PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL ANDREW,
Plaintiff-Appellant,
v.
KEVIN P. CLARK (In his personal
capacity); LEONARD HAMM,
Baltimore Police Commissioner
(In his personal and official
capacity); BALTIMORE POLICE
DEPARTMENT; KENNETH BLACKWELL,
Deputy Police Commissioner,
Defendants-Appellees. No. 07-1184
NATIONAL FRATERNAL ORDER OF
POLICE; NATIONAL EMPLOYMENT
LAWYERS ASSOCIATION; PUBLIC
CITIZEN, INC.; THE AMERICAN CIVIL
LIBERTIES UNION OF MARYLAND;
GOVERNMENT ACCOUNTABILITY
PROJECT; REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS,
Amici Supporting Appellant.
2 ANDREW v. CLARK
MICHAEL ANDREW,
Plaintiff-Appellant,
v.
KEVIN P. CLARK (In his personal
capacity); LEONARD HAMM,
Baltimore Police Commissioner
(In his personal and official
capacity); BALTIMORE POLICE
DEPARTMENT; KENNETH BLACKWELL,
Deputy Police Commissioner,
Defendants-Appellees. No. 07-1247
NATIONAL FRATERNAL ORDER OF
POLICE; NATIONAL EMPLOYMENT
LAWYERS ASSOCIATION; PUBLIC
CITIZEN, INC.; THE AMERICAN CIVIL
LIBERTIES UNION OF MARYLAND;
GOVERNMENT ACCOUNTABILITY
PROJECT; REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS,
Amici Supporting Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(1:04-cv-03772-AMD)
Argued: January 27, 2009
Decided: April 2, 2009
ANDREW v. CLARK 3
Before WILLIAMS, Chief Judge, WILKINSON, Circuit
Judge, and Arthur L. ALARCÓN, Senior Circuit Judge of
the United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Vacated and remanded in part and affirmed in part by pub-
lished opinion. Senior Judge Alarcón wrote the opinion, in
which Chief Judge Williams joined. Judge Wilkinson wrote a
separate concurring opinion.
COUNSEL
ARGUED: Howard Benjamin Hoffman, Rockville, Mary-
land, for Appellant. Bonnie Ilene Robin-Vergeer, PUBLIC
CITIZEN LITIGATION GROUP, Washington, D.C., for
Amici Supporting Appellant. William Rowe Phelan, Jr.,
BALTIMORE CITY DEPARTMENT OF LAW, Baltimore,
Maryland, for Appellees. ON BRIEF: Karen Stakem Hornig,
Chief Legal Counsel, Office of Legal Affairs, BALTIMORE
POLICE DEPARTMENT, Baltimore, Maryland; George A.
Nilson, City Solicitor, BALTIMORE CITY DEPARTMENT
OF LAW, Baltimore, Maryland, for Appellees. Larry H.
James, Christina L. Corl, Lindsay L. Ford, CRABBE,
BROWN & JAMES, L.L.P., Columbus, Ohio, for National
Fraternal Order of Police, Amicus Supporting Appellant.
OPINION
ALARCÓN, Senior Circuit Judge:
Michael Andrew appeals from the district court’s order
granting the Defendants’ motion to dismiss this 42 U.S.C.
§ 1983 civil rights action for failure to state a claim pursuant
4 ANDREW v. CLARK
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Andrew named as defendants two former Baltimore Police
Department ("BPD") police commissioners and a BPD deputy
police commissioner. Andrew contends that the district court
erred in determining that the allegations in his complaint did
not demonstrate that the Defendants violated his First Amend-
ment right to freedom of speech by retaliating against him for
releasing an internal memorandum ("Andrew Memorandum")
to a reporter for the Baltimore Sun. In his memorandum,
Andrew requested that an investigation be conducted to deter-
mine whether the use of deadly force by a tactical unit of the
BPD against a barricaded suspect was justified and properly
conducted. Andrew argues that the retaliation was improper
because as a citizen, he has a First Amendment right to speak
about a matter of public concern. The district court concluded
that Andrew’s Memorandum was not protected by the First
Amendment under Garcetti v. Ceballos, 547 U.S. 410 (2006),
because it "never lost its character as speech pursuant to his
official duties simply by virtue of the wider dissemination he
elected to give it after his recommendations were ignored by
the police commissioner." Andrew v. Clark, 472 F. Supp. 2d
659, 662 n.4 (D. Md. 2007).
