305 F.3d 566 (6th Cir. 2002), 00-6635, Overstreet v. Lexington-Fayette Urban County Gov't

Docket Nº:00-6635.
Citation:305 F.3d 566
Party Name:Philip D. OVERSTREET, Plaintiff-Appellant, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Defendant-Appellee.
Case Date:September 30, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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305 F.3d 566 (6th Cir. 2002)

Philip D. OVERSTREET, Plaintiff-Appellant,

v.

LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Defendant-Appellee.

No. 00-6635.

United States Court of Appeals, Sixth Circuit

September 30, 2002

Argued June 11, 2002.

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Sharon K. Morris, James M. Morris (argued and briefed), Morris & Morris, Lexington, KY, for Plaintiff-Appellant.

Terry Sellars (argued and briefed), James W. Gardner, Kara R. Marino, Henry, Watz, Gardner, Sellars & Gardner, Lexington, KY, for Defendant-Appellee.

Before: KEITH and DAUGHTREY, Circuit Judges; MARBLEY, District Judge.[*]

OPINION

MARBLEY, District Judge.

Plaintiff-Appellant, Philip D. Overstreet, appeals the district court's order denying his motion for a "temporary injunction" 1to prohibit his employer, a governmental entity, from mandating public disclosure of real estate holdings by certain department employees and their family members. Mr. Overstreet assigns error to the district court's ruling denying the motion for a temporary injunction based on that court's finding that Mr. Overstreet is unlikely to succeed on the merits of his case. This Court's appellate jurisdiction is proper under 28 U.S.C. § 1292(a)(1).

Based on the following analysis, the Court AFFIRMS the ruling of the district court.

I. BACKGROUND

A. Factual Background

Plaintiff-Appellant, Philip D. Overstreet, is employed by Defendant Appellee, the Lexington Fayette Urban County Government ("LFUCG"), in its Division of Engineering. Mr. Overstreet describes his job duties as primarily consisting of plotting map coordinates as a computer operator.

On October 16, 2000, the LFUCG issued a Real Property Disclosure Policy ("Policy"). The stated purposes of the Policy were to promote public confidence in the integrity of the local government in Fayette County, Kentucky, and to avoid the perception of a conflict between government employees' private interests and their public duties. Specifically, the Policy stated that its purposes were, inter alia:

. . . to prevent actual or perceived conflicts by officers and employees of the [LFUCG], . . . to insure that housing in Fayette County is safe, sanitary, and habitable . . . and to unify the existing policies and procedures dealing with conflicts of interest of inspectors in the Division of Code Enforcement, Division of Building Inspection, and the Fire Prevention Bureau.

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The Policy applies to employees in the LF'UCG's Divisions of Code Enforcement, Building Inspection, Planning, Engineering, and the LFUCG's Fire Prevention Bureau, and their immediate families. The term "immediate families" is defined to include the employee's "spouse, un~ emancipated child residing in [the] household, or a person claimed by [the employee or the employee's spouse] as a dependent for tax purposes." The Policy prohibits employees in certain divisions, such as Code Enforcement, from owning real property in Fayette County, other than property in which those employees reside. The Policy permits ownership of real property by employees in other divisions, such as the Division of Engineering, but requires employees who do own real property to disclose certain information about their ownership.

Pursuant to the Policy, employees who are allowed to own real property but are required to disclose information about such property must complete a form entitled, "Disclosure of Real Property and Business Interests" ("Disclosure Form"). Section I of the Disclosure Form requires the employee to list the addresses and owners of record for all real estate in Fayette County in which the employee or a member of his immediate family has an interest. The employee is also required to list the names of other individuals who have an interest in the property, and to indicate the type of property. Section II of the form requires the employee to list the names and addresses of any business 2 owning property in Fayette County in which the employee or a member of his immediate family has an ownership interest that exceeds the lesser of ten percent or five thousand dollars in value. The employee must specify the type of business and provide a general description of the business, and also must list the names of customers who do business with the employee's division. Section III of the form requires the employee to list the names, addresses, and owners of record for all property that the employee or a member of his immediate family manages or of which he oversees the management or maintenance in Fayette County. The employee is also required to list the addresses and owners of record for any businesses that manage or oversee the management or maintenance of any real property in Fayette County in which the employee or a member of his immediate family has an ownership interest as described in Section II Finally, the Disclosure Form states that if the employee or a member of his immediate family acquires, obtains, inherits, is gifted, or is otherwise conveyed an interest in real property in Fayette County, or an ownership interest in a business that owns real estate in Fayette County, or starts to manage or maintain property or acquires an ownership interest in such a business, the employee must report the change in status to the LFUCG within twenty working days.

