FILED
United States Court of Appeals
Tenth Circuit
July 25, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
BILLY A. MERRIFIELD,
Plaintiff - Appellant/
Cross-Appellee,
v. Nos. 10-2175, 10-2179
BOARD OF COUNTY
COMMISSIONERS FOR THE
COUNTY OF SANTA FE; ROMAN
ABEYTA; BERNADETTE
SALAZAR; ANNABELLE ROMERO,
Defendants - Appellees/
Cross-Appellants,
and
GREG PARRISH,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:08-CV-00122-RLP-ACT)
Michael Schwarz, Santa Fe, New Mexico, for Plaintiff - Appellant/Cross-
Appellee.
Joel M. Young (Kevin M. Brown, with him on the briefs), Brown Law Firm,
Albuquerque, New Mexico, for Defendants - Appellees/Cross-Appellants.
Before HARTZ, McKAY, and GORSUCH, Circuit Judges.
HARTZ, Circuit Judge.
Contending that he was improperly terminated, Billy Merrifield, a former
Youth Services Administrator of Santa Fe County’s Youth Development Program
at the County’s youth correctional facility, sued the County Board of
Commissioners and several County officials (collectively, Defendants) in federal
court. He brought civil-rights claims under 42 U.S.C. § 1983 alleging that he had
been denied procedural due process with respect to the County’s pretermination
hearing and that he had been fired in retaliation for retaining an attorney, in
violation of his First Amendment right of association. His complaint also brought
a state-law claim requesting judicial review of the County’s administrative
decision affirming the firing. The United States District Court for the District of
New Mexico granted summary judgment for Defendants on the federal claims, but
set aside the County’s administrative decision and awarded Merrifield back pay.
Merrifield appeals the grant of summary judgment to Defendants and the
calculation of back pay, and the County cross-appeals the setting aside of the
administrative decision.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the summary
judgment on the constitutional claims. Merrifield failed to show (1) that his
pretermination process was constitutionally inadequate and (2) that his
association with an attorney involved a matter of public concern. As for the
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district court’s ruling on the state-law claim, we remand for dismissal without
prejudice because it should be resolved in state court.
I. BACKGROUND
A. Merrifield’s Termination and Administrative Appeal
In January 2007 Merrifield represented the County at a corrections
conference in Florida. On the afternoon of January 22 he sent a sexually graphic
image to the personal cell phone of Robert Apodaca, one of his subordinates at
the youth correctional facility. Although the use of personal cell phones at the
facility was prohibited, Apodaca received the image at work and displayed it to
coworkers. One became upset and complained.
Merrifield was placed on administrative leave with pay on January 25. On
February 22 defendant Annabelle Romero, the County’s Director of Corrections,
issued a letter recommending Merrifield’s termination. The letter stated that an
internal investigation had revealed that Merrifield had sent pornographic images
to a subordinate employee via cell phone and had “participated in a sexually
inappropriate environment at the facility, and participated in other improper
behavior among staff at the facility.” Aplt. App., Vol. 1 at 59. It added that the
investigation had also discovered “failings on [Merrifield’s] part as a supervisor
and improper conduct in [his] supervisory dealings with employees.” Id.
By that time Merrifield had retained an attorney to represent him and had
informed the County that all communications on the matter should go through his
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attorney. On February 23 the attorney sent a letter to defendant Bernadette
Salazar, the County’s Human Resources Director, requesting that the County
make a number of documents available for inspection and copying. The requested
documents included “[e]ach and every policy, protocol or memorandum the
County claims [Merrifield] violated,” id. at 60, and documentation of the
allegations in the Romero letter.
Salazar responded in a letter dated March 5. The letter included copies of
County policies on cell-phone use, sexual harassment, and the responsibilities of
managers and supervisors, and it offered Merrifield’s attorney the opportunity to
review Merrifield’s personnel file. But it denied Merrifield’s request for further
information and documents. It explained that both the meeting at which
Merrifield had received Romero’s letter and his forthcoming predisciplinary
hearing afforded him the opportunity “to explore the basis for the
recommendation of termination.” Id. at 63. The letter also noted that if
Merrifield chose to appeal any disciplinary action taken against him, he would be
entitled to a full evidentiary hearing and that “[m]uch of [his] request is geared
towards preparation for such a hearing and should be sought through appropriate
procedures during the appeal process.” Id. at 63–64.
