United States Court of Appeals
Fifth Circuit
F I L E D
July 15, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-60924
Summary Calendar
BARBARA BURGE,
Plaintiff-Appellee,
versus
PEARL RIVER COUNTY, Mississippi; ET AL.,
Defendants,
DAVID EARL JOHNSON, In his Official and Individual Capacity,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:02-CV-668
- - - - - - - - - -
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Defendant-appellee David Earl Johnson, Chancery Clerk for
Pearl River, Mississippi, appeals from the district court’s order
rejecting his claim of qualified immunity as to First Amendment
claims made by plaintiff-appellee Barbara Burge, a former deputy
clerk under Johnson. Burge does not appeal from the district
court’s denial of her other claims.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
No. 03-60924
- 2 -
Burge alleged in her 42 U.S.C. § 1983 complaint, inter alia,
that Johnson had unconstitutionally terminated her from her job,
which she worked for 11 years without disciplinary action, based
on negative comments made by her husband in public about Johnson,
in violation of her First Amendments rights of free speech and
free association. Johnson and other defendants had filed a
“Motion to Dismiss” that was supported by an affidavit from
Johnson. Although the district court rejected Burge’s request
that this motion be treated as a motion for summary judgment, and
the court did not encourage Burge to file her own summary-
judgment evidence, the district court, in addressing the “Motion
to Dismiss,” considered Johnson’s affidavit and a deposition of
Johnson. When a court considers matters outside the pleadings,
it should treat a motion to dismiss as a motion for summary
judgment. See Burns v. Harris County Bail Bond Bd., 139 F.3d
513, 517 (5th Cir. 1998); FED. R. CIV. P. 12(b). In reviewing the
denial of qualified immunity, this court must treat the motion to
dismiss as a motion for summary judgment under FED. R. CIV. P. 56.
See Bolen v. Dengel, 340 F.3d 300, 312 (5th Cir. 2003),
cert. denied, 124 S. Ct. 1714 (2004). Burge has not explicitly
challenged the district court’s consideration of materials
outside the pleadings, and she agrees in large part with the
factual assertions Johnson has made in those pleadings.
Although an appellate court ordinarily does not have
jurisdiction to review a denial of summary judgment, see Palmer
v. Johnson, 346, 350-51 (5th Cir. 1999), the court retains
jurisdiction to determine as a matter of law whether a defendant
No. 03-60924
- 3 -
is entitled to qualified immunity, after accepting all of the
plaintiff’s factual allegations as true, by determining whether
these facts show that the defendant’s conduct was objectively
reasonable under clearly established law. Behrens v. Pelletier,
516 U.S. 299, 313 (1996); Colston v. Barnhart, 130 F.3d 96, 98-99
(5th Cir. 1997), reh’g denied, 146 F.3d 282 (5th Cir. 1998).
Although the district court concluded that “specific factual
issues” remained and denied Johnson’s qualified-immunity
assertion on this basis, a review of the pleadings and the record
reflects that the district court based its qualified-immunity
ruling on a set of factual allegations with which Burge
essentially agrees. In such circumstances, this court has
jurisdiction to review the denial of qualified immunity.
See Behrens, 516 U.S. at 312; Colston, 146 F.3d at 284.
This court reviews de novo the grant of a motion for summary
judgment predicated on qualified immunity. Cousin v. Small,
325 F.3d 627, 637 (5th Cir.), cert. denied, 124 S. Ct. 181
(2003). Summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with any affidavits filed in support of the motion,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(c). Government officials performing
discretionary functions are protected from civil liability under
the doctrine of qualified immunity if their conduct violates no
“clearly established statutory or constitutional rights of which
No. 03-60924
- 4 -
a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982).
Federal courts review claims of qualified immunity under
a two-step analysis. See Saucier v. Katz, 533 U.S. 194, 201
(2001). First, a court asks whether, “[t]aken in the light most
favorable to the party asserting the injury, do the facts alleged
show the officers’ conduct violated a constitutional right?”
Id. “If the allegations do not establish the violation of a
constitutional right, the officer is entitled to qualified
immunity. . . . If the allegations make out a constitutional
violation, we must ask whether the right was clearly established
--that is, whether ‘it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.’”1
Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (quoting
Saucier, 533 U.S. at 201); Wilson v. Layne, 526 U.S. 603, 614
(1999) (“whether an official protected by qualified immunity may
be held personally liable for an allegedly unlawful official
action generally turns on the ‘objective legal reasonableness’
of the action, assessed in light of the legal rules that were
‘clearly established’ at the time it was taken” (internal
quotation marks and citations omitted)).
Johnson argues that the district court erred in denying his
qualified-immunity defense with respect to Burge’s claim that
1
Officials “can still be on notice that their conduct
violates clearly established law even in novel circumstances.”
Hope v. Pelzer, 536 U.S. 730, 741 (2002). “Although earlier
cases involving ‘fundamentally similar’ facts can provide
especially strong support for a conclusion that the law is
clearly established, they are not necessary to such a finding.”
Id.
No. 03-60924
- 5 -
Johnson’s termination of her violated her First Amendment right
to free speech. The parties essentially agree that Burge
complained about her job to her husband in the privacy of their
home and that the husband then made negative comments, while in a
local coffee shop, about Johnson’s prospects of being re-elected;
a friend of Johnson’s reported the husband’s comments back to
Johnson, who then confronted Burge. A public employer “may not
discharge an employee on a basis that infringes that employee’s
constitutionally protected interest in freedom of speech.”
