Walker v. Schwalbe

United States Court of Appeals,
Eleventh Circuit
No. 96-8338.
Michael WALKER, Plaintiff-Appellee,
v.
Robert SCHWALBE, individually, and in his official capacity;
Darrell Dean, individually and in his former official capacity;
Roy Parrish, individually and in his official capacity; David
Evans, in his official capacity only, Defendants-Appellants.
May 15, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 4:92-CV-010-HLM), Harold L. Murphy,
Judge.
Before BIRCH, Circuit Judge, and RONEY and FARRIS*, Senior Circuit
Judges.
FARRIS, Senior Circuit Judge:
Defendants interlocutorily appeal the district court's holding
that they are not entitled to qualified immunity. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Mitchell v. Forsyth,
472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (denial of
qualified immunity is immediately appealable under the collateral
order doctrine). We affirm.
BACKGROUND
Vista Community Programs provides social services for Walker,
Chattooga, Catoosa, and Dade counties in northern Georgia. Vista
is funded by the Walker County Board of Health through a contract
with the Georgia Department of Human Resources. Michael Walker was
hired by Vista in 1982. In 1986 he was promoted to supervise all
*
Honorable Jerome Farris, Senior U.S. Circuit Judge for the
Ninth Circuit, sitting by designation.
Vista services for the developmentally disabled. He was
responsible for all budgetary issues pertaining to mental
retardation programs. Throughout his career he received excellent
performance reviews.
Darrell Dean was in charge of overseeing Vista as the
Department of Human Resources District Health Director. In 1988 he
hired Robert Wesley as Vista's Area Director and Tom Nickell as
Vista's business manager. Wesley was Walker's superior at Vista.
During Wesley and Nickell's tenure, Vista budget information
supplied to employees became less accurate. Walker complained to
Wesley and Nickell that some budget practices violated Department
regulations and prevented Walker from effectively managing the
budgets for which he was responsible. After Walker and others
voiced these concerns, Wesley and Nickell began to withhold budget
information from Vista employees.
Walker also expressed concern to Wesley that (1) the garage
Vista used to service its vehicles (chosen by Wesley without
receiving bids) charged exorbitant prices and was not properly
fixing the vehicles, (2) Wesley had directed all employees to have
their Vista vehicles cleaned at a business run by Vista employees
and their relatives, and (3) employee committees, which met during
work hours, conducted fund-raising in the community to raise money
allegedly for Vista but instead used the money for weekend social
activities.
In July 1991 Georgia's governor directed all state agencies to
submit budget reduction proposals. Walker learned that Wesley and
Nickell had proposed closing Vista's Chattooga County Service
Center. Walker urged them to reconsider because he believed the
proposed closure was inconsistent with the Department of Human
Resources' budget proposal request. The defendants claim that
Walker also learned that there was a proposal to cut his position.
When Walker's efforts with Wesley and Nickell failed he sought
assistance from state legislators. In August 1991 high-level Vista
employees Ernest Taylor, Nora Swafford, and Walker met with several
state representatives and senators. They discussed Walker's
budgetary concerns and a three-page list of "possible
improprieties" at Vista. When Walker had knowledge of a particular
impropriety he shared that information. He was primarily concerned
with budget expenditures, the car wash service, and the car repair
service. Walker stated in his deposition that he never feared that
Wesley's budget proposal would cost him his job because he believed
he was protected by the state merit system policies. The
defendants claim that Taylor had prepared the list of improprieties
and was the person primarily concerned about the improprieties,
that Walker did not know about the list and was only involved to
protect his job, and that the legislators already knew of these
problems.
As a result of the meeting with state legislators, the
Department of Human Resources began an investigation of impropriety
at Vista. David Nave conducted the investigation, assisted by
Robert Schwalbe. In October, Dean (the Department of Human
Resources employee who oversaw Vista) informed Vista staff that
Wesley and Nickell were being dismissed, that Dean would be
assuming the responsibilities of Area Director, and that Schwalbe
would be assuming Nickell's former position. Dean delegated
responsibility to Schwalbe for most daily administrative activities
at Vista.
