United States Court of Appeals, Eleventh Circuit.
No. 95-9197.
VISTA COMMUNITY SERVICES, Movant,
James H. Narey, Plaintiff-Appellee,
v.
Darrell DEAN, Individually and in his official capacity as
Georgia Department of Human Resources, District One, District
Medical Director, John J. Gates, Individually and in his official
capacity as Georgia Department of Human Resources, Division of
Mental Health, Mental Retardation and Substance Abuse, Division
Director, James G. Ledbetter in his official capacity as
Commissioner of the Georgia Department of Human Resources, and
James K. Moss, Sr., Individually, Defendants-Appellants.
March 19, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 4:90-CV-063-HLM), Harold L. Murphy,
District Judge.
Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior
Circuit Judges.
FAY, Senior Circuit Judge:
Defendants appeal the district court's denial of their motion
for summary judgment based on qualified immunity. We vacate and
remand.
I.
James Narey ("Plaintiff") filed suit under 42 U.S.C. § 1983
1
against Darrel Dean, John Gates, Tommy Olmstead, and James Moss
(collectively "Defendants"), alleging that Defendants violated his
Fifth and Fourteenth Amendment rights to due process by demoting
him from his tenured position as Director of the Northwest Georgia
1
Plaintiff originally filed his complaint against James G.
Ledbetter in his individual capacity as Commissioner of the
Georgia Department of Human Resources. Pursuant to Fed.R.Civ.P.
25(a) and Fed.R.App.P. 43(c), Ledbetter's successor in office,
Tommy Olmstead, has been substituted as a party-defendant.
Community Mental Health Center (the "Center") in Fort Oglethorpe,
Georgia. As the reason for Plaintiff's demotion, Defendants cited
numerous problems with Plaintiff's management of the Center,
including improper commingling of Center funds, improper handling
of client funds, misuse of state grant-in-aid funds, failure to
comply with accountant recommendations regarding fiscal
responsibility and drug inventory, and improper handling of leases.
Plaintiff countered, however, that Defendants had concocted these
"trivial, technical, minute and inconsequential" charges against
him merely to remove him from his position. At trial, Plaintiff
asserted two claims relevant to this appeal: First, Plaintiff
claimed that Defendants demoted him for pretextual reasons in
violation of his constitutional right to substantive due process.
Second, Plaintiff claimed that Defendants improperly failed to
satisfy the requirements of progressive discipline before demoting
him. Both claims were sent to the jury; the jury returned a $1.7
million verdict in Plaintiff's favor.
On appeal, this Court reversed that verdict, holding that our
decision in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994), cert.
denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995),
precluded Plaintiff from maintaining a substantive due process
claim based on pretextual firing. Narey v. Dean, 32 F.3d 1521,
1526-28 (11th Cir.1994). Prior to McKinney, the law of our Circuit
was that " "[a] violation of a public employee's right to
substantive due process occur[red] when an employer deprive[d] the
employee of a property interest for an improper motive and by means
that [were] pretextual, arbitrary and capricious, regardless of
whether or not a hearing was held.' " McKinney, 20 F.3d at 1558-59
(quoting Nolin v. Douglas County, 903 F.d. 1546, 1553-54 (11th
Cir.1990) (internal quotation marks omitted) (alterations not in
original)). In McKinney, we overruled the line of cases
establishing that law, and instead established that an allegation
of pretextual firing implicates only procedural, and not
substantive due process. Id. at 1564-65; see also Narey, 32 F.3d
at 1526 (discussing McKinney ). Thus, after McKinney, Plaintiff
was entitled to maintain only a procedural due process claim
against Defendants. Narey, 32 F.3d at 1527. In assessing that
claim, we found that Plaintiff had been afforded adequate
procedural protection both before and after his demotion; we
therefore ruled that Defendants had not deprived Plaintiff of his
right to procedural due process. Id. at 1528.
Defendants did not challenge the propriety of Plaintiff's
progressive discipline claim, but Plaintiff conceded that his
progressive discipline claim alone could not support the jury's
$1.7 million verdict. Id. We remanded the case to the district
court for further consideration of that claim. Id.
On remand, however, the district court permitted Plaintiff to
amend his complaint to allege that Defendants terminated him
because of his speech in violation of his First Amendment rights.2
Once again Plaintiff claimed that Defendants' cited reasons for
demoting him were pretextual; this time, Plaintiff argued that
2
The district court also permitted Plaintiff to add an equal
protection claim, but it later granted Defendants' motion for
summary judgment as to that claim. The court's ruling on the
equal protection claim is not an issue in this appeal.