We vacate the district court’s order dismissing this action
and remand for further proceedings because Andrew has
alleged facts in his second amended complaint that could enti-
tle him to relief on his First Amendment claims. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 563 (2007) ("[O]nce a claim
has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the com-
plaint.").
For the reasons discussed below, we also hold that the dis-
trict court erred in dismissing Andrew’s petition and proce-
dural due process claims. We affirm the denial of Andrew’s
motion for partial summary judgment, and the denial of his
motion for fees and costs incurred in effectuating service on
Defendant Kevin P. Clark.
ANDREW v. CLARK 5
I
Because the district court dismissed this action pursuant to
Rule 12(b)(6), we treat each of the allegations in the second
amended complaint as true. See Boring v. Buncombe County
Bd. of Educ., 136 F.3d 364, 367 (4th Cir. 1998) ("We review
a dismissal for failure to state a claim de novo, drawing all
reasonable inferences in favor of the plaintiff and accepting
the allegations that are stated in the complaint as true.").
Andrew was employed by the Baltimore Police Department
from June 1973 until his employment was terminated in Sep-
tember 2004. At the time of his termination, Andrew served
as a Major, a command level rank.
On or about December 8, 2003, an elderly man named
Cephus Smith killed his landlord over a rent increase and bar-
ricaded himself in his apartment. Andrew was the commander
of the Eastern District of the BPD and responded to the barri-
cade situation. There were four commanders at the scene of
the barricade. The senior officer was Colonel Carl Gutberlet.
Andrew’s only duty at the crime scene was to supervise the
officers assigned to perimeter street control. Andrew
requested that a Technical Assistance Response Unit
("TARU") look inside the suspect’s apartment to gain addi-
tional intelligence. He also instructed the BPD officers to con-
tinue their attempts to negotiate with the suspect. TARU
officers under the command of another BPD official arrived
at the scene. The unit entered the suspect’s apartment and shot
and killed the suspect (the "Smith shooting").
Following the Smith shooting, Andrew repeatedly asked
that the BPD include him in a review and investigation of the
shooting given the fact that there were no hostages and no
evidence that the suspect intended to commit further violence
from within his apartment. Despite his requests, Andrew was
not included in any BPD investigation of the Smith shooting.
6 ANDREW v. CLARK
On December 17, 2003, Andrew submitted his memoran-
dum to Defendant Kevin P. Clark, the former police commis-
sioner of the BPD, in which Andrew expressed his concern
regarding whether the Smith shooting was justified and
whether it was handled properly. Andrew asserted that the
TARU officers had not exhausted all peaceful non-lethal
options and that the department had unnecessarily placed offi-
cers in harm’s way.
Andrew was not under a duty to write the memorandum as
part of his official responsibilities. He had not previously
written similar memoranda after other officer-involved shoot-
ings. Andrew would not have been derelict in his duties as a
BPD commander, nor would he have suffered any employ-
ment consequences, had he not written the memorandum. The
memorandum was characterized by Clark as "unauthorized."
The task of investigating officer-involved shootings falls upon
the BPD’s Homicide Unit and the Internal Affairs Division.
Andrew did not work within either of these units nor did he
have any control over their investigations. Clark ignored the
Andrew Memorandum.
Thereafter, Andrew contacted a reporter from the Baltimore
Sun newspaper, explained the situation, and provided the
reporter with a copy of his memorandum. Andrew did not
serve as a media spokesperson for the BPD. He provided his
memorandum to the Baltimore Sun reporter because of his
concern for public safety.
On January 6, 2004, the Baltimore Sun published an article
(the "Sun Article") regarding the Smith shooting. It high-
lighted the concerns raised in the Andrew Memorandum. Fol-
lowing publication of the Sun Article, the BPD subjected
Andrew to an Internal Affairs investigation. He was charged
with giving confidential internal information to the media. As
a result, Andrew lost command of the BPD’s Eastern District
and was placed in a less desirable position in the Evidence
Control Unit. He also did not receive a stipend of $3,900 a
ANDREW v. CLARK 7
year he had previously received as a BPD District Com-
mander.
In July 2004, Clark ordered Andrew to retire. Andrew
responded that he would retire only if the pending Internal
Affairs charges against him were dismissed and he was
awarded paid time off. Clark did not accept Andrew’s offer.
Nevertheless, Defendant Kenneth Blackwell, a BPD deputy
police commissioner, provided Andrew with paid time off.
