McWaters v. Cosby , 54 F. App'x 379 ( 2002 )


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  •                          UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    PAULETTE N. MCWATERS,                      
    Plaintiff-Appellee,
    v.
    ROBERT R. COSBY, in his official
    capacity as a member of the Board of
    Supervisors of Powhatan County, and
    in his personal capacity,
    Defendant-Appellant,
    and
    JOHN F. RICK, in his official capacity
    as County Attorney for Powhatan
    County, Virginia and in his personal
    capacity; STEPHEN F. OWEN, in his
    official capacity as County                   No. 02-1430
    Administrator for Powhatan County,
    Virginia and in his personal capacity;
    ROY J. HARRISON, in his official
    capacity as a member of the Board of
    Supervisors of Powhatan County, and
    in his personal capacity; T. J. BISE, in
    his official capacity as a member of
    the Board of Supervisors of Powhatan
    County, and in his personal capacity;
    EDMUND C. BURRUSS, in his official
    capacity as a member of the Board of
    Supervisors of Powhatan County, and
    in his personal capacity; MARGARET H.
    MANNING, in her official capacity as a     
    2                       MCWATERS v. COSBY
    member of the Board of Supervisors         
    of Powhatan County, and in her
    
    personal capacity,
    Defendants.
    WAYNE W. WASSON,
    Movant.     
    PAULETTE N. MCWATERS,                      
    Plaintiff-Appellee,
    v.
    JOHN F. RICK, in his official capacity
    as County Attorney for Powhatan
    County, Virginia and in his personal
    capacity; STEPHEN F. OWEN, in his
    official capacity as County
    Administrator for Powhatan County,
    Virginia and in his personal capacity;
    ROY J. HARRISON, in his official
    capacity as a member of the Board of
    
    Supervisors of Powhatan County, and
    in his personal capacity; T. J. BISE, in       No. 02-1436
    his official capacity as a member of
    the Board of Supervisors of Powhatan
    County, and in his personal capacity;
    EDMUND C. BURRUSS, in his official
    capacity as a member of the Board of
    Supervisors of Powhatan County, and
    in his personal capacity; MARGARET H.
    MANNING, in her official capacity as a
    member of the Board of Supervisors
    of Powhatan County, and in her
    personal capacity,
    Defendants-Appellants,
    and                      
    MCWATERS v. COSBY                     3
    ROBERT R. COSBY, in his official        
    capacity as a member of the Board of
    Supervisors of Powhatan County, and
    in his personal capacity,
    Defendant.
    
