Joe Carollo v. Luigi Boria

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11512
________________________
D.C. Docket No. 1:14-cv-23980-UU
JOE CAROLLO,
Plaintiff -Appellee,
versus
LUIGI BORIA, et al.,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 17, 2016)
Before MARCUS and FAY, Circuit Judges, and FRIEDMAN, ∗ District Judge.
FRIEDMAN, District Judge:
∗
The Honorable Paul L. Friedman, United States District Judge for the District of
Columbia, sitting by designation.
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Defendant-appellants Luigi Boria, Sandra Ruiz, and Christine Fraga
(collectively “appellants”), all city officials, terminated plaintiff-appellee Joe
Carollo from his position as City Manager for the City of Doral after he reported to
law enforcement and other agencies appellants’ alleged misconduct and made
public disclosures about the same. Carollo brought this civil action against
appellants under 42 U.S.C. § 1983, alleging a violation of his First Amendment
rights. The district court denied appellants’ motion to dismiss on the basis of
qualified immunity, finding that the First Amendment protected Carollo’s speech
because he made the reports to law enforcement and other agencies as well as the
public disclosures in his capacity as a citizen and not in connection with his
ordinary job responsibilities as City Manager. The district court also found that
precedent existing at the time of his termination clearly established Carollo’s First
Amendment rights.
After careful review, we affirm the district court in part and reverse it in
part. We remand with instructions to grant Carollo leave to amend his complaint
to cure the defects we identify and then to proceed to discovery.
I. BACKGROUND
In early 2013, City of Doral Mayor Luigi Boria proposed and the City of
Doral City Council approved the appointment of Joe Carollo as City Manager.
Appellants Boria, Christine Fraga (the City of Doral Vice-Mayor), and Sandra
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Ruiz (a City of Doral Councilwoman) were each voting members of the City
Council. Section 3.03 of the City of Doral Municipal Charter includes the
following job responsibilities of the City Manager:
(2) Direct and supervise the administration of all departments and
offices but not City boards or agencies . . . ; (3) Attend all Council
meetings and have the right to take part in discussion but not the right
to vote; (4) Ensure that all laws, provisions of this Charter and acts of
the Council, subject to enforcement and/or administration by him/her
or by officers subject to his/her direction and supervision, are
faithfully executed[.]
Section 3.01 generally describes the City Manager as “the chief administrative
officer of the City” who is “responsible to the [City] Council for the administration
of all City affairs.”
During his tenure as City Manager, Carollo “reported to local and federal
agencies violations of state and [f]ederal law” by the appellants “that were
personally communicated to him,” and “made public disclosures” at City Council
meetings about those violations.1 Carollo’s reports to these agencies and his public
disclosures concerned mainly three categories of alleged misconduct: (1) Boria
and Ruiz’s violations of Florida’s campaign finance laws; (2) Boria and Fraga’s
violations of Florida’s financial disclosure laws for elected officials; and (3)
Boria’s corruption.
1
The entities to which Carollo reported alleged violations were the Miami-Dade County
Commission on Ethics and Public Trust, the Miami-Dade Police Department’s Public Corruption
Unit, the Doral Police Department, and the Federal Bureau of Investigation.
3
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Carollo reported these three allegations of misconduct to law enforcement
and other agencies, as well as publicly disclosed the allegations at City Council
meetings. The first allegation was that Boria and Ruiz violated Florida campaign
finance laws when Boria accepted illegal campaign contributions in the form of
unreported, drastically under-market rent for his campaign headquarters, and Ruiz
failed to report a political action committee’s spending on behalf of her campaign.