Subsequently, Andrew was placed on "out of pay" status. His
compensation and benefits were terminated. Thereafter,
Andrew returned to the BPD and made himself available for
work.
After returning to work and not receiving any pay,
Andrew’s counsel sent letters to the BPD’s Office of Legal
Affairs, complaining that Andrew’s First Amendment rights
were being violated. Andrew’s counsel also advised the City
Solicitor that Andrew intended to bring multiple claims under
Maryland law against Defendants for violating his civil rights.
Andrew also wrote Blackwell, requesting information
about his status. Blackwell responded to Andrew that he was
"handling this all wrong." Andrew was given a personnel
order, dated October 27, 2004, which terminated his employ-
ment effective September 20, 2004, for "failing to respond to
the Fire and Police Retirement Office."
On November 10, 2004, the then Mayor of Baltimore
removed Clark as the BPD police commissioner. Clark was
replaced by Defendant Leonard Hamm. Prior to Clark’s ter-
mination, Hamm had sympathized with Andrew regarding his
situation. Hamm had expressed an interest in retaining
Andrew as a member of his command staff. When Hamm
learned that Andrew was preparing to sue the BPD, however,
his attitude changed. He maintained the termination order
originally issued by Clark. Hamm received notice of the
instant lawsuit on December 3, 2004. On that date, he ordered
8 ANDREW v. CLARK
Andrew to return to work. In an exchange of correspondence,
Hamm indicated that Andrew had not been reinstated but was
in a "no pay status," and that if Andrew refused to return to
work, he would be deemed to have abandoned his position
with the BPD. Andrew returned to work at the BPD. He was
not returned to his position as a Major and the Internal Affairs
charges against him have not been dropped.
II
On November 29, 2004, Andrew filed this action. Defen-
dants filed a joint motion to dismiss Andrew’s first amended
complaint. Thereafter, Andrew attempted to file a second
amended complaint. The district court granted Andrew’s
request for leave to file a second amended complaint and
looked to the allegations in the second amended complaint in
order to decide Defendants’ motion to dismiss.
The district court granted the Defendants’ joint motion to
dismiss the federal claims with prejudice. It also dismissed
without prejudice the supplemental state claims for lack of
subject matter jurisdiction. Andrew filed a timely notice of
appeal.
The district court had jurisdiction over the action pursuant
to 28 U.S.C. § 1331, as Andrew alleged claims under 42
U.S.C. § 1983. This court has jurisdiction over the appeal pur-
suant to 28 U.S.C. § 1291.
III
A
Andrew contends that the district court erred in dismissing
his § 1983 claim as a "matter of law" based on its conclusion
that "[n]o reasonable juror could reasonably find that the
‘internal memorandum’ was other than ‘speech pursuant to
plaintiff’s official duties.’" Andrew, 472 F. Supp. 2d at 663.
ANDREW v. CLARK 9
In reviewing a motion to dismiss an action pursuant to Rule
12(b)(6), the Supreme Court instructed in Bell Atlantic that
we must determine whether it is plausible that the factual alle-
gations in the complaint are "enough to raise a right to relief
above the speculative level[.]" 550 U.S. at 555. In Bell Atlan-
tic, the Court reasoned as follows:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual alle-
gations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recita-
tion of the elements of a cause of action will not do.
Id. (internal quotation marks, citations, and alterations omit-
ted). We are persuaded by our "look for plausibility in this
complaint" that Andrew has alleged sufficient facts to assert
a right to relief above the speculative level. Id. at 564.
In Count I of his second amended complaint, Andrew
stated that providing the Baltimore Sun reporter "with his
views and concerns regarding the shooting death of Mr.
Cyphus Smith[ ] was protected expression regarding a matter
of public concern; that his interest in First Amendment
expression outweighs whatever interest the Defendants had
regarding maintaining control over the workplace[.]" Andrew
argues that it was unnecessary for the district court to deter-
mine whether his memorandum was executed pursuant to his
official duties "because the act for which [he] was terminated
for [sic], the dissemination of his memorandum to [the] press,
was clearly not an act pursuant to his official duties."
The district court’s conclusion that the Andrew Memoran-
dum was "speech pursuant to [his] official duties" was based
upon its erroneous conclusion that "Plaintiff [had] concede[d]
that, as Eastern District Commander, he was ‘routinely
required to provide an overview, findings and recommenda-
tions as to all significant incidents including shootings that
10 ANDREW v. CLARK
occurred within his district.’" Andrew, 472 F. Supp. 2d at 661,
663.