In November 1991 Nave completed the investigative report. It
concluded that Vista had been mismanaged, that there had been
misconduct and violations of Georgia law, and that Vista
administration had shown little regard for Department policy. The
report included investigations of several alleged instances of
nepotism and concluded that at least one was a clear violation.
The investigation and report generated a great deal of media
attention in northwest Georgia. Dean ultimately resigned his
position at the Department of Human Resources due to the
investigation and media attention.
Some Walker County Board of Health members were upset that the
legislators, not the Board, had been contacted about the
improprieties. The Board was also embarrassed about the negative
publicity. It considered refusing to renew the county's status as
lead funding county for Vista. Members of the Board were aware
that Walker was among those who had complained to the legislators.
In 1990 and 1991 Walker's wife, Crystal Walker, served as a
Vista teacher consultant. Her immediate supervisor was Amanda
Boyd, Director of the Walker County Service Center. Walker was
Boyd's superior in the Vista mental retardation program. Prior to
hiring Mrs. Walker, Walker and Boyd reviewed all available written
policies regarding employment of relatives to ensure that it was
permitted. Walker suggested that Boyd contact the personnel office
regarding the issue. The Georgia Department of Human Resources
Administrative Policy and Procedures Manual stated that employment
of relatives, which includes spouses, is not precluded, but that
relatives shall not be employed in situations in which a direct
superior-subordinate relationship would exist.
Walker and Boyd concluded that Mrs. Walker could be hired, and
agreed that Boyd would be wholly responsible for all supervision,
terms, and conditions of her employment. Walker, Wesley, and Dean
each signed Mrs. Walker's contract.
Defendants have produced documents, which they allege were the
applicable policies, that prohibit the employment of any relatives
in an employee's entire chain of command.
After the release of the investigative report, Schwalbe met
with Walker and stated that a member of the Walker County Board of
Health had asked Schwalbe to review the Vista contracts with Mrs.
Walker. The next day Schwalbe gave Walker a notice of proposed
demotion and disciplinary salary reduction. The notice charged
that Walker had violated Vista conflict of interest policies by
hiring his wife. It also stated that Walker was "negligent and
inefficient" for directing a subordinate to obtain approval from
Walker's superior for the contract with his wife.
Walker pursued a written appeal to Dean on December 16, 1991.
Dean upheld the proposed demotion and salary reduction, which
amounted to almost $3,200 a year. Schwalbe and Dean each knew that
Walker had been one of the employees who had spoken with the
legislators. On December 19 Dean informed Walker he would be
transferred to another Vista center forty miles from his home.
Walker later applied for a promotion to his previous position but
was denied without an interview. He subsequently abandoned his
career at Vista. Defendants presented evidence that other Vista
employees were disciplined for violating anti-nepotism policies.
After the meeting with the legislators, Taylor (the Vista
employee who had prepared the list of improprieties) was removed
from the management team at Vista and placed under the authority of
one of his subordinates. After the investigation, Swafford (the
third Vista employee who met with the legislators) was removed from
the management team at Vista and transferred from the office where
she had worked for twelve years. No justifications were given for
these actions.
Walker filed suit under 42 U.S.C. § 1983 against Schwalbe and
Dean for violating his right to First Amendment speech by demoting
him in retaliation for his conversation with the legislators.
Defendants moved for summary judgment. The district court held
that Walker had established a genuine issue of material fact that
he was demoted in retaliation for his speech and that the
defendants were therefore not entitled to a ruling of qualified
immunity prior to trial. The defendants appeal interlocutorily.
DISCUSSION
QUALIFIED IMMUNITY
A. Standard of Review
A district court's ruling that an official's conduct violated
clearly established law so that the official is not entitled to a
ruling of qualified immunity prior to trial is reviewed de novo.
Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86
L.Ed.2d 411 (1985); Johnson v. Clifton, 74 F.3d 1087, 1090 (11th
Cir.), cert. denied sub nom Hill v. Clifton, --- U.S. ----, 117
S.Ct. 51, 136 L.Ed.2d 15 (1996).