The second allegation was that Boria and Fraga failed to list their secondary
sources of income on Florida’s “Form 6” financial disclosures for public officials
in 2011 and 2012. The third and final allegation was that Boria engaged in various
forms of corruption such as, for example, refusing to recuse himself from a City
Council zoning vote on a residential development project in which the developers
were his two children and “a long time business associate of Boria with whom
Boria has a debtor-creditor relationship.” On Carollo’s allegation, Boria sought to
advantage this project by pressuring the City of Doral Director of Zoning and
Planning to drop his support for a competing residential development project and
making burdensome demands upon the developer of the competing project. 2
On April 23, 2014, the City Council voted to terminate Carollo as City
Manager with appellants providing the only three votes in favor of termination.
2
In addition to these allegations of corruption, which involve interference with city
zoning decisions and self-dealing, Carollo also alleges that Boria engaged in corruption because
he interfered with city contract decisions, filed false police reports against Carollo, used public
money inappropriately, and violated the City’s cone of silence law.
4
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On October 24, 2014, Carollo filed a complaint in the United States District Court
for the Southern District of Florida against appellants and the City of Doral,
alleging three claims: (1) retaliation in violation of the First Amendment; (2)
violations of Florida’s Whistle-blower’s Act, FLA. STAT. ANN. § 112.3187 et seq.;
and (3) violations of the City of Doral Municipal Charter. 3 Carollo attached the
Municipal Charter as an exhibit to his complaint and pled that the First
Amendment protects each of his reports and public disclosures. As relevant here,
appellants moved to dismiss the First Amendment retaliation claim on the basis of
qualified immunity. They argued that they did not violate Carollo’s First
Amendment rights because he made his reports and public disclosures in his
capacity as City Manager and not as a citizen, and that, even if that was not the
case, those First Amendments rights were not clearly established in this Circuit at
the time appellants voted to terminate Carollo as City Manager.
The district court denied appellants’ motion to dismiss. First, it held that
Carollo spoke as a citizen and not pursuant to his official duties, and that his
complaint therefore stated a plausible First Amendment retaliation claim. The
court based that conclusion on the fact that Carollo’s ordinary job responsibilities
as enumerated in the Municipal Charter did not include enforcing Florida’s
campaign finance laws, Florida’s financial disclosure laws for elected officials, or
3
Carollo later agreed to dismiss the individual defendants from the Whistle-blower’s Act
claim, leaving only the City of Doral as a defendant for that claim.
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laws relating to public corruption. The district court also rejected appellants’
reliance on Section 3.03(4) of the Municipal Charter — which empowers the City
Manager to “[e]nsure that all laws . . . are faithfully executed” — because that
provision limits the City Manager’s duties to “all laws” that are “subject to
enforcement and/or administration by” him. Second, the district court held that
Carollo’s First Amendment rights were clearly established at the time appellants
voted to terminate him because appellants “have been on notice” since the
Supreme Court’s decision in Pickering v. Bd. of Ed. of Township High School
Dist., 205, 391 U.S. 563 (1968), “that a public employee may be protected under
the First Amendment when the employee learns of matters of public concern
through his or her employment and the employee speaks out as a citizen on those
matters.” The district court also noted that the Supreme Court’s decision in
Garcetti v. Ceballos, 547 U.S. 410 (2006), reaffirmed Pickering.
Appellants filed this interlocutory appeal from the district court’s denial of
qualified immunity, challenging both its merits determination that Carollo’s
complaint stated a plausible First Amendment retaliation claim and its immunity
determination that precedent in this Circuit at the time of the alleged violation
“clearly established” Carollo’s First Amendment rights.
II. DISCUSSION
Our jurisdiction is limited to appeals from “final decisions” of the district
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court, 28 U.S.C. § 1291, and a district court’s denial of a motion to dismiss
ordinarily is not a “final decision[].” See In re Hubbard, 803 F.3d 1298, 1305
(11th Cir. 2015). But there exists a “small class of collateral rulings that, although
they do not end the litigation, are appropriately deemed ‘final.’” Royalty Network,
Inc. v. Harris, 756 F.3d 1351, 1355 (11th Cir. 2014) (citing Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 106 (2009)). The Supreme Court “has been careful to say
that a district court’s order rejecting qualified immunity at the motion-to-dismiss
stage of a proceeding is a ‘final decision’ within the meaning of § 1291.” Ashcroft
v. Iqbal, 556 U.S. 662, 672 (2009). We thus have jurisdiction to review appellants’
interlocutory appeal.
