McVey v. Stacy , 157 F.3d 271 ( 1998 )

Affirmed and remanded by published opinion. Judge NIEMEYER wrote the opinion for the court, in which Judge MURNAGHAN and Judge MICHAEL joined as qualified by Judge MURNAGHAN’S concurring opinion. Judge MURNAGHAN wrote an opinion concurring in part and concurring in the judgment, in which Judge MICHAEL joined. Judge MICHAEL wrote a separate opinion concurring in part and concurring in the judgment.

OPINION

NIEMEYER, Circuit Judge.

Dixie L. MeVey was fired as manager of the Virginia Highlands Airport in Abingdon, Virginia, in July 1996. Claiming that her termination was in retaliation for her exercise of her First Amendment rights, she sued the Virginia Highlands Airport Commission and its members under 42 U.S.C. § 1983. The defendants moved to dismiss the case under Federal Rule of Civil Procedure 12(b)(6), based in part upon the commissioners’ claim of qualified immunity. When the district court rejected the defense as a ground for dismissal in order “to wait for those factual issues to be explored in discovery,” the commissioners appealed. We affirm and remand for further development of the record on the issue of qualified immunity.

I

The relevant facts alleged in the complaint are taken to be true for purposes of this appeal of an order dismissing the complaint under Federal Rule of Civil Procedure 12(b)(6). See Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139, 141 (4th Cir.1996).

Dixie L. McVey was hired in 1985 by the Virginia Highlands Airport Commission — a commission consisting of eight commissioners — and was appointed Airport Manager of the Virginia Highlands Airport in 1989. McVey managed the airport during a period of “unprecedented development and expansion,” and, under her leadership, successful improvements were made to the airport for which she and the airport received “numerous instances of public recognition.”

In March 1996, the local newspaper, the Abingdon Virginian, submitted a request to McVey and to the Airport Commission under the Virginia Freedom of Information Act (“FOIA”), Va.Code § 2.1-340 et seq. The submission included a request for reports detailing sexist anil racist remarks made by commissioners as well as other information that would , embarrass the Commission. After McVey began to assemble the requested documents and to prepare others to provide information not contained in existing documents, Kenneth Stacy, chairman of the Commission, allegedly advised McVey to pursue improper tactics that would “ ‘buy time’ so the Commission could prepare for impending public awareness of its wrong-doings.” Stacy also instructed McVey not to generate new documents in response to the inquiry. He and other commissioners did, however, generate notes of public meetings that did not then exist.

When preparation of the FOIA response was completed, Stacy demanded that McVey certify its correctness. McVey alleged in her complaint that because she had not been present at some of the meetings and had “personally witnessed Commissioners falsifying records,” she declined to certify “the correctness of certain documents.” Shortly thereafter, on May 16, 1996, the Airport Commission suspended McVey, giving no reason at that time for its action. A month later, however, it sent her a letter giving reasons, including, among others, McVey’s insubordination, her inattention to detail on the job, her inept handling of the FOIA request, her taking a position with respect to the FOIA request “which was intended to embarrass the Commission,” and her refusal to sign the response to the request. On July 31, 1996, the Commission voted unanimously to terminate McVey’s employment.

Contending that the Airport Commission's reasons for terminating her were false and defamatory, McVey filed suit against the Commission and against the eight individual commissioners, alleging in seven counts: a First Amendment violation, “denial of due process-property interest,” “denial of due process-liberty interest,” defamation (in two counts), wrongful discharge, and punitive damages, and she attached to the complaint the Airport Commission’s termination letter. The defendants filed a motion to dismiss the complaint. Among the grounds asserted by the individual defendants was a claim of qualified immunity.

In responding to the Commission’s motion to dismiss, McVey centered her First Amendment claim on the Commission’s retaliation for her refusal to sign a false response to the FOIA request and for her sending a separate letter to the Abingdon Virginian. Although this letter was not originally part of the complaint, the district court allowed McVey to amend her complaint to include the letter as an exhibit. It stated:

With regard to the package of information submitted to you in response to the referenced request, please be advised that I do not “certify” in any way to some documents included in that package. The documents in the package were compiled partially from Airport Commission records and partially from documents submitted to me by Members of the Airport Commission on April 4, 1996 and stamped received on that date. I can only verify the documents which were assembled and presented to the Virginia Highlands Airport Commission for their review in order to respond to your request, which documents did not include those documents stamped received April 4, 1996.

