’s proposal. “The most frustrating thing going on is that there’s a person who has been very successful financially in the business world, and when someone asked him to be a part of a positive movement in West Virginia, he said, ‘No. ’ ” When asked, Manchin said that Blankenship’s campaign against the pension bonds should and will prompt even more scrutiny of Blankenship, who is arguably already the state’s highest-profile coal executive. “If you want to throw yourself into public policy, your record is open,” the governor said.

Manchin declined to personally offer any specific criticisms of the way Massey or Blankenship has operated, except to note that the company has had numerous run-ins with state environmental regulators. “I think there have been many violations that hopefully they’ve been able to correct,” the governor said. Ken Ward, Jr., Manchin Still Sparring Over Pension Bond Bid, Charleston Gazette, 2005 WLNR 9764145 (Jun. 18, 2005) (emphasis supplied). On June 25, 2005, voters rejected the bond proposal. (Comply 18).

On June 30, 2005, the West Virginia Department of Environmental Protection (“DEP”) gave preliminary approval to Massey’s application for several permits, including one to build a second coal silo in Raleigh County. (Id. ¶ 19).

Plaintiff contends this preliminary approval indicates the proposed silo satisfied all statutory and regulatory prerequisites. (Id.) Plaintiff alleges that the defendant “publicly ordered members of his senior staff to meet thereafter with DEP representatives, the Department of Health and Human Resources and the West Virginia Office of Miners’ Health, Safety and Training to investigate alleged ‘possible safety concerns’ related to the site.” (Id. (quoted authority omitted)).

Counsel advised the court at the scheduling conference on December 15, 2005, that the defendant so directed his staff the same day DEP gave its preliminary approval.

Plaintiff contends “[tjhese same concerns had already been raised by various interest groups without any meaningful response from the Governor prior to the special election and the permit approval.” (Id.) Plaintiff thus concludes, on “information and belief, the Governor caused this investigation not out of concern for the safety of residents, but instead, in retaliation for Plaintiffs campaign against the” bond proposal. (Id.) Plaintiff further alleges that “a potential landlord of Massey informed [it] that it would be reluctant to enter into a lease with Massey because, based on the Governor’s threats, Massey might be the subject of retaliatory regulatory sanctions that would impair Massey’s ability to perform on any lease.” (Id. ¶20).

Based upon these two factual predicates, plaintiff summarizes the nature of his claim in paragraph 21 of the complaint: The Governor’s threat to cause state regulators to investigate and exercise greater scrutiny over Plaintiff and Massey in retaliation for Plaintiffs public opposition to the ... [bond proposal] interfered with and restrained Plaintiff in the exercise of his First Amendment right to free speech.

Because Massey is a publicly traded corporation, to which Plaintiff owes fiduciary duties as an officer and director, the Governor’s threats pose a difficult dilemma, in which Plaintiff is forced to choose between continuing to exercise his First Amendment rights, on the one hand, and protecting the business affairs of Massey from retaliatory government scrutiny on the other. (Id. ¶ 21.) The prayer for relief seeks a judgment that includes the following elements: 1) Declaring] that Defendant violated Plaintiffs First Amendment right to free speech by stating ... that the government would scrutinize the affairs of Plaintiff and Massey more closely in light of Plaintiffs decision . to participate in the public debate over the ... [bond proposal]; 2) Permanently enjoin[ing] Defendant, his successor in office, agents, employees and persons acting in concert with him, from threatening governmental investigation and/or regulation of Plaintiff or Massey in retaliation for Plaintiffs exercise of his First Amendment right to free speech; 3) Permanently enjoinfing] Defendant, his successor in office, agents, employees and persons acting in concert with Mm, from any form of retaliation against Plaintiff or Massey in response to Plaintiffs exercise of his First Amendment right to free speech; 4) Awarding] Plaintiff his compensatory damages in an amount to be determined at trial; 5) Granting] Plaintiff his costs ... including reasonable attorney’s fees, pursuant to 42 U.S.C. § 1988 and any other applicable authority .... (Compl. prayer for relief ¶¶ 1-5).