“We review de novo a district court’s denial of qualified immunity. The
determination of whether a complaint sufficiently alleges a constitutional violation
also is a matter of law reviewed de novo. In reviewing a complaint, we accept all
well-pleaded factual allegations as true and construe the facts in the light most
favorable to the plaintiff.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003).
“In order to receive qualified immunity, the public official ‘must first prove
that he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.’” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002) (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)).
There is no dispute here that appellants acted within the scope of their
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discretionary authority when they voted to terminate Carollo from his position as
City Manager.
“After the defendant has established that he was acting in a discretionary
capacity, ‘the burden shifts to the plaintiff to show that qualified immunity is not
appropriate.’” Brooks v. Warden, 800 F.3d 1295, 1306 (11th Cir. 2015) (quoting
Lee, 284 F.3d at 1194). To meet this burden, a plaintiff must establish that (1) his
complaint pleads a plausible claim that the defendant violated his federal rights
(the “merits” prong), and that (2) precedent in this Circuit at the time of the alleged
violation “clearly established” those rights (the “immunity” prong). See Saucier v.
Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan, 555 U.S.
223, 234-35 (2009); see also Brooks, 800 F.3d at 1306.
We are free to address the merits or the immunity prong of the qualified
immunity analysis in any order, see Pearson, 555 U.S. at 236, and choose to begin
with the merits here in order to clarify the First Amendment rights of public
employees.
A. Merits of Carollo’s First Amendment Claim
Rule 8(a)(2) of the Federal Rules of Civil Procedure demands that a
complaint “must contain . . . a short and plain statement of the claim showing that
the pleader is entitled to relief,” and Rule 12(b)(6) allows a defendant to move to
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dismiss the complaint if it “fail[s] to state a claim upon which relief can be
granted.” “To survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), ‘a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.’” Bowen v. Warden Baldwin
State Prison, --- F.3d ----, 2016 WL 3435501, at *4 (11th Cir. June 22, 2016)
(quoting Iqbal, 556 U.S. at 678); see also Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “It is established law in this circuit that ‘the Twombly-Iqbal
plausibility standard” applies equally to ‘[p]leadings for § 1983 cases involving
defendants who are able to assert qualified immunity as a defense.’” Bowen, ---
F.3d ----, 2016 WL 3435501, at *4 (quoting Randall v. Scott, 610 F.3d 701, 707
n.2, 709 (11th Cir. 2010)); see also Hoefling v. City of Miami, 811 F.3d 1271,
1276 (11th Cir. 2016). “Determining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679; see
also Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1175-76 (11th Cir. 2014).
Here, Carollo’s claim is that appellants voted to terminate his employment
as City Manager in retaliation for him exercising his federal constitutional rights
under the First Amendment. The Supreme Court in Garcetti v. Ceballos, 547 U.S.
410 (2006), explained that its decision in Pickering “identif[ies] two inquiries to
guide interpretation of the constitutional protections accorded to public employee
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speech”:
The first requires determining whether the employee spoke as a
citizen on a matter of public concern. If the answer is no, the
employee has no First Amendment cause of action based on his or her
employer’s reaction to the speech. If the answer is yes, then the
possibility of a First Amendment claim arises. The question becomes
whether the relevant government entity had an adequate justification
for treating the employee differently from any other member of the
general public.
Garcetti, 547 U.S. at 418 (internal citations omitted). Our focus in this
interlocutory appeal is entirely on the first inquiry because appellants acknowledge
that Carollo spoke on a matter of public concern and do not argue that they had an
adequate justification for terminating him other than his speech. They dispute only
whether Carollo spoke “as a citizen” when he made the reports and disclosures
identified in the complaint. Whether a public employee spoke as a citizen is a
“question[] of law for the court to resolve.” Alves v. Bd. of Regents of the Univ.