This will confirm that due to my position in this matter, Mr. Ken Stacy, Chairman of the Virginia Highlands Airport Commission, requested me to prepare a separate letter of my position on this matter.

While the district court dismissed MeVey’s due process claims, it declined to dismiss her First Amendment claim and rejected the defendants’ qualified immunity “at this stage in the litigation” because “the record ha[d] not been developed” on whether MeVey’s First Amendment interests were outweighed by the Commission’s interest in not disrupting management of the airport.

The individual commissioners noticed this interlocutory appeal from the district court’s order denying them qualified immunity on McVey’s First Amendment claim. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

II

As a threshold matter, we must determine whether the district court’s order, which essentially defers consideration of the immunity defense until the facts were better developed, is an appealable order. The district court in addressing the defendants’ challenge to MeVey’s First Amendment claim and their immunity defense for that claim, both of which were raised on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), observed that “[t]he record before the court, at this early stage in litigation, is sparse as to what the relative interests of the parties are.” Focusing more particularly on the immunity defense, the district court noted, “when there are factual issues intermingled with the legal question, the court may find it necessary to wait for those factual issues to be explored in discovery or in some cases may even require trial by a jury or by the district court.” Cf. Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (1995) (holding that on a summary judgment motion raising an immunity defense, the determination of “which facts a party may, or may not, be able to prove at trial” is not appealable). But when a district court declines to give a qualified immunity defense at the dismissal stage of litigation a hard look, it risks unwittingly the forfeiture of some protections afforded by that defense. Qualified immunity includes “an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal [immunity] question.” Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 838-39, 133 L.Ed.2d 773 (1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). It is therefore incumbent on the courts to review the immunity defense critically at an early stage of the proceedings to determine the legal questions of whether the plaintiff has asserted a violation of a constitutional right and, if so, whether the constitutional right allegedly violated was clearly established at the time the defendant acted. See Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); DiMeglio v. Haines, 45 F.3d 790, 795 (4th Cir.1995).

We recognize that the district court’s order essentially deferring a ruling on qualified immunity would appear, at first blush, to amount to a routine procedural order that is generally not appealable. Trial court determinations about the order of discovery, about motions, and about how to resolve disputed issues fall within the core of the trial court’s power to conduct litigation, and it has long been the judicial policy not to review such rulings until a final judgment has been entered. See MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d 116, 119 (4th Cir.1994). Similarly, when a trial court concludes that it has insufficient facts before it on which to make- a ruling, that conclusion would also appear not to be appealable. And if we were to construe the district court’s order in this case to be of the type addressed in Johnson, it would also not be appealable for that reason.

But in rejecting the immunity defense “at this early stage,” the district court necessarily subjected the commissioners to the burden of further trial procedures and discovery, perhaps unnecessarily. Its order implicitly ruled against the commissioners on the legal questions of (1) whether the plaintiff has adequately stated a claim for violation of a First Amendment right, and, if so, (2) whether the asserted constitutional right was clearly established at the time the defendants acted. See Siegert, 500 U.S. at 231-32, 111 S.Ct. 1789; DiMeglio, 45 F.3d at 795. These questions do not raise factual questions concerning the defendants’ involvement, which would not be appealable under Johnson. On the contrary,- they are answered with the facts of the complaint assumed to be true as a matter of law. They are therefore the very questions that Mitchell held were appealable.

An analogous circumstance was presented in Behrens. The district court in that case denied the' defendant’s motion to dismiss on immunity grounds “without prejudice, on the ground that it was premature given the lack of discovery.” 116 S.Ct. at 837. The defendant appealed the “implicit denial of his qualified-immunity defense.” While the Ninth Circuit recognized its power to hear that collateral order, it denied the immunity defense on the merits and remanded the case to the district court for further proceedings. Following completion of discovery, the defendants filed a motion for summary judgment, again asserting qualified immunity. Again, the district court rejected the defense because material issues of fact remained. On the second appeal, the Ninth Circuit dismissed the appeal for lack of jurisdiction on the ground that the defendant was entitled to only one interlocutory appeal for its immunity defense. The Supreme Court rejected the one-appeal rule and held that “an order rejecting the defendant’s qualified immunity at either the dismissal stage :or the summary-judgment stage is a ‘final’ judgment subject to immediate appeal.” Behrens, 116 S.Ct. at 839. When immunity is reviewed at the dismissal stage, “it is the defendant’s conduct as alleged in the complaint that is scrutinized for ‘objective legal reasonableness.’ ” Id. at 840. Explaining that appeal rights cannot depend on the facts of a particular case and on their; development, the Court said that appeal rights “must be determined by focusing upon the category of order appealed from.” Id. at 841 (emphasis added).

