African Trade & Info. v. Abromaitis

• Decision Date: 23 May 2002
• Docket Number: Docket No. 01-7303.
• Citation: 294 F.3d 355
• Parties: AFRICAN TRADE & INFORMATION CENTER, INC., Mohamoud D. Ahmed, and Alan W. Gates, Plaintiffs-Appellees, v. James F. ABROMAITIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

294 F.3d 355

AFRICAN TRADE & INFORMATION CENTER, INC., Mohamoud D. Ahmed, and Alan W. Gates, Plaintiffs-Appellees, v. James F. ABROMAITIS, Defendant-Appellant.

Docket No. 01-7303.

United States Court of Appeals, Second Circuit.

Argued: January 2, 2002.

Decided: May 23, 2002.

COPYRIGHT MATERIAL OMITTED

Mark F. Kohler (Karla A. Turekian, on the brief), Assistant Attorneys General; Richard Blumenthal, Attorney General, Hartford, CT, on behalf of Defendant-Appellant James F. Abromaitis.

John R. Williams, Williams & Pattis, New Haven, CT, on behalf of Plaintiff-Appellees African Trade & Information Center, Inc., Mohamoud D. Ahmed, and Alan W. Gates.

Before: KATZMANN and NEWMAN, Circuit Judges, and GLEESON, District Judge.¹

Judge KATZMANN concurs by separate opinion.

GLEESON, United States District Judge.

This appeal concerns the availability of a qualified immunity defense for defendant James F. Abromaitis, the Commissioner of the Connecticut Department of Economic and Community Development ("DECD"), who allegedly violated the constitutional rights of plaintiffs African Trade & Information Center, Inc., Mohamoud D. Ahmed, and Alan W. Gates by retaliating against them for exercising their free speech rights and by denying them equal protection of the laws. Plaintiffs allege that Abromaitis violated these rights when he refused to consider their application to serve as Connecticut's trade representatives to countries on the continent of Africa. That refusal, according to plaintiffs, was intended to punish them for speaking out against Abromaitis.

Abromaitis brings this interlocutory appeal from the February 2, 2001, order of the United States District Court for the District of Connecticut (Stefan R. Underhill, District Judge) denying his motion for summary judgment on the ground of qualified immunity. For the reasons discussed below, we uphold Abromaitis's claim of qualified immunity on both the free speech and equal protection claims. We therefore reverse and remand with directions to dismiss the complaint to the extent it seeks compensatory and punitive damages from Abromaitis.

BACKGROUND

Viewed in the light most favorable to the plaintiffs, the facts alleged by the plaintiffs, which we accept only for purposes of this appeal, are set forth below.

Plaintiffs are international marketing specialists with particular expertise in Africa and the Middle East. In 1997, largely as a result of their efforts, the Connecticut General Assembly passed, and the Governor of Connecticut signed into law, Public Act 97-135, for the purpose of developing trade relations between Connecticut and countries on the continent of Africa.² Abromaitis opposed this legislation at the time it was being considered by the Connecticut legislature.

Abromaitis subsequently became Commissioner of the DECD, and in that capacity he and his staff sought to undermine the effective implementation of the African trade statute. In response, plaintiffs publicly "exposed and opposed" Abromaitis and his staff. See Complaint ("Compl."), ¶ 9. Plaintiffs' actions took the form of "public communications and ... communications to public officials within the State of Connecticut." Id. These communications included a meeting on July 16, 1998, with Abromaitis and a member of his staff, at which plaintiffs criticized the DECD's inaction.

Because of their expertise in matters of African trade, plaintiffs sought to be appointed by Abromaitis as Connecticut's trade representative to African countries. However, in early September 1998, Abromaitis entered into personal service agreements with the Connecticut World Trade Association ("CWTA") and Equator, U.S.A., Inc. ("Equator"), to act as Connecticut's trade representatives to such countries. Abromaitis never gave serious consideration to plaintiffs' application. Rather, to punish them for engaging in protected speech,³ he sought a waiver of Connecticut's competitive bidding process and rejected their application, despite his knowledge that they were far better qualified for the position than CWTA and Equator. By doing so, plaintiffs allege, Abromaitis violated their free speech rights guaranteed by the First Amendment and denied them a fair and equal opportunity to compete for the position, in violation of the Equal Protection Clause of the Fourteenth Amendment.

