McFall v. Bednar

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 19 2005
IN THE UNITED STATES COURT OF APPEALS
PATRICK FISHER
FOR THE TENTH CIRCUIT Clerk

SARA W. McFALL, J.D.,

Plaintiff - Appellee,

v. No. 04-6122

JAMES D. BEDNAR, J.D., in his
individual capacity;

Defendant - Appellant,

and

THE STATE OF OKLAHOMA
ex rel., THE OKLAHOMA
INDIGENT DEFENSE SYSTEM, a
state agency,

Defendants.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-03-0351-T)

Robert M. Anthony, (Robert S. Lafferrandre with him on the briefs) Pierce,
Couch, Hendrickson, Baysinger & Green, L.L.P., Oklahoma City, Oklahoma for
Defendant-Appellant.

Scott F. Brockman, (Stanley M. Ward and Woodrow K. Glass with him on the
brief) Ward & Glass, L.L.P., Norman, Oklahoma for Plaintiff-Appellee.
Before SEYMOUR and HARTZ, Circuit Judges, and BRACK, District Judge. *

BRACK, District Judge.

Defendant-Appellant, Executive Director of the Oklahoma Indigent

Defense System (“OIDS”), appeals from the district court’s order denying his

motion for summary judgment on a claim of qualified immunity. Defendant-

Appellant (“Mr. Bednar”) claims that he is entitled to qualified immunity because

he did not violate clearly established law in terminating Plaintiff-Appellee Sara

McFall (“Ms. McFall”). Mr. Bednar argues that he did not violate clearly

established law in terminating Ms. McFall because i) she did not engage in

constitutionally protected speech on a matter of public concern; and ii) Mr.

Bednar’s interest in operating an efficient workplace outweighed Ms. McFall’s

interest in unprotected speech. Our jurisdiction arises under 28 U.S.C. § 1291,

and we AFFIRM.

Background

OIDS provides representation to indigent criminal defendants. OIDS

implemented a new procedure for the selection and retention of expert witnesses

The Honorable Robert C. Brack, United States District Judge for the District of
*

New Mexico, sitting by designation.

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shortly before Ms. McFall began working there. Under the new procedure, either

the Chief of Psychological Services, Dr. Kathy LaFortune (“Dr. LaFortune”), or

the Chief of Forensic Services, Laura Schile (“Ms. Schile”), had to approve

requests for experts. Dr. LaFortune was married to a prosecutor and was herself

an attorney. Ms. Schile had previously worked in law enforcement and was not

an attorney. James Bednar, Executive Director at OIDS, had final approval of the

expert requests. OIDS implemented the new procedure to upgrade the quality of

expert services for clients and reduce costs in the wake of state-wide budget cuts.

Under the previous system, any Chief could approve the retention of an expert for

up to $5,000.

On July 1, 2002, Ms. McFall began her six-week employment with OIDS.

Ms. McFall served as Chief of the Capital Trials Norman Division and supervised

a group of attorneys in their handling of the defense in capital cases.

On July 3, 2002, after meeting with her staff, Ms. McFall met with Mr.

Bednar to discuss the new expert approval process. Ms. McFall expressed to Mr.

Bednar concerns about: the amount of time it took to respond to requests for

experts; the potential for conflicts of interest with Dr. LaFortune; and the

competency of Dr. LaFortune and Ms. Schile to make trial strategy decisions and

evaluate the need for experts.

On July 10, 2002, Jim Rowan (“Mr. Rowan”), one of the attorneys under

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Ms. McFall’s supervision, submitted a request to Ms. Schile for approval of

expert witnesses in one of his cases (the Jackson case). Both Ms. Schile and Mr.

Bednar knew that Mr. Rowan had to disclose his list of witnesses to the court by

August 7, 2002. On July 31, 2002, Mr. Rowan and his co-counsel met with Ms.

Schile to discuss the pending request. After the meeting, Ms. Schile complained

to Mr. Bednar that Mr. Rowan had been rude to her and Mr. Bednar sent an email

to Mr. Rowan stating that “your continued lack of cooperation and refusal to

follow agency procedures will only result in a delay of your request for experts.”