    WAYNE W. WASSON,
    Movant.    
    Appeals from the United States District Court
    for the Eastern District of Virginia, at Richmond.
    Robert E. Payne, District Judge.
    (CA-01-726-3)
    Argued: December 5, 2002
    Decided: December 27, 2002
    Before WILKINSON, Chief Judge, and LUTTIG and
    MICHAEL, Circuit Judges.
    Reversed by unpublished per curiam opinion.
    COUNSEL
    ARGUED: Robert A. Dybing, SHUFORD, RUBIN & GIBNEY,
    Richmond, Virginia; Jeff Wayne Rosen, PENDER & COWARD,
    P.C., Virginia Beach, Virginia, for Appellants. Patrick Michael
    McSweeney, MCSWEENEY & CRUMP, P.C., Richmond, Virginia,
    for Appellee. ON BRIEF: John A. Gibney, Jr., SHUFORD, RUBIN
    & GIBNEY, Richmond, Virginia; Lisa Ehrich, PENDER & COW-
    ARD, P.C., Virginia Beach, Virginia; Henry M. Massie, Jr., TAY-
    LOR & WALKER, P.C., Richmond, Virginia, for Appellants. Betty
    S. W. Graumlich, John L. Marshall, Jr., MCSWEENEY & CRUMP,
    P.C., Richmond, Virginia, for Appellee.
    4                        MCWATERS v. COSBY
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Paulette McWaters, a former member of the Powhatan County
    Board of Supervisors (the "Board"), brought an action under 
    42 U.S.C. § 1983
     against the Board and certain other Powhatan County
    officials alleging violations of her equal protection and First Amend-
    ment rights. Her claims arise out of two events, an investigation of her
    travel expense reimbursement requests and a subsequent decision not
    to reimburse her for legal fees she incurred in the course of the inves-
    tigation. The defendants moved to dismiss under Federal Rule of
    Civil Procedure 12(b)(6) and asserted qualified immunity. The district
    court denied both the 12(b)(6) motion and the qualified immunity
    defense, deciding that the allegations in McWaters’ complaint, if
    proven, would establish a violation of clearly established law. We dis-
    agree. McWaters’ complaint does not establish an equal protection
    violation, and she cannot show that the defendants violated clearly
    established law with respect to her First Amendment claim. Accord-
    ingly, we reverse the district court’s order denying qualified immu-
    nity.
    I.
    The facts, as alleged in McWaters’ complaint, are these. McWaters
    was a member of the Board from 1996 through January 2000, at
    which point she was replaced by defendant T.J. Bise who currently
    sits on the Board. Defendant John F. Rick is the County Attorney of
    Powhatan County and has served in that capacity since 1997. Defen-
    dant Stephen F. Owen is the County Administrator of Powhatan
    County and has served in that capacity since 1993. Defendants Roy
    J. Harrison, Robert R. Cosby, Edmund C. Burruss, and Margaret H.
    Manning are members of the Board and have served in that capacity
    at all times relevant to this case.
    MCWATERS v. COSBY                           5
    McWaters alleges that during the 1996-2000 Board term, the Board
    members were divided on the issue of financial management of the
    Powhatan County School District. McWaters was a consistent and
    outspoken critic of the School Board and the District Superintendent
    of Schools on that issue. She was also critical of other members of
    the Board.
    In 1998, McWaters and Manning attended a National Association
    of Counties ("NACO") conference in Portland, Oregon. McWaters
    and Manning submitted several travel expense reimbursement
    requests to Powhatan County after attending the conference. The
    Board approved and authorized payment for McWaters’ and Man-
    ning’s expenses at the 1998 NACO conference.
    At an October 11, 1999, meeting of the Board, Denise Eyles, an
    employee of the Powhatan County School District, addressed the
    Board during its public comment period and rebuked McWaters for
    spending County money on travel to various conferences. Eyles con-
    fined her criticism to McWaters because her travel expenses in the
    aggregate were greater than the expenses of any other Board member
    and because McWaters had been a persistent critic of the Powhatan
    County School District and its spending practices. Eyles’ criticisms
    made their way into two newspaper articles, one in the Powhatan
    Today and the other in the Richmond Times-Dispatch, which ran later
    that month.
    At McWaters’ request, Owen sent her a letter on October 25, 1999,
    wherein he stated that he was not "aware of any improper reimburse-
    ments." J.A. 13. After sending that letter, Owen reported that he had
    developed doubts about certain reimbursement requests submitted by
    McWaters for the 1998 NACO conference. Without first contacting
    McWaters or consulting with the Board, Owen asked Rick to investi-
    gate the matter. Owen did not ask Rick to investigate any of the other
    Board members, and no others were investigated.
    Rick immediately began his investigation and notified the Chair-
    man of the Board, Cosby, of what he was doing. Ultimately, the
    investigation into the reimbursements found no criminal violation. In
    defending herself during the investigation, McWaters incurred
    $21,153.94 in legal expenses, which she formally requested the Board
    6                             MCWATERS v. COSBY
    1
    to reimburse. On August 14, 2001, Owen advised McWaters that he
    was denying her request for reimbursement on the advice of Rick that
    reimbursement for such expenses was not authorized by state law.
    McWaters brought suit under section 1983, alleging that the inves-
    tigation and subsequent refusal to reimburse amounted to a denial of
    her equal protection and First Amendment rights. She sued all defen-
    dants in their official as well as their individual capacities. The defen-
    dants moved to dismiss under Rule 12(b)(6) for failure to state a claim
    and asserted qualified immunity. The district court denied the motion
    and rejected the qualified immunity defense. See McWaters v. Rick,
    