Nowhere in the record does Andrew make such a conces-
sion. In fact, in paragraph 18 of the second amended com-
plaint Andrew specifically alleged that Clark had
characterized his memorandum as "unauthorized," and that he
had not written such a memorandum about other police-
involved shootings.
During oral argument, the court inquired of counsel for the
Appellees whether Andrew had conceded that he wrote the
memorandum as part of his official duties. Appellees’ counsel
forthrightly replied:
Before I do anything else, I want to say that the
question Judge Alarcón had about the concession by
the Plaintiff—as much as I hate to say this—there
was no concession that writing the memorandum
was part of his job. The statement referred to by the
district judge was taken from one of the Defendants’
memoranda.1
Thus, the question whether the Andrew Memorandum was
written as part of his official duties was a disputed issue of
material fact that cannot be decided on a motion to dismiss
pursuant to Rule 12(b)(6). See Bosiger v. U.S. Airways, 510
F.3d 442, 450 (4th Cir. 2007) (district court may not resolve
factual disputes on Rule 12(b)(6) motion without converting
motion into one for summary judgment under Rule 56).2
1
In their joint motion to dismiss, Defendants asserted: "As Plaintiff pre-
pared the memorandum pursuant to his official duties, he has no First
Amendment cause of action based on the Department’s reaction to his
publication of his speech."
2
The district court declined to convert Defendants’ 12(b)(6) motion into
one for summary judgment. (See Joint Appendix ("JA") 31 ("I disagree
with the assertion that the substance of defendants’ motion is one for sum-
mary judgment; the rudimentary attachments to the motion to dismiss do
not, in my view, inevitably convert the motion into a motion under Rule
56.").)
ANDREW v. CLARK 11
Therefore, the district court erred in concluding that "[n]o rea-
sonable juror could reasonably find that the ‘internal memo-
randum’ was other than ‘speech pursuant to plaintiff’s official
duties.’ Accordingly, the First Amendment claim fails as a
matter of law." Andrew, 472 F. Supp. 2d at 663.
B
In setting forth the basis for its conclusion that Andrew had
failed to assert facts that would support a claim for a violation
of his First Amendment rights, the district court accurately
summarized the rule announced in Garcetti as follows:
"[w]hen public employees make statements pursuant to their
official duties, they are not speaking as citizens for First
Amendment purposes and therefore are not insulated from
‘managerial discipline’ based on such statements." Andrew,
472 F. Supp. 2d at 661 (quoting Garcetti, 547 U.S. at 424).
The district court failed, however, to recognize that the
Supreme Court also stressed in Garcetti that "the parties in
this case do not dispute that [the plaintiff] wrote his disposi-
tion memo pursuant to his employment duties. We thus have
no occasion to articulate a comprehensive framework of the
scope of an employee’s duties in cases where there is room
for serious debate." Id. at 424. Accordingly, because the par-
ties do not agree that the facts demonstrate that Andrew wrote
his memorandum as part of his official duties, contrary to the
district court’s conclusion, the facts alleged in Andrew’s sec-
ond amended complaint do not "render Garcetti wholly appli-
cable." Andrew, 472 F. Supp. 2d at 663. At this stage of the
proceedings in this matter, we must conclude that there is
"room for serious debate" regarding whether Andrew had an
official responsibility to submit a memorandum regarding the
Smith shooting.
The district court also stated that Garcetti had "signifi-
cantly modif[ied] the longstanding test of public employee
First Amendment protection derived in Pickering v. Bd. of
Educ., 391 U.S. 563 [ ] (1968)." Andrew, 472 F. Supp. 2d at
12 ANDREW v. CLARK
661. In rejecting Andrew’s citizen speech claim, the district
court commented that
[t]he gravamen of plaintiff’s claim seems to be that
when he elected to "go public" by handing a copy of
his "internal memorandum" to a representative of the
media, he converted what is undeniably speech
effected pursuant to his employment duties into "citi-
zen speech" on a "matter of public concern." I can
find nothing in Garcetti or in the more persuasively-
reasoned cases that have interpreted Garcetti to sup-
port this view: that the Supreme Court’s plain inten-
tion to carve out an enclave of unprotected speech by
public employees is so limited.
472 F. Supp. 2d at 662 (emphasis added and citations omit-
ted).