In late October 2000, the LFUCG presented the Disclosure Form to Mr. Over-street with specific instructions that the form was to be filed by November 1, 2000. Rather than complete the form, Mr. Over-street submitted a Notarized Disclosure Statement, which read:

To the extent that this information is on record at the Fayette County Clerk's Office and the PVA Office, the requested information is public record and can be

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obtained through those offices. Any information as it pertains to my immediate family is an invasion of their privacy and requires me to verify what they own, something I cannot do. To the extent that this information is also available through the offices of the Fayette County Clerk and the PVA Office, said information is public record.

On November 22, 2000, the LFUCG issued a written reprimand to Mr. Over-street for insubordination, and advised him that the failure to submit a properly completed Disclosure Form by 5:00 p.m. on November 29, 2000 would result in a suspension without pay. Following the issuance of the reprimand, Mr. Overstreet and his counsel requested that the LFUCG grant an extension of the deadline until it provided Mr. Overstreet with the legal basis for its entitlement to the information requested in the Disclosure Form. The LFUCG did not respond to this request, and Mr. Overstreet failed to submit the Disclosure Form on or before November 29, 2000. Based upon his failure to submit the required form, the LFUCG suspended Mr. Overstreet without pay for seven days, and advised him that his failure to submit the form by December 11, 2000 would result in the filing of administrative charges seeking his dismissal.

B. Procedural History

On November 29, 2000, Mr. Overstreet filed a Complaint with the district court in the Eastern District of Kentucky alleging the following claims: (1) a violation of the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution based on an infringement of Mr. Overstreet's right to privacy; (2) a violation of the Fourth Amendment based on an unreasonable search; (3) a violation of the Fourteenth Amendment based on the fact that the Real Estate Disclosure policy is impermissibly vague; (4) a violation of the Fourteenth Amendment based on an infringement of Mr. Overstreet's right to substantive due process; and (5) a violation of the Fourteenth Amendment based on an infringement of Mr. Over-street's right to equal protection. He filed his Complaint on behalf of himself and all former, current, and future officers and employees of the LFUCG Divisions of Code Enforcement, Building Inspection, Planning, Engineering, and the Fire Prevention Bureau, and their immediate families. On that same day, Mr. Overstreet also filed a Motion for a Temporary Injunction, which the district court treated as a Motion for a Temporary Restraining Order.

The district court held a hearing on Mr. Overstreet's motion on November 30, 2000. On December 1, 2000, the district court entered an order denying Mr. Overstreet's Motion for a Temporary Injunction. Mr, Overstreet filed a Notice of Appeal from that order on December 5, 2000. At the same time, he also filed a Motion for Temporary Injunction Pending Appeal, both with the district court and with this Court. On December 8, 2000, both courts ruled on the motion. The district court denied Mr. Overstreet's Motion for a Temporary Injunction Pending Appeal. This Court, per Chief Judge Martin, however, granted Mr. Overstreet's Motion in part, and enjoined Defendant Appellee from initiating administrative charges for Mr. Overstreet's dismissal in response to his refusal to complete, sign, and submit the Disclosure Form, pending this appeal.

II PRELIMINARY ISSUES

A. Jurisdiction

Mr. Overstreet filed a motion for a "temporary injunction" with the district court. Because the Federal Rules of Civil Procedure do not recognize the existence

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of a "temporary injunction," the district court treated the motion as a motion for a temporary restraining order.

A district court's denial of a motion for a temporary restraining order generally is not appealable. Wilson v. Wilkinson, 28 Fed.Appx. 465, 465, 2002 WL 123580, at *1 (6th Cir. Jan.28, 2002) (citing Office of Pers. Mgmt. v. Am. Fed'n of Gov't Employees, AFL-CIO, 473 U.S. 1301, 1304-06, 105 S.Ct, 3467, 87 L.Ed.2d 603 (1985) and Bd....

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