Umbehr v. McClure, 94-3022

• Decision Date: 04 January 1995
• Docket Number: No. 94-3022,94-3022
• Parties: , 11 IER Cases 290 Keen A. UMBEHR, Plaintiff-Appellant, v. Joe McCLURE, Glen Heiser, and George Spencer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 876

44 F.3d 876

63 USLW 2424, 11 IER Cases 290

Keen A. UMBEHR, Plaintiff-Appellant, v. Joe McCLURE, Glen Heiser, and George Spencer, Defendants-Appellees.

No. 94-3022.

United States Court of Appeals Tenth Circuit.

Jan. 4, 1995.

Rehearing Denied Feb. 10, 1995.

Robert A. Van Kirk, Alexandria, VA (Richard H. Seaton and Brenda J. Bell, Everett Seaton Miller & Bell, Manhattan, KS, with him on briefs), for appellant.

Donald Patterson, Fisher Patterson Sayler & Smith, Topeka, KS, for appellees.

Before ANDERSON and TACHA, Circuit Judges, and CAMPOS, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiff and appellant Keen A. Umbehr appeals the district court's grant of summary judgment to Defendants, members or ex-members of the Wabaunsee County Commission, on his 42 U.S.C. Sec. 1983 action alleging that Defendants terminated a trash hauling contract in retaliation for Mr. Umbehr's exercise of his right to free speech. For the following reasons, we REVERSE and REMAND.

BACKGROUND

Mr. Umbehr operated a trash hauling business in Wabaunsee County, Kansas. By statute, the county was obligated to provide a plan for solid waste disposal. In 1981, the county entered into a contract with Mr. Umbehr. The contract was renegotiated in 1985. The 1985 contract is the one at issue in this case.

Under the contract, Mr. Umbehr did not in fact haul trash for the county. Rather, the contract provided that Mr. Umbehr could haul trash for cities in the county, at a rate specified in the contract, provided each city endorsed and ratified the contract. No city was under any obligation to ratify the contract. Each city had the right to opt out of the contract on ninety days' notice. The contract itself was automatically renewed for successive one-year terms, unless either party gave sixty days' notice of termination or ninety days' notice of intent to renegotiate. The contract further provided that, during its term, the county and each city which approved the contract agreed not to contract with "any other individual or firm to provide solid waste removal from residential premises in any [c]ity." Appellees' App. at 139.

Mr. Umbehr hauled trash for six of the seven cities in the county from 1985 until the county terminated the contract in 1991. In other words, the contract was automatically renewed each year, according to its terms. Throughout this time period, Mr. Umbehr spoke out at county commission meetings Defendants Joe McClure, Glen Heiser, and George Spencer were all members of the Wabaunsee County Commission in 1990, when the commission voted to terminate the contract with Mr. Umbehr. Mr. Spencer and Mr. Heiser voted for termination, whereas Mr. McClure voted against termination. In fact, the attempted termination was not valid, and the contract continued for another year, until it was validly terminated in January 1991. At the time the contract was terminated, Mr. McClure was no longer on the county commission. His replacement on the commission voted not to terminate the contract, whereas Mr. Spencer and Mr. Heiser again voted in favor of termination. Mr. Umbehr subsequently entered into separate contracts to haul trash with five of the six cities he had previously served. The county did not enter into any other contracts involving trash hauling.

and wrote letters and columns in local newspapers about a variety of topics, including landfill user rates, the cost of obtaining county documents from the county, alleged violations by the county commission of the Kansas Open Meetings Act, and a number of alleged improprieties, including mismanagement of taxpayer money, by the county road and bridge department.

Mr. Umbehr brought suit against Defendants, claiming that they caused the termination of his contract with the county in retaliation for his outspoken criticism of the county and the county commission, thereby violating his First Amendment right of free speech. He sued Defendants Heiser and Spencer in both their official and individual capacities. He sued Defendant McClure only in his individual capacity. Defendants filed motions for summary judgment. The district court assumed, solely for the purpose of its decision, that Mr. Umbehr "would have been protected from termination in retaliation for his statements" had he been a government employee, that his "comments did motivate the votes in favor of terminating [Mr. Umbehr's] contract with Wabaunsee County," and that he suffered damages as a result of the termination. Umbehr v. McClure, 840 F.Supp. 837, 839 (D.Kan.1993). It then granted Defendants' motion for summary judgment on the ground that "the First Amendment does not prohibit defendants from considering plaintiff's expression as a factor in deciding not to continue with the trash hauling contract at the end of the contract's annual term." Id. The court expressly declined to rule on Defendants' claim that their actions were protected by legislative immunity, but held, alternatively, that Defendants were entitled to qualified immunity from damages for their actions. Finally, the district court held that Mr. McClure was additionally entitled to summary judgment because there was "insufficient evidence which proves that defendant McClure caused the termination of the contract." Id. at 841.