We disagree with the district court’s conclusion that Gar-
cetti significantly modified the Pickering test regarding the
protection of a public employee’s First Amendment right to
speak as a citizen about matters of public concern. In fact, in
Garcetti the Court cited Pickering for the following princi-
ples:
Pickering and the cases decided in its wake identify
two inquiries to guide interpretation of the constitu-
tional protections accorded to public employee
speech. The first requires determining whether the
employee spoke as a citizen on a matter of public
concern. If the answer is no, the employee has no
First Amendment cause of action based on his or her
employer’s reaction to the speech. If the answer is
yes, then the possibility of a First Amendment claim
arises. The question becomes whether the relevant
government entity had an adequate justification for
treating the employee differently from any other
member of the general public. This consideration
ANDREW v. CLARK 13
reflects the importance of the relationship between
the speaker’s expressions and employment. A gov-
ernment entity has broader discretion to restrict
speech when it acts in its role as employer, but the
restrictions it imposes must be directed at speech that
has some potential to affect the entity’s operations.
Garcetti, 547 U.S. at 418 (emphasis added and internal cita-
tions omitted).
Because there was no dispute in Garcetti that the plaintiff
wrote his disposition as part of his employment duties, the
Court held that "his allegation of unconstitutional retaliation
must fail." Id. at 424. In this matter, Andrew has alleged that
the preparation of his memorandum was not part of his offi-
cial duties. At this stage of the pretrial proceedings, the dis-
trict court was required to accept that statement as true.
Because of its mistaken belief that Andrew had conceded that
he wrote his memorandum as part of his official duties, the
district court failed to consider whether it could determine,
based on the facts alleged in the second amended complaint,
whether Andrew’s dissemination of his memorandum was cit-
izen speech regarding a matter of public concern, or whether
the publication of it affected the operation of the BPD, as
required by Garcetti and Pickering.
Whether Andrew’s delivery of his memorandum to a
reporter for the Baltimore Sun "addresses a matter of public
concern must be determined by the content, form, and context
of a given statement, as revealed by the whole record." Conn-
ick v. Myers, 461 U.S. 138, 147-48 (1983) (emphasis added).
Only if Andrew’s speech is found to address a matter of pub-
lic concern does the court then "seek ‘a balance between the
interests of the employee, as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services
it performs through its employees.’" Id. at 142 (quoting Pick-
ering, 391 U.S. at 568) (alteration omitted). Resolution of
14 ANDREW v. CLARK
these questions will depend upon the results of discovery as
tested by a motion for summary judgment.
IV
We also determine that the district court erred in dismissing
Andrew’s petition claims on the grounds that his claims did
not, as a matter of law, involve issues of public concern.
Andrew maintains that his petition claims implicate a matter
of public concern, namely "whether the BPD retaliates against
police commanders who publicly disagree with the necessity
of a police-involved shooting[.]"
Andrew alleged that he was retaliated against for petition-
ing the government to redress his grievances. Specifically,
Andrew alleged a form of second-level retaliation — that he
was terminated in retaliation for threatening to file suit
regarding the original retaliation he faced upon disseminating
his memorandum to the press. The facts alleged in the second
amended complaint are similar to those found in Kirby v. City
of Elizabeth City, 388 F.3d 440 (4th Cir. 2004). In Kirby, this
Court held that the plaintiff police officer’s second-level retal-
iation claim implicated matters of public concern for First
Amendment purposes even though his initial speech related to
a private matter. Id. at 449 (finding that plaintiff’s "grievance
and lawsuit concerned a subject of much greater interest to the
public, namely whether the police chief and his lieutenant
retaliated against Kirby for providing truthful testimony")
(emphasis omitted).
The district court concluded that Andrew’s petition claims
fail as a matter of law because they concerned "matters of a
wholly personal dimension, i.e., his desire to seek damages
and obtain injunctive relief aimed at getting back his job."
Andrew, 472 F. Supp. 2d at 663 n.5. We disagree. Andrew has
asserted viable petition claims because he alleges that the
first-level retaliation was an Internal Affairs investigation due
to his distribution of his memorandum to the press, and that
ANDREW v. CLARK 15
the second level of retaliation was his termination for threat-
ening to file suit for the first level of retaliation. Accordingly,
the district court erred in dismissing Andrew’s petition
claims.
V
The district court also rejected Andrew’s procedural due
process claims. It held that his "attempt to transform a state
law claim for reinstatement to a lower rank into a federal pro-
cedural due process claim fails" because "there is no federal
procedural due process issue [ ] presented" and Andrew was
at most "not entitled to a hearing, he was entitled to a job."
