Board of Regents of State v. Snyder, No. 2D01-299

Decision Date19 July 2002
Docket Number No. 2D01-299, No. 2D01-382.
PartiesBOARD OF REGENTS OF the STATE of Florida, Rollin C. Richmond, Tennyson Wright, Darrell J. Fasching, S. David Stamps, Winston Bridges, Jack B. Moore, Philip L. Smith, and Michael Amen, Petitioners, v. Robert E. SNYDER, Respondent.
CourtFlorida District Court of Appeals

Thomas M. Gonzalez and Deborah S. Crumbley of Thompson, Sizemore & Gonzalez, Tampa; and Olga J. Joanow, University of South Florida, Tampa, for Petitioners.

Mark F. Kelly and Robert F. McKee of Kelly & McKee, P.A., Tampa, for Respondent.

CONSOLIDATED

ALTENBERND, Judge.

The Board of Regents ("the Board") and Rollin C. Richmond, Tennyson Wright, Darrell J. Fasching, S. David Stamps, Winston Bridges, Jack B. Moore, Philip L. Smith, and Michael Amen ("individual Petitioners") appeal a nonfinal order denying their motion for summary judgment in an action pursuant to 42 U.S.C. § 1983 filed against them by Robert E. Snyder ("Mr. Snyder"). In the alternative, the Board and the individual Petitioners petition this court for a writ of certiorari arguing that the trial court departed from the essential requirements of the law when it denied summary judgment because they are immune from suit. We conclude that the trial court's order denying summary judgment in this case is reviewable by writ of certiorari. Because we conclude that the Board has sovereign immunity from suit and the individual Petitioners have qualified immunity from suit, we quash the trial court's order denying summary judgment and direct the trial court to enter summary judgment in favor of the Board and the individual Petitioners.

I. FACTS

Mr. Snyder has been a professor at the University of South Florida since 1980. He became a tenured professor at USF in the American Studies Department four years later. In 1992, Mr. Snyder filed three complaints with the State of Florida Ethics Commission against most of his colleagues in the American Studies Department. His initial complaints primarily alleged misrepresentations in tenure applications filed by his colleagues, improper use of confidential files, and improper office supervision. The Florida Ethics Commission ultimately dismissed the complaints. In February 1993, Mr. Snyder discovered that the American Studies Department would be merging with the Humanities Department. He submitted a letter to the Dean of his department requesting to be transferred out of the American Studies Department when it merged with the Humanities Department because he believed it would harm his reputation and his career.1 He also requested a transfer because he was not getting along with his colleagues in the American Studies Department. In an effort to accommodate Mr. Snyder's request, the Dean attempted to transfer him to the History Department at USF's Tampa campus. The Dean notified Mr. Snyder that he would not be included in the new merged department. The History Department, however, declined to accept Mr. Snyder into its Department. Mr. Snyder was then transferred to the History Department at USF's St. Petersburg campus for a trial period.

In 1995, during Mr. Snyder's time at the St. Petersburg campus, he filed a fourth complaint with the Florida Ethics Commission against two more professors. Mr. Snyder alleged that those professors received teacher incentive awards while serving on the awards committee. The Florida Ethics Commission dismissed that complaint as well. In October 1995, Mr. Snyder was transferred to the Lakeland campus. Mr. Snyder is currently working at USF's Tampa campus in the Interdisciplinary Studies Department.

In December 1996, Mr. Snyder filed his amended complaint in this lawsuit, alleging that the individual Petitioners and the Board violated his First Amendment rights by committing various acts of retaliation against him because of his complaints against them. Mr. Snyder sued the parties pursuant to 42 U.S.C. § 1983, seeking monetary relief against the individual Petitioners and equitable relief against the Board. On April 25, 2000, the Board and the individual Petitioners filed a motion for summary judgment raising sovereign and qualified immunity respectively. After a hearing was held on the motion for summary judgment, the trial court denied the motion.

II. JURISDICTION

Florida Rule of Appellate Procedure 9.130(a)(3)(c)(viii) allows an appeal of a nonfinal order that determines "that as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law." In this case, however, the trial court denied summary judgment because it found that genuine issues of material fact remained as to whether Mr. Snyder's complaints played a substantial part in the challenged employment decision. The court stated, "As such, this court is precluded from granting summary judgment and finds that it is premature to address questions of law." The trial court's order did not reject immunity as a matter of law. Therefore, we do not have jurisdiction to review that order on direct appeal. See Vermette v. Ludwig, 707 So.2d 742, 744 (Fla. 2d DCA 1997)

; Stephens v. Geoghegan, 702 So.2d 517, 520 (Fla. 2d DCA 1997).