Sys. of Ga., 804 F.3d 1149, 1159 (11th Cir. 2015).
The Supreme Court in Garcetti explained that the line between speaking as a
citizen or as a public employee turns on whether the speech “owes its existence to
a public employee’s professional responsibilities.” 547 U.S. at 421-22. If the
speech does, then “[r]estricting [it] . . . does not infringe any liberties the employee
might have enjoyed as a private citizen. It simply reflects the exercise of employer
control over what the employer itself has commissioned or created.” Id.; see also
Boyce v. Andrew, 510 F.3d 1333, 1342-43 (11th Cir. 2007) (collecting cases
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“[f]ollowing Garcetti” in which we interpreted the phrase “owes its existence to”).
In Lane v. Franks, 134 S. Ct. 2369 (2014), the Supreme Court clarified what it
meant in Garcetti when it used the phrase “owes its existence to”:
[T]he mere fact that a citizen’s speech concerns information acquired
by virtue of his public employment does not transform that speech
into employee — rather than citizen — speech. The critical question
under Garcetti is whether the speech at issue is itself ordinarily within
the scope of an employee’s duties, not whether it merely concerns
those duties . . . .
Id. at 2379. 4 We subsequently explained that “[a]fter Lane,” Garcetti’s phrase
“owes its existence to . . . must be read narrowly to encompass speech that an
employee made in accordance with or in furtherance of the ordinary
responsibilities of her employment, not merely speech that concerns the ordinary
responsibilities of her employment.” Alves, 804 F.3d at 1162.
1. Reports About Violations of Florida’s Campaign Finance Laws
Appellants do not argue that it was one of Carollo’s ordinary job
responsibilities as City Manager to ensure that other public officials complied with
Florida’s campaign finance laws. Their only argument with respect to Carollo’s
statements concerning Florida’s campaign finance laws is that all of Carollo’s
4
The fact that the Supreme Court’s decision in Lane post-dates appellants’ decision to
terminate Carollo does not foreclose us from applying it to the merits prong of our qualified
immunity analysis because, like any motion to dismiss under Rule 12(b)(6), we assess the facial
plausibility of Carollo’s claims under current precedent. See Pearson, 555 U.S. at 232 (“[A]
court must decide whether the facts that a plaintiff has alleged . . . make out a violation of a
constitutional right.”).
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allegedly protected speech “fall[s] squarely within” the scope of the City
Manager’s duty in Section 3.03(4) of the Municipal Charter to “[e]nsure that all
laws . . . subject to enforcement and/or administration by him/her . . . are faithfully
executed[.]” But this language begs the question of which laws are “subject to
enforcement and/or administration” by the City Manager. The Municipal Charter
elsewhere describes the City Manager as “responsible to the [City] Council for the
administration of all City affairs.” But the scope of those affairs is a mystery.
It is not appropriate at the motion to dismiss stage for us to interpret the
Municipal Charter’s ambiguous job description for the City Manager. See
Garcetti, 547 U.S. at 424-25 (“The proper inquiry is a practical one” wherein
“[f]ormal job descriptions often bear little resemblance to the duties an employee
actually is expected to perform.”). Discovery will illuminate exactly which laws
Carollo had the responsibility to enforce or administer and, in fact, enforced or
administered in the ordinary course of his job responsibilities. Nonetheless, with
respect to the only question before us under Rules 8(a) and 12(b)(6) — whether,
taking the factual allegations in the complaint as true, the complaint states a claim
— we find it plausible under Iqbal and Twombly that Carollo spoke as a citizen
and not pursuant to his ordinary job duties as City Manager when he made
statements to law enforcement and other agencies about how Boria and Ruiz
violated Florida’s campaign finance laws. “[A]t this stage and on the pleadings
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alone, [appellants] are not entitled to the protections of qualified immunity” on this
claim. Bowen, --- F.3d ----, 2016 WL 3435501, at *9.
