Harris v. Board of Education

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 95-8111
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D.C. Docket No. 1:91-CV-1107-MHS

J. JEROME HARRIS, Ph.D.,

Plaintiff-Counter-Defendant-
Appellee-Cross-Appellant,

versus

BOARD OF EDUCATION OF THE CITY OF ATLANTA; A School District
of the State of Georgia,

Defendant-Counter-Claimant,

JOSEPH G. MARTIN, JR., Individually and in his Official
Capacity as President of the Board of Education of the City of
Atlanta; MARY ANNE BELLINGER, REV., Individually and in her
Official Capacity as Vice-President of the Board of Education
of the City of Atlanta; JOHN F. ELGER, Individually and in his
Official Capacity as a Member of the Board of Education of the
City of Atlanta; CAROLYN D. YANCEY, Individually and in her
Official Capacity as a Member of the Board of Education of the
City of Atlanta; D.F. GLOVER, Dr., Individually and in his
Official Capacity as a member of the Board of Education of the
City of Atlanta; ROBERT WAYMER, Individually and in his
Official Capacity as a Member of the Board of Education of the
City of Atlanta; MIDGE SWEET, Individually and in her Official
Capacity as a member of the Board of Education of the City of
Atlanta; INA EVANS, Individually and in her Official Capacity
as a Member of the Board of Education of the City of Atlanta;
PRESTON W. WILLIAMS, Dr., Individually and in his Official
Capacity as a Member of the Board of Education of the City of
Atlanta,

Defendants-Counter-Claimants-
Appellants-Cross-Appellees.
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Appeals from the United States District Court
for the Northern District of Georgia
________________________
(January 23, 1997)
Before HATCHETT, Chief Judge, HENDERSON, Senior Circuit Judge, and
MILLS*, District Judge.

PER CURIAM:

J. Jerome Harris filed this civil rights action against the

Board of Education of the City of Atlanta ("Board") and the

individual members thereof claiming that he was improperly relieved

of his duties as Superintendent of the Atlanta Public Schools prior

to the expiration of his employment contract with that governmental

body. The parties eventually filed cross-motions for summary

judgment. The United States District Court for the Northern

District of Georgia denied Harris's motion and granted the

defendants' motion in part and denied it in part. The Board

members in their individual capacities filed this appeal from the

district court's rejection of their qualified immunity defense in

part, and the parties requested the court to exercise its pendent

appellate jurisdiction over other issues decided by the district

court. For the reasons that follow, we reverse the district

court's denial of the individual Board members' motion for summary

judgment on qualified immunity grounds and dismiss the remaining

appeal without reaching the merits.

Facts.
In 1987, the Board entered into a contract with Harris to

serve as Superintendent of the Atlanta Public Schools for a four-

_____________________________________

*Honorable Richard Mills, U.S. District Judge for the Central

District of Illinois, sitting by designation.

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year period running from August 1, 1988 to July 31, 1992. After

Harris assumed his duties as Superintendent, his relations with the

Board apparently deteriorated. Following several weeks of private

discussions among its members, the Board adopted a resolution on

July 9, 1990, relieving Harris of his duties as Superintendent,

concluding that his further service was not in the best interests

of the school system. The Board voted, however, to continue paying

Harris's salary and other benefits as provided by his employment

agreement with the Board. Harris did not request a hearing before

the Board or seek any administrative or judicial relief which might

have been available to him under Georgia law.

In April 1991, Harris filed the present action against the

Board and its members in both their official and individual

capacities. In a five-count complaint, the plaintiff alleged the

deprivation of property rights without due process (Count I); the

deprivation of his liberty interest in reputation without due

process (Count II); a violation of his First Amendment rights

(Count III); a state cause of action for breach of contract and

violation of the Georgia Fair Dismissal Act (Count IV); and an

entitlement to punitive damages (Count V). The defendants answered

the complaint, denying its essential allegations and asserting a

number of defenses. Specifically, the Board members in their

individual capacities maintained that they were entitled to

qualified immunity on all of Harris's claims against them.

Harris filed a motion for partial summary judgment and the
defendants filed a motion for summary judgment on all counts of the

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complaint. On September 16, 1994, the district court entered an

order denying Harris's motion and granting in part and denying in

part the defendants' motion. The court held that the defendants

were entitled to summary judgment on plaintiff's deprivation of

property without due process, First Amendment and Georgia Fair

Dismissal Act claims but not for deprivation of liberty interest or

breach of contract. In addition, the court granted summary

judgment in favor of the individual defendants for qualified

immunity on all of Harris's constitutional claims.

Harris subsequently filed a motion seeking certification of

that order for immediate review pursuant to 28 U.S.C. § 1292(b).

