Best v. Boswell, 81-7598

• Decision Date: 31 January 1983
• Docket Number: No. 81-7598,81-7598
• Citation: Best v. Boswell, 696 F.2d 1282 (11th Cir. 1983)
• Parties: Odis BEST, Plaintiff-Appellant, v. Charles A. BOSWELL, etc., et al., Defendants, Ralph P. Eagerton, Jr., et al., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1282

696 F.2d 1282

Odis BEST, Plaintiff-Appellant, v. Charles A. BOSWELL, etc., et al., Defendants Ralph P. Eagerton, Jr., et al., Defendant-Appellee.

No. 81-7598.

United States Court of Appeals Eleventh Circuit.

Jan. 31, 1983.

Alvin T. Prestwood, Claude P. Rosser, Jr., Montgomery, Ala., for plaintiff-appellant.

John J. Breckenridge, Asst. Counsel, Dept. of Revenue, Richard B. Garrett, Jr., Montgomery, Ala., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before GODBOLD, Chief Judge, FAY and SMITH ^*, Circuit Judges.

FAY, Circuit Judge:

Odis Best, a former employee of the Alabama Department of Revenue, appeals from the district court's rulings in an action pursuant to 42 U.S.C. Section 1983 denying motion for partial summary judgment, entering final judgment, denying a motion for a new trial, refusing to award equitable relief and refusing to award attorney's fees. Ralph Eagerton, Jr., Revenue Commissioner, one of the defendants at trial and the only appellee, cross appeals the district court's granting of partial summary judgment holding that Alabama Code Section 36-26-28 (1975) is unconstitutional. We affirm the district court on appeal as well as on cross appeal.

FACTUAL BACKGROUND

By 1974, Odis Best had fifteen years experience as a Revenue Examiner for the state of Alabama, and was auditing the corporate and personal income tax returns of Elsie Estes, a widow without business acumen whose husband had been in the pulpwood business. Because of Best's actions, a tax lien was filed. In 1976, the lien remained unsatisfied and Best requested that a second execution of lien be prepared. That May, Best purchased one hundred acres of Estes' land for approximately $7,000.00. Best then executed a deed to twenty acres of this land to his son and "negotiated" a further sale of this same twenty acres to Mrs. Lee G. Stephens for $9,000.00, two thousand dollars more than Best had paid for the entire parcel of which he still owned eighty percent. By November, Estes filed suit against Best alleging that Best had deceived her and exercised undue influence upon her in effecting the purchase of the real property.

Mrs. Stephens, the purchaser of the twenty acres, became alarmed. On February 3, 1977 as a result of their attorneys' negotiations, Best paid Stephens $10,000.00 and Stephens executed a quitclaim deed to the twenty acres. The law suit between Estes and Best was resolved by settlement during 1978.

As a result of what has been termed the "Estes matter," Best was demoted by then Revenue Commissioner Boswell from his supervisory position. Eagerton assumed the office of Revenue Commissioner on January 15, 1979. There is some disagreement as to Eagerton's statements regarding reinstatement of Best to a supervisory position. Best was not reinstated and instituted the present action, which did not name Eagerton or the Department of Revenue as a defendant. ¹ In December 1979, Eagerton learned that, despite an agreement with Best and his attorney to the contrary, Eagerton was going to be added as a defendant in the suit. At this time, Eagerton reviewed Best's income tax returns and discovered that the Estes-Stephens land transactions had not been reported. Correspondence between Eagerton and Best ensued. A meeting also occurred between the two men in which Eagerton told Best that if Best did not adhere to the agreement not to name Eagerton as a defendant, Eagerton would fire him. Best's returns were assigned to an auditor with instructions to keep the audit confidential.

The auditor and Best communicated both by mail and in person. The auditor, Johnson, reported that Best was not furnishing requested information and that Best was using his expertise in Alabama tax law to thwart the audit. On the basis of this information, and without a hearing, Eagerton suspended Best from his position for two weeks. The propriety of this suspension is the subject of the cross appeal.