Rankin v. McPherson, 483 U.S. 378, 383 (1987). Determining
whether the employer has properly terminated the employee for
engaging in protected speech requires “‘a balance between the
interests of the [employee], as a citizen, in commenting on
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 384 (quoting Pickering
v. Board of Educ. of Tp. High Sch. Dist., 391 U.S. 563, 568
(1968)). Under Pickering, such a claim requires the employee to
establish four elements: (1) an adverse employment decision;
(2) speech by the plaintiff that involves a matter of “public
concern”; (3) that the plaintiff’s interest in commenting on
such matters outweigh the defendants’ interests in promoting
efficiency; and (4) that the plaintiff’s speech motivated the
adverse action. Teague v. City of Flower Mound, Tex., 179 F.3d
377, 379 (5th Cir. 1999).
“Matters of public concern are those which can ‘be fairly
considered as relating to any matter of political, social, or
No. 03-60924
- 6 -
other concern to the community.’” Branton v. City of Dallas,
272 F.3d 730, 739 (5th Cir. 2001) (quoting Connick, 461 U.S.
at 146). “[S]peech pertaining to internal personnel disputes and
working conditions ordinarily will not involve public concern.”
Id. Such matters do not involve public concern simply “by virtue
of a manager’s status as an arm of government.” Id. at 740.
Burge has not explicitly asserted that her own speech involved
anything more than complaints about her job and working
conditions, which are not matters of “public concern.”
Burge cannot establish a viable First Amendment claim with
respect to her own speech.
Burge has emphasized that her husband’s speech involved
matters of “public concern” because it involved political speech
regarding a public election. See Wiggins v. Lowndes County,
Miss., 363 F.3d 387, 390 (5th Cir. 2004). Burge, however, has
not addressed whether she has standing to bring such a claim on
behalf of her husband. See Powers v. Ohio, 499 U.S. 400, 410
(1998) (litigant ordinarily must assert her own legal rights
rather than those of a third party). Although “third party
standing” exists in certain circumstances, see Campbell v.
Louisiana, 523 U.S. 392, 397 (1998), the district court cited no
decisional authority, and we are aware of none, to suggest that a
right to raise a First Amendment claim based on a third party’s
“public concern” speech was “clearly established” for qualified-
immunity purposes. See Price, 256 F.3d at 369. Accordingly, the
district court erred in denying Johnson’s “Motion to Dismiss”
No. 03-60924
- 7 -
Burge’s First Amendment free-speech claim on qualified-immunity
grounds.
The other qualified-immunity contention rejected by the
district court concerned Burge’s claim that Johnson’s termination
of her violated her First Amendment to freely associate in
her marriage. The First Amendment protection of freedom of
association applies to the States through the Fourteenth
Amendment.2 Elfbrandt v. Russell, 384 U.S. 11, 18 (1966). When,
as here, “a plaintiff’s claims arise under both freedom of speech
and freedom of association, . . . the freedom of association
claims are analyzed under the same Pickering balancing test used
to determine the success of the freedom of speech claims.”
Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 444 (5th
Cir. 1999) (citing O’Hare Truck Serv., Inc. v. City of Northlake,
518 U.S. 712 (1996)). A claim predicated on the right to free
association, however, “‘is not subject to the threshold public
concern requirement.’” Breaux v. City of Garland, 205 F.3d 150,
2
In Roberts v. United States Jaycees, 468 U.S. 609 (1984),
the Supreme Court observed that the “freedom of association”
takes on two forms. First, the Court identified “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.” Id. at
618. Second, there is a certain right of “intimate association,”
based on the reasoning 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.” Id. at 617-18. Marriage
falls into the second group.
The Supreme Court has also observed “that the right to marry
is part of the fundamental ‘right of privacy’ implicit in the
Fourteenth Amendment’s Due Process Clause.” See Zablocki v.
Redhail, 434 U.S. 374, 384 (1977). Burge has not specifically
asserted such a claim.
No. 03-60924
- 8 -
157 n.12 (5th Cir. 2000) (quoting Boddie v. City of Garland,
Miss., 989 F.2d 745, 747 (5th Cir. 1993)).
The factual allegations underlying Burge’s freedom-of-
association claim are essentially no different from those
underlying her free-speech claim. The claim is based in no way
on who Burge’s husband is or on his status, but, as with her
free-speech claim, is based on what he said. Cf. Sowards v.
Loudon County, Tenn., 203 F.3d 426, 430, 434 (6th Cir. 2000)
(plaintiff was jailer whose husband ran for the office of sheriff
against the incumbent sheriff who had been plaintiff’s employer
and who fired plaintiff). Even if it is arguable whether Burge
stated a viable freedom-of-association claim under the First
Amendment, the district court cited no decisional authority, and
we are aware of none, which suggested that Johnson violated a
“clearly established” right of Burge to freely associate with her
husband. The district court thus erred in denying Johnson’s
qualified-immunity defense with respect to this claim as well.
For reasons discussed above, we REVERSE the district court’s
determinations in regard to defendant-appellant Johnson, and
RENDER judgment in Johnson’s favor on plaintiff-appellee Burge’s
claims against him.