The defendant moves to dismiss, asserting:(

l) the complaint fails to adequately allege a First Amendment violation, (2) plaintiff lacks standing to assert a claim on behalf of Massey, the party that suffered the alleged harms, (3) the defendant is entitled to qualified immunity on the individual capacity claim, (4) plaintiff is not entitled to monetary damages on the official capacity claim, and (5) plaintiff is not entitled to injunctive relief absent an ongoing violation of federal law. III. A.

Standards Governing Motions Pursuant to Rules 12(b)(6) and 12(b)(1) ■ A motion to dismiss pursuant to Rule 12(b)(6) should not be granted “unless it appears certain that the plaintiff can prove no set of facts which would support ... [his] claim and would entitle ... [him] to relief.” Greenhouse v. MCG Capital Corp., 392 F.3d 650, 655 (4th Cir.2004) (quoting Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). Additionally, the “complaint [is viewed] in the light most favorable to the plaintiff and ... all well-pleaded allegations” are accepted as true. South Carolina Dept. of Health & Environ.

Control v. Commerce & Industry Ins. Co., 372 F.3d 245, 255 (4th Cir.2004) (quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir.2002)). Further, beyond the facts alleged, the court is required to “draw[] all reasonable ... inferences from those facts in the plaintiffs favor .... ” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). A complaint need not “make a case” against a defendant or “forecast evidence sufficient to prove an element” of the claim. Chao v. Rivendell Woods, Inc., 415 F.3d 342, 349 (4th Cir.2005) (quoting Iodice v. United States, 289 F.3d 270, 281 (4th Cir.2002)).

Rather, it need only “allege facts sufficient to state elements” of the claim. Id.; Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.2003). A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) may be presented in one of two ways. United States v. North Carolina, 180 F.3d 574, 580 (4th Cir.1999). The one chosen by defendant here is a challenge to the complaint for failure to allege facts upon which subject matter-jurisdiction can be based. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982).

In such a situation, the facts alleged by plaintiff are assumed to be true, giving him the same procedural protection as he would be accorded by Rule 12(b)(6). Id. B. Sufficiency of the Claim Pled and Qualified Immunity 1. Governing Law In Trulock v. Freeh, 275 F.3d 391 (4th Cir.2001), our court of appeals observed as follows: The First Amendment guarantees an individual the right to speak freely, including the right to criticize the government and government officials. To protect that right, public officials are prohibited from retaliating against individuals who criticize them.

Fear of retaliation may chill an individual’s speech, and, therefore, permit the government to “ ‘produce a result which [it] could not command directly.’ ” Id. at 404. The analysis governing such a claim is controlled by our court of appeals’ decision in Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.2000). MeGraui involved a First Amendment retaliation claim by a direct mail marketer and some of its customers against the Attorney General of West Virginia and one of his deputies.

The plaintiffs attributed a variety of alleged defamatory statements to the defendants that ostensibly chilled plaintiffs’ exercise of their First Amendment rights. The court of appeals in MeGraui laid down the now well-established three-part test for ascertaining the viability of a

section 1983, First Amendment retaliation claim by a private citizen against a public official: In light of these principles, a § 1983 retaliation plaintiff must establish three elements in order to prove a First Amendment § 1983 retaliation claim. First, the plaintiff must demonstrate that his or her speech was protected. Second, the plaintiff must demonstrate that the defendant’s alleged retaliatory action adversely affected the plaintiffs constitutionally protected speech. Third, the plaintiff must demonstrate that a causal relationship exists between its speech and the defendant’s retaliatory action.

Id. at 686 (citations omitted); see also, e.g., Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir.2005); Trulock, 275 F.3d at 404. Regarding the second element, the court of appeals has held that “a plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct would likely deter ‘a person of ordinary firmness’ from the exercise of First Amendment rights.” Constantine, 411 F.3d at 500 (quoted authority omitted).