While Best was suspended, the Department of Revenue issued a subpoena for records and such records were examined. Additional records were requested and Best's attorney agreed to produce these records at a later date. In the interim, however, the auditors presented their results on Best's audit to Eagerton and Revenue Department attorneys. The attorneys advised Eagerton that sufficient grounds existed to dismiss Best from employment. On July 16, 1980, Eagerton drafted the dismissal letter, ² which Best received the next day. ³

Best's attorney requested that the reasons for dismissal be delineated with greater specificity, and Eagerton complied by sending a letter as follows:

Dear Mr. Best:

Pursuant to the request of your attorney, Alvin Prestwood, for an itemization in detail of the reasons for your dismissal from the employment of the State of Alabama, Department of Revenue, the following constitute the specifics of the charges contained in your letter of dismissal dated July 16, 1980 and July 17, 1980, in which you were advised of my reasons to believe that you have filed false or fraudulent returns for the calendar years 1976, 1977 and 1978.

CHARGE 1: You received money from the sale of a parcel of land which was not reported.

Sale of 20 acres of land purchased from Mrs. Elsie B. Estes and located in Autauga County, Alabama in August 1976 for the sum of $9,000.00, resulting in a taxable gain which was not reported in your 1976 Alabama income tax return.

CHARGE 2: You sold personal assets which were not reported.

A. 1972 Rambler Ambassador 4-Dr. Sedan--the income from which was not reported for 1976.

B. 1970 Plymouth Fury 4-Dr. Sedan--the income from which was not reported for 1977.

C. 1972 Dodge--the income from which was not reported for 1977.

D. 1973 Ford--the income from which was not reported for 1977.

E. 1974 Ford Galaxie 4-Dr. Sedan--the income from which was not reported for 1978.

F. Boat--the income from which was not reported for 1977.

CHARGE 3: You failed to furnish records to substantiate certain deductions claimed.

In conjunction with an official investigation of your state income tax return for calendar year 1976, you were requested by me to furnish documentation to support your claim for deduction for contributions, interest expense, casualty loss and your claim of a dependent exemption for M.D. Best. In lieu thereof, you tendered to me a check in the amount of $117.24 for additional taxes owed. As of this date, you have failed to provide such substantiation as to contributions and the dependent claimed.

CHARGE 4: You failed to give your whole-hearted cooperation.

You failed to produce the documents and information referred to in # 3 above. In addition, you have repeatedly failed to furnish documents and information to revenue examiners, David Johnson and James R. Hodges requested by them in order to complete their audit. On more than one occasion you have broken appointments with these examiners and have walked out during meetings with these examiners. On more than one occasion you have told these examiners that you would not comply with their requests for information and documents unless such requests were put in writing. You also failed to furnish information and documentation upon the repeated requests of these examiners in conjunction with the purchase and sale of land set out in paragraph 1 above and in conjunction with the purchase and sale of the personal property set out in paragraph 2 above.

As your attorney was apprised in court on July 18, this is to inform you that due to my being a party in the case of Best v. Boswell, I consider that it would be in your best interest and would insure a fair and impartial hearing for me to name a designee to conduct the hearing now set for August 8, at 2:00 P.M. I plan to name such a designee unless you have objections to my doing so. If you do, please communicate any objections and the reasons therefor, to me prior to the scheduled hearing.

/s/Ralph Eagerton

Best declined to have a designee named and was thereafter afforded a hearing before Commissioner Eagerton on August 11, 1980. Eagerton affirmed the termination. ⁴ Best had previously notified the State Personnel Board that he wished to appeal. The State Personnel Board held a hearing on February 18, 1981 lasting over thirteen hours at which both sides were represented by counsel, called witnesses, cross-examined witnesses and introduced evidence. The Board sustained Best's dismissal and Best did not appeal.

In federal district court, Best pursued his Section 1983 action, amending the complaint several times. The district judge granted Best's motion for partial summary judgment and held that "a merit system employee may not be suspended without some kind of notice and some kind of hearing and that Alabama Code Section 36-26-28 is unconstitutional insofar as it permits suspensions without a prior hearing." The district judge therefore entered judgment in Best's favor for back pay during the period of Best's suspension (May 30, 1980 through June 13, 1980) and Eagerton cross-appeals the entry of this judgment.

The cause proceeded to jury trial and the jury found in favor of all defendants and judgment was entered accordingly. The district court denied Best's motion for new trial, or alternatively to award injunctive relief in the form of reinstatement with full back pay as well as Best's motion for attorneys' fees. Best v. Boswell, 516 F.Supp. 1063 (M.D.Ala.1981). Best timely filed a notice of appeal and raises the following issues for our consideration: whether the district court should have granted Best a new trial on the ground that the jury verdict was contrary to the great weight of the evidence; whether the district court should have awarded Best equitable relief; whether the post termination hearing was sufficient to cure any pretermination deficiencies regarding Best's dismissal; and whether Best is entitled to an award of attorneys'...