Abdur-Rahman v. Walker

• Decision Date: 11 May 2009
• Docket Number: No. 08-12345.,08-12345.
• Citation: Abdur-Rahman v. Walker, 567 F.3d 1278 (11th Cir. 2009)
• Parties: Daisy ABDUR-RAHMAN, Ryan Petty, Plaintiffs-Appellants, v. John WALKER, Chester Gudewicz, Jr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

567 F.3d 1278

Daisy ABDUR-RAHMAN, Ryan Petty, Plaintiffs-Appellants, v.John WALKER, Chester Gudewicz, Jr., Defendants-Appellees.

No. 08-12345.

United States Court of Appeals, Eleventh Circuit.

May 11, 2009.

Robert Nathan Marx, Jean Simonoff Marx, Marx & Marx, LLC, Atlanta, GA, for Plaintiffs-Appellants.

Randy C. Gepp, Hollowell, Foster & Gepp, P.C., Atlanta, GA, Mary J. Huber, Law Office of Mary J. Huber, Decatur, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before BARKETT, PRYOR and FARRIS,^* Circuit Judges.

PRYOR, Circuit Judge:

This appeal presents the question whether reports by compliance inspectors of a water and sewer department that "owe[ their] existence" to investigative duties assigned to the inspectors are protected by the First Amendment from managerial discipline.Garcetti v. Ceballos,547 U.S. 410, 421, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689(2006).Daisy Abdur-Rahman and Ryan Petty, inspectors formerly employed by the Department of Public Works of DeKalb County, Georgia, appeal a judgment on the pleadings against their complaint and in favor of their former supervisors, John Walker and Chester Gudewicz, Jr.The inspectors complained that their employment was terminated in retaliation for reporting to their supervisors about the compliance of the county with the Clean Water Act, in violation of rights secured by the whistleblower provision of the Act, 33 U.S.C. § 1367(a), and the First Amendment,42 U.S.C. § 1983.The inspectors' reports to their supervisors were based on investigations of sewer overflows the inspectors performed as part of their assigned duties.The district court concluded that section 1983 does not provide a private right of action for violations of the Clean Water Act and the job-related reports of the inspectors were not citizen speech protected by the First Amendment.We affirm.

I.BACKGROUND

In August and September 2004, Abdur-Rahman and Petty commenced work as Compliance Inspectors in the Compliance Unit of the Water & Sewer Department of the Department of Public Works of DeKalb County, Georgia.They were supervised by Gudewicz, who was in turn supervised by Walker.The supervisors instructed the inspectors to write ordinances for the county about the disposal of fat, oil, and grease.Although this responsibility did not require the inspectors to review data about sanitary sewer overflows, the inspectors wanted to inspect that data as part of their work.The inspectors requested the data, but their supervisors resisted their requests.When the inspectors complained, the supervisors accused them of being "too scientific" and "too thorough."Nevertheless, the inspectors persisted in their requests and commenced field inspections of sewer overflows.In November 2004, the supervisors told the inspectors that they were "ruffling too many feathers."

In early 2005, the department expanded the job duties of the inspectors and assigned them the task of "investigating [sanitary sewer overflows] ... to determine whether grease was the cause."In January and February 2005, the inspectors investigated two sewer overflows: one at Panthersville Road and another at Fairlake Drive.The inspectors allege that, "during the course of their employment, [they] articulated concerns" that sewer overflows "were not being properly reported" to state authorities and were not cordoned off or bioremediated as required by state and federal laws, and they specifically reported their concerns in January and February 2005 about the sewer overflows at Panthersville Road and Fairlake Drive.

On January 26, 2005, Gudewicz recommended that the employment of the inspectors be terminated because of unsatisfactory work performance.On February 8, Walker approved Gudewicz's recommendation, and on March 11, the inspectors were fired.On April 11, 2005, the inspectors filed a complaint with the Department of Labor against DeKalb County, the supervisors, and other defendants and alleged a violation of the whistleblower provision of the Clean Water Act,33 U.S.C. § 1367(a).On September 22, 2006, an administrative law judge dismissed all defendants except the county.

In January 2007, the inspectors filed a complaint against the supervisors.42 U.S.C. § 1983.The inspectors alleged that their supervisors had violated the whistleblower provision of the Clean Water Act,33 U.S.C. § 1367(a), and the First Amendment.The inspectors alleged that the county "commissioned" them to report about "the causation of [sewer overflows], but not regarding the reporting, remediation, or posting of [sewer overflows]."The inspectors sought constitutional protection for their statements about reporting, bioremediation, and posting.