Merrifield attended the March 8 pretermination hearing with his lawyer.
Afterwards Salazar agreed with Romero’s recommendation to terminate
Merrifield’s employment. Merrifield, through his attorney, appealed the
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recommendation to defendant Ramon Abeyta, the County Manager. Abeyta
rejected the appeal and terminated Merrifield in a March 21 letter. Abeyta
described Merrifield’s admitted sending of the cell-phone image as action
displaying “poor judgment,” as “intolerable behavior,” and as “an example of the
unacceptable behavior [Merrifield had] displayed in [his] capacity as the
Administrator.” Id., Vol. 2 at 367. He further found that Merrifield had
“participated in sending and receiving inappropriate e-mail utilizing County
equipment while on County time,” id., and that he had used his County cell phone
“inappropriately” by making calls that were not work-related, id. at 368.
Merrifield then invoked his right under County personnel rules to appeal
the termination to a hearing officer. The hearing officer conducted a nine-day
posttermination hearing in April, May, and June. On July 19, 2007, the hearing
officer issued a 19-page decision affirming Merrifield’s termination. She decided
that she was to review Abeyta’s decision under an arbitrary-and-capricious
standard, rejecting Merrifield’s argument that the proper standard of review was
de novo. She said that discipline was justified by Merrifield’s transmission and
display of sexually explicit images via his cellphone and his work computer and
by his contributing to an atmosphere of misuse of County computer equipment at
the facility. Although she held that the County had not acted arbitrarily or
capriciously in deciding that the proper discipline was termination, she said that
had she “been imposing discipline ab initio[, she] . . . would have demoted
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[Merrifield] to a non-supervisory position and . . . suspended him without pay for
five weeks,” id., Vol. 1 at 55 n.2. She also ruled that Merrifield had been
afforded due process, stating that “[a]s to each of the matters which I have found
would support discipline, [Merrifield] was given sufficient notice that these
matters were the basis for termination,” in part because “[h]e was given an
opportunity to respond to these matters at the pre-termination hearing.” Id. at 55.
B. Federal District Court Proceedings
On February 4, 2008, Merrifield filed his complaint in federal district court.
His later amended complaint named as defendants the Board of County
Commissioners, Abeyta, Salazar, Romero, and Greg Parrish, Merrifield’s
supervisor. The individual County employees were sued in both their official and
individual capacities. The complaint contended (1) that the County, Salazar, and
Romero violated Merrifield’s rights under the Due Process Clause of the
Fourteenth Amendment by failing to provide adequate notice of the charges and
the evidence against him before his pretermination hearing, and (2) that the
County, Abeyta, Romero, and Parrish violated his First Amendment right to
associate with counsel by retaliating against him for hiring an attorney to
represent him in the disciplinary process. The complaint also included a
supplemental state-law claim seeking review of the hearing officer’s decision.
The district court ultimately granted summary judgment against Merrifield
on the federal claims. It held that he had been provided due process and, after
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striking as inadmissible some sworn statements by former County employees, it
held that Merrifield had failed to present evidence that the County had fired him
because of his retention of or consultation with counsel. On the other hand, the
court agreed with Merrifield that the hearing officer should have reviewed the
County termination decision de novo, and it adopted the hearing officer’s
alternative penalty of demotion to a nonsupervisory position and a five-week
suspension. The court then conducted further proceedings to assess damages and
awarded Merrifield $30,866.50 in back pay. Both Merrifield and the County
appealed.
II. DISCUSSION
Merrifield raises the following five issues on appeal: (1) that he was
deprived of due process because he was not provided adequate notice of the
charges and evidence against him before his pretermination hearing; (2) that the
district court abused its discretion by striking portions of affidavits by former
County employees relating to his retaliation claim; (3) that the district court erred
in holding that he had not presented sufficient evidence that he was terminated in
retaliation for hiring an attorney; (4) that the First Amendment protected him
against retaliation by the County for his associating with an attorney regardless of
whether that association involved a matter of public concern, and that, in any
event, his association did involve a matter of public concern; and (5) that the
reduction in pay used in the district court’s damage calculation was so significant
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as to constitute a constructive discharge. The County cross-appeals, challenging
the district court’s holding that the hearing officer should have reviewed
Merrifield’s termination de novo.