Andrew, 472 F. Supp. 2d at 664, 664 n.6 (emphasis in origi-
nal).
As the district court properly pointed out, "[t]he first
inquiry in every due process challenge is whether the plaintiff
has been deprived of a protected interest in ‘property’ or ‘lib-
erty.’" Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59
(1999) (citing U.S. CONST. amend. XIV; Mathews v. Eldridge,
424 U.S. 319, 332 (1976)). "Only after finding the deprivation
of a protected interest do we look to see if the State’s proce-
dures comport with due process." Sullivan, 526 U.S. at 59
(citation omitted). A government employee "has a protected
property interest in continued public employment only if he
can show a ‘legitimate claim of entitlement’ to his job under
state or local law." Luy v. Baltimore Police Dep’t, 326 F.
Supp. 2d 682, 689 (D. Md. 2004) (quoting Bd. of Regents v.
Roth, 408 U.S. 564, 577-78 (1972)). "A public employee in
an at-will position cannot establish such an entitlement, and
thus cannot claim any Fourteenth Amendment due process
protection." Id. at 689-90 (citing inter alia, Pittman v. Wilson
County, 839 F.2d 225, 229 (4th Cir. 1988)).
However, the Supreme Court has held that even if a gov-
ernment employee is at-will, he may still allege an entitlement
to termination "for cause" if he can show the existence of
16 ANDREW v. CLARK
"rules and understandings, promulgated and fostered by state
officials" promoting such a procedure. Perry v. Sindermann,
408 U.S. 593, 602 (1972). In Perry, the Court held, in rele-
vant part:
[R]espondent has alleged the existence of rules and
understandings, promulgated and fostered by state
officials, that may justify his legitimate claim of
entitlement to continued employment absent "suffi-
cient cause." . . . [W]e agree that the respondent
must be given an opportunity to prove the legitimacy
of his claim of such entitlement in light of "the poli-
cies and practices of the institution." Proof of such
a property interest would not, of course, entitle him
to reinstatement. But such proof would obligate col-
lege officials to grant a hearing at his request, where
he could be informed of the grounds for his nonre-
tention and challenge their sufficiency.
Perry, 408 U.S. at 602-03 (citations omitted).
Maryland law suggests that Andrew, who was a Major at
the time of his termination, served "at [the] pleasure" of the
Commissioner. See Pub. Loc. L. Md. Art. 4 § 16-7(3).3 Never-
theless, Andrew argues that, pursuant to Perry, he could only
be terminated for cause and with a hearing. Andrew alleges
in Count IX of the second amended complaint that:
[A] mutual implied understanding existed within the
BPD . . . that an individual who serves the BPD as
a command level official, such as [himself]. . . has
a right to a fair and impartial investigation and/or to
3
Public Local Law Article 4 § 16-11 also provides that "[a]ll members
of the Department, except those serving at the pleasure of the Commis-
sioner . . . shall be retained in the Department during good behavior and
efficiency and may be dismissed or removed[ ] from the Department only
for cause[.]" (Emphasis added.)
ANDREW v. CLARK 17
return to his highest level civil service rank (Captain
or below), if his services are no longer desired;
whereupon [he] could only be terminated for cause
and according to the laws of the State of Maryland
and the City of Baltimore, along with the rules, regu-
lations, and orders of the BPD.
In support, Andrew relies on somewhat ambiguous provisions
of Maryland law, providing that:
Notwithstanding any provisions of this section, or of
this subtitle, the Commissioner may make any
appointment to the Department above the rank of
captain, without examination, except that no such
position shall be filled by a police officer within the
Department of a rank less than lieutenant, and where
any such appointment is made the police officer so
appointed shall, upon the termination of his service
in such position, be returned to the rank from which
he was elevated, or to such higher rank as he became
eligible to serve in during his appointment.
Pub. Loc. L. Md. Art. 4 § 16-10(d) (emphasis added). Relying
upon this provision, Andrew alleges that he could not be ter-
minated entirely, but would instead be demoted to the rank
from which he was elevated (that is, demoted to a Lieutenant).
While this interpretation may appear a bit strained, we must
draw all inferences in the light most favorable to Andrew. The
district court itself noted that there was "some uncertainty" as
to how to resolve what seemed to be a "guarantee of a lower-
level job upon the termination of [one’s] appointment to a
command level position[.]" Andrew, 472 F. Supp. 2d at 664.