    195 F. Supp. 2d 781
     (E.D. Va. 2002). The defendants appealed.
    II.
    The defendants contend that the district court erred by denying
    them qualified immunity. Because the defendants’ assertion of quali-
    fied immunity arises in conjunction with a motion to dismiss, we take
    the facts as alleged in McWaters’ complaint as true. See McVey v.
    Stacy, 
    157 F.3d 271
    , 276 (4th Cir. 1998). We review the district
    court’s denial of qualified immunity de novo. See 
    id. at 276
    . We con-
    sider first whether the facts as alleged by McWaters state a constitu-
    tional violation. See Saucier v. Katz, 
    533 U.S. 194
    , 201 (2001). If so,
    we proceed to consider whether the right was clearly established; that
    is, whether a reasonable officer in the respective defendants’ positions
    would have known that he was violating federal law. 
    Id. at 201-02
    .
    1
    According to Virginia law,
    If any officer or employee of any locality is investigated . . . on
    any criminal charge arising out of any act committed in the dis-
    charge of his official duties, and no charges are brought . . . the
    governing body of the locality may reimburse the officer or
    employee for reasonable legal fees and expenses incurred by him
    in defense of the investigation . . ., the reimbursement to be paid
    from the treasury of the locality.
    
    Va. Code Ann. § 15.2-1521
    .
    MCWATERS v. COSBY                             7
    A.
    The defendants first challenge the legal sufficiency of McWaters’
    equal protection claim. McWaters alleged in her complaint that the
    defendants violated her equal protection rights by "intentionally
    treat[ing] [her] differently from others similarly situated without any
    rational basis for the difference in treatment," J.A. 19, in the course
    of (a) investigating only her in the first instance and (b) refusing to
    grant her request for reimbursement of legal fees.
    The first question is of course whether the facts alleged by
    McWaters establish an equal protection violation. She argues that her
    allegation is sufficient under Village of Willowbrook v. Olech, 
    528 U.S. 562
     (2000) (per curiam). In Olech, the Supreme Court upheld the
    viability of a so-called "class of one" theory and concluded that an
    allegation that one "has been intentionally treated differently from
    others similarly situated and that there is no rational basis for the dif-
    ference in treatment" was sufficient to state a claim for an equal pro-
    tection violation. 
    Id. at 564
    . The Court clarified that the irrationality
    allegation was separate from the actual subjective motivation of the
    Village of Willowbrook. 
    Id. at 565
     (stating that the irrationality alle-
    gation was sufficient "quite apart from the Village’s subjective moti-
    vation").
    While McWaters’ complaint dutifully asserts irrationality, even a
    cursory review of the facts as alleged in her complaint demonstrates
    that she has not shown a violation of her equal protection rights,
    because numerous rational bases for the defendants’ actions suggest
    themselves even from these facts. For example, the defendants may
    have chosen to investigate only McWaters because her reimbursement
    requests were the largest and triggered the most public scrutiny, both
    through the Eyles accusation and the subsequent newspaper articles.
    And the defendants might have refused her reimbursement request
    simply because they decided, in their discretion, to conserve county
    funds.
    Because the rational basis inquiry is separate from the subjective
    motivation inquiry, the defendants are not required to show that they
    actually were acting on those rational bases. "[T]he State need not
    articulate its reasoning at the moment a particular decision is made.
    8                          MCWATERS v. COSBY
    Rather, the burden is upon the challenging party to negative any rea-
    sonably conceivable state of facts that could provide a rational basis
    for the classification." Board of Trustees of University of Alabama v.
    Garrett, 
    531 U.S. 356
    , 367 (2001) (internal quotation marks omitted).
    Since McWaters’ complaint does not negative the facts that support
    the rational bases noted above — indeed, it alleges them — it follows
    that she has failed in her burden of asserting irrationality. Thus, all of
    the defendants are entitled to qualified immunity on the ground that
    McWaters has not pled a violation of her rights under the Equal Pro-
    tection Clause.
    B.
    The defendants also insist that they are entitled to qualified immu-
    nity as to McWaters’ First Amendment claim. McWaters alleged in