To resolve this appeal we need consider only issues (1) and (4). We first
address Merrifield’s federal claims. After holding that summary judgment was
properly granted on those claims, we hold that the state-law claims should be
dismissed without prejudice.
A. Federal Claims
“We review the district court’s grant of summary judgment de novo,
applying the same standards that the district court should have applied.” See
Jensen v. Solvay Chems., Inc., 625 F.3d 641, 650 (10th Cir. 2010) (internal
quotation marks omitted). Summary judgment “should be rendered if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). “We examine
the record and all reasonable inferences that might be drawn from it in the light
most favorable to the non-moving party.” Berry & Murphy, P.C. v. Carolina Cas.
Ins. Co., 586 F.3d 803, 808 (10th Cir. 2009) (internal quotation marks omitted).
“[W]e can affirm on any ground supported by the record, so long as the appellant
has had a fair opportunity to address that ground.” Alpine Bank v. Hubbell, 555
F.3d 1097, 1108 (10th Cir. 2009) (internal quotation marks omitted).
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1. Procedural Due Process
Merrifield argues that the County violated his due-process rights by failing
to provide him pretermination notice of both the charges and the evidence against
him. “To assess whether an individual was denied procedural due process, courts
must engage in a two-step inquiry: (1) did the individual possess a protected
interest such that the due process protections were applicable; and, if so, then (2)
was the individual afforded an appropriate level of process.” Riggins v.
Goodman, 572 F.3d 1101, 1108 (10th Cir. 2009) (internal quotation marks
omitted). Because it is undisputed that Merrifield possessed a protected interest
in his employment, we address only the second question.
“An essential principle of due process is that a deprivation of life, liberty or
property be preceded by notice and opportunity for hearing appropriate to the
nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985) (internal quotation marks omitted). Because “the root requirement of the
Due Process Clause [is] that an individual be given an opportunity for a hearing
before he is deprived of any significant property interest,” there must be “some
kind of a hearing prior to the discharge of an employee who has a constitutionally
protected property interest in his employment.” Id. (internal quotation marks
omitted). “[S]uch a hearing requires: (1) oral or written notice to the employee
of the charges against him; (2) an explanation of the employer’s evidence; and (3)
an opportunity for the employee to present his side of the story.” Riggins, 572
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F.3d at 1108 (brackets and internal quotation marks omitted). But “[a] full
evidentiary hearing is not required prior to an adverse employment action”; it
suffices that the employee is “given notice and an opportunity to respond.” Id.
(internal quotation marks omitted).
Merrifield’s inadequate-notice argument in his opening appellate brief
refers only to the shortcomings of the Romero letter, which recommended his
termination to County Personnel Director Salazar. See, e.g., Aplt. Br. at 11 (“The
question is whether Romero’s notice of [sic] was constitutionally sufficient under
[Loudermill].” (citation omitted)). But even if that letter provided little notice, he
has not established a due-process violation. The necessary notice may come at
the hearing itself. As we have stated:
Nothing in Loudermill suggests, nor do we hold, that a public
employee is entitled to some type of ‘pre-notification notice’ of the
charges against her or him. Likewise, Loudermill does not imply
that, in conducting the pretermination hearing, there must be a delay
between the ‘notice’ and the ‘opportunity to respond’ accorded to the
public employee.
Powell v. Mikulecky, 891 F.2d 1454, 1459 (10th Cir. 1989). Yet Merrifield’s
opening brief makes no reference to what was disclosed to him at the
pretermination hearing, implying that he is raising no challenge to the adequacy
of the disclosures at that proceeding. Absent such a challenge, Merrifield’s due-
process claim fails.
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At oral argument, however, counsel for Merrifield argued that the
disclosures at the pretermination hearing were inadequate because the hearing
officer’s posttermination decision was based on evidence not disclosed to him at
the pretermination hearing. We decline to address this argument—for two
independently sufficient reasons. First, we have carefully reviewed Merrifield’s
opening brief and do not find the argument that he later raised at oral argument.
