Armstrong v. Wyoming Ex Rel. Department of Environmental Quality

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 30, 2010
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

R. MARK ARMSTRONG,

Plaintiff-Appellant,

v. No. 10-8016
(D.C. No. 1:09-CV-00097-CAB)
STATE OF WYOMING, ex rel., (D. Wyo.)
DEPARTMENT OF
ENVIRONMENTAL QUALITY;
JOHN CORRA; JAMES UZZELL;
ROBERT DOCTOR; DALE
ANDERSON; PAT SEURE; SCOTT
FORESTER; VICKI MEREDITH;
CARL ANDERSON, in their
individual and official capacities,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before TACHA, ANDERSON, and KELLY, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 This pro se appeal concerns a public employee’s free speech and due

process rights. R. Mark Armstrong worked as an environmental analyst for

Wyoming’s Department of Environmental Quality (DEQ). He was hired to

inspect and issue permits for waste facilities, but in 2007, he was fired for

incurring some $2,500.00 in personal charges on his state-issued cell phone.

Mr. Armstrong was reinstated by an administrative review board, but the DEQ

placed him on paid administrative leave while it appealed that ruling in state

court. In the meantime, Mr. Armstrong accepted another position and tendered

his resignation, conditioned on the DEQ’s satisfaction of several demands. The

DEQ accepted his resignation, paid him $42,784.44, but complied with none of

Mr. Armstrong’s demands. That prompted this suit.

***

In a four count complaint, Mr. Armstrong alleged the DEQ’s failure to

comply with the terms of his resignation constituted wrongful termination.

Characterizing the cell phone issue as a pretext for retaliation, he claimed he was

really fired for exercising his First Amendment rights by expressing ethical

concerns about the DEQ’s issuance of landfill permits. He further claimed his

termination deprived him of property and liberty interests in his job and

professional reputation without due process. Additionally, Mr. Armstrong alleged

defendants breached the implied covenant of good faith and fair dealing, as

demonstrated by the adverse circumstances surrounding his employment and

-2-
dismissal. Finally, he asserted defendants fired him in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.

On defendants’ motion, the district court dismissed the matter for lack of

subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and for failure to

state a claim under Fed. R. Civ. P. 12(b)(6). The court initially determined that

Mr. Armstrong failed to state a plausible First Amendment claim under the

Supreme Court’s analysis set forth in Garcetti v. Ceballos, 547 U.S. 410, 421

(2006), and Pickering v. Board of Education of Township High School Dist. 205,

Will County, 391 U.S. 563, 568 (1968). 1 The court explained that Mr. Armstrong

did not satisfy the first prong of the Garcetti/Pickering test because the speech

upon which his First Amendment claim relied—his reports of improper landfill

permitting by the DEQ—was made pursuant to his official duties as an employee

of the DEQ. Consequently, Mr. Armstrong’s speech was not entitled to the full

scope of protection offered by the First Amendment. See R. Vol. 1 at 520 (Dist.

1
The Garcetti/Pickering analysis is a five-prong test that evaluates:

(1) whether the speech was made pursuant to an employee’s official
duties; (2) whether the speech was on a matter of public concern;
(3) whether the government’s interests, as employer, in promoting
the efficiency of the public service are sufficient to outweigh the
plaintiff’s free speech interests; (4) whether the protected speech was
a motivating factor in the adverse employment action; and
(5) whether the defendant would have reached the same employment
decision in the absence of the protected conduct.

Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009).

-3-
Ct. Op.) citing Garcetti, 547 U.S. at 421-22 (“Restricting speech that owes its

existence to a public employee’s professional responsibilities does not infringe

any liberties the employee might have enjoyed as a private citizen.”).

