Mansoor v. Trank , 319 F.3d 133 ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KARL MANSOOR, 
Plaintiff-Appellee,
v.
MARK TRANK, Counsel for the
County of Albemarle in his official
and individual capacity; JOHN
MILLER, Chief of the Albemarle
County Police Department, in his
official and individual capacity;
RICHARD DOUGLAS RHOADS, Captain
of the Albemarle County Police
Department, in his official and
individual capacity,

Defendants-Appellants,
No. 02-1277
and
COUNTY OF ALBEMARLE, VIRGINIA;
ROBERT M. TUCKER, Administrator
of the County of Albemarle, in his
official and individual capacity;
LARRY DAVIS, Counsel for the
County of Albemarle, in his official
and individual capacity; CYNTHIA
FAVRET, in her individual capacity,
Defendants.
THE THOMAS JEFFERSON
CENTER FOR THE PROTECTION OF FREE
EXPRESSION,
Amicus Supporting Appellee.

2 MANSOOR v. TRANK
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CA-00-47-3)
Argued: December 5, 2002
Decided: February 4, 2003
Before WILKINS and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkins and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Mark Dudley Obenshain, KEELER OBENSHAIN, P.C.,
Harrisonburg, Virginia, for Appellants. Neal Lawrence Walters,
SCOTT & KRONER, P.C., Charlottesville, Virginia, for Appellee.
ON BRIEF: Deborah C. Wyatt, WYATT & ASSOCIATES, P.L.C.,
Charlottesville, Virginia; Barbara S. Jenkins, JENKINS & RHEA,
P.L.C., Charlottesville, Virginia, for Appellee. Robert M. O’Neil, J.
Joshua Wheeler, THOMAS JEFFERSON CENTER FOR THE PRO-
TECTION OF FREE EXPRESSION, Charlottesville, Virginia, for
Amicus Curiae.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Karl Mansoor, a police officer in Albemarle County, Virginia,
brought this § 1983 action against the County and six individuals,
contending that they conspired to deprive him of his First Amendment
free speech rights. See U.S. Const. amend. I; 42 U.S.C.A. § 1983MANSOOR v. TRANK 3
(West Supp. 2002). All individual defendants moved for summary
judgment, inter alia, on qualified immunity grounds. The district
court refused to grant summary judgment to three of the six individu-
als; they now bring an interlocutory appeal. See Behrens v. Pelletier,
516 U.S. 299 (1996). We affirm.
I.
Most of the relevant facts are undisputed in this case. However, to
the extent there are factual disputes, when considering an interlocu-
tory appeal of a denial of qualified immunity, we are required to con-
sider the facts, "in the light most favorable to the party asserting the
injury," in this case, Mansoor. See Saucier v. Katz, 533 U.S. 194, 201
(2001).
Mansoor began work for the Albemarle County Police Department
in 1994 and regularly received above-average performance reviews.
Beginning in 1997, Mansoor began to express complaints about vari-
ous department policies, ranging from a proposed pay plan to lack of
overtime opportunities. Mansoor alleges that department officials
responded negatively to his criticisms, creating a stressful working
environment. Mansoor further alleges that the stress and pressure
from his workplace resulted in extreme anxiety, profuse sweating, and
shortness of breath. Early in 1998, Mansoor sought treatment from a
private counselor, Dr. Hocking, who diagnosed him with panic disor-
der. At the recommendation of the doctor, Mansoor took a forty-day
medical leave beginning in March 1998.
Although Police Chief John Miller permitted Mansoor to return to
work, the Chief claims that he maintained doubts about Mansoor’s fit-
ness for duty. At Miller’s request, Mansoor met with a psychologist,
Dr. Favret, for an evaluation. In a document dated Oct. 9, 1998, Dr.
Favret reported her initial findings about Mansoor. A week later, Dr.
Favret, Chief Miller, Mark Trank, the County’s counsel, and four
other county employees participated in a telephone conference. Fol-
lowing this conference, Dr. Favret amended her report and reissued
it, still dated Oct. 9, 1998, without indicating that it was a revision of
the original report.1
1
The parties dispute the nature of the telephone conference, and of the
changes made by Dr. Favret. However, resolution of this factual dispute
does not affect the outcome of this appeal.
4 MANSOOR v. TRANK
On October 20, Miller relieved Mansoor of duty and placed him on
administrative leave, assertedly because of Mansoor’s "impaired
judgment and related behavior." Miller told Mansoor that he must
meet three conditions in order to return to his position:
(1) demonstrate appropriate medical treatment; (2) undergo a follow-
up evaluation by Dr. Favret; and (3) demonstrate the ability "to func-
tion effectively within the Department, that you are ready, willing,
and able to abide by management policies and decisions . . . ."
