Bland v. Roberts, 092313 FED4, 12-1671

Docket Nº:12-1671
Opinion Judge:TRAXLER, Chief Judge:
Party Name:BOBBY BLAND; DANIEL RAY CARTER, JR.; DAVID W. DIXON; ROBERT W. MCCOY; JOHN C. SANDHOFER; DEBRA H. WOODWARD, Plaintiffs - Appellants, v. B. J. ROBERTS, individually and in his official capacity as Sheriff of the City of Hampton, Virginia, Defendant-Appellee AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION; FACEBO
Attorney:James Harrell Shoemaker, Jr., PATTEN, WORNOM, HATTEN & DIAMONSTEIN, LC, Newport News, Virginia, for Appellants. Aaron M. Panner, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for Amicus Facebook, Inc. Jeff W. Rosen, PENDER & COWARD, PC, Virginia Beach, Virginia, for App...
Judge Panel:Before TRAXLER, Chief Judge, THACKER, Circuit Judge, and Ellen Lipton HOLLANDER, United States District Judge for the District of Maryland, sitting by designation. ELLEN LIPTON HOLLANDER, District Judge, concurring in part and dissenting in part:
Case Date:September 23, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
FREE EXCERPT

BOBBY BLAND; DANIEL RAY CARTER, JR.; DAVID W. DIXON; ROBERT W. MCCOY; JOHN C. SANDHOFER; DEBRA H. WOODWARD, Plaintiffs - Appellants,

v.

B. J. ROBERTS, individually and in his official capacity as Sheriff of the City of Hampton, Virginia, Defendant-Appellee

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION; FACEBOOK, INC.; NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS, Amici Supporting Appellants

No. 12-1671

United States Court of Appeals, Fourth Circuit

September 23, 2013

Argued: May 16, 2013

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:11-cv-00045-RAJ-TEM)

ARGUED:

James Harrell Shoemaker, Jr., PATTEN, WORNOM, HATTEN & DIAMONSTEIN, LC, Newport News, Virginia, for Appellants.

Aaron M. Panner, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for Amicus Facebook, Inc. Jeff W. Rosen, PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellee.

ON BRIEF:

Lisa Ehrich, PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellee.

Andrew E. Goldsmith, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for Amicus Facebook, Inc.

Aden J. Fine, Kathryn A. Wood, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC., Richmond, Virginia, for Amici American Civil Liberties Union and ACLU of Virginia.

J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown, North Carolina; William J. Johnson, NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS, Alexandria, Virginia, for Amicus National Association of Police Organizations.

Before TRAXLER, Chief Judge, THACKER, Circuit Judge, and Ellen Lipton HOLLANDER, United States District Judge for the District of Maryland, sitting by designation.

ORDER

The Court amends its, as follows:

On page 8, first full paragraph, line 10 –- quotation marks are inserted after the word "concern" and before the words "as an employee" and the words "rather than" are substituted for the word "or".

TRAXLER, Chief Judge:

Six plaintiffs appeal a district court order granting summary judgment against them in their action against B.J. Roberts in his individual capacity and in his official capacity as the Sheriff of the City of Hampton, Virginia. The suit alleges that Roberts retaliated against the plaintiffs in violation of their First Amendment rights by choosing not to reappoint them because of their support of his electoral opponent. We affirm in part, reverse in part, and remand for trial.

I.

Viewing the facts in the light most favorable to the plaintiffs, as we must in reviewing an order granting summary judgment against them, the record reveals the following. Bobby Bland, Daniel Ray Carter, Jr., David W. Dixon, Robert W. McCoy, John C. Sandhofer, and Debra H. Woodward ("the Plaintiffs") are all former employees of the Hampton Sheriff's Office ("the Sheriff's Office").

Roberts was up for re-election in November 2009, having served as sheriff for the prior 17 years. Jim Adams announced in early 2009 that he would run against Sheriff Roberts. Adams had worked in the Sheriff's Office for 16 years and had become the third most senior officer, with a rank of lieutenant colonel, when he resigned in January 2009 to run.