Regarding the causation element, Constantine provides as follows: In order to establish this causal connection, a plaintiff in a retaliation case must show, at the very least, that the defendant was aware of her engaging in protected activity. “Knowledge alone, however, does not establish a causal connection” between the protected activity and the adverse action.

There must also be some degree of temporal proximity to suggest a causal connection. “A lengthy time lapse between the [public official’s] becoming aware of the protected activity and the alleged adverse ... action ... negates any inference that a causal connection exists between the two.” Id. (quoted authority omitted).

From a general standpoint, the court of appeals in MeGraui further observed as follows: Determining whether a plaintiffs First Amendment rights were adversely affected by retaliatory conduct is a fact intensive inquiry that focuses on the status of the speaker, the status of the retaliator, the relationship between the speaker and the retaliator, and the nature of the retaliatory acts. The nature of the alleged retaliatory acts has particular significance where the public official’s acts are in the form of speech.

Not only is there an interest in having public officials fulfill their duties, a public official’s own First Amendment speech rights are implicated. Thus, where a public official’s alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow, such speech does not adversely affect a citizen’s First Amendment rights, even if defamatory. McGraw, 202 F.3d at 686 (emphasis added).

The foregoing authorities guiding the Rule 12(b)(6) claim-sufficiency analysis are also relevant to the qualified immunity calculus. This is so in view of the two-step process culminating in a qualified immunity ruling. The Supreme Court summed up the analysis in Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001): A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? ....

If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition ....

In this litigation, for instance, there is no doubt that ... [it is] clearly established] ... that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough.

Rather ... “that the right the official is alleged to have violated must have been ‘clearly established’ in a ... particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” The relevant, dis-positive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (citations omitted).

The Supreme Court in Saucier also observed that timing is critical when considering this species of immunity defense: Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.

Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” The privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” As a result, “we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Id. at 200-01, 121 S.Ct. 2151. 2. The Claim-Sufficiency Examination and Step One in the Qualified Immunity Analysis a.

The First McGraiv Element The court first examines if, taking the facts in the light most favorable to the plaintiff, the complaint’s allegations set out a violation of a constitutional right. Turning to the McGraiv factors, the court has little difficulty determining that plaintiff engaged in protected speech. At the center of this controversy is plaintiffs well-documented participation in state politics on a very divisive public-policy question.

Specifically, he devoted an arsenal of media buys and interviews to promoting his position on one side of the political divide regarding an issue of paramount public importance that was ultimately presented to the statewide electorate. This type of political speech is constitutionally sacrosanct. See New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (“The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions.

The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”) (citations omitted); Trulock, 275 F.3d at 403 (“The First Amendment guarantees an individual the right to speak freely, including the right to criticize the government and government officials.”). Indeed, the defendant does not appear to contend otherwise. b.

The Second McGraw Element The center of gravity for the parties’ dispute appears to rest on the second factor, namely, whether it has been sufficiently demonstrated at this stage of the litigation that the defendant’s alleged threats and retaliatory action adversely affected plaintiffs constitutionally protected speech. The analysis begins with examination of the status of the speaker, the retaliator, the relationship between the two, and the nature of the alleged retaliatory acts.

The court further examines (1) whether the defendant’s comments contained a threat, coercion, or intimidation intimating imminent sanction or adverse regulatory action, and (2) whether the allegedly retaliatory conduct would deter ‘a person of ordinary firmness’ from exercising his First Amendment rights. This analysis, again, is undertaken with an obedient eye toward the uncompromising, plaintiff-centered Rule 12(b)(6) standard. The speaker Is a private citizen holding the reins of one of the state’s largest coal producers. The alleged retaliator is the state’s chief law enforcement officer.