Carollo’s status as a supervising public official does not alter our conclusion
that he has plausibly alleged that he spoke as a citizen about violations of Florida’s
campaign finance laws. In Moss v. City of Pembroke Pines, 782 F.3d 613 (11th
Cir. 2015), we expressed a reluctance to conclude that “a high-ranking employee”
who has “broad administrative responsibilities” could speak as a citizen and not
pursuant to those responsibilities. See id. at 620. The plaintiff in that case was an
Assistant Fire Chief whom we concluded spoke pursuant to his ordinary job
responsibilities because he testified at trial about his “self-described duties,”
including a statement that his supervisory position “gave his statements
legitimacy.” Id. at 620 & n.1. We read Moss, like Garcetti, to stand for the
proposition that a supervising public official’s ordinary job responsibilities often
extend beyond what is written in a formal job description. Id. at 618-19.
Appellants, however, offer no plausible argument that Carollo’s broad
administrative responsibilities included enforcing Florida’s campaign finance laws,
nor could they in the absence of discovery that better reveals Carollo’s ordinary job
responsibilities as City Manager.
Finally, appellants advance two arguments that Lane expressly rejected:
(1) Carollo bore the “implied duty of public employees to report suspected
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misconduct,” rendering all of his speech a part of his ordinary job responsibilities
as City Manager; and (2) Carollo’s reports to law enforcement and other agencies
were necessarily pursuant to his ordinary job responsibilities as City Manager
because law enforcement “would [not] contact an ordinary citizen.” Taking these
arguments in turn, the Supreme Court in Lane considered and rejected an “implied
duty” as follows:
It would be antithetical to our jurisprudence to conclude that the very
kind of speech necessary to prosecute corruption by public officials —
speech by public employees regarding information learned through
their employment — may never form the basis for a First Amendment
retaliation claim. Such a rule would place public employees who
witness corruption in an impossible position[.]
134 S. Ct. at 2380. We agree that appellants’ suggested implied duty would
eviscerate the role of the First Amendment in protecting public employees who act
as whistleblowers and therefore disavow it here. The Supreme Court also
explained in Lane that the “mere fact that a citizen’s speech concerns information
acquired by virtue of his public employment does not transform that speech into
employee — rather than citizen — speech.” Id. at 2379. Our focus is on whether
Carollo as City Manager ordinarily made reports to law enforcement and other
agencies about violations of Florida’s campaign finance laws, not whether an
“ordinary citizen” could make those reports.
It is plain that Carollo’s ordinary job duties as City Manager did not include
anything to do with enforcing Florida’s campaign finance laws – such matters as
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how Boria and Ruiz ran and financed their campaigns. We therefore conclude that
Carollo has pled a plausible First Amendment claim under Iqbal and Twombly that
he spoke as a citizen and not pursuant to his ordinary job duties as City Manager
when he made reports to law enforcement and other agencies about Boria and
Ruiz’s violations of Florida’s campaign finance laws.
2. All of Carollo’s Remaining Speech
As to Carollo’s other claims, we conclude that Carollo’s poorly-drafted
complaint does not state plausible claims that he spoke as a citizen and not
pursuant to ordinary job responsibilities when he made (1) reports to law
enforcement and other agencies about Boria and Fraga’s violations of Florida’s
financial disclosure laws for elected officials; (2) reports to law enforcement and
other agencies about Boria’s corruption; and (3) public disclosures at City Council
meetings. We will remand the case to the district court with instructions that it
permit Carollo to amend his complaint in order to attempt to cure the defects that
we identify. The case should then proceed to discovery, after which appellants
may again raise qualified immunity on a motion for summary judgment, if
appropriate. See Bowen, --- F.3d ----, 2016 WL 3435501, at *9 (“This case may
look very different as it moves beyond the pleadings and the record is developed
more fully [and] . . . ‘defendants [are] not precluded from asserting the qualified
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immunity defense throughout the proceedings as the facts develop[.]’” (quoting
Oladeinde v. City of Birmingham, 230 F.3d 1275, 1289 (11th Cir. 2000))).