See Bronson v. Swenson, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely
have declined to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.”); Gross v. Burggraf Constr. Co., 53
F.3d 1531, 1547 (10th Cir. 1995) (declining to consider the merits of a claim that
had not been adequately presented in the opening brief, even though appellant
asserted the claim at oral argument). Second, on the record before us we could
not properly review the issue even if we wished to. The record on appeal does
not include a transcript of the pretermination hearing, although such a transcript
appears to have been in the administrative record. See Aplt. App., Vol. 2 at 271
(citing to the transcript in the administrative record). “Where the record is
insufficient to permit review we must affirm.” Lewis v. Circuit City Stores, Inc.,
500 F.3d 1140, 1150 n.11 (10th Cir. 2007) (internal quotation marks omitted).
Accordingly, we affirm the district court’s grant of summary judgment to
the County on Merrifield’s due-process claim.
2. Right to Associate with Counsel
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Merrifield claims that Defendants imposed the harsh sanction of
termination because it disapproved of his retaining a lawyer to represent him in
the disciplinary matter. This retaliation, he contends, violated his First
Amendment freedom of association. We are not persuaded.
The First Amendment (which applies to the states through the Fourteenth
Amendment, see Deutsch v. Jordan, 618 F.3d 1093, 1096 (10th Cir. 2010))
generally prohibits the government from imposing burdens on “freedom of
speech, [freedom] of the press, . . . the right of the people peaceably to assemble,
and [the right of the people] to petition the Government for a redress of
grievances.” U.S. Const. amend. I. When, however, the relationship of the
government to the person is that of an employer, those First Amendment rights
are limited. Speech, for example, can be insubordinate, disruptive, or
demoralizing; and government employers are not required to let such misconduct
pass. As the Supreme Court wrote in Garcetti v. Ceballos:
When a citizen enters government service, the citizen by necessity
must accept certain limitations on his or her freedom. Government
employers, like private employers, need a significant degree of
control over their employees’ words and actions; without it, there
would be little chance for the efficient provision of public services.
547 U.S. 410, 418 (2006) (citation omitted).
To accommodate the government’s interest as an employer, the Supreme
Court has developed a five-element test to determine the validity of a claim that
the government has improperly retaliated against an employee based on the
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employee’s speech. See Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2
009). 1 The component of that test that requires our attention on this appeal is the
requirement that the claim be based on employee speech that is “on a matter of
public concern.” Id. “[P]ublic concern is something that is a subject of
legitimate news interest; that is, a subject of general interest and of value and
concern to the public at the time of publication.” City of San Diego v. Roe, 543
U.S. 77, 83–84 (2004). The public-concern requirement serves to limit the
protection of speech by an employee to speech that the employee makes in his
capacity as a citizen, rather than simply as an employee. See Garcetti, 547 U.S.
at 418 (employee is protected against retaliation only if “the employee spoke as a
citizen on a matter of public concern”).
Very recently the Supreme Court decided that the public-concern
requirement should likewise apply when a government employee complains of
retaliation based on his exercise of the First Amendment right to petition the
1
Those five-elements are
(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); see Lauck v. Campbell
Cnty., 627 F.3d 805, 814 (10th Cir. 2010).
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government for redress of grievances. See Borough of Duryea v. Guarnieri, 131
S. Ct. 2488, 2495 (2011). Guarnieri alleged that the Borough had retaliated
against him for filing two petitions: his union grievance challenging his
termination by the Borough and a later lawsuit claiming that he had been
retaliated against for filing the grievance. See id. at 2492. Barring Guarnieri’s
claim because the petitions did not raise a matter of public concern, the Court
explained:
The substantial government interests that justify a cautious and
restrained approach to the protection of speech by public employees
are just as relevant when public employees proceed under the
Petition Clause. Petitions, no less than speech, can interfere with
the efficient and effective operation of government. A petition may
seek to achieve results that contravene governmental policies or
impair the proper performance of governmental functions.
Id. at 2495 (internal quotation marks omitted). Indeed, it said that “[w]hen a
petition takes the form of a lawsuit against the government employer, it may be
particularly disruptive,” id. at 2496, and proceeded to expand at length on how
“[u]nrestrained application of the Petition Clause in the context of government
employment would subject a wide range of government operations to invasive
judicial superintendence,” id.
