20 F.3d 1550 (11th Cir. 1994), 91-3416, McKinney v. Pate

Docket Nº:91-3416.
Citation:20 F.3d 1550
Party Name:Millard McKINNEY, Plaintiff-Appellant, v. John PATE, individually and in his official capacity as Commissioner of the Osceola County Board of Commissioners, Jack Shannin, individually and in his official capacity as Development Department Director of Osceola County, and the Osceola County Board of Commissioners, collectively, Defendants-Appellees.
Case Date:May 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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20 F.3d 1550 (11th Cir. 1994)

Millard McKINNEY, Plaintiff-Appellant,


John PATE, individually and in his official capacity as

Commissioner of the Osceola County Board of Commissioners,

Jack Shannin, individually and in his official capacity as

Development Department Director of Osceola County, and the

Osceola County Board of Commissioners, collectively,


No. 91-3416.

United States Court of Appeals, Eleventh Circuit

May 5, 1994

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Thomas J. Pilacek, Longwood, FL, for appellant.

Robert H. Chanin, John M. West, Bredhoff & Kaiser, Washington, DC, for amicus curiae-National Educ. Ass'n.

Lewis E. Shelley, Tallahassee, FL, for appellees.

William C. Joy, Carol Atha Cosgrove, Office of the Atty. Gen., Atlanta, GA, for amicus for States of Ga., Fla. and Ala.

R. Read Gignilliat, Walter O. Lambeth, Jr., J. Lewis Sapp, Stanford G. Wilson and William Drummond Deveney, Elarbee, Thompson & Trapnell, Atlanta, GA, for amicus Ga. Municipal Ass'n.

Kevin W. Shaughnessy, Akerman, Senterfitt & Eidson, P.A., Orlando, FL, for amicus Orange Co., Fla.

Susan M. Hartwig, Steve Rothman, Office of the County Atty., Atlanta, GA, for amicus Fulton County, GA.

Anthony C. Musto, Asst. County Atty., Ft. Lauderdale, FL, for amicus Fla. Ass'n of County Attys.

Jody M. Litchford, Orlando, FL, for amicus Fla. League of Cities.

Appeal from the United States District Court for the Middle District of Florida.


TJOFLAT, Chief Judge:

This case presents the following issue: whether, under the Fourteenth Amendment, a government employee possessing a state-created property interest in his employment states a substantive due process claim, rather than a procedural due process claim, when he alleges that he was deprived of that employment interest by an arbitrary and capricious non-legislative government action. For ten years, as a panel of this court noted in this case, 1 the law of this circuit has been that an employee alleging such a termination states a substantive due process claim. This circuit's law, however, diverges from Supreme Court precedent and affords protection not provided by the substantive component of the Fourteenth Amendment's Due Process Clause. Today, we return this circuit's due process jurisprudence to a proper footing and hold that the government action contested here does not give rise to a substantive due process claim.

In part I, we set forth the facts and procedural history of this case. In part II, we first discuss the Supreme Court's due process jurisprudence and then demonstrate how this circuit's cases have diverged from that established law. After demonstrating in part III that the claim in this case implicates only procedural due process guarantees, we find in part IV that the procedures here afforded satisfied constitutionally mandated minima. Finally, we find that this holding

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applies retroactively and requires the dismissal of appellant's claim. 2


Appellant Millard McKinney, the plaintiff below, obtained a position as the County Building Official in Osceola County, Florida, on July 27, 1987. 3 The Building Division is one of three divisions within the Osceola County Development Department. Jack Shannin, the Director of the Development Department, hired McKinney and was McKinney's immediate supervisor; Shannin reported to County Administrator Eleanor Anderson.

Prior to McKinney's hiring, both the Building Division and the Development Department had been the subject of numerous public complaints; in part, McKinney was hired to address the public's dissatisfaction with the Building Division. To address ongoing problems in the Development Department and the Building Division, at least two public "workshops" were held during McKinney's tenure. Both prior to and subsequent to these hearings, McKinney's performance evaluations were excellent.