The Hampton City Police Department has primary responsibility for law enforcement in Hampton. However, the Sheriff's Office maintains all city correctional facilities, secures the city's courts, and serves civil and criminal warrants. In December 2009, the Sheriff's Office had 190 appointees, including 128 full-time sworn deputy sheriffs, 31 full-time civilians, 3 unassigned active duty military, and 28 part-time employees. Carter, McCoy, Dixon, and Sandhofer were sworn, uniformed sheriff's deputies who worked as jailers in the Sheriff's Office Corrections Division.1 They had not taken the Virginia Department of Criminal Justice Services' "Basic Law Enforcement" course, completion of which was required in Virginia for an officer to patrol and have immediate arrest powers.2 However, they did take the "Basic Jailer and Court Services" course, which has about half as long a curriculum as the Basic Law Enforcement course. Although they did not have general powers of immediate arrest, the deputies did have the authority to make "incidental arrest[s] in [the] range of [their] work." J.A. 297.

Bland and Woodward were not deputies, but rather worked in non-sworn administrative positions. Woodward was a training coordinator and Bland was a finance and accounts payable officer.

Notwithstanding laws and regulations prohibiting the use of state equipment or resources for political activities, see Hatch Act, 5 U.S.C. § 1501, et. seq.; 22 Va. Admin. Code § 40-675-210 (2012), Sheriff Roberts used his office and the resources that he controlled, including his employees' manpower, to further his own re-election efforts. His senior staff often recruited Sheriff's Office employees to assist in these efforts. For example, he used his employees to work at his annual barbeque/golf tournament political fundraiser, and his subordinates pressured employees to sell and buy tickets to his fundraising events.

The Sheriff won reelection in November 2009. He subsequently reappointed 147 of his 159 full-time employees. Those not reappointed included the six Plaintiffs as well as five other deputies and one other civilian.

On March 4, 2011, the Plaintiffs filed suit in federal district court against Sheriff Roberts in his individual and official capacities under 42 U.S.C. § 1983. All six Plaintiffs alleged that the Sheriff violated their First Amendment right to free association when he refused to reappoint them based on their lack of political allegiance to him in the 2009 election. Additionally, Carter, McCoy, Dixon, and Woodward alleged that the Sheriff violated their First Amendment right to free speech when he refused to reappoint them because of various instances of speech they made in support of Adams's campaign. Among the remedies Plaintiffs requested were compensation for lost back pay and compensation for lost front pay or, alternatively, reinstatement. The Sheriff answered Plaintiffs' complaint and asserted several affirmative defenses.

Roberts subsequently moved for summary judgment, and the district court granted it. See Bland v. Roberts, 857 F.Supp.2d 599 (E.D. Va. 2012). Regarding the free-speech claims, the district court concluded that Carter, McCoy, and Woodward had all failed to allege that they engaged in expressive speech and that Dixon had not shown that his alleged speech was on a matter of public concern. See id. at 603-06. Regarding the association claims, the court concluded that Plaintiffs failed to establish any causal relationship between their support of Adams's campaign and their non-reappointment. See id. at 606-07. Finally, assuming arguendo that the Sheriff did violate Plaintiffs' First Amendment rights, the district court concluded he was entitled to qualified immunity on the individual-capacity claims and Eleventh Amendment immunity on the official-capacity claims. See id. at 608-10.

II.

On appeal, the Plaintiffs maintain that the district court erred in granting summary judgment against them.

This court reviews de novo a district court's order granting summary judgment, applying the same standards as the district court. See Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

The Plaintiffs allege that they were retaliated against for exercising their First Amendment rights to free speech and association. The First Amendment, in relevant part, provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. The Fourteenth Amendment makes this prohibition applicable to the states. See Fisher v. King, 232 F.3d 391, 396 (4th Cir. 2000). Not only does the First Amendment protect freedom of speech, it also protects "the right to be free from retaliation by a public official for the exercise of that right." Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). Although government employees do not forfeit their constitutional rights at work, it is well established "that the government may impose certain restraints on its employees' speech and take action against them that would be unconstitutional if applied to the general public." Adams v. Trustees of the Univ. of N.C. -Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (internal quotation marks omitted).

The Supreme Court in Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board of Education, 391 U.S. 563 (1968), has explained how the rights of public employees to speak as private citizens must be balanced against the interest of the government in ensuring its efficient operation. In light of these competing interests, we have held that in order for a public employee to prove that an adverse employment action violated his First Amendment rights to freedom of speech, he must establish (1) that he "was speaking as a citizen upon a matter of public concern" rather than "as an employee about a matter of personal interest"; (2) that "the employee's interest in speaking upon the matter of public concern outweighed the government's interest in providing effective and efficient services to the public"; and (3) that "the employee's speech was a substantial factor in the employee's termination decision."...

To continue reading

FREE SIGN UP