Carollo v. Boria

• Decision Date: 17 August 2016
• Docket Number: No. 15-11512,15-11512
• Parties: Joe Carollo, Plaintiff–Appellee, v. Luigi Boria, et al., Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

833 F.3d 1322

Joe Carollo, Plaintiff–Appellee,

v.Luigi Boria, et al., Defendants–Appellants.

No. 15-11512

United States Court of Appeals, Eleventh Circuit.

August 17, 2016

Diana L. Fitzgerald, Erica Canas, David Charles Isaacson, Fitzgerald & Isaacson, LLP, Miami, FL, for Plaintiff–Appellee.

Alexandra Christine Hayes, Oscar Edmundo Marrero, Lourdes E. Wydler, Marrero & Wydler, Coral Gables, FL, for Defendants–Appellants.

Before MARCUS and FAY, Circuit Judges, and FRIEDMAN,^* District Judge.

FRIEDMAN, District Judge:

Defendant-appellants Luigi Boria, Sandra Ruiz, and Christine Fraga (collectively “appellants”), all city officials, terminated plaintiff-appellee Joe Carollo from his position as City Manager for the City of Doral after he reported to law enforcement and other agencies appellants' alleged misconduct and made public disclosures about the same. Carollo brought this civil action against appellants under 42 U.S.C. § 1983, alleging a violation of his First Amendment rights. The district court denied appellants' motion to dismiss on the basis of qualified immunity, finding that the First Amendment protected Carollo's speech because he made the reports to law enforcement and other agencies as well as the public disclosures in his capacity as a citizen and not in connection with his ordinary job responsibilities as City Manager. The district court also found that precedent existing at the time of his termination clearly established Carollo's First Amendment rights.

After careful review, we affirm the district court in part and reverse it in part. We remand with instructions to grant Carollo leave to amend his complaint to cure the defects we identify and then to proceed to discovery.

I. BACKGROUND

In early 2013, City of Doral Mayor Luigi Boria proposed and the City of Doral City Council approved the appointment of Joe Carollo as City Manager. Appellants Boria, Christine Fraga (the City of Doral Vice–Mayor), and Sandra Ruiz (a City of Doral Councilwoman) were each voting members of the City Council. Section 3.03 of the City of Doral Municipal Charter includes the following job responsibilities of the City Manager:

(2) Direct and supervise the administration of all departments and offices but not City boards or agencies ... ; (3) Attend all Council meetings and have the right to take part in discussion but not the right to vote; (4) Ensure that all laws, provisions of this Charter and acts of the Council, subject to enforcement and/or administration by him/her or by officers subject to his/her direction and supervision, are faithfully executed[.]

Section 3.01 generally describes the City Manager as “the chief administrative officer of the City” who is “responsible to the [City] Council for the administration of all City affairs.”

During his tenure as City Manager, Carollo “reported to local and federal agencies violations of state and [f]ederal law” by the appellants “that were personally communicated to him,” and “made public disclosures” at City Council meetings about those violations.¹ Carollo's reports to these agencies and his public disclosures concerned mainly three categories of alleged misconduct: (1) Boria and Ruiz's violations of Florida's campaign finance laws; (2) Boria and Fraga's violations of Florida's financial disclosure laws for elected officials; and (3) Boria's corruption.

Carollo reported these three allegations of misconduct to law enforcement and other agencies, as well as publicly disclosed the allegations at City Council meetings. The first allegation was that Boria and Ruiz violated Florida campaign finance laws when Boria accepted illegal campaign contributions in the form of unreported, drastically under-market rent for his campaign headquarters, and Ruiz failed to report a political action committee's spending on behalf of her campaign. The second allegation was that Boria and Fraga failed to list their secondary sources of income on Florida's “Form 6” financial disclosures for public officials in 2011 and 2012. The third and final allegation was that Boria engaged in various forms of corruption such as, for example, refusing to recuse himself from a City Council zoning vote on a residential development project in which the developers were his two children and “a long time business associate of Boria with whom Boria has a debtor-creditor relationship.” On Carollo's allegation, Boria sought to advantage this project by pressuring the City of Doral Director of Zoning and Planning to drop his support for a competing residential development project and making burdensome demands upon the developer of the competing project.²