B. Method of Review
A defendant may interlocutorily appeal a district court's
holding that he is not entitled to qualified immunity. Mitchell v.
Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411(1985). Where this occurs there are effectively two issues on
appeal: (1) whether the district court's holding that a genuine
issue exists as to what conduct the official engaged in was
correct, and (2) whether the official is entitled to qualified
immunity for that conduct. The first issue is factual, the second
legal. Johnson v. Jones, --- U.S. ----, ---- - ----, 115 S.Ct.
2151, 2156-59, 132 L.Ed.2d 238 (1995).
Where, as here, the defendants contest the district court's
legal holding, we may also consider the factual issue because it is
part of the core qualified immunity analysis. Johnson v. Clifton,
74 F.3d at 1091. We do so, and "simply take, as given, the facts
that the district court assumed when it denied summary judgment for
that (purely legal) reason." Id.; see Cooper v. Smith, 89 F.3d
761, 762 (11th Cir.1996) (in most qualified immunity interlocutory
appeals the appellate court accepts the facts that the district
court assumed).
C. Genuine Issue of Material Fact as to Defendants' Conduct
We analyze First Amendment retaliatory demotion claims under
a four-part test: (1) whether the employee's speech involves a
matter of public concern, (2) whether the employee's interest in
speaking outweighs the government's legitimate interest in
efficient public service; (3) whether the speech played a
substantial part in the government's challenged employment
decision, and (4) whether the government would have made the same
employment decision in the absence of the protected conduct.
Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1563-64
(11th Cir.1995) (citing Bryson v. City of Waycross, 888 F.2d 1562,
1565-66 (11th Cir.1989)).
First, we examine the content, form, and context of the
employee's speech to determine whether it addresses a matter of
public concern. Bryson, 888 F.2d at 1565. Viewing the evidence in
the light most favorable to Walker, Walker spoke with the
legislators because he was concerned with how Vista funds were
being spent. "[A] core concern of the first amendment is the
protection of the "whistle-blower' attempting to expose government
corruption." Id. at 1566. Walker spoke at a meeting with elected
public officials about improving the services Vista provides to the
public. His speech was on a matter of public concern.
Second, Walker had a significant interest in speaking with the
legislators in order to prevent harm to the Vista program and the
community it serves. Defendants argue they have a significant
interest in enforcing the anti-nepotism policy. This is beside the
point. The issue is whether the government has an interest in
preventing the speech. Whether the government had valid reasons
for its actions is only relevant to the third part of the test.
Defendants have no legitimate reason for preventing Walker's
speech. The second element of the Bryson test is satisfied.
Third, an employee's initial burden to demonstrate that a
retaliatory intent was a substantial factor behind the government's
employment decision is not a heavy one. Beckwith, 58 F.3d at 1565.
Walker has produced evidence that Dean had a motive to retaliate
against Walker because his speech led to the investigation that led
to Dean's resignation. The investigation embarrassed members of
the Walker County Board of Health. The Board asked Schwalbe to
investigate Mrs. Walker's contract. Schwalbe had a motive to
retaliate because he answered to Dean and the Board.
There is a genuine issue as to which nepotism policy was in
effect when Mrs. Walker was hired. Viewing the evidence in a light
most favorable to Walker, he did not violate any applicable policy.
Even if the broader anti-nepotism policy was in effect, Walker
still received a severe penalty where it appears he did everything
he could to make sure he was acting within Vista regulations. In
addition, the second of the two reasons given for the demotion,
that Walker was "negligent and inefficient" for having a
subordinate check with a superior about the proper regulations, is
illogical considering the situation. Walker may well have been
attempting to make sure that there was no actual impropriety and no
appearance of it, but we do not resolve questions of fact.
Finally, adverse employment actions were also taken against
Taylor and Swafford, the other two Vista employees who met with the
legislators. From this evidence a factfinder could reasonably
conclude that the people who spoke with the legislators were
punished for doing so.