The supervisors moved for judgment on the pleadings on the grounds that section 1983 does not provide a remedy for violation of the Clean Water Act, the complaint failed to state a claim under the First Amendment, and the supervisors were immune from suit.The district court stayed proceedings pending the outcome of the administrative action.The administrative law judge denied relief on the ground that the inspectors had not proved that they were terminated because they engaged in activity protected by the Clean Water Act.The inspectors appealed to the Administrative Review Board of the Department of Labor, and the district court again stayed proceedings.The supervisors then renewed their motion for judgment on the pleadings, and the district court granted judgment on the pleadings in favor of the supervisors.

II.STANDARD OF REVIEW

"We review de novoa district court's entry of judgment on the pleadings accepting the facts in the complaint as true and viewing them in the light most favorable to the nonmoving party."Horsley v. Feldt,304 F.3d 1125, 1131(11th Cir.2002).

III.DISCUSSION

Our discussion is divided in two parts.We first discuss why section 1983 does not provide a private right of action for violations of the Clean Water Act.We then discuss our conclusion that the reports of the inspectors were not protected by the First Amendment because the inspectors did not speak as "`citizen[s] on a matter of public concern.'"Battle v. Bd. of Regents for the State of Ga.,468 F.3d 755, 760(11th Cir.2006)(per curiam)(quotingGarcetti,547 U.S. at 418, 126 S.Ct. at 1958).

A.Section 1983 Does Not Provide a Right of Action for Violations of the Clean Water Act.

The inspectors' first argument is foreclosed by a longstanding decision of the Supreme Court.In Middlesex County Sewerage Authority v. National Sea Clammers Association,453 U.S. 1, 19, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435(1981), the Supreme Court held that the comprehensive remedies of the Clean Water Act foreclose a private right of action under section 1983.Although section 1983 provides a right of action for violations of rights secured by the Constitution and laws of the United States and authorizes suits to redress violations by state officials of rights created by federal statutes, Maine v. Thiboutot,448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555(1980), section 1983 does not authorize suits when "Congress ... foreclose[s] private enforcement of [a]statute in the enactment itself."Sea Clammers,453 U.S. at 19, 101 S.Ct. at 2626."When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983,"id. at 20, 101 S.Ct. at 2626, and the Court in Sea Clammers described the remedies in the Act as "quite comprehensive,"id.The Court stated, "It is hard to believe that Congress intended to preserve the § 1983 right of action when it created so many specific statutory remedies ...."Id.

Although the inspectors argue that a private right of action has been recognized by one of our sister circuits, the decision on which they rely, Charvat v. Eastern Ohio Regional Wastewater Authority,246 F.3d 607(6th Cir.2001), does not stand for that proposition.In Charvat, the Sixth Circuit held that the Clean Water Act did not bar a claim under section 1983 that an employer retaliated against an employee in violation of the First Amendment.Id. at 613-16.The Sixth Circuit did not consider whether the Clean Water Act barred a claim under section 1983 that an employer retaliated against an employee in violation of the Act itself.Id. at 614(citingSea Clammers,453 U.S. at 21, 101 S.Ct. at 2615).We affirm the judgment against the inspectors' claim about the whistleblower provision of the Clean Water Act.

B.The Reports of the Inspectors Were Not Protected by the First Amendment Because the Inspectors Did Not Speak as Citizens.

"[T]he law is well-established that the state may not demote or discharge a public employee in retaliation for speech protected under the [F]irst [A]mendment."Bryson v. City of Waycross,888 F.2d 1562, 1565(11th Cir.1989), but "[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom."Garcetti,547 U.S. at 418, 126 S.Ct. at 1958.To state a claim that a government employer took disciplinary action in retaliation for constitutionally protected speech, a public employee must prove, as a threshold matter, that the employee "`spoke as a citizen on a matter of public concern.'"Battle,468 F.3d at 760(quotingGarcetti,547 U.S. at 418, 126 S.Ct. at 1958);see alsoD'Angelo v. Sch. Bd. of Polk County, Fla.,497 F.3d 1203, 1208-10(11th Cir.2007).This appeal turns on that threshold inquiry.

Three concerns animate the requirement that an employee speak as a citizen to receive constitutional protection for her speech.First, because "government offices could not function if every employment decision became a constitutional matter,"Connick v. Myers,461 U.S. 138, 143, 103 S.Ct. 1684, 1688, 75 L.Ed.2d 708(1983), "[Supreme Court] precedents do not support the...