With respect to the first two categories, the Municipal Charter offers no
guidance about whether the City Manager ordinarily makes reports to law
enforcement and other agencies. Unlike Florida’s campaign finance laws, we find
it plausible that at least some of Boria’s alleged corruption, such as interfering with
City zoning matters, is within the scope of the City Manager’s ordinary job
responsibilities. Cf. Adler v. Deegan, 167 N.E. 705, 711 (N.Y. 1929) (Cardozo,
C.J., concurring) (“A zoning resolution in many of its features is distinctively a
city affair, a concern of the locality, affecting, as it does, the density of population,
the growth of city life, and the course of city values.”). And at this stage we have
no basis on which to determine whether the City Manager ordinarily deals with
Florida’s financial disclosure laws for public officials. Are they or are they not the
kind of laws that are “subject to enforcement and/or administration” by him or by
others subject to his direction or supervision? We simply do not know, and
Carollo’s complaint does not tell us, for example, whether Carollo did or did not
ordinarily involve himself in zoning or financial disclosure issues as City Manager.
Carollo therefore has not pled a plausible claim that the First Amendment protects
either (1) his reports to law enforcement and other agencies about Boria and
Fraga’s alleged violations of Florida’s financial disclosure laws for public officials,
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or (2) his reports to law enforcement and other agencies about Boria’s alleged
corruption.
As for Carollo’s public statements at City Council meetings that publicly
disclosed the alleged misconduct, section 3.03(3) of the Municipal Charter
empowers the City Manager to “[a]ttend all Council meetings and have the right to
take part in discussion.” It is unclear from the complaint, however, whether it was
part of Carollo’s ordinary responsibilities to speak at City Council meetings about
matters such as violations of Florida’s campaign finance laws, Florida’s financial
disclosure laws, or political corruption. In light of the plain language of Section
3.03(3) of the Municipal Charter, we find it implausible that Carollo was speaking
as a citizen when he made public disclosures concerning those matters at City
Council meetings, and Carollo does not assert that he was. Carollo therefore has
not pled a plausible claim that the First Amendment protects his public disclosures
at City Council meetings.
Nonetheless, we will remand the case to the district court with instructions
for it to allow Carollo to amend his complaint to add allegations based on any facts
or evidence that might make some or all of these claims plausible. A district court
should freely give leave to amend “when justice so requires.” FED. R. CIV. P.
15(a)(2); see Perez v. Wells Fargo N.A., 774 F.3d 1329, 1340 (11th Cir. 2014).
Here, the district court set a “[c]ut-off date for adding parties or amended
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pleadings” of May 8, 2015, but stayed the proceedings before the cut-off date until
the resolution of this appeal. Under these circumstances, we believe that justice
requires giving Carollo an opportunity to file an amended complaint that resurrects
those portions of his complaint that we dismiss by pleading facts that support the
claim — if true — that he spoke as a citizen and not pursuant to his ordinary job
responsibilities.