We conclude likewise that we have jurisdiction to consider whether the defendants’ conduct as alleged in the complaint is, as a matter of law, protected by qualified immunity.

Ill

To avoid excessive disruptions of government, a qualified immunity is recognized to protect government officials performing discretionary functions from civil damage suits “insofar as [the officials’] 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, 73 L.Ed.2d 396 (1982); see also Cromer v. Brown, 88 F.3d 1315, 1324 (4th Cir.1996). Officials lose the protection of the immunity only if it appears that (1) they violated a statutory or constitutional right of the plaintiff, and (2) the right was “clearly established” at the time of the acts complained of such that an objectively reasonable official in their position would have known of the right. Id.; see also DiMeglio, 45 F.3d at 796. These are legal questions that are subject to de novo review. See Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.1992).

Because the qualified immunity of government officials depends at the outset on the existence of a constitutional right, “[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert, 500 U.S. at 232, 111 S.Ct. 1789. Thus, it is “the better approach ... to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all” before turning to the question of whether the right was clearly established so that an objectively reasonable officer would have known of it. County of Sacramento v. Lewis, — U.S. -, 118 S.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998).

When determining whether a reasonable officer would have been aware of a constitutional right, we do not impose on the official a duty to sort out conflicting decisions or to resolve subtle or open issues. “Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 978 F.2d 295, 298 (4th Cir.1992); see also Cromer, 88 F.3d at 1324. Thus, particularly in First Amendment cases, where a sophisticated balancing of interests is required to determine whether the plaintiffs 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.” DiMeglio, 45 F.3d at 806; see also Bartlett v. Fisher, 972 F.2d 911, 916-17 (8th Cir.1992) (noting that qualified immunity should rarely be denied under Pickering which requires a balancing to resolve a public employee’s First Amendment claim).

With these principles of qualified immunity in hand, we turn to the case before us, first to determine whether McVey stated a cause of action under the First Amendment.

IV

The First Amendment protects public employees from termination of their employment in retaliation for their exercise of speech on matters of public concern. Protection of the public interest in having debate on matters of public importance is at the heart of the First Amendment, see Pickering v. Board of Educ., 391 U.S. 563, 573, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and, indeed, speech concerning public affairs is the essence of self-government, see Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Because of the nature of the interest protected, however, public employee speech about matters of personal interest are not so protected. Thus, “[personal grievances, complaints about conditions of employment, or expressions about other matters of personal interest do not constitute speech about matters of public concern that are protected by the First Amendment.” Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir.1992).

But this First Amendment protection of speech on matters of public concern is not absolute and must be tempered by the government’s interest in governmental effectiveness, efficiency, order, and the avoidance of disruption. As an employer, the government is entitled to maintain discipline and ensure harmony as necessary to the operation and mission of its agencies. See Connick, 461 U.S. at 142, 147, 103 S.Ct. 1684. And for this purpose, the government has an interest in regulating the speech of its employees. As the Court in Connick summarized this interest:

To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency.

461 U.S. at 151, 103 S.Ct. 1684 (quotation marks and citations omitted).

In recognition of these potentially competing interests, to determine whether an employee has a cause of action under the First Amendment for retaliatory discharge, we must balance “the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731.

Thus, to determine whether a public employee has stated a claim under the First Amendment for retaliatory discharge, we must determine (1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest; (2) whether the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and (3) whether the employee’s speech was a substantial factor in the employee’s termination decision. See Stroman, 981 F.2d at 156; see also Cromer, 88 F.3d at 1325.

In balancing the public employee’s interest in speaking on matters of public concern against the government’s interest in providing effective and efficient government through its employees, we must take into account the context of the employee’s speech, including the employee’s role in the government agency, and the extent to which it disrupts the operation and mission of the agency. See Rankin v. McPherson, 483 U.S. 378, 388-91, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). Factors relevant to this inquiry include whether the employee’s speech (1) “impairs discipline by superiors”; (2) impairs “harmony among co-workers”; (3) “has a detrimental impact on close working relationships”; (4) impedes the performance of the public employee’s duties; (5) interferes with the operation of the agency; (6) undermines the mission of the agency; (7) is communicated to the public or to co-workers in private; (8) conflicts with the “responsibilities of the employee within the agency”; and (9) makes use of the “authority and public accountability the employee’s role entails.” Id.