The relationship between the two is best exhibited by the fact that the industry in which plaintiff finds himself is also one over which the state exercises robust oversight powers. See, e.g., Jeff L. Lewin et al., Unlocking the Fire: a Proposal for Judicial or Legislative Determination of the Ownership of Coalbed Methane, 94 W. Va. L.Rev. 563, 599 (1992) (“The coal industry ... [is] heavily regulated-”). According to plaintiff, the alleged retaliatory acts include “(

i) a threat of tougher governmental scrutiny of Mr. Blankenship; (ii) a threat of tougher governmental scrutiny of his employer, Massey; and (iii) a bad-faith investigation into alleged ‘possible safety concerns’ related to Massey-owned coal silos in Raleigh County.” (Pl.’s Resp. at 8). Plaintiff thus alleges both a threat and a threat ostensibly accompanied by retaliatory acts. One must carefully examine plaintiffs categorization, and the content of the news

article central to the dispute, to determine whether the complaint’s allegations satisfy the rigors of the second McGraw element. The news

article must first be placed in an appropriate temporal and substantive context. The piece’s contents are derived from the defendant’s media responses specific to the bond proposal and immediately following a speech he delivered just eight (8) days before the special election.

The comments came after the defendant was “quizzed repeatedly by reporters about his pension bond battle with Blankenship.” One can reasonably infer the defendant’s disapproval of the content of plaintiffs speech by reference to his suggestion that plaintiff should “use his creative energies in a good, positive manner.” This statement indicates disapproval of both (1) plaintiffs contrary position on the bond proposal, and (2) his manner of propagating his views.

There are several considerations, taken in the light most favorable to the plaintiff, that work in satisfaction of the required coercion or intimidation suggesting imminent sanction or adverse regulatory action. First, one’s attention is drawn to the reporter’s paraphrased observation by the defendant that plaintiff “should expect tougher scrutiny of his business affairs” as a result of plaintiffs position on the bond proposal.

The suggestion is followed immediately by the quoted statement “that [tougher scrutiny] is justified now, since Don has jumped in there with his personal wealth trying to direct public policy.” Second, the

article notes that when the defendant was asked whether plaintiffs media campaign opposing the bond proposal “should and will prompt even more scrutiny of’ plaintiff, the defendant did not disavow the suggested course of action but instead somewhat equivocally observed that “If you want to throw yourself into public policy, your record is open .... ” The defendant then further observed that the corporate entity led by the plaintiff, an entity that is the subject of ongoing, intensive regulation by the state, has committed “many [environmental] violations that hopefully they’ve been able to correct In addition to the alleged threats, plaintiff points separately to accompanying acts of retaliation.

The defendant’s attributed observation concerning closer scrutiny of plaintiffs business affairs was followed by DEP’s preliminary approval of Massey’s coal silo plan just five days after the election. That DEP approval, however, was then ultimately upended by the apparently contemporaneous order from the defendant to members of his senior staff to meet with various state regulators to investigate alleged possible safety concerns related to the proposed silo. Plaintiff alleges the safety concerns were already fully aired to the DEP and not previously a personal concern of the defendant.

Plaintiff further asserts it can be inferred from this time line of events that the defendant was simply making good on his perceived promise of increased scrutiny of plaintiff and Massey. Each of these considerations will no doubt be the subject of extensive discovery and further development. This additional investigation will likely reveal much play in the joints on both sides of the adversarial divide. Additionally, one can only guess how jurors might weigh the competing explanations and proposed inferences if given the opportunity to pass upon the evidence in the case.

At this juncture, however, and again taking plaintiffs version of events and reasonable inferences as fully accurate, the court concludes both the alleged threats and retaliatory conduct would deter “a person of ordinary firmness” from exercising his or her First Amendment rights.

From plaintiffs perspective, the alleged factual scenario “pose[s] a difficult dilemma, in which ... [plaintiff] is forced to choose between continuing to exercise his First Amendment Rights, on the one hand, and, on the other, ceasing or scaling back his exercise of those rights in order to protect the business affairs of Massey, as well as his own business affairs, from retaliatory government scrutiny.” (PL’s Resp. at 5-6.) Lending further credence to the objective understanding of the defendant’s comments is the situation Massey encountered with its potential lessor.