In November, Mansoor met with Dr. Favret for a second evalua-
tion. In her report from this meeting, Dr. Favret suggested that if
Mansoor "is to be given the opportunity to return to work, a specific
written agreement might be developed that addresses the process for
him to pursue his concerns." After receiving Dr. Favret’s second
report, a Plan of Assistance (the "Plan") was created for Mansoor, and
on December 29 faxed to Mansoor’s attorney, Stephanie Blythe. The
Plan establishes terms and conditions for Mansoor’s return to work,
stating:
I [Miller] have determined that you [Mansoor] will be
allowed to return to duty on the following terms and condi-
tions:
1. That you shall at all times refrain from any ver-
bal or written communications to third parties,
including but not limited to county employees,
relating to your employment that are in any way
critical or negative towards the county executive,
the chief of police or other police department man-
agement or command staff, or any other county
official or employee. . . .
On December 30, Mansoor and Blythe met Miller, Trank, and Cap-
tain Richard Rhoads (the "Appellants"), along with Lieutenant New-
ton, to discuss the Plan and Mansoor’s return to work. This meeting
was tape recorded. The tape reveals that Chief Miller began the
December 30 meeting by stating that he wanted Mansoor to under-
stand that Miller’s decisions are final and not to be questioned. Miller
said that "using e-mail to blast my decisions, or things that I’ve done
or not done, will not be tolerated."
MANSOOR v. TRANK 5
Later in the meeting, Mansoor asked, "How ’bout my rights as a
private citizen; if I want to make statements to anybody else, so I’m
asking you about that." Miller responded:
As a private citizen you have the right. Certainly, anything
dealing with a departmental matter, it falls within the area
of the First Amendment and what is a public concern, that
area that that as a private citizen or not. If you’re criticizing
the department and it doesn’t fall within a public concern,
then it looks like a personal vendetta or a criticism that’s
unlawful, then you don’t have that right. And I think proba-
bly Stephanie [Mansoor’s attorney] would be best to explain
that to you.
Toward the end of the meeting, in response to a comment by Man-
soor that he had been receiving mixed signals from the department
regarding his complaints, Miller replied, "Well, that’s why I think it’s
good that this is in writing . . . . If there’s any miscommunication, it’s
at least in writing . . . . Now there’s no question as to what you can
and cannot do."
Mansoor returned to work shortly after the December 30 meeting,
but he maintains that the conditions of employment placed on him by
the Plan unconstitutionally punished him for earlier complaints and
operated as a prior restraint on his First Amendment rights. Appel-
lants respond that the Plan was designed to curb the disruption caused
by Mansoor’s inappropriate complaints and insubordination, and to
provide Mansoor with the type of guidelines that psychologists had
suggested would be helpful for him.
In April 2000, Mansoor filed suit in state court alleging five causes
of action. After Appellants removed the case to federal court, the dis-
trict court dismissed three of the five claims, leaving Mansoor’s First
Amendment § 1983 claim and a fraud claim. The district court then
granted summary judgment to all defendants on the fraud claim and
to all defendants, except Miller, Rhoads, and Trank, on Mansoor’s
First Amendment claim. Miller, Rhoads, and Trank then filed this
6 MANSOOR v. TRANK
interlocutory appeal of the district court’s judgment denying them
qualified immunity on Mansoor’s First Amendment claim.2
II.
We analyze entitlement to qualified immunity in two steps. First,
we must determine whether, "taken in the light most favorable to the
party asserting the injury, . . . the facts alleged show [that] the offi-
cer’s conduct violated a constitutional right[.]" Saucier, 533 U.S. at
201. Second, we decide "whether the right was clearly established" at
the time of the events at issue. Id.
In Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000) (en banc), we
recently explained the legal principles governing the First Amend-
ment rights of public employees:
It is well settled that citizens do not relinquish all of their
First Amendment rights by virtue of accepting public
employment. . . . A determination of whether a restriction
imposed on a public employee’s speech violates the First
Amendment requires a balance between the interests of the
employee, as a citizen, in commenting upon matters of pub-
lic concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees. This balancing involves an inquiry
first into whether the speech at issue was that of a private
citizen speaking on a matter of public concern. If so, the
court must next consider whether the employee’s interest in
First Amendment expression outweighs the public employ-
2
The district court also granted summary judgment to Mansoor on his
First Amendment § 1983 claim, but reserved the award of damages pend-
ing a hearing. Accordingly, the court’s decision granting summary judg-
ment to Mansoor is not yet final, see, e.g., LeBoeuf, Lamb, Greene, &
MacRae, L.L.P. v. Worsham, 185 F.3d 61, 64 (2d Cir. 1999) (holding
judgment "non-final because the district court had yet to award dam-
ages"); see also 19 James Wm. Moore et al., Moore’s Federal Practice
§ 201.10[2] (3d ed. 1999) (noting that to be final for purposes of appel-
late jurisdiction, the judgment must describe the relief to which the pre-
vailing party is entitled), and therefore not properly before us.
