McVey v. Stacy

• Decision Date: 10 September 1998
• Docket Number: No. 97-1691,97-1691
• Citation: 157 F.3d 271
• Parties: Dixie L. McVEY, Plaintiff-Appellee, v. Kenneth L. STACY, Chairman of the Virginia Highlands Airport Commission, Individually, and in his official capacity of Chairman; Richard H. Kiser, Member of Virginia Highlands Airport Commission, Individually, and in his official capacity as member; James D. Vicars, Member of Virginia Highlands Airport Commission, Individually, and in his official capacity as member; Thomas Phillips, Member of Virginia Highlands Airport Commission, Individually, and in his official capacity as member; David C. Johnson, Member of Virginia Highlands Airport Commission, Individually, and in his official capacity as member; David Haviland, Member of Virginia Highlands Airport Commission, Individually, and in his official capacity as member; F. Ellison Conrad, Member of Virginia Highlands Airport Commission, Individually, and in his official capacity as member; Beatrice Hutzler, Member of Virginia Highlands Airport Commission, Individually, and in her official capacity as member, Defendants-Appellants, and Virginia Highlands Airport Commission, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 271

157 F.3d 271

Dixie L. McVEY, Plaintiff-Appellee, v. Kenneth L. STACY, Chairman of the Virginia Highlands Airport

Commission, Individually, and in his official capacity of

Chairman; Richard H. Kiser, Member of Virginia Highlands

Airport Commission, Individually, and in his official

capacity as member; James D. Vicars, Member of Virginia

Highlands Airport Commission, Individually, and in his

official capacity as member; Thomas Phillips, Member of

Virginia Highlands Airport Commission, Individually, and in

his official capacity as member; David C. Johnson, Member

of Virginia Highlands Airport Commission, Individually, and

in his official capacity as member; David Haviland, Member

of Virginia Highlands Airport Commission, Individually, and

in his official capacity as member; F. Ellison Conrad,

Member of Virginia Highlands Airport Commission,

Individually, and in his official capacity as member;

Beatrice Hutzler, Member of Virginia Highlands Airport

Commission, Individually, and in her official capacity as

member, Defendants-Appellants,

and

Virginia Highlands Airport Commission, Defendant.

No. 97-1691.

United States Court of Appeals, Fourth Circuit.

Argued May 8, 1998.

Decided Sept. 10, 1998.

ARGUED: Steven Ray Minor, Elliott, Lawson & Pomrenke, Bristol, VA, for Appellants. Joseph Franklin Dene, Dene & Dene, P.C., Abingdon, VA, for Appellee.

Before MURNAGHAN, NIEMEYER, and MICHAEL, Circuit Judges.

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. McVey 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 and 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 McVey'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 McVey'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 McVey'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...