The issue joined by the parties in this appeal is whether the public-concern
requirement also applies to a claim by a government employee that he was
retaliated against because of his exercise of the freedom of association. To
resolve that issue, we must begin with an understanding of what is encompassed
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by freedom of association. The Supreme Court has pointed out that its “decisions
have referred to constitutionally protected ‘freedom of association’ in two distinct
senses.” Roberts v. United States Jaycees, 468 U.S. 609, 617 (1984). The two
senses are sometimes labeled as the “intrinsic” sense, which relates to certain
intimate human interactions, and the “instrumental” sense, which relates to
associations necessary to engage in the enumerated First Amendment rights. Id.
at 618. The first type of association is protected as a component of substantive
due process. The second is protected as a means of effectuating First Amendment
rights. The Supreme Court has explained the two senses as follows:
In one line of decisions, the Court has concluded that choices to enter
into and maintain certain intimate human relationships must be
secured against undue intrusion by the State because of the role of
such relationships in safeguarding the individual freedom that is
central to our constitutional scheme. In this respect, freedom of
association receives protection as a fundamental element of personal
liberty. In another set of decisions, the Court has recognized a right
to associate for the purpose of engaging in those activities protected
by the First Amendment—speech, assembly, petition for the redress
of grievances, and the exercise of religion. The Constitution
guarantees freedom of association of this kind as an indispensable
means of preserving other individual liberties.
Id. at 617–18 (emphasis added).
On this appeal we need not determine whether the public-concern
requirement applies when a government employee claims retaliation based on the
employee’s exercise of the intrinsic right of freedom of association. This court
has expressed doubt whether that requirement should apply in that context, as
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have others. See Schalk v. Gallemore, 906 F.2d 491, 498 n.6 (10th Cir. 1990);
Flanagan v. Munger, 890 F.2d 1557, 1564 n.7 (10th Cir. 1989); Montgomery v.
Stefaniak, 410 F.3d 933, 937 (7th Cir. 2005); Akers v. McGinnis, 352 F.3d 1030,
1044–45 (6th Cir. 2003) (Clay, J., concurring in part and dissenting in part); see
generally Mark Strauss, Note, Public Employees’ Freedom of Association:
Should Connick v. Myers’ Speech-Based Public Concern Rule Apply?, 61
Fordham L. Rev. 473, 476–89 (1993). We also need not determine whether the
public-concern requirement applies when the alleged protected association is for
the free exercise of religion. We consider only the instrumental right of freedom
of association for the purpose of engaging in speech, assembly, or petitioning for
redress of grievances.
Association with an attorney can be protected as such a right. This was
recognized by the Supreme Court first in NAACP v. Button, 371 U.S. 415 (1963),
and then in Brotherhood of Railroad Trainmen v. Virginia ex. rel. Virginia State
Bar, 377 U.S. 1 (1964), and United Mine Workers v. Illinois State Bar
Association, 389 U.S. 217 (1967). As the Court explained in the last of these
opinions:
We start with the premise that the rights to assemble
peaceably and to petition for a redress of grievances are among the
most precious of the liberties safeguarded by the Bill of Rights.
These rights, moreover, are intimately connected both in origin and
in purpose, with the other First Amendment rights of free speech
and free press. All these, though not identical, are inseparable. The
First Amendment would, however, be a hollow promise if it left
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government free to destroy or erode its guarantees by indirect
restraints so long as no law is passed that prohibits free speech,
press, petition, or assembly as such. We have therefore repeatedly
held that laws which actually affect the exercise of these vital rights
cannot be sustained merely because they were enacted for the
purpose of dealing with some evil within the State’s legislative
competence, or even because the laws do in fact provide a helpful
means of dealing with such an evil.
The foregoing were the principles we invoked when we dealt
in the Button and Trainmen cases with the right of an association to
provide legal services for its members.
United Mine Workers, 389 U.S. at 222 (citations and internal quotations marks
omitted). We will assume, without deciding, that Merrifield’s retention of an
attorney for his disciplinary proceedings amounted to associating with an attorney
to exercise his speech and petition rights in the employment dispute. (If his
retention of an attorney could not be so characterized, it would receive no First
Amendment protection whatsoever.)