Thus, a public employee, who has a confidential, policymaking, or public contact role and speaks out in a manner that interferes with or undermines the operation of the agency, its mission, or its public confidence, enjoys substantially less First Amendment protection than does a lower level employee. See, e.g., Bates v. Hunt, 3 F.3d 374, 378 (11th Cir.1993) (a confidential or policy-making employee, or one whose job requires extensive public contact on employer’s behalf, “does not have much protection under the First Amendment when he speaks or acts in a hostile way toward his employer”); Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 996 (5th Cir.1992) (en banc) (because .plaintiffs position as school superintendent was “so high-level and confidential,” not much evidence was necessary to demonstrate disruption in the workplace); Gonzalez v. Benavides, 712 F.2d 142, 148 (5th Cir.1983) (explaining that high-level public executives have little expectation of free speech rights and generally accept employment knowing that speech critical of the employer’s policy subjects them to discharge). This principle tends to merge with the established jurisprudence governing the discharge of public employees because of their political beliefs and affiliation. While such beliefs and affiliation are protected by the First Amendment, dismissal may be justified if political party affiliation can be demonstrated to be “an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); see also Elrod v. Burns, 427 U.S. 347, 372, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion) (limiting patronage dismissal to poli-cymaking positions); Stott v. Haworth, 916 F.2d 134, 143-44 (4th Cir.1990) (listing cases in which patronage dismissals were justified, such as, e.g., confidential secretary, regional director of a state urban development corporation, city police chief, first deputy commissioner of water department, superintendent of employment for park district, deputy parks commissioner).

With these principles for balancing in hand, we turn to determine whether MeVey has stated a cause of action under the First Amendment and whether we can, based on the complaint’s allegations, weigh MeVey’s interest in speaking on matters of public concern against the government’s interest in providing effective and efficient government.

MeVey’s complaint alleges that she served as manager of the airport and reported to the Airport Commission. It alleges that under “her leadership,” the airport experienced an unprecedented expansion for which she received “numerous instances of public recognition.” It was also to her that the local newspaper directed its FOIA request, and it was she who signed the response to the request. But the complaint does not resolve on its face the extent to which the Rankin balancing factors were satisfied or the extent to which MeVey’s role was a confidential, policymaking, or public contact role. The complaint also does not reveal whether MeVey’s role was equivalent to that of an agency head. Depending on the response to these inquiries, airing publicly the tensions between her and the Airport Commission might well be the type of disrupting and confidence-destroying speech that the Supreme Court in Connick held must be subservient to the agency’s interests. Moreover, the circuit courts which have addressed this issue have generally denied agency heads or high-ranking agency personnel First Amendment protection. See, e.g., Weisbuch v. County of Los Angeles, 119 F.3d 778, 783-84 (9th Cir.1997) (medical director of department of health services); Rash-Aldridge v. Ramirez, 96 F.3d 117, 119-20 (5th Cir.1996) (city-council appointee on a metropolitan planning board); Bates, 3 F.3d at 377-78 (administrative assistant in the governor’s office of constituent affairs); Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236-38 (11th Cir.1992) (member of office of black affairs in county community affairs office); Kinsey, 950 F.2d at 995-96 (public school superintendent); Hall v. Ford, 856 F.2d 255, 264-65 (D.C.Cir.1988) (public university athletic director); Gonzalez, 712 F.2d at 148-50 (executive director of community action agency).

Thus, while we agree with McVey that her private protests to commission members regarding the method by which to respond to the FOIA request constituted speech, see Connick, 461 U.S. at 146, 103 S.Ct. 1684; Cromer, 88 F.3d at 1326, as did her response letter to the newspaper, we conclude that the question whether McVey’s interest in such speech was outweighed by the agency’s interests in effective and efficient management as well as public confidence is still open for determination. Thus, the district court must determine whether McVey was the agency’s public representative and whether the agency’s interests outweighed her interest in speaking out publicly. This is the concomitant determination necessary for resolving the defendants’ immunity claim. If the court determines that McVey’s First Amendment rights were in fact violated, then it would still have to determine whether the First Amendment principles were “clearly established” so that a reasonable commissioner would have known that he was violating McVey’s rights when he voted to fire her.

In short, we affirm the district court’s ruling to defer deciding on the qualified immunity issue until the record is better developed on the immunity issues.

AFFIRMED AND REMANDED.