    her complaint that the investigation and refusal to reimburse
    were motivated and activated by [her] outspoken criticism
    of other members of the Board of Supervisors, as well as the
    management of the Powhatan County School District and
    Owen himself, during [her] term of office as a member of
    the Board of Supervisors. The investigation of [McWaters]
    was intended to punish her for her criticism and to discour-
    age her from publicly expressing her views.
    J.A. 19-20. She asserted that this conduct violated her First Amend-
    ment right to be free from retaliatory government action.2
    The first question is, once again, whether McWaters has success-
    fully pled a violation of federal law. We conclude, for substantially
    2
    McWaters has not stated a claim against the Board members them-
    selves for retaliatory action with respect to the investigation. Defendants
    Cosby, Burruss, Harrison, Manning, and Bise cannot be liable for the
    investigation because, as stated in McWaters’ complaint, they did not ini-
    tiate the investigation, J.A. 13, and, under Virginia law, it appears that
    the only means by which they could have stopped the investigation was
    by revoking McWaters’ reimbursements. See 
    Va. Code Ann. § 15.2
    -
    1245(B). Thus, McWaters’ quarrel with respect to the investigation is at
    most with defendants Owen and Rick.
    MCWATERS v. COSBY                              9
    the same reasons given by the district court, that McWaters has pled
    a First Amendment violation. See McWaters, 
    195 F. Supp. 2d at
    794-
    805. The district court’s reasoning was quite thorough, and we will
    not repeat it here. Suffice it to say that McWaters’ allegations that the
    defendants took adverse action against her with the purpose of chill-
    ing her protected speech are sufficient to state a First Amendment
    retaliation claim.
    We disagree, however, with the district court’s conclusion that the
    First Amendment right asserted by McWaters was clearly established.
    As the district court acknowledged at the beginning of its analysis,
    "[i]t is not entirely clear which retaliation test applies under these cir-
    cumstances and, to complicate matters, courts have not been entirely
    consistent in their analytical approach." 
    Id. at 796
    . Such a conclusion
    as to the state of the law should normally require a grant of qualified
    immunity. Moreover, not only is the law unclear in this area, but the
    application of the law to the facts is often difficult to predict. As we
    have said, "particularly in First Amendment cases, where a sophisti-
    cated balancing of interests is required to determine whether the
    plaintiff’s constitutional rights have been violated, only infrequently
    will it be ‘clearly established’ that a public employee’s speech on a
    matter of public concern is constitutionally protected." McVey, 
    157 F.3d at 277
     (internal quotation marks omitted).
    In this case, we cannot say that a reasonable officer would have
    known what retaliation test would apply, and accordingly whether his
    actions were in violation of the law. McWaters points to no cases
    which are factually analogous. Her case is atypical, in part, because
    she is an elected public official, rather than a rank-and-file public
    employee. See McWaters, 
    195 F. Supp. 2d at 796
     ("The public
    employee cases decided by the Fourth Circuit do not involve public
    employees who also are members of a governing body of a local gov-
    ernment entity."). As an elected public official, the First Amendment
    interests implicated are different from those of an ordinary civil ser-
    vant and local officials are not required to perfectly predict what a
    court will later determine those interests to entail. Further compound-
    ing the confusion as to the applicable legal standard, McWaters was
    not a public employee at the point at which the Board denied her
    reimbursement request. Under these circumstances, even though
    McWaters has alleged a First Amendment violation, her claim ulti-
    10                       MCWATERS v. COSBY
    mately must fail because she cannot show that a reasonable officer in
    the defendants’ positions would have known that he was violating
    federal law.
    CONCLUSION
    For the reasons stated herein, the district court erred in denying the
    defendants qualified immunity, and accordingly the judgment is
    reversed.
    REVERSED
    

Document Info

Docket Number: 02-1430, 02-1436

Citation Numbers: 54 F. App'x 379

Judges: Wilkinson, Luttig, Michael

Filed Date: 12/27/2002

Precedential Status: Non-Precedential

Modified Date: 11/6/2024