In our view, the public-concern requirement applies to a claim that a
government employer retaliated against an employee for exercising the
instrumental right of freedom of association for the purpose of engaging in
speech, assembly, or petitioning for redress of grievances. To begin with, the
public-concern test in speech-retaliation cases has its origin in freedom-of-
association cases. The public-concern requirement was first set forth in Pickering
v. Board of Education, 391 U.S. 563, 568 (1968), the leading decision addressing
freedom of speech in the employee-retaliation context. As later recounted in
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Connick v. Myers, 461 U.S. 138 (1983), the Court in Pickering found its
justification for the requirement in Supreme Court doctrine regarding employee
freedom of association:
In . . . the precedents in which Pickering is rooted, the
invalidated statutes and actions sought to suppress the rights of
public employees to participate in public affairs. The issue was
whether government employees could be prevented or “chilled” by
the fear of discharge from joining political parties and other
associations that certain public officials might find “subversive.”
The explanation for the Constitution’s special concern with threats
to the right of citizens to participate in political affairs is no
mystery. The First Amendment was fashioned to assure unfettered
interchange of ideas for the bringing about of political and social
changes desired by the people. Speech concerning public affairs is
more than self-expression; it is the essence of self-government.
Accordingly, the Court has frequently reaffirmed that speech on
public issues occupies the highest rung of the heirarchy of First
Amendment values, and is entitled to special protection.
[Pickering] followed from this understanding of the First
Amendment.
Id. at 144–45 (brackets, citations, and internal quotation marks omitted)
(emphasis added); see Boals v. Gray, 775 F.2d 686, 692 (6th Cir. 1985)
(“Pickering and Connick . . . are based upon freedom of association cases.”) It
would be ironic, if not unprincipled, if the public-concern requirement derived
from freedom-of-association cases did not likewise apply to retaliation for such
association.
Moreover, to give special status to retaliation claims based on nonreligious
instrumental freedom of association—by eschewing the public-concern
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requirement in those cases—would violate the Supreme Court’s teaching that the
“political” First Amendment rights should be treated equally, at least in the
government-employment context. In McDonald v. Smith, 472 U.S. 479 (1985),
the Court rejected the argument that exercise of the right to petition for redress of
grievances should be absolutely immune from suit for defamation. It held that the
test for liability should be the same “malice” test applied with respect to freedom
of speech and freedom of the press. Id. at 485. The Court wrote:
To accept petitioner’s claim of absolute immunity would elevate the
Petition Clause to special First Amendment status. The Petition
Clause, however, was inspired by the same ideals of liberty and
democracy that gave us the freedoms to speak, publish, and
assemble. These First Amendment rights are inseparable, and there
is no sound basis for granting greater constitutional protection to
statements made in a petition to the President than other First
Amendment expressions.
Id. (citations omitted). Just recently, in Guarnieri, the Court warned against
reading McDonald to presume that “there is always an essential equivalence”
among First Amendment rights; but it held that “claims of retaliation by public
employees do not call for [a] divergence” in the treatment of petition and speech
claims. Guarnieri, 131 S. Ct. at 2495. In particular, it expressed concern about
the practical consequences of using different rules for evaluating retaliation
claims based on different clauses of the First Amendment. It explained:
“Articulation of a separate test for the Petition Clause would aggravate potential
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harm to the government’s interests by compounding the costs of compliance with
the Constitution.” Id. at 2498.
We think it highly doubtful that the Supreme Court would not impose the
public-concern requirement on claims that the government retaliated against an
employee for associating with an attorney to speak or petition the government
when it does impose the requirement on claims that the government retaliated
against an employee for speaking or petitioning the government. The majority of
our fellow circuits that have addressed the issue have also concluded that the
public-concern requirement applies to claims that a government employer
retaliated for exercise of the instrumental right of association. See Cobb v. Pozzi,
363 F.3d 89, 102 (2d Cir. 2004); Edwards v. City of Goldsboro, 178 F.3d 231,
249–50 (4th Cir. 1999); Griffin v. Thomas, 929 F.2d 1210, 1213–14 (7th Cir.
1991); Boals, 775 F.2d at 692; cf. Hudson v. Craven, 403 F.3d 691, 697–98 (9th
Cir. 2005) (involving a hybrid speech and association claim).