Defendants actually demoted him in retaliation for statements made
by Plaintiff to the Governor's Advisory Council on Mental
Health/Mental Retardation/Substance Abuse (the "Council"). During
a discussion with Council members, Plaintiff explained that his
program at the Center saved state funds by shifting local revenue
sources. Those comments followed a presentation by Plaintiff's
staff member regarding their program's significant accomplishments
without state funding. Plaintiff's statements apparently angered
and embarrassed Defendants because they were requesting $6-7
million in state appropriations. After Plaintiff made the
statements, Defendants became hostile toward him, and according to
Plaintiff, thereafter sought to remove him from his position.
Defendants moved for summary judgment on both the remanded
progressive discipline claim and the newly added First Amendment
claim; on the First Amendment claim, Defendants argued that they
were entitled to qualified immunity. The district court granted
Defendants' motion as to the progressive discipline claim,3 but
denied the motion as to the First Amendment claim. In so doing,
however, the court explicitly stated that it did not reach the
qualified immunity issue. Instead, the court concluded that
Plaintiff had produced sufficient evidence to create a jury
question as to whether he was demoted for his speech, or for his
inappropriate actions as revealed by Defendants' investigation.
The existence of that jury question, according to the court,
obviated the need to address whether Defendants were entitled to
3
The court's disposition of the progressive discipline claim
is also not an issue in this appeal.
qualified immunity. Defendants now challenge that ruling.
Defendants also challenge the district court's decision to
permit Plaintiff to amend his complaint after this Court's remand
of the case. They argue that, in permitting the amendment, the
district court improperly expanded our mandate on remand. See
Litman v. Massachusetts Mut. Life Ins. Co., 825 F.2d 1506, 1511
(11th Cir.1987) (stating that district court acting under appellate
court's mandate cannot give any relief further than that necessary
to settle so much as has been remanded). Defendants further argue
that the doctrine of res judicata bars Plaintiff's First Amendment
claim, or in the alternative, that Plaintiff waived that claim in
the first trial of this case. Those issues, however, are not
appealable at this stage of the proceedings.4 See Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-
44, 113 S.Ct. 684, 686-88, 121 L.Ed.2d 605 (1993); Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221,
1225-26, 93 L.Ed. 1528 (1949). We properly consider only whether
the district court erred in failing to decide if Defendant's were
entitled to qualified immunity. We hold that the court did so err.
II.
4
We reject Defendants' contentions that these issues are
sufficiently intertwined with the qualified immunity issue to
warrant the exercise of pendent appellate jurisdiction. In Swint
v. Chambers County Commission, 514 U.S. 35, 115 S.Ct. 1203, 131
L.Ed.2d 60 (1995), the Supreme Court suggested that appellate
review might exist where an otherwise nonappealable question is
"inextricably interwoven" with an issue properly before us. Id.
at ----, 115 S.Ct. at 1212. The facts of this case do not
present us with such a situation. See also Haney v. City of
Cumming, 69 F.3d 1098, 1102 (11th Cir.1995) (refusing
jurisdiction under Swint because issues were not sufficiently
intertwined with defendants' qualified immunity defense).
We review de novo a district court's ruling that a government
official's conduct violated clearly established law such that the
official is not entitled to qualified immunity. Johnson v.
Clifton, 74 F.3d 1087, 1090 (11th Cir.), cert. denied, --- U.S. ---
-, 117 S.Ct. 51, 136 L.Ed.2d 15 (1996) (citing Mitchell v. Forsyth,
472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985)).
Summary judgment is proper if the evidence, when viewed in the
light most favorable to the nonmoving party, shows that there is no
genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. Celotex Corp. v.
Cartrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986).
III.
Qualified immunity shields government officials performing
discretionary functions from civil liability "insofar as their
conduct does not violate clearly established.... 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).
A.
Plaintiff contends that, under the Supreme Court's decision
in Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238
(1995), this Court does not have jurisdiction to hear Defendants'
interlocutory appeal of the denial of qualified immunity. We
disagree.
A government official may immediately appeal the denial of
qualified immunity when the issue appealed concerns whether or not
certain facts show a violation of "clearly established law."
Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86
L.Ed.2d 411 (1985). In Johnson, the Supreme Court further
elaborated on that concept by making it explicit that where the
only issue on appeal is a question of " "evidence sufficiency,'
i.e., which facts a party may or may not, be able to prove at
trial", the district court's ruling on qualified immunity is not
immediately appealable. Id. at ----, 115 S.Ct. at 2156. The issue
in Johnson was whether there was sufficient evidence to raise a
genuine issue of material fact as to whether the government
defendants had been involved in the plaintiff's beating. Id. at --
-- - ----, 115 S.Ct. at 2153-54. The defendants admitted both that
the beating was unconstitutional and that it violated clearly
established law; their only argument on appeal was that the
district court erred in finding an issue of material fact as to
their involvement in the unconstitutional conduct. Id. at ----,
115 S.Ct. at 2154. Based on those facts, the Supreme Court held
that the district court's ruling could not be immediately appealed.
Id. at ---- - ----, 115 S.Ct. 2156-58.
Defendants here make both evidence sufficiency arguments and
arguments aimed at the "clearly established law" inquiry. On the
evidence sufficiency front, they primarily argue that Plaintiff
presented no credible evidence that Plaintiff himself made any
public statements, that Defendant Gates was upset at those
statements, or that Defendant Dean—the person who actually proposed
the adverse action—had any knowledge of the events at the meeting
with Council members. Appellants' Initial Br. at 45. On the
clearly established law front, Defendants argue that Plaintiff
failed to cite any law with materially similar facts that would
have told Defendants their conduct was unconstitutional.5 See
Appellants' Initial Br. at 47-9; Appellants' Reply Br. at 10-24.
Furthermore, as discussed in more detail below, Defendants also
challenge the district court's failure to apply the appropriate
legal analysis in determining whether their conduct violated
clearly established law. See Appellants' Initial Br. at 39-40.
Because Defendants challenge all of these issues, and not merely
the sufficiency of the evidence, we conclude that we have
jurisdiction to hear this appeal. See Foy v. Holston, 94 F.3d
1528, 1531-32 n. 3 (11th Cir.1996) (stating that we have
jurisdiction where both factual issue and clearly established law
issue are appealed); Cottrell v. Caldwell, 85 F.3d 1480, 1484-86
(11th Cir.1996) (same); Johnson v. Clifton, 74 F.3d 1087, 1091
(11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 51, 136 L.Ed.2d
15 (1996) (same).
B.
In order to defeat Defendants' right to qualified immunity,
Plaintiff must have demonstrated (i) that Defendants' conduct
5
In arguing that Defendants actions did not violate clearly
established law, Defendants saved the bulk of their argument for
their reply brief. Defendants chose to do that apparently
because they did not feel Plaintiff had met its burden in coming
forward with relevant First Amendment case law. Although it may
have been Plaintiff's burden to establish that Defendants'
conduct violated clearly established law, it was Defendants'
burden to establish jurisdiction in our Court. Perhaps
Defendants should be more conscious of that in the future.
violated his clearly established First Amendment rights,6 and (ii)
that a reasonable government official would have been aware of
those rights. Tindal v. Montgomery County Comm'n, 32 F.3d 1535,
1539 (11th Cir.1994). It was the district court's task to
ascertain whether Plaintiff had met its burden. See Clifton, 74
F.3d at 1091 (stating that district court must determine whether
there is genuine issue of material fact as to whether Defendant
committed conduct that violated clearly established law).
In assessing the first part of the qualified immunity
analysis—i.e., in determining whether an employee's clearly
established First Amendment rights have been violated—we conduct a
four-part inquiry ("the Bryson test"). See Bryson v. City of
Waycross, 888 F.d. 1562, 1565 (11th Cir.1989); Clifton, 74 F.3d at
1092; Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d
1554, 1563 (11th Cir.1995); Tindal, 32 F.3d at 1539. First, we
determine whether the employee's speech may be "fairly
characterized as constituting speech on a matter of public
concern." Id. (quoting Rankin v. McPherson, 483 U.S. 378, 384, 107
S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987)). Second, if the speech
addresses a matter of public concern, we apply the Pickering
balancing test, "weighing the employee's first amendment interests
against "the interest of the state, as an employer, in promoting
the efficiency of the public services it performs through its
employees.' " Id. (quoting Pickering v. Board of Education, 391
6
Of course, at the summary judgment stage of the
proceedings, Plaintiff need not prove his case. He need only
proffer evidence sufficient to create a genuine issue of material
fact as to whether Defendants violated his clearly established
rights.
