925 F.2d 316 (9th Cir. 1991), 90-35229, Havekost v. United States Dept. of Navy

Docket Nº90-35229.
Citation925 F.2d 316
Party NameHiroko HAVEKOST; David W. Sutton; Ron Haglund; Jerry Crowley, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF the NAVY, et al., Defendant, and Jovito Banzon, Defendant-Appellant.
Case DateFebruary 01, 1991
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 316

925 F.2d 316 (9th Cir. 1991)

Hiroko HAVEKOST; David W. Sutton; Ron Haglund; Jerry

Crowley, Plaintiffs-Appellees,




Jovito Banzon, Defendant-Appellant.

No. 90-35229.

United States Court of Appeals, Ninth Circuit

February 1, 1991

Argued and Submitted Dec. 4, 1990.

Frank A. Rosenfeld, Atty., U.S. Dept. of Justice, Washington, D.C., for defendant-appellant.

Guy William Beckett, Weinstein, Hacker, Matthews, & Young, Seattle, Wash., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington.

Page 317

Before GOODWIN, Chief Judge, WRIGHT and NOONAN, Circuit Judges.

GOODWIN, Chief Judge:

Jovito Banzon defended this civil rights action on the basis of qualified immunity. He appeals the order which denied the defense, and we reverse.

At the time of the incident giving rise to this action, Banzon was the officer in charge of the commissary at the Puget Sound Naval Station ("Puget Sound") in Bremerton, Washington. Plaintiff Hiroko Havekost worked as a grocery bagger in the commissary. When Banzon terminated her permission to work, Havekost sued Banzon in his individual capacity under the theory that Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), created a cause of action for violation of her speech rights under the first amendment. Because the facts establish that Banzon's action did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known," he has qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

Because a denial of summary judgment is not ordinarily a final decision within the meaning of 28 U.S.C. Sec. 1291 (1988), the denial is usually not reviewable on appeal. Roth v. Veteran's Admin., 856 F.2d 1401, 1404 (9th Cir.1988). In Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1375-76 (9th Cir.1990), however, this court recognized a limited exception to that rule: when a district court's denial of summary judgment on a qualified immunity claim turns on a purely legal question, that denial is appealable as a "final decision" within the meaning of Sec. 1291. The relevant facts in this case are not disputed. Rather, the case turns on a purely legal question: whether Banzon violated clearly established constitutional protections. Accordingly, we exercise jurisdiction over Banzon's appeal.

Havekost's license to work as a grocery bagger was not an employment contract, but rather a revocable grant of permission to work for customer tips. By the terms of the license, Havekost and the other baggers were not "under the supervision, direction, or control of any employee of the Bremerton Commissary." A head bagger, elected by the baggers, acted as their supervisor and liaison to commissary management.

After Banzon took charge of the commissary in 1988, Havekost grew dissatisfied with what she and other baggers perceived to be Banzon's attempts to exercise direct supervisory authority over them. She objected to his insistence that baggers honor the Navy's newly implemented dress code for "employees." She also objected to Banzon's proposal to increase the number of baggers scheduled per shift and to hold baggers financially responsible for groceries missing or damaged by bagging or carryout operations. Havekost voiced these objections at a meeting attended by Banzon and fellow baggers.

Havekost next decided that the head bagger was failing to perform her duty to represent the baggers' collective interests to Banzon and initiated a petition for her discharge. The circulation of the petition apparently triggered a discussion between Havekost and Banzon, who then revoked Havekost's license.

As a federal official with authority to revoke the licenses of baggers, Banzon may assert the Harlow immunity defense "to protect the exercise of [his] discretion." Allen v. Scribner, 812 F.2d 426, 436 n. 21 (9th Cir.1987). To lose his entitlement under Harlow, the unconstitutionality of Banzon's revocation of Havekost's license must have been sufficiently clear at the time of the incident that a reasonable official would have known it. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). This rule serves to "protect[ ] government officials from charges that they knowingly violated standards that were in fact unknowable...." Murray v. Gardner, 741 F.2d 434, 439-40 n. 2 (D.C.Cir.1984).

Speech rights of government employees were established in Pickering v. Board of

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Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and refined in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Following Pickering-Connick, this circuit's decisions in McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir.1983), and Roth, 856 F.2d at 1404, recognize that an individual may not be dismissed from public employment for exercising a "right to speak on issues of public importance." Pickering, 391 U.S. at 574, 88 S.Ct. at 1737.

Because Havekost was a licensee on the Navy's premises rather than a salaried employee, however, those cases are not directly on point. Havekost would have us apply the broad principle that the government may not deny a person a valuable benefit "on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech." Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). Because protected speech must address a matter of public concern in the Pickering-Connick cases, an employee may have a steeper hurdle than a Perry plaintiff. The benefit Havekost asserts is the contractual right to earn tips as a bagger at the commissary. She argues that circulation of the petition constituted speech, and revocation of her license infringed that speech.

We are persuaded that the Pickering-Connick analysis would be appropriate in the present context. The Supreme Court's language in Connick strongly suggests that Havekost's ventilation of grievances did not have first amendment protection, even though Havekost was not an employee. Connick involved a deputy district attorney who voiced her objection to being transferred to another unit by circulating a...

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