United States Court of Appeals,
Eleventh Circuit.
No. 95-8242.
Dan R. NOLEN, Jr., et al., Plaintiffs-Appellees.
v.
Maynard JACKSON, Mayor, Eldrin Bell, John Dotson, Joan Garner,
Joycelyn Fleming, C.T. Padgett, Lt., Rosalind F. Richardson, John
Doe's Numbers 1-10, all of the above in both their individual and
official capacities, and City of Atlanta, William Campbell and
Beverly Harvard, in their official capacities, Defendants-
Appellants.
Jan. 6, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-CV-2691-GET), G. Ernest Tidwell,
Chief Judge.
Before BIRCH, BLACK and CARNES, Circuit Judges.
BLACK, Circuit Judge:
Appellants Mayor Maynard Jackson, Eldrin Bell, Lt. C.T.
Padgett, and Rosalind Richardson, as well as the City of Atlanta
challenge the denial of their motion to dismiss or alternatively
motion for judgment as a matter of law. This motion was based in
part on the individual Appellants' assertion of qualified immunity.
For jurisdictional reasons we review only the question of qualified
immunity and hold that qualified immunity should have been granted.
I. BACKGROUND
Appellees include two Atlanta musical entertainment clubs and
their owners, who applied for new liquor licenses in the name of a
new licensee. They were notified sometime around December 31,
1990, that the application would be denied because they had failed
to attach the proper exhibits. Before they were able to remedy the
deficiencies in their application, the tragic drowning death of an
intoxicated, underage college student occurred on January 11, 1991.
Appellees allege that during the Atlanta Police Department's
investigation of this drowning, both before and after the licenses
were formally denied, individual Appellants made statements to the
1
press explicitly or impliedly linking the death to their clubs.
Appellees maintain that shortly after the drowning, Chief Eldrin
Bell appeared before the Licensing Review Board (the Board) for the
purpose of entreating members to close down bars which served
alcohol to minors.
About one year later, on January 22, 1992, Appellees were
provided a hearing before the Board to review the proposed denial
of the licenses. 2 At this hearing, the City of Atlanta presented
evidence that Appellees and their employees had been cited for
various statutory violations.3 The Board permitted Appellees to
present witnesses and evidence as to why their licenses should have
been granted. Nevertheless, in March of 1992, the Board
recommended that the Mayor deny the applications, and in April
1992, Mayor Jackson followed that recommendation.
1
Appellees identify four stigmatizing statements: (1)
Police Chief Bell's statements before the Board in mid-January
1991; (2) City Attorney Hicks' statements at the hearing itself
on January 22, 1992; (3) Investigator Richardson's statements to
the press one month after the hearing, sometime in March of 1992;
and (4) Police Chief Bell's statements to a reporter on June 16,
1992. We make no judgment as to which, if any, of these
statements might be relevant to a constitutional claim. We
simply take the factual allegations as true and construe them in
the light most favorable to Appellees, the nonmoving party.
2
Appellees continued to operate their businesses during this
time pursuant to a court order.
3
These violations allegedly include the sale of alcohol to
minors.
Appellees subsequently filed this 42 U.S.C. § 1983 action
alleging that the City of Atlanta and individual officials acted
under color of state law to deny them a constitutionally protected
right. The essence of their original complaint was the claim that
a government entity had deprived them of their liberty and/or
property interests in the liquor licenses without due process of
law (or at least, with insufficient or defective procedural due
process in the form of the Board hearing), while simultaneously
stigmatizing them by making defamatory statements to the press.4
Individual Appellants moved for summary judgment on the basis of
qualified immunity, and the district court dismissed their motion
as a discovery sanction.
At the pretrial conference, Appellees abandoned the argument
that the hearing was constitutionally insufficient.5 In response
to the changes in the case as originally plead, Appellants filed a
motion to dismiss or alternatively motion for judgment as a matter
of law in which they again asserted that the individual Appellants
are entitled to qualified immunity. They now appeal the denial of
that motion.
4
For the purpose of this discussion we assume, without
deciding, that Appellees possessed some sort of liberty or
property interest in the liquor licences.
5
The pretrial conference was not recorded, but the parties
agree on the substance of what transpired. The court's order
reflects this change in the pleadings; the court dismissed
Appellees' claim that the Board hearing had been unfair and
specifically noted that "the court ruled orally that plaintiffs
cannot raise issues at trial which plaintiffs agreed to dismiss
at the pretrial conference." As stated in the appellate brief,
"Appellees are merely choosing not to litigate the unlawfulness
of the revocation." When asked at oral argument, Appellees again
conceded that they no longer intend to argue that the licenses
were illegally denied.
II. JURISDICTION
This Court has jurisdiction to review the denial of qualified
immunity as an appealable final decision under Mitchell v. Forsyth,
472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). 6
Appellants raise other issues and urge us to reach the merits of
other claims logically related to the qualified immunity issue.
However, we have no jurisdiction to reach the issues raised by the
City of Atlanta because Swint v. Chambers, --- U.S. ----, ----, 115
S.Ct. 1203, 1206, 131 L.Ed.2d 60 (1995), held that we have no
pendent party appellate jurisdiction. See also Pickens v.
Hollowell, 59 F.3d 1203, 1207 (11th Cir.1995). Furthermore, the
existence of pendent issue appellate jurisdiction is uncertain in
the wake of Swint. To the extent this Court has the discretion to
exercise such jurisdiction, we decline to do so. See Swint, ---
U.S. at ----, 115 S.Ct. at 1212; Pickens, 59 F.3d at 1207.7 As a
result, we consider only the qualified immunity issue and dismiss
the appeal with respect to all other parties and issues.
III. STANDARD OF REVIEW
We review questions of law, such as a motion to dismiss or a
motion for judgment as a matter of law, de novo. Isenbergh v.
Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 439 (11th
6
We reject without discussion Appellees' argument that the
motion to dismiss or alternatively motion for judgment as a
matter of law was not timely.
7
Appellants assert that we have jurisdiction based on the
district court's certification of its order for appeal under 28
U.S.C. § 1292(b). However, Appellants' failure to file the
application for leave to appeal within ten days of the
certification order resulted in denial of that application. Fed.
R.App. P. 5(a).
Cir.1996) (motion for judgment as a matter of law); Fortner v.
Thomas, 983 F.2d 1024, 1028 (11th Cir.1993) (motion to dismiss).
In considering a defendant's motion to dismiss or for judgment as
a matter of law based on qualified immunity, the district court
must examine the complaint to determine "whether, under the most
favorable version of the facts alleged, defendant's actions violate
clearly established law." Bennett v. Parker, 898 F.2d 1530, 1535
n. 2 (11th Cir.1990) (Tjoflat, C.J., concurring), cert. denied, 498
U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991).
IV. DISCUSSION
The issue of whether qualified immunity should be granted in
this case turns on the question of whether Appellees' case, as
ultimately plead, was sufficient to strip the individual Appellants
of qualified immunity. "[G]overnment officials performing
discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). This
Circuit has set out the two circumstances under which a defendant
may be entitled to qualified immunity, the first of which applies
to this case:
[T]he defendant is entitled to dismissal when the plaintiff
has failed to allege a violation of a clearly established
right.... In this first instance, it is the plaintiff's
allegations that determine whether the defendant is entitled
to immunity because (as with all motions for judgment on the
complaint or pleadings) the plaintiff's factual allegations
are taken as true.
Andreu v. Sapp, 919 F.2d 637, 639 (11th Cir.1990); see also
Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114
L.Ed.2d 277 (1991) (holding threshold question in a qualified
immunity claim is whether a violation of a clearly established
constitutional right has occurred); Lassiter v. Alabama A & M
Univ., Bd. of Trustees, 28 F.3d 1146, 1149-51 (11th Cir.1994) (en
banc) (summarizing Eleventh Circuit law on qualified immunity).
Accordingly, we first examine Appellees' allegations to
determine whether, if true, they would constitute a violation of
clearly established law. The original complaint alleged that the
City of Atlanta and its employees "deprived these Plaintiffs of
their constitutionally protected liberty interest by denying their
applications for liquor licenses while stigmatizing the
Plaintiffs." Appellees also alleged procedural deficiencies in the
License Review Board hearing.
Appellees have now abandoned the claim that the hearing was
procedurally inadequate or defective. Thus, the relevant question
is whether, in 1992, the law was clearly established, such that a
reasonable city official would have known, that an official
violated a constitutionally protected liberty or property interest
when he lawfully denied an application for a liquor license, when
he provided the applicant with adequate procedural due process, and
when he simultaneously made or adopted allegedly defamatory
statements about the applicant.
In support of their position that such a cause of action was
clearly established, Appellees cite case law involving the
so-called "stigma plus" doctrine. This doctrine provides a due
process remedy where a plaintiff has been deprived of a liberty or
property interest without due process of law and where related
defamatory statements were made. None of the cases they cite
recognizes a cause of action for a deprivation and accompanying
defamatory stigma in which a constitutionally adequate review
procedure was provided. See Paul v. Davis, 424 U.S. 693, 708-09,
96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976) (holding that a man
publicly accused of shoplifting suffered no constitutional
deprivation when he was warned but not fired from his job because
"it was the alteration of legal status which, combined with the
injury resulting from the defamation, justified the invocation of
procedural safeguards"); Wisconsin v. Constantineau, 400 U.S. 433,
437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971) (holding
unconstitutional a statute allowing the posting of lists of people
to whom merchants could not sell alcohol because "[w]here a
person's good name, reputation, honor, or integrity is at stake
because of what the government is doing to him, notice and an
opportunity to be heard are essential"); Lassiter v. Alabama A &
M Univ., Bd. of Trustees, 28 F.3d 1146, 1149-52 (11th Cir.1994) (en
banc) (holding that the law was not clearly established that a
plaintiff had a property interest in his particular job at the time
he was fired without a hearing); Von Stein v. Brescher, 904 F.2d
572, 580-81, 584 (11th Cir.1990) (holding that where a police
officer effected an arguably lawful arrest for which there was
arguable probable cause and although the officer made defamatory
statements to the media at the time of the arrest, the plaintiff
did not make out a federal cause of action because the officer's
statements did not extinguish or significantly alter any right
guaranteed to the plaintiff); Howe v. Baker, 796 F.2d 1355, 1358-
59 (11th Cir.1986) (holding that there was no violation of clearly
established law when the city failed to afford a police officer a
hearing prior to his suspension and transfer because the employment
was not terminated and plaintiff's legal status did not change);
Clemons v. Dougherty County, 684 F.2d 1365, 1370-71 (11th Cir.1982)
(explaining that the "stigma plus" cause of action requires that a
plaintiff plead three elements: deprivation of some previously
recognized right or change in legal status, stigmatization, and the
denial of due process); Dennis v. S & S Consol. Rural High Sch.
Dist., 577 F.2d 338, 344 (5th Cir.1978) (holding that the remedy
for this type of constitutional violation is to provide a hearing
in which the plaintiff has an opportunity to clear his name).
V. CONCLUSION
We have not discovered, nor have Appellees presented, any
support for the position that a reasonable public official should
have been aware that the conduct alleged in this case constituted
a violation of clearly established law. Accordingly, we reverse
the district court's denial of Appellants' motion to dismiss on
grounds of qualified immunity and dismiss this appeal as to all
other parties and issues.
REVERSED and REMANDED.