The complaint was filed on April 19, 1999. Abromaitis moved for summary judgment on the ground of qualified immunity. By order entered on February 2, 2001, the district court denied the motion. With respect to the equal protection claim, the court concluded that plaintiffs had come forward with sufficient evidence to permit a jury to conclude that Abromaitis failed to consider plaintiffs' application "on an equal footing with the others who sought the contracts," and that he acted with "discriminatory intent" to retaliate against plaintiffs because of their speech. See Ruling on Defendant's Motion for Summary Judgment, African Trade & Info. Ctr., Inc. v. Abromaitis, 99 CV 6028(SRU) (D.Conn. Feb. 1, 2001), at 3. With respect to the First Amendment claim, the district court rejected Abromaitis's defense of qualified immunity. The fact that plaintiffs had no preexisting commercial relationship with the government did not, the court held, affect their right not to be subject to retaliation based on speech.

On March 1, 2001, Abromaitis filed the instant interlocutory appeal from the district court's ruling.

DISCUSSION

A. Appellate Jurisdiction

Plaintiffs contend that we do not have jurisdiction to hear this appeal. We disagree.

"Ordinarily, an appeal lies only from a final judgment of a district court, since federal law limits appellate jurisdiction to review of `final decisions' of that court." Locurto v. Safir, 264 F.3d 154, 162 (2d Cir.2001) (citing 28 U.S.C. § 1291 (1994)). However, a public official's qualified immunity is not merely a shield against liability; it is also a right not to be forced to litigate the consequences of official conduct. See Mitchell v. Forsyth, 472 U.S. 511, 525-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The improper denial of that right is effectively unreviewable on appeal from a final judgment, because the right is lost if the case is erroneously allowed to proceed to trial. See id. at 526-27, 105 S.Ct. 2806. Accordingly, under the collateral order doctrine, a denial of a claim of qualified immunity is immediately appealable to the extent it turns on an issue of law. See id. at 528-29, 105 S.Ct. 2806; see also Locurto, 264 F.3d at 162.

This appeal turns solely on issues of law. Abromaitis concedes, for the purposes of the appeal, the truth of plaintiffs' allegations, and contends only that the conduct alleged did not violate a clearly established constitutional right. In such circumstances, an interlocutory appeal from an order denying qualified immunity is permitted. See, e.g., Munafo v. Metro. Transp. Auth., 285 F.3d 201, 211 (2d Cir. 2002).

B. The Merits

1. The First Amendment Claim

The doctrine of qualified immunity shields government officials from liability for civil damages when their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The "better approach to resolving" such claims is to first determine whether the plaintiffs have alleged a violation of a constitutional right, and then, if they have, to determine whether the right was clearly established at the time of the alleged violation. See County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). However, this approach is not mandatory. We may, in an appropriate case, decline to rule on the question whether an asserted right exists where, as here, we conclude that it was not clearly established at the relevant time. See Horne v. Coughlin, 178 F.3d 603, 606-07 (2d Cir.1999).

This is such a case. As discussed below, it squarely raises an issue that was expressly reserved by the Supreme Court in Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996): whether applicants for new government contracts who have no pre-existing commercial relationship with the government are protected by the First Amendment from retaliation based on speech. However, the merits of this issue are scarcely mentioned in the briefs on appeal, let alone adequately briefed. Plaintiffs' brief, which devotes barely more than a page to the issue, simply assumes the point, and cites none of the various Supreme Court decisions on which the right they assert would be based. This cursory briefing would make it "all the more perilous" for us to render an advisory opinion on the issue. See Horne, 178 F.3d at 606. Moreover, the issue is not likely to evade judicial review if we do not address it now. See id. (declining to decide whether asserted right exists where there was no reason to believe that the issue "will repeatedly, or over a substantial time, escape judicial review by reason of qualified immunity."). Indeed, if standing objections can be met, the issue might be addressed in this very case on remand, as plaintiffs seek injunctive relief as well, and qualified immunity is not a defense when such relief is sought. See id. Accordingly, we think the more prudent approach in the circumstances of this case is to refrain from deciding whether the asserted right exists.

Three factors are considered in evaluating whether a right was clearly established at the time a § 1983 defendant acted: "(1) whether the right in question was defined with `reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." Shechter v. Comptroller of...