The district court should then proceed directly to discovery, which will
reveal, among other things, what precisely were Carollo’s ordinary job
responsibilities. Indeed, each of the relevant cases from the Supreme Court and
this Circuit to undertake Garcetti’s “practical inquiry” concerning whether a
plaintiff spoke pursuant to ordinary job responsibilities or as a citizen did so at the
summary judgment stage or later in the life of the case. See, e.g., Lane, 134 S. Ct.
at 2379-80 (summary judgment); Garcetti, 547 U.S. at 424-25 (summary
judgment); Alves, 804 F.3d at 1158 (summary judgment); Moss, 782 F.3d at 620
(judgment as a matter of law); D’Angelo v. Sch. Bd. of Polk Cty., Fla., 497 F.3d
1203, 1210 (11th Cir. 2007) (judgment as a matter of law); Vila v. Padron, 484
F.3d 1334, 1339 (11th Cir. 2007) (judgment as a matter of law); Boyce, 510 F.3d
at 1343-47 (summary judgment); Phillips v. City of Dawsonville, 499 F.3d 1239,
1241 (11th Cir. 2007) (summary judgment). Development of the record through
discovery will illuminate exactly what laws are “subject to enforcement and/or
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administration by” the City Manager and whether Carollo ordinarily made reports
to law enforcement and other agencies like those at issue here.
B. Whether Carollo’s First Amendment
Rights Were Clearly Established
“A Government official’s conduct violates clearly established law when, at
the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently
clear’ that every ‘reasonable official would have understood that what he is doing
violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “So conceived, the object of
the ‘clearly established’ immunity standard is not different from that of ‘fair
warning,’” United States v. Lanier, 520 U.S. 259, 270 (1997), and “ensure[s] that
before they are subjected to suit, [public officials] are on notice their conduct is
unlawful.” Saucier, 533 U.S. at 206; see also Moore v. Pederson, 806 F.3d 1036,
1046 (11th Cir. 2015) (“The touchstone of qualified immunity is notice.”). Any
cases decided after April 23, 2014 — including the Supreme Court’s June 19, 2014
decision in Lane — are not relevant to this analysis because they could not have
provided appellants fair warning that their conduct was unconstitutional on April
23, 2014. We therefore decline to consider the many cases decided after Lane to
which appellants direct us.
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“Our Circuit uses two methods to determine whether a reasonable official
would understand that his conduct violates a constitutional right.” Moore, 806
F.3d at 1047. The first asks whether “binding opinions from the United States
Supreme Court, the Eleventh Circuit Court of Appeals, and the highest court in the
state where the action is filed . . . gave [the defendant] fair warning that his
treatment of [the plaintiff] was unconstitutional.” Merricks v. Adkisson, 785 F.3d
553, 559 (11th Cir. 2015). The second asks whether a public official’s “‘conduct
lies so obviously at the very core of what [federal law] prohibits that the
unlawfulness of the conduct was readily apparent to [the public official],
notwithstanding the lack of fact-specific case law’ on point.” Moore, 806 F.3d at
1047 (quoting Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011)
(internal quotation marks omitted)). Our concern here is with the first method
because it is not “so obvious[]” that appellants violated the First Amendment in
light of the close merits question of whether Carollo spoke as a citizen or pursuant
to ordinary job responsibilities. See supra § II(A).
Under the first method, we determine whether existing law provides fair
warning and notice “in light of the specific context of the case, not as a broad
general proposition.” Saucier, 533 U.S. at 201. Fair warning and notice do not
require “a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate,” that is to say, there must exist
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a “robust ‘consensus of cases of persuasive authority.’” al-Kidd, 563 U.S. at 741-
42 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)); see also Keating v. City
of Miami, 598 F.3d 753, 766 (11th Cir. 2010) (“There need not . . . be a prior case
wherein the very action in question has previously been held unlawful.” (internal
quotation marks omitted)). At the same time, the Supreme Court has “repeatedly
told” courts not to define clearly established law “at a high level of generality.” al-
Kidd, 563 U.S. at 742; see Doe v. Braddy, 673 F.3d 1313, 1319 (11th Cir. 2012)
(“[Q]ualified immunity’s ‘clearly established’ test does not operate at a high level
of generality.”). At base, “[i]f reasonable public officials could differ on the
lawfulness of a defendant’s actions,” then the defendant did not have fair warning
and notice, and “is entitled to qualified immunity.” Storck v. City of Coral
Springs, 354 F.3d 1307, 1314 (11th Cir. 2003).