Based upon Andrew’s allegations that he was a 31-year vet-
eran of the BPD, that there was a guarantee of a lower-level
job upon termination of a command level position, and that
Clark demoted (rather than terminated) other command level
officials, Andrew has alleged valid procedural due process
claims and should "be given an opportunity to prove the legit-
18 ANDREW v. CLARK
imacy of his claim of such entitlement in light of the policies
and practices of the institution." Perry, 408 U.S. at 603 (inter-
nal quotation marks and citations omitted).
VI
Andrew also argues that the district court erred in denying
his motion for partial summary judgment on the ground that,
procedurally, the motion was unopposed by Defendants. On
the merits, Andrew argues that there is no genuine issue of
material fact that his delivery of his memorandum to the press
related to a matter of public concern and that the Pickering
balancing test weighs in his favor. We hold that the district
court did not err in denying Andrew’s motion for partial sum-
mary judgment.
Rule 56(e)(2) of the Federal Rules of Civil Procedure pro-
vides as follows:
When a motion for summary judgment is properly
made and supported, an opposing party may not rely
merely on allegations or denials in its own pleading;
rather, its response must — by affidavits or as other-
wise provided in this rule — set out specific facts
showing a genuine issue for trial. If the opposing
party does not so respond, summary judgment
should, if appropriate, be entered against that party.
Fed. R. Civ. P. 56(e)(2) (emphasis added). The Advisory
Committee Notes to Rule 56 highlight that the language was
amended from the stricter "shall [if appropriate]" language to
the more discretionary "should [if appropriate]" language. See
Fed. R. Civ. P. R. 56(e) (2007 Amendments). The Advisory
Committee Notes also highlight the discretion that district
courts are given to deny summary judgment motions even
when the standard appears to have been met. See 10A C.
Wright, A. Miller & M. Kane, Federal Practice & Procedure:
Civil § 2728 (3d ed. 2008) ("the court has discretion to deny
ANDREW v. CLARK 19
a Rule 56 motion"); see also Forest Hills Early Learning Ctr.,
Inc. v. Lukhard, 728 F.2d 230, 245 (4th Cir. 1984) ("Even
where summary judgment is appropriate on the record so far
made in a case, a court may properly decline, for a variety of
reasons, to grant it.") (citing Wright & Miller).
Accordingly, given: (1) the discretion accorded district
courts in deciding whether or not to grant motions for sum-
mary judgment; (2) the apparent disputed facts regarding the
nature of Andrew’s speech, highlighted in the above discus-
sion; and (3) the lack of a developed record at this stage in
proceedings, we conclude that the district court did not abuse
its discretion in denying Andrew’s motion for partial sum-
mary judgment.
VII
Andrew further claims that the district court abused its dis-
cretion in denying his motion for costs and fees associated
with effectuating personal service on Clark. Andrew argues
that the district court’s order "ignored the plain weight of the
evidence that Clark, who had a history of evading service, had
refused to waive service." We disagree.
Rule 4(d) of the Federal Rules of Civil Procedure provides
that a plaintiff may request that a defendant waive service of
a summons. Fed. R. Civ. P. 4(d)(1). Such notice and request
must, among other things, "give the defendant a reasonable
time of at least 30 days after the request was sent" to return
the waiver. Id. 4(d)(1)(F) (emphasis added). A plaintiff must
serve a defendant within 120 days of filing the complaint. Id.
4(m).
While this court has not expressly ruled on the applicable
standard of review in deciding motions for costs and fees
brought pursuant to Rule 4(d), the Ninth Circuit has held, and
we agree, that the appropriate standard of review is abuse of
discretion. See Estate of Darulis v. Garate, et al., 401 F.3d
20 ANDREW v. CLARK
1060, 1063 (9th Cir. 2005) ("Darulis contends that because
the defendants failed to waive service of process, he is enti-
tled to an award of the costs he incurred in effecting service
on the defendants. We review the district court’s denial of
costs for an abuse of discretion.") (citation omitted).
Here, the initial complaint was filed on November 29, 2004
and Clark was served on January 29, 2005. As the district
court noted, the complaint itself alleged that Clark was a New
York citizen who maintained a "temporary home" in Mary-
land. Andrew retained a process server on January 3, 2005,
even though Clark was mailed the request for waiver of ser-
vice — to his temporary Maryland home only — on Decem-
ber 2, 2004. Clark was personally served in New York on
January 29, 2005, less than two months after the waiver was
requested, and on the same day that a certified letter was
signed for in New York by someone acting on his behalf at
his New York address. Clark was served "well within" the
120 day period required to effectuate service.