Defendants have presented credible evidence that Walker only
talked with the legislators out of concern for his own job and that
he was only fired for violating the anti-nepotism policy. However,
viewed in the light most favorable to Walker, there is a genuine
issue of material fact as to whether his speech played a
substantial role in his demotion. Walker has satisfied the third
element of the Bryson test.
Fourth, reasonable inferences from the same evidence also
create a genuine issue as to whether the defendants would have
taken the same action had Walker not spoken out.
The district court properly concluded that the circumstantial
and direct evidence produced by Walker satisfied his burden of
creating a genuine issue of material fact that he was demoted in
retaliation for his speech.
D. Qualified Immunity
Even though Walker has established a genuine issue of
material fact, the defendants may be protected from liability by
the doctrine of qualified immunity. Qualified immunity "protects
government officials ... from liability if their conduct violates
no "clearly established statutory or constitutional rights of which
a reasonable person would have known.' " Lassiter v. Alabama A &
M University, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73
L.Ed.2d 396 (1982)).
"When considering whether the law applicable to certain facts
is clearly established, the facts of cases relied upon as precedent
are important. The facts need not be the same as the facts of the
immediate case. But they do need to be materially similar."
Lassiter, 28 F.3d at 1150 (quoting Adams v. St. Lucie County
Sheriff's Dept., 962 F.2d 1563, 1573, 1575 (11th Cir.1992)
(Edmonson, J., dissenting), approved en banc, 998 F.2d 923 (11th
Cir.1993)). Qualified immunity focuses on the actual, specific
details of concrete cases. Lassiter, 28 F.3d at 1149-50.
Plaintiffs may not discharge their burden by referring to general
rules and abstract rights. Id. at 1150. "Only in the rarest of
cases will reasonable government officials truly know that the
termination or discipline of a public employee violated "clearly
established' federal rights." Hansen v. Soldenwagner, 19 F.3d 573,
576 (11th Cir.1994).
Defendants contend that the qualified immunity doctrine
requires an objective analysis that does not consider a defendant's
state of mind. Therefore, defendants argue, they are entitled to
qualified immunity because Walker's violation of the anti-nepotism
policy was an objectively valid reason to demote him, and the
defendants' subjective, allegedly retaliatory, intent in doing so
is irrelevant. See id. at 578 (subjective motivation of officials
is irrelevant to whether qualified immunity exists).
Defendants are correct that there is generally no subjective
component to qualified immunity analysis and that the test is based
on objective legal reasonableness. Anderson v. Creighton, 483 U.S.
635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987);
Lassiter, 28 F.3d at 1150. However, in the cases that held there
should not be subjective analysis, the official's state of mind was
not an essential element of the underlying constitutional
violation. Tompkins v. Vickers, 26 F.3d 603, 607-08 (5th
Cir.1994). Where the official's state of mind is an essential
element of the underlying violation, the state of mind must be
considered in the qualified immunity analysis or a plaintiff would
almost never be able to prove that the official was not entitled to
qualified immunity.
We hold, as every Circuit that has considered this issue has
held, that where subjective motive or intent is a critical element
of the alleged constitutional violation the intent of the
government actor is relevant. See Tompkins, 26 F.3d at 608 (5th
Cir.) (subjective intent must be considered in qualified immunity
analysis where the official's motive or intent is a critical
element of the constitutional violation); Branch v. Tunnell, 937
F.2d 1382 (9th Cir.1991) (same); Siegert v. Gilley, 895 F.2d 797(D.C.Cir.1990) (same), aff'd on other grounds, 500 U.S. 226, 111
S.Ct. 1789, 114 L.Ed.2d 277 (1991); Pueblo Neighborhood Health
Centers v. Losavio, 847 F.2d 642 (10th Cir.1988) (same); Poe v.
Haydon, 853 F.2d 418 (6th Cir.1988); Musso v. Hourigan, 836 F.2d
736 (2d Cir.1988) (same); see also Ratliff v. DeKalb County, 62
F.3d 338, 341 (11th Cir.1995) (subjective intent is relevant to
qualified immunity analysis if discriminatory intent is a specific
element of the constitutional tort).