We recognize that two circuits have ruled to the contrary. But we are not
persuaded by those opinions. The Eleventh Circuit’s opinion in Hatcher v. Board
of Public Education, 809 F.2d 1546, 1558 (1987), gave the issue short shrift, only
one paragraph. The court did not consider the Sixth Circuit’s contrary holding in
Boals, and did not grapple with the arguments that we find convincing. In
particular, Hatcher did not address the Supreme Court’s opinion in McDonald or
the roots of the public-concern requirement of Pickering and Connick in freedom-
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of-association decisions. It justified its conclusion by saying only that Connick
did not retreat from NAACP v. Alabama, 357 U.S. 449 (1958) (reversing order
requiring association to disclose its members’ identities), a freedom-of-
association case not involving government employment. See Hatcher, 809 F.2d at
1558.
Likewise, the Fifth Circuit’s leading opinion, Coughlin v. Lee, 946 F.2d
1152, 1158 (5th Cir. 1991), did not address the contrary authority from the Sixth
and Seventh Circuits and did not address the Supreme Court opinions that we find
convincing. To support its rejection of the public-concern requirement, the court
relied on Supreme Court decisions that “found dismissals of public employees
based solely on patronage or political affiliation to violate the First Amendment.”
Coughlin, 946 F.2d at 1158. But because we think that the public-concern
requirement would be satisfied in those cases, we are not persuaded by Coughlin
that they stand for the proposition that there is no public-concern requirement in
freedom-of-association retaliation cases. (We also note with interest that
although Coughlin stated that the employee in that case was “not subject to the
threshold public concern requirement,” id., the alleged association for which he
was retaliated against was affiliation with a political campaign, an association
that we would consider to be an association on a matter of public concern. See
Connick, 461 U.S. at 149 (questionnaire asking fellow public employees whether
they “‘ever feel pressured to work in political campaigns’” touched on a matter of
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public concern).) True, Coughlin has generally been followed in the Fifth
Circuit’s later freedom-of-association retaliation cases; but those later panels have
been bound by circuit precedent.
We also reject Merrifield’s contention that Tenth Circuit precedent requires
rejection of the public-concern requirement in this context. He relies on Butcher
v. City of McAlester, 956 F.2d 973 (10th Cir. 1992); Morfin v. Albuquerque
Public Schools, 906 F.2d 1434 (10th Cir. 1990); and Owens v. Rush, 654 F.2d
1370 (10th Cir. 1981). But none of those cases discussed whether the public-
concern requirement would apply to association-based retaliation claims. It is
elementary that an opinion is not binding precedent on an issue it did not address.
See Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely lurk in
the record, neither brought to the attention of the court nor ruled upon, are not to
be considered as having been so decided as to constitute precedents.”). For some
time we have recognized that the issue we are deciding today has been open in
this circuit. In an opinion postdating the ones cited by Merrifield, Shrum v. City
of Coweta, 449 F.3d 1132, 1138 (10th Cir. 2006), for example, we said that we
had not “determined, as a general matter, whether Pickering’s public concern
requirement applies to freedom of association claims,” although we noted that in
the specific context of public-employee labor unions, we have “rejected the
requirement that a worker demonstrate that his association with the union be a
matter of public concern.” Id.
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Finally, we turn to Merrifield’s alternative argument that he has satisfied
the public-concern requirement. Merrifield’s appellate briefs do not attempt to
explain how his association with counsel was to enable him to speak or petition
on “a subject of legitimate news interest.” City of San Diego, 543 U.S. at 83–84.
His argument consists of one sentence in his reply brief. He asserts that the
attorney-client relationship categorically qualifies as a matter of public concern
“because it is of a concern to the community, our social way of life, at the core of
our system of justice.” Aplt. Reply Br. at 15.