This apparently disinterested observer, based on defendant’s comments, feared Massey would be targeted for governmental sanctions that would impair its obligations under the potential lease. c. The Third McGraw Element The court next analyzes the third and final factor, namely, whether plaintiff has demonstrated a causal relationship between his speech and the defendant’s alleged retaliation. It is undisputed that defendant was aware that plaintiff was engaged in protected activity.

Further, as illustrated by the foregoing discussion, there is a relatively tight fit between plaintiffs protected activity, the perceived threatening remarks, and the alleged fruits of those remarks. This close temporal perspective is suggestive of a causal connection and the time line is sufficient at this stage for causation purposes. See Constantine, 411 F.3d at 501 (“At most, four months elapsed from the time Constantine complained about Professor Lund’s exam and the grade appeals process to the time of the defendants’ alleged retaliatory conduct.

Although we noted that a nine-month lapse created a ‘very close question’ as to causal connection in Price, we nevertheless concluded that the plaintiffs claim survived a motion to dismiss.

Likewise, we are satisfied that Constantine’s complaint adequately alleges a causal connection between her First Amendment activity and the defendants’ alleged misconduct.”) Based upon the preceding discussion, the facts alleged can be taken at this early stage as satisfying the claim’s requirement that the defendant’s conduct violated plaintiffs right to be free from retaliation by a public official for the exercise of his First Amendment rights. 2.

Clearly Established Law The question under this second and final step in the qualified immunity analysis is “whether a reasonable [official] could have believed [the challenged conduct] to be lawful, in light of clearly established law” at the time of the alleged retaliation. Anderson v. Creighton, 488 U.S. 685, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

It is important to note that the law is clearly established for qualified immunity purposes not only when “the very action in question has previously been held unlawful,” but .also when “pre-existing law” makes the “unlawfulness” of the act “apparent.” Id. at 640, 107 S.Ct. 3034.

Distilled to its essence, in accordance with the plaintiff-friendly Rule 12(b)(6) standard, one must ask whether, in June 2005, a reasonable chief executive officer of a state could have believed that publicly threatening close governmental scrutiny of a political opponent’s business affairs, resulting in the reluctance of a potential landlord of the corporate entity managed by plaintiff to enter into a lease with it, was justified if based solely upon the content of the opponent’s speech.

Similarly, could a reasonable chief executive officer of a state have then believed that insinuating close governmental scrutiny of a political opponent’s business affairs, followed up just days later by actions putatively designed to retaliate against the corporate entity run by the opponent, was justified if based solely upon the content of the opponent’s speech. Our court of appeals in 2001 observed that “[i]t is well established that a public official may not misuse his power to retaliate against an individual for the exercise of a valid constitutional right.” Trulock, 275 F.3d at 405.

See also McGraw, 202 F.3d at 685. The court concludes, in view of the foregoing analysis, that the defendant has not shown entitlement to qualified immunity at this stage of the case. The court is nevertheless mindful of the chief executive officer’s sworn responsibility and solemn duty to faithfully execute the laws of the state of which he is Governor — a factor that is to be given due consideration throughout this litigation. C.

Standing After noting the complaint’s reference to the Massey silo controversy, and the landlord’s concern about entering into a lease agreement with Massey, the defendant asserts plaintiff lacks standing to pursue this action. The defendant relies primarily upon our court of appeals’ decision in Burke v. City of Charleston, 139 F.3d 401, 403 (4th Cir.1998), along with the well-settled principle that “a plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v.

Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). It is incumbent upon every federal plaintiff to establish standing to prosecute a civil action. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth, 422 U.S. at 498, 95 S.Ct. 2197. There are two types of standing that can be identified from Supreme Court precedent, both nicely summarized in Newdow: [O]ur standing jurisprudence contains two strands:

Article III standing, which enforces the Constitution’s case or controversy requirement ... and prudential standing, which embodies “judicially self-imposed limits on the exercise of federal jurisdiction[.]” ... The

Article III limitations are familiar: The plaintiff must show that the conduct of which he complains has caused him to suffer an “injury in fact” that a favorable judgment will redress.

Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses “the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiffs complaint fall within the zone of interests protected by the law invoked.” Newdow, 542 U.S. at 11-12, 124 S.Ct. 2301 (citations and quoted authority omitted).

In other cases, the Supreme Court has stated more particularly the elements of

Article III standing: On many occasions, we have reiterated the three requirements that constitute the “ ‘irreducible constitutional minimum’ ” of standing.

First, a plaintiff must demonstrate an “injury in fact,” which is “concrete,” “distinct and palpable,” and “actual or imminent.” Second, a plaintiff must establish “a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly trace[able] to the challenged action of the defendant, and not ... th[e] result [of] some third party not before the court.’” Third, a plaintiff must show the “ ‘substantial likelihood’ that the requested relief will remedy the alleged injury in fact.” McConnell v. Federal Election Comm’n, 540 U.S. at 225-26, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003).

Burke involved an artist who sought redress when a mural he had begun painting, on a building he did not own, was ordered removed by the city’s board of architectural review. One readily appreciates the standing shortcomings in that fact pattern. In contrast, plaintiff here has pled injuries in fact. These injuries are the chilling of, and retaliation for, protected speech. They arise from the defendant’s suggestion of tougher scrutiny of plaintiffs business affairs arising from plaintiffs vocal opposition to the bond proposal, along with the alleged bad faith silo investigation.

The second element is also satisfied. The injuries suffered by plaintiff are directly traceable to the defendant’s observations during media questioning on June 17 and directions to his senior staff on June 30 to become involved in the developing silo controversy. The defendant, however, appears concerned that plaintiff is attempting to impermissibly assert violations of Massey’s rights by alluding to the harm suffered by the corporate entity as a result of the silo controversy and the landlord’s reluctance to enter a lease agreement.

This is a decidedly myopic view of the theory behind this case, as illustrated by plaintiffs response: “The harm to Massey is relevant insofar as it demonstrates the means by which the Governor has attempted and is continuing to attempt to suppress Mr. Blankenship’s right to free speech.” (Pl.’s Resp. at 23-24.) As noted, given his multiple leadership positions within the company, plaintiff is undeniably at Massey’s helm. One bent on seeking to apply pressure to plaintiffs business pursuits, then, could reasonably be expected to target Massey. The third standing element is also satisfied.

Among other forms of relief, plaintiff seeks a declaration that the defendant violated plaintiffs First Amendment rights by making the challenged comments on June 17. One has difficulty imagining a closer nexus between one of the injuries in fact, being a threat of retaliation, and the relief sought, being the characterization of that threat as illegal chilling of protected speech. Should a finding of illegality occur, it would lead to, at a minimum, a prospective alteration in the defendant’s alleged unconstitutional treatment of plaintiff.

Based upon the foregoing, the court concludes plaintiff has adequately alleged standing. D. Other Arguments The defendant’s remaining arguments can be disposed of summarily. First, it is asserted that plaintiff is not entitled to recover damages on the claim against the defendant in his official capacity. This proposition is well-settled. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 666-69, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ballenger v. Owens, 352 F.3d 842, 845 (4th Cir.2003).

Equally clear, however, is that plaintiff may recover damages from the defendant in his individual capacity. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Sales v. Grant, 224 F.3d 293, 297 (4th Cir.2000). Second, defendant asserts plaintiff is not entitled to injunctive relief because of a failure to allege an ongoing violation of his First Amendment rights. Based upon the discussion in

section II.B, the court deems plaintiff to have adequately alleged an ongoing violation of federal law. Discovery, of course, may demonstrate otherwise. Dismissal of a claim for injunctive relief at this early stage of the case, however, would be inappropriate. Finally, for the first time in reply, defendant raises a Younger abstention challenge. Defendant asserts that on August 1, 2005, a Massey subsidiary, Goals Coal, appealed to the West Virginia Surface Mine Board challenging the DEP’s decision to revoke the permit that would have allowed construction of the Raleigh County coal silo.