On the other hand, Florida Rule of Appellate Procedure 9.030(b)(2)(A) gives us discretionary authority to review nonfinal orders via certiorari. To obtain a writ of certiorari, the petitioner must show (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal. See Stephens, 702 So.2d at 521

; Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995).

This court has previously held that "[b]ecause of the nature and purpose of a claim of immunity, an appeal after final judgment would not be an adequate remedy." Stephens, 702 So.2d at 521. Qualified immunity protects public officers from liability and suit. Id.; see also Vermette, 707 So.2d at 744

. Sovereign immunity protects state government from interference by plaintiffs and state courts. Hill v. Dep't of Corr., 513 So.2d 129 (Fla.1987). Thus, if the Board or the individual Petitioners are required to go to trial, they cannot later be reimmunized from suit. As such, we conclude that the Board and the individual Petitioners established the material harm, irreparable on appeal after judgment, necessary for this court to invoke its certiorari jurisdiction.

Finally, when the record conclusively demonstrates entitlement to immunity, it is a departure from the essential requirements of the law for a trial court to deny a motion for summary judgment on that basis. Stephens, 702 So.2d at 525. As we will discuss in sections II, III, and IV below, the record in this case conclusively demonstrates that the Board and the individual Petitioners are entitled to immunity from suit under 42 U.S.C. § 1983. Thus, the trial court departed from the essential requirements of the law when it denied their motion for summary judgment.2

III. SOVEREIGN IMMUNITY

The Board argues that it is entitled to sovereign immunity concerning Mr. Snyder's claim under 42 U.S.C. § 1983. It is well established in both federal and state courts that a state and its agencies are immune from suit arising under 42 U.S.C. § 1983. See Spooner v. Dep't of Corr., 514 So.2d 1077, 1078 (Fla.1987)

; Hill, 513 So.2d at 132. Although this state has waived its sovereign immunity for state tort actions, that waiver does not extend to civil rights actions. See § 768.28, Fla. Stat. (2000); Spooner, 514 So.2d at 1078; Hill, 513 So.2d at 132. Federal law is enforceable in state courts, but only municipal corporations, local government entities, individual officers, and other actors that are not arms of the state may be liable under 42 U.S.C. § 1983. See Howlett By & Through Howlett v. Rose, 496 U.S. 356, 376-77, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990).

The Board was sued as an entity in this case. This is not an action against named members of the Board of Regents. The Board, as part of the State University System, is an arm of the state. See § 240.2011, Fla. Stat. (2000). Thus, the Board of Regents is immune from claims pursuant to 42 U.S.C. § 1983 in state and federal court. The trial court departed from the essential requirements of the law when it refused to recognize the Board's immunity.

IV. MR. SNYDER'S FIRST AMENDMENT CLAIM

The analysis of the individual Petitioners' claim of qualified immunity is some-what complex because the immunity depends, in part, upon the nature of the constitutional right asserted by Mr. Snyder and the extent to which that right is well established within the law. First Amendment claims are particularly difficult to maintain under § 1983 as it is only the "extraordinary" First Amendment claim that survives a qualified immunity defense. Dartland v. Metro. Dade County, 866 F.2d 1321, 1323 (11th Cir.1989). This is a result of the fact that no brightline rules exist in the case law describing violations of First Amendment rights.

Mr. Snyder's claim under 42 U.S.C. § 1983 is based on alleged retaliation by the individual Petitioners against him for exercising his First Amendment right of free speech when he complained to the Commission about various actions of his colleagues. The retaliatory acts complained of include, among several others, being removed from the American Studies Department without being consulted, being transferred from USF's Tampa campus to the St. Petersburg campus and later to the Lakeland campus and back to Tampa, being removed from his offices in each of these campuses when he was transferred from each, not being treated fairly with regard to pay increases, alteration of his class schedules, and being passed over for teaching overload in USF's Fort Myers campus.

In certain circumstances, a First Amendment retaliation claim is a legal possibility.3 First Amendment law provides...

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