On August 5, 2002, Ms. McFall and Mr. Rowan decided that Mr. Rowan

should approach the court in the Jackson case and make a record in order to

preserve the issue on appeal that an expert had not been retained in time to meet

the court imposed deadline due to a delay in OIDS’s internal expert witness

request process. On August 13, 2002, Ms. McFall and the other Chiefs met with

Mr. Bednar. Ms. McFall again raised the issue of making a record for appeal in

the Jackson case. Mr. Bednar prohibited Ms. McFall and all other attorneys from

making such a record despite Ms. McFall’s concerns that the quality of the legal

services OIDS provided to clients and the attorneys’ effectiveness would be

scrutinized on appeal in that case.

In another instance regarding the Jackson case, Ms. McFall and Mr. Rowan

expressed to Dr. LaFortune their concerns about a possible conflict of interest Dr.

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LaFortune had in the approval of expert witnesses because her husband was the

prosecutor who filed the original charges against Defendant Jackson. Thereafter,

in a separate matter (the Dobbs case), Ms. McFall and another attorney she

supervised expressed a conflict of interest concern with Dr. LaFortune because

the court listed Dr. LaFortune as a witness at the preliminary hearing for Mr.

Dobbs’s co-defendant. Dr. LaFortune later complained that Mr. Rowan was rude

to her in expressing his conflict of interest concerns. Mr. Bednar told the

attorneys that if they did not follow the appropriate procedure and seek approval

for their expert requests from Dr. LaFortune, he would deny their requests for

funding.

On August 14, 2002, Mr. Bednar met with Ms. McFall and Mr. Rowan. At

that meeting, Mr. Bednar terminated Mr. Rowan. One of the reasons he gave for

Mr. Rowan’s termination was Mr. Rowan’s alleged rudeness to Dr. LaFortune.

Mr. Bednar also told Ms. McFall “you didn’t rein him in.” He then offered her an

alternative position as a capital trial lawyer at a reduced salary. Ms. McFall

subsequently removed her personal belongings and received a letter of termination

shortly thereafter.

Ms. McFall sued Mr. Bednar and OIDS under 42 U.S.C. § 1983 alleging

violations of her First Amendment right to freedom of speech and freedom of

association. Mr. Bednar moved for summary judgment on both claims and

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asserted a defense of qualified immunity. On March 3, 2004, the United States

District Court for the Western District of Oklahoma granted Mr. Bednar’s

summary judgment motion with respect to Ms. McFall’s freedom of association

claim, but denied his motion on her free speech claim and rejected his assertion of

qualified immunity. Mr. Bednar appeals the district court’s ruling that he is not

entitled to qualified immunity because Ms. McFall’s speech was constitutionally

protected.

Discussion

A. Standard of review

A motion for summary judgment may be granted only when “there is no

genuine issue as to any material fact and . . . the moving party is entitled to

judgment as a matter of law.” F ED. R. C IV. P. 56(c). This Court has held that:

"Summary judgment is appropriate 'if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact.' " Muñoz v. St. Mary Corwin

Hosp., 221 F.3d 1160, 1164 (10 th Cir. 2000) (quoting F ED. R. C IV. P. 56(c)).

When applying this standard, the Court examines the record and makes all

reasonable inferences in the light most favorable to the non-moving party. Id.

A district court’s “denial of a summary judgment motion ordinarily is not

an appealable final order.” Bass v. Richards, 308 F.3d 1081, 1086 (10th Cir.

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2002). The denial of a summary judgment motion is subject to appeal, however,

when the defendant is a public official asserting a qualified immunity defense and

the issue on appeal is whether the defendant violated clearly established law. Id.

In other words, “the scope of interlocutory appeals to denials of qualified

immunity is limited to ‘purely legal’ challenges to the denial.” Id. (internal

citations omitted).

In appealing the district court’s denial of summary judgment based on

qualified immunity, Mr. Bednar raises the issue of whether it was clearly

established that Ms. McFall’s speech constituted protected speech on a matter of

public concern. This is a “purely legal” issue and we have jurisdiction to address

it. Id. We, therefore, review the district court’s denial of summary judgment on

the basis of Mr. Bednar’s qualified immunity defense de novo. Finn v. New

Mexico, 249 F.3d 1241, 1247 (10th Cir. 2001) (citations omitted).

B. Qualified immunity

Our courts recognize two kinds of immunity defenses: absolute immunity

and qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).

The defense of absolute immunity is available to “officials whose special

functions or constitutional status requires complete protection from suit . . . .” Id.