The government official's state of mind is a critical element
in First Amendment retaliatory demotion claims. It must be
considered in this case. Because Walker has established a genuine
issue of material fact as to retaliation, it must be assumed at
this stage that the defendants did retaliate against him for his
speech.
At the time the defendants acted in 1991, clearly established
law informed reasonable government officials that Walker could not
be punished for his First Amendment speech. See Pickering v. Board
of Education of Township High School District 205, 391 U.S. 563, 88
S.Ct. 1731, 20 L.Ed.2d 811 (1968) (criticism of Board of Education
by employee for its allocation of school funds is a matter of
public concern and protected by the First Amendment); Bryson, 888
F.2d at 1566 (1989) (core concern of First Amendment is protection
of whistle-blower attempting to expose government corruption). The
facts of these cases are materially similar to the instant case.
Lassiter, 28 F.3d at 1150. The law against retaliation for
exercise of First Amendment rights was clearly established.
Defendants argue that denial of qualified immunity here would
be equivalent to the court's holding that once an employee has
engaged in First Amendment speech he may no longer be punished for
valid reasons. This argument misses the point. An employee may
still be punished for valid reasons. However, when the employee
can establish a genuine issue of material fact that the true reason
for the punishment was actually the speech, then the case must go
to trial.
Defendants spend a substantial portion of their briefs arguing
that they are entitled to qualified immunity because there is no
clearly established law that a demotion for violation of an
anti-nepotism policy violates a person's rights. This argument is
inapposite. Walker has established a genuine issue that he was
demoted in retaliation for his speech. The qualified immunity
analysis is therefore made under the assumption that he was demoted
for this reason.
A reasonable Vista official could not have thought that he
could retaliate against Walker for exercising his First Amendment
speech rights. Further, a reasonable official could not have
thought that he could retaliate against Walker for exercising his
rights under the guise of the anti-nepotism policy.
AFFIRMED.
RONEY, Senior Circuit Judge, concurring:
I concur. When the defendants first moved for qualified
immunity, the district court denied it as untimely. On appeal, a
panel of this Court issued a writ of mandamus directing the
district court to rule prior to trial on defendants' defense of
qualified immunity. The district court responded by deciding that
the defendants are not entitled to qualified immunity on this
record. It seems to me that we have jurisdiction and the
responsibility to decide, prior to trial, whether the district
court properly denied that motion. Even if we do not, no harm is
done. The trial would continue either way. I understand Judge
Farris's opinion as deciding only an issue of law, squarely
presented by the motion for qualified immunity, and although
evidentiary and factual issues may have been argued on this appeal,
the affirmance by this Court does not hinge on a resolution of
those factual issues.
BIRCH, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority's determination that the speech at
issue in this case fairly may be characterized as constituting
speech on a matter of public concern. I therefore concur in the
majority's conclusion that the facts presented, viewed in the light
most favorable to the plaintiff, sufficiently establish an
underlying First Amendment claim. I believe, however, that we lack
jurisdiction to review the remaining—and more fundamental—argument
advanced by the defendants on the issue of qualified immunity. For
this reason, I respectfully dissent from that portion of the
majority's decision discussing and concluding that the defendants
are not entitled to qualified immunity with respect to Walker's
retaliation claim.
The Supreme Court most recently articulated the jurisdictional
underpinnings of an interlocutory appeal based on qualified
immunity in Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132
L.Ed.2d 238 (1995) and Behrens v. Pelletier, --- U.S. ----, 116
S.Ct. 834, 133 L.Ed.2d 773 (1996). In Johnson, although the
defendants appealed the denial of their summary judgment motion
based on the assertion of a qualified immunity defense, the Supreme
Court found that they had failed to raise the purely legal question
of qualified immunity—that is, whether, viewing the facts in the
light most favorable to the plaintiff, the law was clearly
established that the defendants violated the plaintiff's
constitutional right. Rather, the Court found that the only issue
on appeal was whether the record thus far supported the plaintiff's
claim that the defendants had engaged in the conduct of which the
plaintiff accused them. The district court had found this factual
issue to be in dispute. The Court concluded that, although this
factual issue arose in the context of qualified immunity, it
nonetheless was nothing more than a question of evidentiary
sufficiency, "i.e. which facts a party may, or may not, be able to
prove at trial," Johnson, --- U.S. at ----, 115 S.Ct. at 2156, and
as such was not an appealable, final order. In reaching its
decision, the Court noted that " "a qualified immunity ruling ...