U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)). If
the employee prevails on the balancing test, we next inquire as to
whether the employee's speech played a "substantial part" in the
challenged employment decision ("the Mt. Healthy causation
question"). Id. (citing Mt. Healthy City School District Bd. of
Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471
(1977)). Finally, if the employee shows that his speech was a
substantial motivating factor, we ask whether the employer would
have terminated the employee even in the absence of the protected
speech. Id. (citing Mt. Healthy, 429 U.S. at 286, 97 S.Ct. at 575-
76).
In the case at hand, the district court determined both that
Plaintiff's speech addressed a matter of public concern (part 1)
and that Plaintiff had presented sufficient evidence to establish
a genuine issue of material fact as to whether his speech was a
substantial factor in the actions taken against him (part 3). The
court did not, however, perform the Pickering balancing test (part
2) or ask if there was a genuine issue of material fact as to
whether Defendants would have terminated Plaintiff regardless of
his speech (part 4). According to the court, the Pickering
analysis is appropriate:
only when the state fires an employee for conduct that turns
out to be protected, but that the state as an employer has an
interest in not tolerating such conduct [sic]. The [c]ourt
may also conduct the Pickering analysis if the state claims
that, although the employee did engage in protected conduct,
it fired him for related unprotected conduct. However, if the
conduct for which the state claims to have fired the employee
is unrelated to the protected conduct, a Mt. Healthy causation
question is presented, and that question is for the jury.
Order dated August 28, 1995, at 14 (emphasis in original). Because
Defendants claimed they fired Plaintiff for reasons unrelated to
his speech, the court declined to apply Pickering to the facts of
this case. Further, the court stated that, "[b]ecause under the
circumstances of this case, Defendant[s'] alleged reasons for their
actions involve a Mt. Healthy causation question and not a
Pickering balancing, the [c]ourt does not reach the qualified
immunity issue." Id. (emphasis added).
As a preliminary matter, we note that the court's statement
that it did not reach the qualified immunity issue is not totally
accurate. The Mt. Healthy question is often a part of the
qualified immunity analysis, not always separate from it. See also
Foy v. Holston, 94 F.3d 1528, 1534 (11th Cir.1996) (recognizing
that Mt. Healthy-type concerns must not be overlooked in qualified
immunity analysis). By recognizing the existence of the Mt.
Healthy causation question, the court was addressing part 3 of the
Bryson test. Thus, the court did reach part of the qualified
immunity issue, but it failed to complete that inquiry because it
believed that the existence of the Mt. Healthy causation question
obviated the need to go further. That conclusion, however, is
simply not correct.
The four-part inquiry—including the Pickering balancing
test—is to be applied in those cases "where the state denies
discharging the employee because of speech...." Bryson, 888 F.d.
at 1565. In those cases where the employer's claimed reasons are
unrelated to the speech, we still apply the Pickering balancing
test. See Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d
1554 (11th Cir.1995) (applying Pickering where employer's alleged
reason for firing employee was employee's violation of departmental
residency requirement); Tindal v. Montgomery County Comm'n, 32
F.3d 1535 (11th Cir.1994) (applying Pickering where employer's
alleged reason for firing employee was employee's failure to submit
to requested psychiatric evaluation). The Pickering balancing test
and the remainder of the qualified immunity inquiry must be done
before a case is sent to the jury for its determination of whether
a plaintiff was actually fired for his speech. To do otherwise
deprives defendants of the benefit of their qualified immunity
defense: "The entitlement is an immunity from suit rather than a
mere defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to
trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806,
2815, 86 L.Ed.2d 411 (1985).
Based on the foregoing discussion, we conclude that the
district court erred in failing to apply the Pickering balancing
test to the facts of this case. The court further erred in not
performing the remainder of the qualified immunity analysis (part
4 of the Bryson test and the reasonable public official inquiry).
We make no comment on the correctness of the district court's
resolution of parts 1 and 3 of the Bryson test. We simply vacate
and remand so that the court may complete its inquiry and fully
determine whether Defendants are entitled to qualified immunity.
The order denying summary judgment is vacated and the matter
remanded with instructions.
Vacated and Remanded.