For instance, legislators are entitled to absolute immunity in their legislative

functions and judges are entitled to absolute immunity for actions taken in their

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judicial capacity. Id. For other government officials, however, “our cases make

plain that qualified immunity represents the norm.” Id.

The qualified immunity defense attempts to strike a balance between “the

importance of a damages remedy to protect the rights of citizens, [and] ‘the need

to protect officials who are required to exercise their discretion and the related

public interest in encouraging the vigorous exercise of official authority.’” Id.

(internal citations omitted). Without the qualified immunity defense, courts

would struggle to curtail the substantial social costs associated with harassing

litigation involving government officials, including the fear that personal

monetary liability would “unduly inhibit officials in the discharge of their duties.”

Anderson v. Creighton , 483 U.S. 635, 638 (1987).

The doctrine of qualified immunity, therefore, shields government officials

performing discretionary functions from liability for civil damages arising from

42 U.S.C. § 1983 claims brought against them in their individual capacities.

Harlow , 457 U.S. at 818. Moreover, the courts draw no distinction between 42

U.S.C. § 1983 suits against state officials and suits against federal officials under

the Constitution. Id. Because Mr. Bednar is a state official being sued in his

individual capacity under 42 U.S.C. § 1983, his assertion of the qualified

immunity defense is proper.

Individual government actors retain their immunity unless the plaintiff can

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show that they violated “clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow , 457 U.S. at 818. Mr.

Bednar is entitled to qualified immunity, therefore, unless he violated a clearly

established constitutional right. According to the Supreme Court, “[i]f the law at

that time was not clearly established, an official could not reasonably be expected

to ‘know’ that the law forbade conduct not previously identified as unlawful.” Id.

at 819.

The Court, therefore, must first determine “whether the plaintiff has alleged

a deprivation of a [statutory or] constitutional right at all” and only if the answer

to that question is yes does the Court consider whether that right was clearly

established at the time so that reasonable officials would have understood that

their conduct violated that right. County of Sacramento v. Lewis , 523 U.S. 833,

841, n.5 (1998); Trotter v. The Regents of the Univ. of New Mexico, 219 F.3d

1179, 1184 (10th Cir. 2000). We have previously held that when “a government

official raises the defense of qualified immunity in a motion for summary

judgment, the plaintiff must produce facts sufficient to show both that the

defendant’s alleged conduct violated the law and that [the] law was clearly

established when the alleged violation occurred.” Bruning v. Pixler , 949 F.2d

352, 356 (10th Cir. 1991) (internal quotations omitted). Only after the plaintiff

has met this burden “must the defendant bear the usual summary judgment

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movant’s burden of showing that no material issues of fact remain that would

defeat his or her claim of qualified immunity.” Id.

In order for the law to be clearly established there must have been a

Supreme Court or other Tenth Circuit decision on point so that “the contours of

the right [were] sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Finn, 249 F.3d at 1250 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

C. Whether Ms. McFall’s termination violated clearly established law

Mr. Bednar violated clearly established law, and thus is not entitled to

qualified immunity, if he terminated Ms. McFall for exercising her free speech

rights. The Supreme Court outlined the test for a 42 U.S.C. § 1983 free speech

claim in Pickering v. Bd. of Educ., 391 U.S. 563 (1968), and its progeny. The

Court must first determine whether the employee’s speech touches on a matter of

public concern. Dill v. City of Edmond, 155 F.3d 1193, 1201 (10th Cir. 1998). If

it does, the Court must balance the employee’s interest, as a citizen, in

commenting upon matters of public concern against “the interest of the State, as

an employer, in promoting the efficiency of the public services it performs

through it’s employees.” Pickering, 391 U.S. at 568.

If the first two prerequisites are met, the speech is protected and the

plaintiff must show that her speech was a substantial or motivating factor behind

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the adverse employment decision. See Belcher v. City of McAlester, Oklahoma ,

324 F.3d 1203, 1206-07 (10th Cir. 2003); Gardetto v. Mason, 100 F.3d 803, 811

(10th Cir. 1996). If the plaintiff satisfies all these factors then the burden shifts

to the employer to show, by a preponderance of the evidence, that it would have

acted in the same way toward the employee in the absence of the protected

speech. Belcher v. City of McAlester, Oklahoma , 324 F.3d 1203, 1206-07 (10th

Cir. 2003); Gardetto v. Mason, 100 F.3d 803, 811 (10th Cir. 1996).