Next the court held that Mr. Armstrong failed to allege a cognizable due

process claim for deprivations of either a property or liberty interest. With regard

to the property claim, the court ruled that Mr. Armstrong had no protected

property interest in his so-called “settlement contract,” which he implied from the

terms of his conditional resignation, because there was no written agreement to

satisfy Wyoming’s statute of frauds, Wyo. Stat. Ann. § 1-23-105, and, in any

event, Mr. Armstrong’s terms were unenforceable, id., § 1-41-106. Further, the

court explained that Mr. Armstrong could claim no protected interest in continued

employment because he resigned from the DEQ, accepted a different job, and

moved to another state. Additionally, although Mr. Armstrong disavowed a

constructive discharge claim, the court pointed out that he could not prevail on

any such claim since he voluntarily resigned. As for Mr. Armstrong’s liberty

interest in his professional reputation, the court ruled he failed to allege any false

statements that foreclosed other employment opportunities. See Sandoval v. City

of Boulder, 388 F.3d 1312, 1329 (10th Cir. 2004) (requiring plaintiff to show

defendant made statements which (1) impugned her good name, reputation, honor,

or integrity; (2) were false; (3) were made in the course of her termination or

foreclosed other employment opportunities; and (4) were published).

-4-
 Turning to Mr. Armstrong’s third claim brought under the implied covenant

of good faith and fair dealing, the court ruled it was barred by sovereign

immunity. The court recognized the Wyoming Government Claims Act waives

immunity and provides the procedure for bringing certain claims, see Wyo. Stat.

Ann. §§ 1-39-117 and 1-39-104(a), but tortious breach of the implied covenant of

good faith and fair dealing is not one of them. See id., § 1-39-104(a); Hoff v. City

of Casper-Natrona Cnty. Health Dep’t, 33 P.3d 99, 105-06 (Wyo. 2001).

Lastly, the court determined that Mr. Armstrong’s ADEA claim was barred

by the Eleventh Amendment. In so holding, the court reasoned the State had not

consented to suit and Mr. Armstrong failed to invoke any valid waiver of

immunity. See Migneault v. Peck, 204 F.3d 1003, 1004 (10th Cir. 2000)

(recognizing ADEA does not abrogate Eleventh Amendment immunity).

Consequently, given the lack of subject matter jurisdiction, the court dismissed

this claim without prejudice.

***

On appeal, Mr. Armstrong maintains he was fired for exercising his First

Amendment rights and denied his property and liberty interests without due

process. He also invokes general contract principles and contends there are two

enforceable contracts that bind the State to the terms of his conditional

resignation. See Aplt. Br. at 35. He does not, however, address his claims

brought under the ADEA or the implied covenant of good faith and fair dealing.

-5-
 We conclude Mr. Armstrong has waived appellate review of his claims for

breach of the implied covenant of good faith and the ADEA. See Becker v. Kroll,

494 F.3d 904, 913 n.6 (10th Cir. 2007). Nowhere in his prolix opening brief does

Mr. Armstrong even mention, let alone advance any argument in support of, either

claim. Instead, his opening brief completely abandons these claims in favor of a

vague contract theory that was never addressed by the district court. Although

there are traces of a contract dispute strewn throughout the record, these “vague

and ambiguous” references do not suffice to preserve Mr. Armstrong’s new,

contract-based appellate argument. See Ecclesiastes 9:10-11-12, Inc. v. LMC

Holding Co., 497 F.3d 1135, 1141 (10th Cir. 2007) (“[T]he vague and ambiguous

presentation of a theory before the trial court [does not] preserve that theory as an

appellate issue.” (quotation omitted)). Consequently, because Mr. Armstrong’s

new contract theory was never properly presented to or ruled upon by the district

court, we decline to consider it for the first time on appeal. See Tele-Commc’ns,

Inc. v. Comm’r., 104 F.3d 1229, 1233 (10th Cir. 1997).

As for Mr. Armstrong’s claims asserting free speech and due process

violations, we conclude under a de novo standard of review that dismissal was

proper. See Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010) (reviewing

dismissal under Rule 12(b)(6) de novo). We have reviewed the parties’ appellate

materials, as well as the relevant legal authority, and we agree with the district

court’s thorough and well-reasoned analysis of the First Amendment and due

-6-
process claims. Accordingly, we AFFIRM the district court’s judgment for

substantially the same reasons as articulated in the court’s order dated March 2,

2010. Mr. Armstrong’s motion to reconsider the denial of appellate counsel is

DENIED, as is his motion for sanctions.

Entered for the Court

Stephen H. Anderson
Circuit Judge

-7-