is ... a legal issue that can be decided with reference only to
undisputed facts and in isolation from the remaining issues of the
case.' " Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 n.
10, 105 S.Ct. 2806, 2817 n. 10, 86 L.Ed.2d 411 (1985)) (omissions
in original). The Supreme Court subsequently clarified Johnson in
Behrens v. Pelletier, --- U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773(1996). Although Behrens concerned primarily the propriety of
multiple interlocutory appeals on the issue of qualified immunity,
the Court explained:
Johnson held, simply, that determinations of evidentiary
sufficiency at summary judgment are not immediately appealable
merely because they happen to arise in a qualified-immunity
case; if what is at issue in the sufficiency determination is
nothing more than whether the evidence could support a finding
that particular conduct occurred, the question decided is not
truly "separable" from the plaintiff's claim, and hence there
is not a "final decision".... Johnson reaffirmed that
summary-judgment determinations are appealable when they
resolve a dispute concerning an "abstract issue of law"
relating to qualified immunity—typically, the issue whether
the federal right allegedly infringed was "clearly
established."
Behrens, --- U.S. at ----, 116 S.Ct. at 842 (citations and brackets
omitted). Bearing in mind the language of Johnson, our court has
been careful to construe narrowly our jurisdiction over
interlocutory appeals involving the qualified immunity question.
See, e.g., Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir.)
("[T]he factual issue ... can only be heard because it is a
necessary part of the core qualified immunity analysis, the
resolution of which constitutes a final, collateral order; when
the core qualified immunity issue is not appealed, then the factual
issue may not be either."), cert. denied, --- U.S. ----, 117 S.Ct.
51, 136 L.Ed.2d 15 (1996); Ratliff v. DeKalb County, 62 F.3d 338,
341 (11th Cir.1995) ("[W]e decline to review the denial of summary
judgment on [the] ground ... [that] the district court in
considering defendant's motions assumed erroneous facts or assumed
facts which were unsupported by the evidence in the record.").
The defendants submit that they demoted Walker for violating
a state anti-nepotism policy; according to the defendants' version
of events, the fact that Walker also may have exercised his rights
under the First Amendment (which they dispute) is irrelevant and
coincidental. In my view, the defendants do not posit the question
of whether, assuming that the defendants did fire Walker for
engaging in protected activity, the defendants are entitled
nonetheless to qualified immunity; rather, the defendants ask that
we assume all facts as the defendants allege them to be and find,
on that basis, that their conduct did not violate any clearly
established law. I believe that we do have jurisdiction to
determine whether the district court's factual findings support the
defendants' factual contention that Walker violated a valid
anti-nepotism policy in place at the time these events transpired.1
1
It is worth noting that our circuit precedent is not
entirely clear regarding the extent to which we may conduct
independent factual review of disputed issues of fact in an
interlocutory appeal based on qualified immunity. Compare
Ratliff v. DeKalb County, 62 F.3d at 341 ("[W]e decline to review
the denial of summary judgment on [the] ground ... [that] the
district court in considering defendant's motions assumed
erroneous facts or assumed facts which were unsupported by the
evidence in the record.") with Cottrell v. Caldwell, 85 F.3d
1480, 1486 (11th Cir.1996) ("In exercising our interlocutory
review jurisdiction in qualified immunity cases, we are not
Moreover, were we to find conclusive evidentiary support for the
defendants' version of the facts in this case, our circuit
precedent suggests that we could exercise jurisdiction to resolve
the question presented by the defendants regarding qualified
immunity. This is not the circumstance presented here. The
district court found a predicate fact to be in dispute—that is, the
court found a question of fact to exist as to what specific state
regulation governing VISTA employees was in place at the time
Walker acted; we have not found that the district court erred with
respect to this finding. I do not believe that the posture of this
case as it has been framed by the defendants permits us to "assume"
either that Walker did, in fact, violate a state law or that the
defendants demoted him solely for asserting his right to free
speech. As a result, we cannot evaluate properly the extent to
which the application of materially similar facts to the law might
have clearly established that the defendants' conduct violated (or
did not violate) Walker's constitutional rights.