In November 1988, John Pate was elected to serve as one of the five commissioners on the Osceola County Board of County Commissioners ("the Board"). Because the public often directed complaints regarding the administration of the county's governmental business to the Board, not to individual departments, each commissioner also served as a liaison between the Board and a department; Pate's liaison duties included Shannin's Development Department (and, indirectly, McKinney's Building Division). McKinney alleges that members of the Board--particularly Pate, who in addition to his position as a county commissioner was employed by a construction subcontractor--were biased against McKinney because of McKinney's strict enforcement of the county's building codes. The Board allegedly informed County Administrator Anderson that McKinney was to be fired; Anderson in turn instructed Shannin to fire McKinney, asserting political motivations of the commissioners as justification. Shannin twice informed McKinney that he should resign or he would be fired; McKinney refused to resign.

McKinney was a full-time permanent employee of Osceola County. The Osceola County Policy Manual provides that "[a] permanent employee may be dismissed only for cause as outlined in the Code of Conduct and Disciplinary Procedures and this policy." In this case, "cause" would be defined as "incompeten[ce] or inefficienc[y] in carrying out [his] duties." The policy manual also outlines the procedures by which an employee may be terminated and divides employees into two categories: normal employees and "department heads." The termination procedures for department heads involve more procedural protection for the employee. As it was unclear whether McKinney, as County Building Official, qualified as a "department head," the county elected to afford him the maximum amount of process possible and followed the procedures for the termination of a department head.

After McKinney refused to resign, Shannin began the termination process by drafting a "Notice of Reasons for Proposed Termination of Millard McKinney" setting forth thirteen charges against McKinney, each of which presumably justified McKinney's dismissal. 4

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Immediately thereafter, the Board of County Commissioners held three days of hearings regarding the charges against McKinney. McKinney, who was aware of the bias he now alleges against Pate, attended the hearings with counsel (as well as with a court reporter). The county's labor attorney presented the case against McKinney, and McKinney cross-examined the county's witnesses and presented a case on his own behalf. (With the exception of his charge of bias, McKinney has not claimed that any of the procedures relevant to his termination were in any way deficient.) At the conclusion of the hearings, the Board upheld each of the charges and terminated McKinney's employment.

On October 11, 1989, McKinney brought this suit in the United States District Court for the Middle District of Florida. His complaint contained two counts; only the first count is before us. 5 That count, brought pursuant to 42 U.S.C. Sec. 1983 (1988), alleged that the various charges against McKinney were pretextual and that the Board therefore fired McKinney without reason. McKinney alleged that this pretextual termination violated his "constitutional employment rights" and consequently denied him substantive due process of law. McKinney sought money damages for past and future lost wages and benefits; for injury to his liberty interest in his good name and reputation; and for severe emotional distress. 6

The Board's answer to the first count of McKinney's complaint, the substantive due process claim, denied McKinney's allegations and interposed as an affirmative defense the failure of the count to state a claim for relief. Following discovery, the Board moved for summary judgment based on that affirmative defense. The district court denied the motion and the case proceeded to trial on McKinney's substantive due process claim. The jury returned a verdict for McKinney in the amount of $145,000. Thereafter, the Board moved for judgment notwithstanding the verdict and, on April 8, 1991, the district court granted the Board's motion, set aside the verdict, and entered judgment for the Board. It is from this judgment that McKinney appeals.

After oral argument, a panel of this court vacated the district court's judgment and reinstated the jury's verdict. McKinney v. Pate, 985 F.2d 1502 (11th Cir.1993). Two judges specially concurred; they noted that, but for this circuit's precedent (which may be overruled only by the court sitting en banc, see Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc)), they would have affirmed the district court. McKinney, 985 F.2d at 1507 (Tjoflat, C.J., and Cox, J., specially concurring). The full court ordered the case reheard en banc and consequently vacated the panel's opinion. McKinney v. Pate, 994 F.2d 772, 773 (11th Cir.1993).



The Due Process Clause of the Fourteenth Amendment provides "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, Sec. 1. The Supreme Court's interpretation of this clause explicates that the amendment provides two different kinds of constitutional protection: procedural due process and substantive due process. Cf. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990). A violation of either of these kinds of protection may form the basis for a suit under section 1983. Id.

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  1. The substantive component of the Due...

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