We have previously held that “[w]hether speech involves a matter of public

concern and whether the employee’s interest outweighs the employer’s are

questions of law for the court; whether speech was a substantial motivating factor

and whether the employer would have made the same employment decision in the

absence of the speech are questions of fact for the jury.” Bass, 308 F.3d at 1088.

Mr. Bednar’s appeal relating to Ms. McFall’s Pickering claim therefore raises two

issues: whether Ms. McFall spoke on a matter of public concern and whether

OIDS’s interest in maintaining an efficient work environment outweighs Ms.

McFall’s interest in commenting on matters of public concern. Therefore, we will

address only these questions with respect to the Pickering analysis. Bass, 308

F.3d at 1088.

First, Ms. McFall must establish that she engaged in protected speech on a

matter of public concern. The threshold inquiry “in assessing the free speech

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claim of a discharged government employee,” therefore, is “whether the employee

has spoken ‘as a citizen upon matters of public concern’ or merely ‘as an

employee upon matters only of personal interest.’” Finn, 249 F.3d at 1247

(quoting Connick v. Myers, 461 U.S. 138, 147 (1983)). Whether an employee’s

speech addresses a matter of public concern depends on the content, form, and

context of the statements and whether the speech can “be fairly considered as

relating to any matter of political, social, or other concern to the community.”

Connick v. Myers , 461 U.S. 138, 146-48 (1983); see also Belcher , 324 F.3d at

1207-08 (finding that firefighter’s expression of concern to city council members

over the purchase of a new fire truck with city tax dollars involved a matter of

public concern); Dill , 155 F.3d at 1202 (finding police officer’s comments that

exculpatory evidence was withheld in a murder investigation involved a matter of

public concern); but see Koch v. City of Huchinson , 847 F.3d 1436, 1443-44 (10th

Cir. 1988) (holding that fire marshal’s report concerning the cause of a fire did

not involve a matter of public concern).

The district court held that Ms. McFall’s speech touched on a matter of

public concern because it dealt with “the proper investigation of criminal cases

and provision of effective assistance of counsel to indigent defendants accused of

capital crimes.” McFall v. Bednar, et al., No. 03-351, slip op. at 12 (W.D. Okla.

Mar. 3, 2004). Mr. Bednar correctly argues that “speech pertaining to internal

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personnel disputes and working conditions ordinarily will not involve public

concern.” Finn, 249 F.3d at 1247; see also Dill, 155 F.3d at 1202. The district

court, however, correctly reasoned that Ms. McFall’s speech about the expert

approval process “went beyond her concern that the process was internally

cumbersome and time consuming . . . [r]ather, Plaintiff’s expressed concern

centered on the fact that the inability to secure the services of expert witnesses in

death penalty cases could deprive the indigent defendants of their constitutionally

guaranteed right to effective assistance of trial counsel.” McFall v. Bednar, et

al., No. 03-351, slip op. at 11-12 (W.D. Okla. Mar. 3, 2004).

Ms. McFall’s speech did not involve mere internal personnel disputes over

OIDS’s procedures for approving experts. Indeed, there is no indication that Ms.

McFall refused to follow the appropriate procedures in requesting experts on

behalf of the attorneys she supervised or in any way attempted to subvert the

expert approval process. Rather, her speech related to the qualifications of Dr.

LaFortune and Ms. Schile to approve experts in capital cases and her concerns

about the inability to get timely decisions. Ms. McFall expressed her concerns

that under the new expert approval system, the indigent defendants OIDS

represented were not receiving effective assistance of counsel, which prevented

them from receiving a fair trial. The right to effective assistance of counsel and

the right to a fair trial are rights granted to all criminal defendants by the Sixth

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Amendment. U.S. C ONST . amend. VI; Strickland v. Washington, 466 U.S. 668,

686 (1984); Fisher v. Gibson, 282 F.3d 1283, 1290 (10th Cir. 2002).