The district court denied that motion but vacated some of the

rulings previously made in its September 16, 1994 order. The court

concluded that the defendants were not entitled to summary judgment

for deprivation of property without due process and the state

action based on the Georgia Fair Dismissal Act. In addition, the

court reversed itself and held that the individual Board members

were not entitled to qualified immunity for the deprivation of a

property right. The Board members filed this appeal from the

rejection of their qualified immunity defense for deprivation of

property. The defendants also requested the court to exercise its

pendent appellate jurisdiction over the district court's denial of

their motion for summary judgment on other issues. In turn, Harris

filed a cross-appeal seeking review of the district court's partial

grant of summary judgment to the defendants.

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 Jurisdictional Issues.

Because no final order has been entered in this case, the

scope of this appeal is very narrow. The district court's

rejection in part of the individual Board members' qualified

immunity defense is a final decision under the collateral order

doctrine over which this Court has jurisdiction pursuant to 28

U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806,

86 L.Ed.2d 411 (1985); Heggs v. Grant, 73 F.3d 317 (11th Cir.

1996). As stated earlier, the defendants also seek to have this

court exercise its pendent appellate jurisdiction over the district

court's denial of their motion for summary judgment on other

grounds in the case. See, e.g., Kelly v. Curtis, 21 F.3d 1544,

1550 (11th Cir. 1994).

The Supreme Court recently explicitly held, however, that

pendent appellate jurisdiction is limited to questions that are

"inextricably interwoven" with an issue properly before the

appellate court. See Swint v. Chambers County Commission, --- U.S.

---, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60, 75 (1995). In that

case, two owners, an employee and a patron of a nightclub raided by

police sued the sheriff and several other law enforcement

officials, the City of Wadley, Alabama ("City") and the Chambers

County, Alabama, Commission ("County") for civil rights violations.

The defendants filed motions for summary judgment, with the

individual defendants asserting that they were entitled to

qualified immunity on the plaintiffs' causes of action. The

district court granted the motions in part and denied them in part.

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 The individual defendants appealed the denial of their

qualified immunity defense in part, and the City and the County

asked the court to exercise pendent appellate jurisdiction over

their appeals from the denial in part of their motions for summary

judgment on the merits. A panel of this court affirmed the

district court's rejection of the individual defendants' qualified

immunity defense in part and reversed the court in part. Because

of a gap in the evidentiary record, the court declined to exercise

pendent jurisdiction over the City's appeal. With respect to the

County's appeal, however, the court concluded that it had pendent

appellate jurisdiction over that appeal and reversed the district

court's denial of the County's motion for summary judgment. See

Swint v. City of Wadley, Alabama , 5 F.3d 1435 (11th Cir. 1993),

modified, 11 F.3d 1030 (1994). The plaintiffs petitioned the

Supreme Court of the United States for review, which reversed this

court's judgment on the County's appeal. According to the Court,

the County's appeal did "not fit within the 'collateral order'

doctrine, nor is there 'pendent party' appellate authority to take

up the [County's] case." Swint, 514 U.S. at ---, 115 S.Ct. at
1206, 131 L.Ed.2d at 67. On remand, this court summarily concluded

that "[t]here is no pendent party appellate jurisdiction." Swint

v. City of Wadley, Alabama, 51 F.3d 988, 1002 (11th Cir. 1995).

In more recent decisions, the court has also concluded that

"we have no pendent party appellate jurisdiction." See Pickens v.

Hollowell, 59 F.3d 1203, 1208 (11th Cir. 1995); see also Haney v.

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City of Cumming, 69 F.3d 1098, 1102 (11th Cir. 1995), cert. denied,

--- U.S. ---, 116 S.Ct. 1826, 134 L.Ed.2d 931 (1996). For that

reason, we lack jurisdiction to review the Board's appeal on any

issue. Following the Supreme Court's decision in Swint, another

panel of this court dismissed Harris's cross-appeal for lack of

jurisdiction in an order entered January 16, 1996.

We have concluded that we may resolve the qualified immunity

issue without reaching the merits of the remaining questions raised

by the individual defendants. Those issues are not, therefore,

sufficiently interwoven with qualified immunity to fall within the

court's pendent appellate jurisdiction. Consequently, the only

controversy before us is whether the district court properly

disallowed qualified immunity to the defendants for deprivation of

property without due process. The merits of Harris's federal

claims for deprivation of property and of liberty interest in

reputation without due process and his state law causes of action

for breach of contract and for violation of the Georgia Fair

Dismissal Act remain pending in the district court.

Standard of Review.

We review a district court's grant or denial of a motion for

summary judgment de novo. Forbus v. Sears Roebuck & Co., 30 F.3d

1402, 1404 (11th Cir. 1994), cert. denied, --- U.S. ---, 115 S.Ct.

906, 130 L.Ed.2d 788 (1995). A public official's entitlement to

qualified immunity presents a purely legal question, subject to de

novo review. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019,

1023, 127 L.Ed.2d 344 (1994); Heggs v. Grant, 73 F.3d at 320.

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 Qualified Immunity.

In all but the most exceptional cases, qualified immunity

protects government officials performing discretionary functions

from the burdens of civil trials and from liability for damages.