DISCUSSION

Summary judgment is appropriately granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "We review a district court's summary judgment determination de novo, viewing the record in the light most favorable to the nonmoving party." Artes-Roy v. City of Aspen, 31 F.3d 958, 961 (10th Cir.1994).

Although neither party has raised this issue, we first determine whether Mr. Umbehr has standing to bring this case. Standing is a threshold issue, "jurisdictional in nature." Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1566 (10th Cir.1993). "For standing to exist, the plaintiff must 'allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.' " Id. (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984)). The alleged injury "must be 'distinct and palpable,' Warth v. Seldin, 422 U.S. 490, 501 [95 S.Ct. 2197, 2206, 45 L.Ed.2d 343] (1975), as opposed to abstract, conjectural, or merely hypothetical." Id. (parallel citations omitted).

We conclude that Mr. Umbehr has standing. Mr. Umbehr asserts a violation of his First Amendment rights--punishment, in the form of termination of a contract beneficial to him, because of his speech. While Defendants assert that the contract provided no benefit to the county, from which one could infer that its termination could inflict no injury on the county, Mr. Umbehr has alleged a benefit to him from the contract. ¹ The contract obviated the need for him to individually negotiate a trash hauling contract with each city; it gave him the exclusive right to haul trash for cities that ratified the agreement; and it gave him, for at least sixty days, the right to haul trash for cities pursuant to the agreement, inasmuch as the county could only terminate the contract on sixty days' notice. ² Cf. Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 476 (9th Cir.1991) (holding that private contract providing for immediate termination for cause or at will termination on ninety days' notice "gave rise to a 'legitimate claim of entitlement' to ninety days of continued employment"). Further, he claims monetary injury from the termination of the contract, and there is no dispute that any such injury is " 'fairly traceable' " to Defendants' actions in terminating the contract. Doyle, 998 F.2d at 1566 (quoting Allen, 468 U.S. at 751, 104 S.Ct. at 3324). He has clearly alleged an injury caused by Defendants. Accordingly, Mr. Umbehr has standing. We turn now to the merits of his claim that his First Amendment rights have been violated.

Mr. Umbehr was indisputably an independent contractor. As the district court acknowledged, there is conflicting case law on whether those who independently contract with the government share the same degree of First Amendment protection for their speech as government employees. ³ A number of courts have held that governments may award or terminate public contracts on the basis of political affiliation or support. See Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583 (7th Cir.1989) (holding that independent contractor claiming loss of and denial of contracts because of political affiliation was not protected by First Amendment), cert. denied, 498 U.S. 845, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990); LaFalce v. Houston, 712 F.2d 292 (7th Cir.1983) (holding that independent contractor claiming denial of public contract because of political affiliation was not protected by First Amendment), cert. denied, 464 U.S. 1044, 104 S.Ct. 712, 79 L.Ed.2d 175 (1984); Horn v. Kean, 796 F.2d 668 (3d Cir.1986) (en banc) (holding that independent contractors whose contracts were terminated following a change in administration were not protected by the First Amendment); Sweeney v. Bond, 669 F.2d 542, 545 (8th Cir.) (holding that fee agents who were not employees but were " 'more in the nature of independent contractors' " who were dismissed following a change in administration were not protected by the First Amendment), cert. denied, 459 U.S. 878, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982); Ambrose v. Knotts, 865 F.Supp. 342, 345 (S.D.W.Va. Oct. 17, 1994) (holding that independent contractor claiming termination of contract in retaliation for petition was not protected by First Amendment); O'Hare Truck Serv., Inc. v. City of Northlake, 843 F.Supp. 1231, 1234 (N.D.Ill.1994) (holding that independent contractor claiming removal from city towing rotation list because of political affiliation was not protected by First Amendment); Inner City Leasing and Trucking Co. v. City of Gary, 759...