Defendant asserts the state administrative proceeding is an adequate forum for resolving the portion of the retaliation claim dealing with the silo controversy. This argument fails for the reason that plaintiff is not a party to the state administrative proceeding. Since he is not a party, the state proceeding would obviously not provide him an opportunity to raise his constitutional claim. IV. Based upon the foregoing discussion, the court ORDERS as follows: 1.

That defendant’s motion to dismiss be, and it hereby is, denied, except as to the claim for damages against him in his official capacity which is dismissed; and 2. That defendant’s motion to stay discovery be, and it hereby is, denied as moot. The Clerk is directed to forward copies of this written opinion and order to all counsel of record. . Although the court normally does not consider extrinsic materials beyond the complaint in the midst of a Rule 12(b)(6) analysis, the news

article is an exception. It was attached to defendant’s motion to dismiss and quoted in the complaint at paragraph 16. Our court of appeals has observed as follows: Although as a general rule extrinsic evidence should not be considered at the 12(b)(6) stage, we have held that when a defendant attaches a document to its motion to dismiss, “a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.” Phillips v.

LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir.1999) American Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.2004). . The court notes it has received two pieces of correspondence from counsel for the defendant following the scheduling conference. Although each discusses elements of the time line of the events in this case, neither suggests in any way that the defendant's directions to his staff came at a time other than the day of preliminary approval by the DEP. .

Defendant counters in his reply brief that plaintiff has continued since the defendant’s June 17 comments to outspokenly criticize state government and the governor. The court notes the inquiry on the second element is largely objective rather than subjective. Further, were it otherwise, the argument would not necessarily spell the demise of plaintiff's claim. For example, plaintiff might assert he would have engaged in more speech, been more critical, or fashioned his speech in some different manner had the defendant's comments and additional alleged retaliation not entered the fray.

The retaliatory actions need only ''deter[,]” not halt altogether, the exercise of one's protected speech. See also Constantine, 411 F.3d at 500 (“We reject the defendants’ suggestion that this inquiry depends upon the actual effect of the retaliatory conduct on a particular plaintiff. We have never held that a plaintiff must prove that the allegedly retaliatory conduct caused her to cease First Amendment activity altogether. The cause of action targets conduct that tends to chill such activity, not just conduct that freezes it completely.”).

In any event, defendant’s argument is not the sort upon which the court could dismiss the case under Rule 12(b)(6), especially when raised for the first time in reply. . Defendant appears to suggest he is entitled to qualified immunity unless a binding case on all fours counseled against his alleged comments and actions. The law is to the contrary. See Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (holding that precise conduct need not have been previously held unlawful in order for qualified immunity to be forfeited); Amaechi v.

West, 237 F.3d 356, 362-63 (4th Cir.2001) (denying qualified immunity despite absence of factually similar precedent). . The court would ordinarily have first addressed the issue of standing, given its jurisdictional dimension. To facilitate the discussion of the issues, however, the court has deferred the inquiry to this later section. . This ruling does not preclude the defendant from later asserting that plaintiff is seeking relief (1) to which he is not entitled personally, (2) from entities that are not parties to this action, or (3) in an otherwise overbroad or inappropriate fashion.

Those arguments, however, are properly reserved for that juncture of the case, should it come, where the court undertakes to fashion declaratory or injunctive relief. .

Our court of appeals recently re-stated the settled test for determining the propriety of Younger abstention: "[A] federal court should abstain from interfering in a state proceeding, even though it has jurisdiction to reach the merits, if there is (1) an ongoing state judicial proceeding, instituted prior to any substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; and (3) provides an adequate opportunity for the plaintiff to raise the federal constitutional claim advanced in the federal lawsuit.” Moore v.

City of Asheville, 396 F.3d 385, 390 (4th Cir.2005) (citations omitted).