While Andrew may not agree with the district court’s deci-
sion that he failed to afford Clark a reasonable time to waive
service, the above facts provide ample support for the district
court’s conclusion. Accordingly, we affirm.
CONCLUSION
For the reasons discussed above, we vacate and remand, for
further proceedings consistent with this opinion, the district
court’s dismissal of Andrew’s First Amendment claims, peti-
tion claims, and procedural due process claims. We affirm the
district court’s denial of Andrew’s motion for partial sum-
mary judgment and affirm the district court’s denial of
Andrew’s fee and costs motion.
VACATED AND REMANDED IN PART AND
AFFIRMED IN PART
ANDREW v. CLARK 21
WILKINSON, Circuit Judge, concurring:
I agree that the dismissal of Andrew’s First Amendment
claims was premature. In Garcetti v. Ceballos, 547 U.S. 410
(2006), the employee spoke on a matter as a part of his offi-
cial duties. Here, as the court notes, that is very much in dis-
pute. In Garcetti, the employee did not distribute the
statement to a news organization. Here he did. And the matter
about which Andrew spoke was not just an office quarrel or
routine personnel action, but a question of real public impor-
tance, namely whether a police shooting of a citizen was justi-
fied and whether the investigation of that shooting was less
than forthcoming.
To throw out this citizen who took his concerns to the press
on a motion to dismiss would have profound adverse effects
on accountability in government. And those effects would be
felt at a particularly parlous time. It is well known that the
advent of the Internet and the economic downturn have
caused traditional news organizations throughout the country
to lose circulation and advertising revenue to an unforeseen
extent. As a result, the staffs and bureaus of newsgathering
organizations—newspapers and television stations alike—
have been shuttered or shrunk. Municipal and statehouse cov-
erage in particular has too often been reduced to low-hanging
fruit. The in-depth investigative report, so essential to expo-
sure of public malfeasance, may seem a luxury even in the
best of economic times, because such reports take time to
develop and involve many dry (and commercially unproduc-
tive) runs. And in these most difficult of times, not only
investigative coverage, but substantive reports on matters of
critical public policy are increasingly shortchanged. So, for
many reasons and on many fronts, intense scrutiny of the
inner workings of massive public bureaucracies charged with
major public responsibilities is in deep trouble.
The verdict is still out on whether the Internet and the on-
line ventures of traditional journalistic enterprises can help fill
22 ANDREW v. CLARK
the void left by less comprehensive print and network cover-
age of public business. While the Internet has produced infor-
mation in vast quantities, speedy access to breaking news,
more interactive discussion of public affairs and a healthy sur-
feit of unabashed opinion, much of its content remains deriva-
tive and dependent on mainstream media reportage. It
likewise remains to be seen whether the web—or other forms
of modern media—can replicate the deep sourcing and accu-
mulated insights of the seasoned beat reporter and whether
niche publications and proliferating sites and outlets can pro-
vide the community focus on governmental shortcomings that
professional and independent metropolitan dailies have histor-
ically brought to bear.
There are pros and cons to the changing media landscape,
and I do not pretend to know what assets and debits the future
media mix will bring. But this I do know—that the First
Amendment should never countenance the gamble that
informed scrutiny of the workings of government will be left
to wither on the vine. That scrutiny is impossible without
some assistance from inside sources such as Michael Andrew.
Indeed, it may be more important than ever that such sources
carry the story to the reporter, because there are, sad to say,
fewer shoeleather journalists to ferret the story out.
So I concur in Judge Alarcón’s fine opinion, because it rec-
ognizes this core First Amendment concern with the actual
workings—not just the speeches and reports and handouts—
of our public bodies. This case may seem a small one, involv-
ing a single incident in a single locality, but smaller cases are
often not without larger implications. The court is right to
note that at this early stage, we cannot foresee who will pre-
vail. But as the state grows more layered and impacts lives
more profoundly, it seems inimical to First Amendment prin-
ciples to treat too summarily those who bring, often at some
personal risk, its operations into public view. It is vital to the
health of our polity that the functioning of the ever more com-
ANDREW v. CLARK 23
plex and powerful machinery of government not become
democracy’s dark lagoon.