MANSOOR v. TRANK 7
er’s interest in what the employer has determined to be the
appropriate operation of the workplace.
Id. at 406 (internal alterations and quotation marks omitted) (citing
United States v. Nat’l Treasury Employees Union (NTEU), 513 U.S.
454, 465 (1995); Connick v. Myers, 461 U.S. 138, 142 (1983); Picker-
ing v. Board of Educ., 391 U.S. 563, 568 (1968)). When applying this
Pickering balancing test, the Supreme Court has suggested that "the
Government’s burden is greater" in cases like that at hand, involving
"potential speech before it happens" than in cases involving "an
adverse action taken in response to actual speech." NTEU, 513 U.S.
at 468.
The district court identified these governing principles and applied
them to hold that Mansoor had offered evidence sufficient to prove
that the terms of the Plan operated as a prior restraint on his well-
established First Amendment right to speak as a private citizen on
matters of public concern, and thus concluded that the officers were
not entitled to qualified immunity. See Mansoor v. County of Albe-
marle, 189 F. Supp. 2d 426, 432-34, 440-41 (W.D. Va. 2002). Appel-
lants offer several arguments as to why the district court erred in so
holding. We address these arguments in turn.3
3
We note at the outset that the parties also dispute at some length
whether Mansoor’s earlier criticisms of the department constitute matters
of public concern, and whether the department had an interest in prevent-
ing a disruption that this assertedly unprotected speech might have
caused. We need and do not reach these questions because the district
court rested its ruling, and we rest ours, on resolution of a quite different
question:
whether the county officials could reasonably have believed that
conditioning the plaintiff’s continued employment on compli-
ance with a plan which contained a prior restraint on plaintiff’s
speech, such that it prohibited the plaintiff from speaking in any
way negative or critical to any third party at any time about
county officials, was lawful, in light of clearly established law.
Mansoor, 189 F. Supp. 2d at 440.
8 MANSOOR v. TRANK
A.
With respect to the first prong of the qualified immunity analysis,
Appellants contend that the Plan’s limitation on future communica-
tions "relating to your employment" renders it constitutional. This
could only be so, however, if the limiting phrase, "relating to your
employment," had to be interpreted to cover only matters not of pub-
lic concern. But, in fact, matters "relating to your employment"
clearly can encompass matters of public concern. For example, the
Plan apparently would restrict Mansoor’s right to speak about per-
ceived racial problems within the department, a right we have explic-
itly held to be of public concern. See Cromer v. Brown, 88 F.3d 1315,
1325-26 (4th Cir. 1996). Indeed, Appellants conceded at oral argu-
ment that the district court correctly noted that "there are matters
which can relate to your employment which also relate to matters of
public interest."
Appellants also argue that Chief Miller made it clear at the Decem-
ber 30 meeting that the Plan did not refer to Mansoor’s statements as
a private citizen. They maintain that Mansoor admitted at deposition
that Chief Miller explained that Mansoor would retain his rights to
speak as a private citizen. This argument fails for several reasons.
First, since there is no ambiguity in the terms of the Plan, Miller’s
oral statements are irrelevant to its interpretation. See, e.g., Provi-
dence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th
Cir. 2000) ("If the terms of the contract are clear and unambiguous,
then we must afford those terms their plain and ordinary meaning.").
Moreover, as the district court observed, Miller’s statements at the
meeting are so confusing that they obviously do not clarify the mean-
ing of the Plan, and they certainly do not make it clear that the Plan
does not restrict protected speech. Not only was Miller’s immediate
response to Mansoor’s question about rights as a private citizen con-
fusing, but Miller later stated that there could be no confusion now
"because it’s in writing." Finally, Mansoor’s asserted deposition "ad-
mission" that Miller clarified the meaning of the Plan is taken out of
context; Mansoor stated only minutes later that he understood the
Plan to mean "you need to keep quiet. . . . I took it to mean that the
document coupled with what I have personal knowledge of, that they
didn’t want me to speak up about anything at all in the department."
MANSOOR v. TRANK 9
Alternatively, Appellants maintain that they could have reasonably
believed that the Pickering balancing test must be resolved in their
favor, citing cases holding that a government employer has an interest
in preventing disruption in the workplace. See, e.g., Goldstein v.
Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 354-55 (4th Cir.
2000); Berger v. Battaglia, 779 F.2d 992, 1000-01 (4th Cir. 1985).