Merrifield’s assertion amounts to saying that all association with
counsel—in contrast to speech and petitions to the government—is on a matter of
public concern. But association with counsel, which is protected only as a means
to effectuate rights to speak and petition, cannot be entitled to more protection
through the First Amendment than the enumerated First Amendment rights
themselves. And when we consider the specific functions of Merrifield’s attorney
in this case, it is apparent that his role was not to pursue matters of public
concern. As the Supreme Court said in rejecting a right-to-petition retaliation
claim: “A petition filed with an employer using an internal grievance procedure
in many cases will not seek to communicate to the public or to advance a political
or social point of view beyond the employment context.” Guarnieri, 131 S. Ct. at
2501. Addressing grievance proceedings like the one before us, it wrote:
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A petition that involves nothing more than a complaint about a
change in the employee’s own duties does not relate to a matter of
public concern and accordingly may give rise to discipline without
imposing any special burden of justification on the government
employer. The right of a public employee under the Petition Clause
is a right to participate as a citizen, through petitioning activity, in
the democratic process. It is not a right to transform everyday
employment disputes into matters for constitutional litigation in the
federal courts.
Id. (citation and internal quotation marks omitted) (emphasis added). Merrifield
has provided no reason to treat his association with his attorney as concerning
anything more than an “everyday employment dispute[].” Id.
Because Merrifield has failed to establish that his association with counsel
involved a matter of public concern, his retaliation claim fails as a matter of law.
Hence, we need not address his arguments that the district court erred in striking
portions of his former coworkers’ affidavits or that the court erred in finding that
the defendants were not motivated to fire Merrifield because he had retained an
attorney. We affirm the summary judgment in favor of Defendants on the First
Amendment claims.
B. State Law Claims
Both Merrifield and the County appeal the district court’s decisions with
regard to Merrifield’s state-law claim. Merrifield contends that the court’s
calculation of back pay constituted a constructive discharge. And the County
contends that the court erred in holding that the hearing officer should have
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reviewed the County’s termination decision de novo. We resolve neither
contention, leaving the matter to the proper forum, the New Mexico courts.
Merrifield brought his due-process and retaliation claims under 42 U.S.C.
§ 1983. The district court had federal-question jurisdiction over these claims
under 28 U.S.C. § 1331. And it had supplemental jurisdiction over the state-law
claim because it was “part of the same case or controversy.” Id. § 1367(a). 2
Under § 1367(c), however, a federal court has discretion to decline jurisdiction
over a state-law claim in the following circumstances:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
Id. § 1367(c).
2
Section 1367(a) states:
Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district
courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United States
Constitution.
28 U.S.C. § 1367(a).
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The Supreme Court has instructed that “a federal court should consider and
weigh in each case, and at every stage of the litigation, the values of judicial
economy, convenience, fairness, and comity in order to decide whether to
exercise jurisdiction over a case brought in that court involving pendent state-law
claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Two of the
circumstances listed in § 1367(c) require declination of jurisdiction in this case.
First, the principal issue in the state-law claim—the standard of review that the
hearing officer should have applied—is “a novel . . . issue of State law.”
28 U.S.C. § 1367(c)(1). The parties inform us that there is no controlling
precedent on the issue. And both Merrifield and the County sought early in the
district-court proceedings to have the matter resolved in state court: the County
moved to have the state-law claim dismissed without prejudice, and Merrifield
sought certification of this issue to the New Mexico Supreme Court. See Roe v.
Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1237 (10th Cir.
1997) (“[A]n authoritative state court ruling on the [novel state-law] claim should
be permitted, instead of a guess or uncertain prediction by a federal court”).
Second, § 1367(c)(3) applies because we have affirmed the dismissal of the
claims over which the district court had original jurisdiction; indeed these claims
had been dismissed before the district court finally decided the state-law claim.
See Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010) (this circuit has
“generally held that if federal claims are dismissed before trial, leaving only
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issues of state law, the federal court should decline the exercise of jurisdiction by
dismissing the case without prejudice” (brackets and internal quotation marks
omitted)).
We recognize that dismissal will require the parties to rebrief the state-law
issues in state court, a duplication of prior efforts. But if it were necessary for
this court to retain the state-law claim, we might well find it advisable to certify
one or more questions to the New Mexico Supreme Court, which would also
require further briefing by the parties. In any event, the interest in
comity—leaving to the states to decide novel questions of state-law—clearly
predominates here. We therefore reverse the district-court judgment on the state-
law claim and remand with instructions to dismiss the claim without prejudice.
III. CONCLUSION
We AFFIRM the district court’s judgment on Merrifield’s due-process and
First Amendment claims. We REVERSE the district court’s judgment on the
remaining claim seeking review of the hearing officer’s decision, and REMAND
to the district court with instructions to dismiss it without prejudice.
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