The district court held that Carollo’s First Amendment rights were clearly
established at the time appellants voted to terminate him based on Pickering v. Bd.
of Ed. of Township High School Dist., 205, 391 U.S. 563 (1968), and Garcetti v.
Ceballos, 547 U.S. 410 (2006). The court found that Pickering and Garcetti put
appellants “on notice . . . that a public employee may be protected under the First
Amendment when the employee learns of matters of public concern through his or
her employment and the employee speaks out as a citizen on those matters.”
Appellants argue, however, that the district court erred in relying on Pickering
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because our prior decisions applying its balancing test — i.e., whether the
employer “had an adequate justification for treating the employee differently from
any other member of the general public,” Garcetti, 547 U.S. at 418 — often find
against First Amendment protection. See, e.g., Hansen v. Soldenwagner, 19 F.3d
573, 576 (11th Cir. 1994) (collecting cases). Our decisions applying Pickering’s
balancing test are irrelevant, however, because here appellants do not advance an
argument that they had an adequate justification for terminating Carollo, only that
Carollo spoke pursuant to his official job responsibilities. Understood in that
context, we conclude that Pickering and Garcetti gave reasonable public officials
fair warning that it violates the First Amendment to terminate a colleague in
retaliation for speaking about matters of public concern that are outside the scope
of his ordinary job responsibilities.
A robust consensus of our precedent confirms that the district court was
correct to rely upon Pickering and Garcetti as a basis for fair warning to appellants.
For example, in Akins v. Fulton Cty., Ga., 420 F.3d 1293 (11th Cir. 2005), we held
that a defendant had “fair warning . . . that speech whose main thrust is to report
bidding irregularities to a public official in a meeting requested for that purpose is
protected by the First Amendment.” Id. at 1308 (internal quotation marks
omitted); see also Bryson v. City of Waycross, 888 F.2d 1562, 1566-67 (11th Cir.
1989) (“[A] core concern of the first amendment is the protection of the ‘whistle-
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blower’ attempting to expose government corruption.”); cf. Camp v. Corr. Med.
Servs., Inc., 400 F. App’x 519, 521-22 (11th Cir. 2010) (per curiam) (citing Akins
for the proposition that a public employee’s First Amendment right to speak to law
enforcement about public corruption and misconduct was clearly established).
Likewise, in Walker v. Schwalbe, 112 F.3d 1127 (11th Cir. 1997), we considered a
state employee who was terminated for participating in a state investigation of his
supervisor’s alleged misconduct and held that, “[a]t the time the defendants acted
in 1991, clearly established law informed reasonable government officials that [the
plaintiff] could not be punished for his First Amendment speech.” Id. at 1133.
Against the backdrop of this Circuit’s precedents and the Supreme Court’s
guidance in Pickering and Garcetti, we conclude that reasonable public officials
would have known at the time of Carollo’s termination that it violated the First
Amendment to terminate a colleague for speaking about matters of public concern
that are outside the scope of his ordinary job responsibilities. Carollo has plausibly
pled that at least some of his speech was about matters of public concern and
outside the scope of his ordinary job responsibilities, and with respect to the
remainder of his speech, we are remanding to the district court to permit Carollo to
amend his poorly-drafted complaint to cure the defects that we identify. See supra
§ II(A). The district court therefore did not err in concluding that Carollo’s First
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Amendment right to such speech was clearly established at the time of his
termination.
III. CONCLUSION
For the foregoing reasons, the district court’s order denying appellants’
motion to dismiss Carollo’s First Amendment retaliation claim is AFFIRMED IN
PART and REVERSED IN PART. For those portions of Carollo’s complaint
where he fails to allege a plausible First Amendment claim, however, we
REMAND with instructions to the district court to afford Carollo an opportunity to
amend his complaint to cure the defects that we identify and then to proceed to
discovery.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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