The defendants offer no justification for violating Walker's
First Amendment right on the basis that Walker's exercise of that
right affected their ability to "promote the efficiency of the
public services [the state] performs," Bryson v. City of Waycross,
888 F.2d 1562, 1565 (11th Cir.1989), because they contend that they
demoted him for an entirely different reason—i.e. the violation of
a valid state anti-nepotism policy. Indeed, the defendants do not
required to make our own determination of the facts for summary
judgment purposes; we have the discretion to accept the district
court's findings if they are adequate. But we are not required
to accept them") (citations and quotation omitted).
argue in this appeal that, viewing the facts in the light most
favorable to the plaintiff, they nonetheless are entitled to
qualified immunity. Rather, the defendants argue, in essence, that
viewing the facts as the defendants allege them to be, they had
another legitimate reason for demoting Walker, separate and apart
from any First Amendment concerns. Because there is no conclusive
support for the defendants version of the facts, the defendants'
challenge effectively requires that we decide a factual
issue—whether there is conclusive foundation to confirm the
defendants' contention that Walker did violate state law—based
neither on the record nor the drawing of reasonable inferences
based on facts previously found. In my opinion, this type of
purely factual decision-making is not the proper subject of an
interlocutory appeal based on qualified immunity.2
This is not to say that we may never exercise jurisdiction
whenever the underlying intent of a state actor is intertwined with
the issue of qualified immunity; indeed, our circuit precedent
holds otherwise. See, e.g., McMillian v. Johnson, 88 F.3d 1554,
1566 (8th Cir.1996) ("[W]e have held that intent or motivation may
not be ignored when intent or motivation is an essential element of
the underlying constitutional tort.... When [defendants'] purpose
to punish [the plaintiff] is considered, there is no question that
2
See also Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir.1996)
("[I]nsofar [as] a genuine issue of material fact exists for
trial, namely whether Carnell informed the officers that she had
been raped, we conclude that we do not have jurisdiction [under
Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238(1995) ] to address that issue. And the resolution of that
disputed issue of fact impacts the question whether reasonable
officials could have believed their conduct ... was lawful in
light of the circumstances") (citation omitted).
their conduct violated clearly established law.") The question of
how to reconcile the subjective component of the intent
determination often implicated in a discrimination action with the
objective nature of qualified immunity was most recently addressed
in Foy v. Holston, 94 F.3d 1528 (11th Cir.1996). Foy involved the
state's removal of two children from a religious community to
foster care. The plaintiffs claimed the state's conduct was
motivated by religious discrimination; the state proffered
evidence to show that the children were being mistreated.
Acknowledging that the discriminatory-intent element "can cloud the
question of whether the official acted lawfully or unlawfully in
the circumstances," id. at 1534, we held that the defendants
nonetheless were entitled to qualified immunity:
One trigger to the doctrine's application depends upon whether
the record establishes that the defendant, in fact, did
possess a substantial lawful motive for acting as he did act.
At least when an adequate lawful motive is present, that a
discriminatory motive might also exist does not sweep
qualified immunity from the field even at the summary judgment
stage.... Where the facts assumed for summary judgment
purposes in a case involving qualified immunity show mixed
motives (lawful and unlawful motivations) and pre-existing law
does not dictate that the merits of the case must be decided
in plaintiff's favor, the defendant is entitled to immunity.