A government employee’s “[s]peech that seeks to expose improper

operations of the government or questions the integrity of government officials

clearly concerns vital public interests.” Finn, 249 F.3d at 1247 (quoting Conaway

v. Smith, 853 F.2d 789, 797 (10th Cir. 1988)); see also Dill, 155 F.3d at 1202

(internal citations omitted) (holding that “speech which discloses any evidence of

corruption, impropriety, or other malfeasance on the part of city officials . . .

clearly concerns matters of public import.”) Because Ms. McFall’s speech related

to matters of “political, social, or other concern to the community,” that is, the

integrity and qualifications of public officials, the operations of government, and

the right of a criminal defendant to effective assistance of counsel, it touched on

matters of public concern. Conaway, 853 F.3d at 797. Viewing the facts in the

light most favorable to Ms. McFall, she has satisfied the first prong of the

Pickering analysis.

Under the second prong of the Pickering test, the Court must weigh Ms.

McFall’s interest in commenting on matters of public concern against OIDS’s

interest in maintaining an efficient work environment. We “balance the

employee’s interest in commenting upon matters of public concern ‘against the

interest of the State, as an employer, in promoting the efficiency of the public

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services it performs through its employees.’” Dill, 155 F.3d at 1201 (quoting

Pickering, 391 U.S. at 568)). Moreover, “[i]n evaluating the employer’s interest,

we consider ‘whether the statement impairs discipline by superiors or harmony

among co-workers . . . or impedes the performance of the speaker’s duties or

interferes with the regular operation of the enterprise.’” Finn, 249 F.3d at 1249

(quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987)). In other words, the

employer must show that the employee’s speech caused some disruption in the

workplace. Belcher, 324 F.3d at 1208-09 (holding that although the government

employer need not “wait for speech actually to disrupt core operations before

taking action,” it can not restrict the employee’s speech unless it shows the

restriction is necessary to prevent the disruption of official functions); see also

Dill, 155 F.3d at 1203. In determining whether an employee disrupted the

workplace, the Court can consider whether the employee used internal rather than

external channels to exercise their free speech rights. Belcher, 324 F.3d at 1208.

In this case, Mr. Bednar concedes that Ms. McFall’s speech did not cause

any actual disruption at OIDS. Mr. Bednar never argues that Ms. McFall refused

to follow the new expert approval procedure or that she could have expressed

herself through less disruptive internal channels. Viewing the facts in the light

most favorable to Ms. McFall, she expressed her concerns over the new expert

approval process without any resultant disruption at OIDS. Ms. McFall,

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therefore, has satisfied this prong of the analysis for purposes of Mr. Bednar’s

qualified immunity defense. Because Ms. McFall satisfied the first two prongs of

Pickering, her speech was constitutionally protected.

Having determined that Ms. McFall’s speech was protected the final inquiry

for the Court is whether the law was clearly established on and before August 14,

2002, that Mr. Bednar could not terminate Ms. McFall’s employment for engaging

in such speech. Our decision in Finn v. New Mexico is directly on point and was

issued in May 2001, before Ms. McFall was terminated. In Finn, we held that

“pre-September 1995 case law clearly established that the defendant’s decision to

terminate plaintiff in retaliation for his protected speech was actionable. Hence

the district court properly rejected the qualified immunity defense . . . .” Id.

Furthermore, “[a] public employer cannot retaliate against an employee for

exercising his constitutionally protected right of free speech.” See Dill , 155 F.3d

at 1201 (citing Connick , 461 U.S. at 142).

It was clearly established on and before August 14, 2002, therefore, that a

government employee could not be terminated for speaking out on matters of

public concern. Mr. Bednar, himself an attorney and former judge, and any other

reasonable official, would understand that firing an employee for exercising her

free speech rights violated clearly established law and that such a termination was

actionable under 42 U.S.C. § 1983. The district court, therefore, properly rejected

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Mr. Bednar’s qualified immunity defense.

Conclusion

Viewed in the light most favorable to Ms. McFall, she engaged in

constitutionally protected speech on a matter of public concern. In addition, Mr.

Bednar’s interest in running an efficient workplace did not outweigh Ms.

McFall’s right to engage in constitutionally protected speech. Because it was

clearly established during Ms. McFall’s employment with OIDS that a

government employee cannot be terminated for exercising her constitutionally

protected free speech rights, the district court properly rejected Mr. Bednar’s

qualified immunity defense. Accordingly, the district court’s order denying

summary judgment based on Mr. Bednar’s assertion of qualified immunity is

hereby AFFIRMED.

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