On April 23, 2014, the City Council voted to terminate Carollo as City Manager with appellants providing the only three votes in favor of termination. On October 24, 2014, Carollo filed a complaint in the United States District Court for the Southern District of Florida against appellants and the City of Doral, alleging three claims: (1) retaliation in violation of the First Amendment; (2) violations of Florida's Whistle-blower's Act, FLA. STAT. ANN. § 112.3187 et seq. ; and (3) violations of the City of Doral Municipal Charter.³ Carollo attached the Municipal Charter as an exhibit to his complaint and pled that the First Amendment protects each of his reports and public disclosures. As relevant here, appellants moved to dismiss the First Amendment retaliation claim on the basis of qualified immunity. They argued that they did not violate Carollo's First Amendment rights because he made his reports and public disclosures in his capacity as City Manager and not as a citizen, and that, even if that was not the case, those First Amendments rights were not clearly established in this Circuit at the time appellants voted to terminate Carollo as City Manager.

The district court denied appellants' motion to dismiss. First, it held that Carollo spoke as a citizen and not pursuant to his official duties, and that his complaint therefore stated a plausible First Amendment retaliation claim. The court based that conclusion on the fact that Carollo's ordinary job responsibilities as enumerated in the Municipal Charter did not include enforcing Florida's campaign finance laws, Florida's financial disclosure laws for elected officials, or laws relating to public corruption. The district court also rejected appellants' reliance on Section 3.03(4) of the Municipal Charter—which empowers the City Manager to “[e]nsure that all laws ... are faithfully executed”—because that provision limits the City Manager's duties to “all laws” that are “subject to enforcement and/or administration by” him. Second, the district court held that Carollo's First Amendment rights were clearly established at the time appellants voted to terminate him because appellants “have been on notice” since the Supreme Court's decision in Pickering v. Bd. of Ed. of Township High School Dist., 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), “that a public employee may be protected under the First Amendment when the employee learns of matters of public concern through his or her employment and the employee speaks out as a citizen on those matters.” The district court also noted that the Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), reaffirmed Pickering.

Appellants filed this interlocutory appeal from the district court's denial of qualified immunity, challenging both its merits determination that Carollo's complaint stated a plausible First Amendment retaliation claim and its immunity determination that precedent in this Circuit at the time of the alleged violation “clearly established” Carollo's First Amendment rights.

II. DISCUSSION

Our jurisdiction is limited to appeals from “final decisions” of the district court, 28 U.S.C. § 1291, and a district court's denial of a motion to dismiss ordinarily is not a “final decision[ ].” See In re Hubbard, 803 F.3d 1298, 1305 (11th Cir. 2015). But there exists a “small class of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final.’ ” Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1355 (11th Cir. 2014) (citing Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) ). The Supreme Court “has been careful to say that a district court's order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final decision’ within the meaning of § 1291.”

Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We thus have jurisdiction to review appellants' interlocutory appeal.

“We review de novo a district court's denial of qualified immunity. The determination of whether a complaint sufficiently alleges a constitutional violation also is a matter of law reviewed de novo. In reviewing a complaint, we accept all well-pleaded factual allegations as true and construe the facts in the light most favorable to the plaintiff.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003).

“In order to receive qualified immunity, the public official ‘must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ ” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) ). There is no dispute here that appellants acted within the scope of their discretionary authority when they voted to terminate Carollo from his position as City Manager.

“After the defendant has established that he was acting in a discretionary capacity, ‘the burden shifts to the plaintiff to show that qualified immunity is not appropriate.’ ” Brooks v. Warden, 800 F.3d 1295, 1306 (11th Cir. 2015) (quoting Lee, 284 F.3d at 1194 ). To meet this burden, a plaintiff must establish that (1) his complaint pleads a plausible claim that the defendant violated his federal rights (the “merits” prong), and that (2) precedent in this...