The problem with this contention is that, as the district court found,
"the record fails to reflect any direct disruption caused by the plain-
tiff. Indeed, upon returning to work after his medical leave, the plain-
tiff received a letter of appreciation for his professional response to
a local burglary . . . ." Mansoor, 189 F. Supp. 2d at 436. Of course,
the law does not require government officials to wait until a disrup-
tion has occurred before taking action, but in this case under the evi-
dence proffered by Mansoor, there is no reason to believe that his
conduct was likely to cause a disruption even prospectively, since it
had not caused a disruption in the past.4
4
Appellants also contend, relying on Lake James Cmty. Volunteer Fire
Dep’t., Inc. v. Burke County, 149 F.3d 277 (4th Cir. 1998), that Mansoor
waived his First Amendment rights. But, as the district court explained,
Lake James has little relevance here. In Lake James, the plaintiff fire
department had no rights at all prior to entering into the contract and in
the contract agreed to a limited and narrowly tailored waiver. Here, Man-
soor certainly had First Amendment rights before agreeing to the Plan,
and the waiver was cast in the broadest possible terms. Moreover, and
most importantly, in Lake James, we ultimately engaged in balancing
"the condition that a person give up his constitutional rights . . . against
the government’s interest in promoting the efficiency of public services,"
and found the balance tipped heavily in the government’s favor. Id. at
282 (citing Board of County Comm’rs v. Umbehr, 518 U.S. 668 (1996)).
The holding of Umbehr, the Supreme Court case on which the Lake
James court relied, is "that the Pickering balancing test, adjusted to
weigh the government’s interests as contractor rather than as employer,
determines the extent" to which "independent contractors are protected"
by the First Amendment. Umbehr, 518 U.S. at 673. In this case, the dis-
trict court properly found that the evidence to date weighed heavily, not
in the government’s favor as in Lake James, but in the plaintiff’s. Con-
trary to Appellants’ suggestion, Lake James does not stand for the broad
proposition that government employers can write into employment con-
tracts waivers of constitutional rights, leaving potential employees with
10 MANSOOR v. TRANK
Moreover, even if Appellants had a legitimate interest in restricting
Mansoor’s unprotected comments about his employment, this does
not justify the Plan’s restriction on Mansoor’s prospective speech
about matters of public concern as a private citizen. In fact, Appel-
lants conceded at oral argument that they had "absolutely" no interest
in restricting Mansoor’s right to speak, as a citizen, on matters of pub-
lic concern.
B.
Turning to the second prong of the qualified immunity analysis,
there is little doubt, as the district court concluded, that the rights
Mansoor claims were violated by the Plan were clearly established
during the relevant time period. The Supreme Court articulated the
principles governing this case in Pickering, decided in 1968, and Con-
nick, decided in 1983. See Connick, 461 U.S. at 142; Pickering, 391
U.S. at 568. Thus, when Appellants drafted the Plan and presented it
to Mansoor in 1998, the governing principles had been established for
at least fifteen years.
Appellants’ principal contrary argument is that in cases involving
qualified immunity and the Pickering balancing test, the outcome of
the balancing test can "only infrequently" be said to be "clearly estab-
lished." See DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995).
Although this is so, "we did not say [in DiMeglio] that a public
employee’s right to speak on matters of public concern could never
be clearly established." Cromer, 88 F.3d at 1326 (emphasis in origi-
nal). In this case, as discussed earlier, Appellants have conceded that
they had no interest in restricting the clearly protected speech covered
the choice of accepting the job under those conditions, or finding work
elsewhere. Such an interpretation would fly in the face of Pickering and
NTEU, which hold that government employers cannot place such condi-
tions on employment unless the government’s interests "in promoting the
efficiency of the public services it performs through its employee" out-
weigh those of the employee "in commenting on matters of public con-
cern." See NTEU, 513 U.S. at 465-66; Pickering, 391 U.S. at 568.
Rather, Lake James simply constitutes an application of the Pickering
balancing test in which the balance tips in favor of the government.
MANSOOR v. TRANK 11
by the Plan (i.e., Mansoor’s right to speak about matters of public
concern as a private citizen). Given this concession, we have no diffi-
culty concluding that the district court did not err in denying them
qualified immunity.5
III.
For the foregoing reasons, the judgment of the district court deny-
ing Appellants qualified immunity is
AFFIRMED.
5
Appellants also argue that "even if the plan were found to implicate
Mansoor’s First Amendment rights, Mansoor identifies no facts which
support his claim against Trank or Rhoads." This is a sufficiency of the
evidence claim over which we have no jurisdiction at this time. See Win-
field v. Bass, 106 F.3d 525, 529-30 (4th Cir. 1997) (en banc) ("[T]o the
extent that the appealing official seeks to argue the insufficiency of the
evidence to raise a genuine issue of material fact . . . we do not possess
jurisdiction under § 1291 to consider the claim and, therefore, may not
do so absent some independent jurisdictional base.").