Lassiter v. Alabama A & M University, 28 F.3d 1146, 1149 (11th Cir.

1994)(en banc). Public officials are entitled to qualified

immunity 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). Therefore, in order to succeed, the plaintiff in a civil

rights action has the burden of proving that a reasonable public

official could not have believed that his or her actions were

lawful in light of clearly established law. Johnson v. Clifton, 74

F.3d 1087, 1091 (11th Cir. 1996).

In its initial ruling, the district court held that the

defendants were entitled to qualified immunity on the deprivation

of property cause of action and granted summary judgment thereon.

Relying on this court's then recent decision in McKinney v. Pate,

20 F.3d 1550 (11th Cir. 1994)(en banc), the court held that Harris
had not suffered a procedural due process violation because the

State of Georgia provides adequate remedial measures for addressing

any deficiency in the procedure by which Harris was terminated from

his employment. Moreover, because Harris had not charged the

violation of a constitutional right, the Board members individually

were entitled to qualified immunity.

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 On reconsideration, the district court distinguished McKinney

because the plaintiff in that case had received a pretermination

hearing. The court found that there was a genuine issue of fact as

to whether Harris received full compensation under the terms of his

contract. In the court's view, if he was not fully compensated,

Harris's complaint would state a claim for deprivation of property

without due process. The court did not reach or discuss the

adequacy of Georgia's post-deprivation remedies. The court also

concluded that the Board members were not entitled to qualified

immunity in this instance because the law was clear that a public

employee with a property interest in his employment could not be

deprived of that property without notice and a hearing prior to

termination.

In McKinney, this court held that a governmental deprivation

of a public employee's state-created property interests does not

state a claim for violation of substantive due process rights. 20

F.3d at 1556-60. Rather, such a loss at most states a claim for

violation of procedural due process protections. Id. at 1560.

Even when a state procedure is inadequate, however, "no procedural

due process right has been violated unless and until the state

fails to remedy that inadequacy." Id. Therefore, a plaintiff does
not state a claim cognizable under 42 U.S.C. § 1983 unless and

until the state refuses to make available a means to remedy the

alleged procedural deprivation. Id. at 1563.

The individual defendants in this case contend that because

Harris has not pursued the post-termination remedies available to

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him under Georgia law, he has not alleged the violation of any

constitutional right, and they are entitled to judgment as a matter

of law. On the other hand, Harris argues that the defendants

structured his termination in such a way as to deprive him of any

state remedy and that he clearly has no adequate remedy under

Georgia law. While the district court must eventually address this

question to determine whether Harris had been deprived of property

without due process, we need not decide it in order to reach the

issue of whether the individual defendants are entitled to

qualified immunity. We turn our attention to that issue.

The district court's statement of the qualified immunity issue

in this case was too abstract. As this court has observed,

"[g]eneral propositions have little to do with the concept of

qualified immunity." Muhammad v. Wainwright, 839 F.2d 1422, 1424

(11th Cir. 1987). The law which must be clearly established is

that governing the specific factual situation confronting the

government official in the particular case. See Lassiter, 28 F.3d

at 1150. Also, the conduct of a government official is judged

against the law and facts at the time the defendant acted, not by

hindsight based on later events. Id. Therefore, the question for

the qualified immunity analysis in this case is whether a

reasonable Board member on July 9, 1990 would have known that

relieving Harris of his duties as Superintendent while continuing

to pay him his salary and benefits violated clearly established

law.

In fact, it appears that the law was clearly established that

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the Board acted properly. The courts which had considered the

question at that time were in agreement that a public official has

a constitutionally protected property interest only in the economic

benefits of his position and does not have any right to actually

hold the position and execute the duties of the office. See

Royster v. Board of Trustees of Anderson County School District ,

774 F.2d 618 (4th Cir. 1985)(superintendent had no constitutionally

protected right to non-economic benefits of position); Rodgers v.

Georgia Tech Athletic Association, 166 Ga.App. 156, 303 S.E.2d 467,

470 (1983)(employee has no property right to actually hold and

execute duties of office for which he is employed). This court has

noted in a similar case that "any rights concerning [the

employee's] teaching and coaching belonged to the Board, who

presumably was free to waive such rights." Hardiman v. Jefferson

County Board of Education, 709 F.2d 635, 638 n.2 (11th Cir. 1983).

The Fifth Circuit Court of Appeals reached the same conclusion in

a case decided shortly after the events under consideration here.

See Kinsey v. Salado Independent School District, 950 F.2d 988 (5th

Cir. 1992).

Because the members of the Board could not have reasonably

believed that their actions in relieving Harris of his

responsibilities while continuing to pay him the economic benefits

of the position were illegal, the Board members as individuals are

entitled to qualified immunity on his charge of a deprivation of a

property right. Accordingly, the district court's order denying

the Board members' motion for summary judgment on the basis of

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qualified immunity is REVERSED. All other issues before us are

hereby DISMISSED for lack of appellate jurisdiction.

REVERSED in part and DISMISSED in part.

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