... [T]he record does show Defendants had, in fact, cause
to understand that [a child] was possibly being mistreated.
The record also shows Defendants were, in fact, aware of
information that would warrant investigation of other
children....
....
... Because, given the circumstances and the state of the law,
a reasonable child custody worker could have considered
Defendants' conduct arguably proper even if Defendants were
motivated in substantial part by unlawful motives, Defendants'
conduct was objectively reasonable for the purposes of
qualified immunity.
Foy, 94 F.3d at 1534-35. In Foy, unlike this case, "the record, in
fact, show[ed] substantial lawful intent, while not ruling out some
unlawful intent, too." Id. at 1535 n. 9. Moreover, even assuming
that the defendants in Foy acted with some discriminatory animus,
the law did not clearly establish that a reasonable social worker
faced with evidence of child abuse should not act to remove a
mistreated child from the abusive environment. These factors
critically distinguish Foy from the instant action; here, the
record does not show conclusively that the defendants possessed, at
3
least in part, a lawful motive for their conduct. Stated
3
Again, I note that our precedent is ambiguous regarding the
correct analytical framework in a qualified-immunity context when
intent is an element of the cause of action. Compare McMillian,
88 F.3d 1554, in which the court assumed, for purposes of
qualified-immunity analysis, that the defendants possessed an
intent to punish the plaintiff, regardless of possible evidence
of a lawful motive on the part of the defendants, with Foy, 94
F.3d at 1534-35 ("[W]hen an adequate lawful motive is present,
that a discriminatory motive might also exist does not sweep
qualified immunity from the field ... Unless it, as a legal
matter, is plain under the specific facts and circumstances of
the case that the defendants' conduct—despite his having adequate
lawful reasons to support the act—was the result of his unlawful
motive, the defendant is entitled to immunity.").
There are other contexts in which the role of evidence
of subjective intent of a state actor complicates the
qualified-immunity question. Some courts have found, for
instance, that a finding of a genuine issue of fact with
respect to a defendant's subjective intent necessarily
precludes entitlement to qualified immunity when the claim
advanced is deliberate indifference to medical needs under
the Eighth Amendment. See, e.g., Weyant v. Okst, 101 F.3d
845, 858 (2nd Cir.1996) ("[W]hether it was reasonable for
the officers to believe their actions met the standard set
by those principles depends on whether one believes their
version of the facts. That version is sharply disputed, and
the matter of the officers' qualified immunity therefore
cannot be resolved as a matter of law."); Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir.) (stating as follows:
The doctors further argue that Jackson failed to
show a genuine issue of material fact as to
whether they were deliberately indifferent, in
fact, to his medical needs. As to that question
differently, because the record does not reveal definitively that
Walker violated a valid state anti-nepotism policy at the time the
relevant events occurred, it also does not explicitly show that the
defendants could have demoted Walker, at least in part, for
violating this policy. Indeed, because we cannot discern
conclusively at this juncture whether the defendants had some
lawful justification for their decision to demote Walker, we do not
know whether there exists an application of materially similar
facts to law that may or may not have placed the defendants on
notice that their conduct violated a clearly established right; in
other words, we cannot decide the core qualified immunity question.
For this reason, I believe that it is inappropriate to reach the
remaining issue raised in this appeal.
we lack jurisdiction.... It is a question
reviewable after trial. We are instructed by the
Supreme Court [in Johnson v. Jones ] that
appellate jurisdiction is lacking.... Given the
district court's determination that there is a
triable issue as to deliberate indifference, the
doctors were not entitled to summary judgment on
the ground that they could reasonably believe
their conduct did not violate clearly-established
law.
cert. denied, --- U.S. ----, 117 S.Ct. 584, 136 L.Ed.2d 514(1996) (citations omitted)). The claim of deliberate
indifference obviously is not at issue in this case. An
examination of this claim does serve to highlight, however,
the unsettled state of the law as it pertains to the court's
basis for jurisdiction—as well as its analytical approach—in
qualified-immunity cases when subjective intent is raised as
a disputed predicate question of fact.