Drake v. Scott

• Citation: 812 F.2d 395
• Decision Date: 20 February 1987
• Docket Number: No. 86-1353,86-1353
• Parties: Don G. DRAKE, Appellee, v. Ray SCOTT, Director of Arkansas Dept. of Human Services; Dr. Curtis Ivery, Commissioner of Social Services; and Roy Kindle, Director of Pulaski County Social Services, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 395

812 F.2d 395

2 Indiv.Empl.Rts.Cas. 554

Don G. DRAKE, Appellee, v. Ray SCOTT, Director of Arkansas Dept. of Human Services;

Dr. Curtis Ivery, Commissioner of Social Services;

and Roy Kindle, Director of Pulaski

County Social Services, Appellants.

No. 86-1353.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 11, 1986.

Decided Feb. 20, 1987.

Tim Humphries, Asst. Atty. Gen., Little Rock, Ark., for appellants.

John Wesley Hall, Jr., Little Rock, Ark., for appellee.

Before ARNOLD, Circuit Judge, BRIGHT, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

ARNOLD, Circuit Judge. ^*

Ray Scott, director of the Arkansas Department of Human Services, and other supervisory or former supervisory employees of the Department (supervisors) appeal from the magistrate's ¹ denial of their motion for summary judgment or dismissal. The supervisors argue that they are entitled to qualified immunity from suit and that the plaintiff, Don G. Drake, has failed to state a cause of action. Proceedings have been stayed pending the outcome of this appeal. We affirm in part and reverse in part.

I.

Drake formerly worked as a caseworker with the Arkansas Department of Human Services. After serving with the agency for approximately four months, he claims to have reported a waste of public funds that allegedly had occurred in his office. Drake alleges that immediately afterwards the defendants began an orchestrated campaign to remove him from his job by, among other things, fabricating complaints against him from co-workers and clients. Drake was fired on February 15, 1984, for "dishonesty," and his letter of discharge gives the reason as "conduct unbecoming a state employee."

Drake appealed his discharge internally through the agency. The agency affirmed his dismissal without a formal hearing. ² Drake then brought this suit, alleging that his supervisors who have been named as defendants deprived him of his rights to due process and free speech. He seeks damages and injunctive relief, including reinstatement. The defendant supervisors filed a motion for summary judgment, asserting a qualified-immunity defense and that Drake had failed to state a due-process claim because he lacked a property interest in his job. The supervisors also contended that summary judgment was appropriate because Drake had failed to establish sufficient evidence in support of his First Amendment claim. The magistrate denied the motion, ruling that unresolved disputes of fact remained in the litigation.

II.

We are faced at the outset with the question whether this Court has jurisdiction to hear all issues raised on appeal. A denial of summary judgment is not a final judgment, but it is nonetheless appealable when it denies immunity to a government official. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). In the present case, however, appellants raise more issues than an error in the denial of immunity in support of their assertion that summary dismissal of the action is appropriate. The appellant supervisors contend that the due-process claim must be dismissed because Drake lacks any property interest in his prior state job, and further that summary judgment is proper on Drake's First Amendment claim because he has failed to establish a genuine issue of material fact. Thus, although no final judgment exists, we are asked to review fully the magistrate's order denying summary judgment.

In response to this Court's inquiries about our jurisdiction to review these issues, appellants have cited Wright v. South Arkansas Regional Health Center, 800 F.2d 199 (8th Cir.1986). In Wright, as here, the plaintiff sued officials of the Arkansas Department of Human Services, including its director, Ray Scott. Wright claimed that he suffered dismissal from his job in retaliation for the exercise of his First Amendment rights. The defendants there sought summary judgment, asserting what they characterized as a qualified-immunity defense. In essence, they contended that because Wright had failed to establish a genuine issue of fact as to whether his First Amendment rights were violated, immunity should apply, notwithstanding Wright's pleaded claim that the defendant state officials had violated clearly established rights to free speech. The District Court denied summary judgment, and the defendants appealed.

Because Wright charged a state official with discharging him for an improper motive (retaliation for exercise of First Amendment rights), we acknowledged that we were being asked to examine a question that was in some sense factual. Wright, 800 F.2d at 203. We held, however, that we had jurisdiction to review the question whether any genuine issue of improper motivation existed to send to the jury. Id. Such review is necessary to protect public officials from insubstantial claims and is thus consistent with the purpose of Mitchell. Id. Furthermore, review of the sufficiency of the evidence did not require any evaluation of the evidence's weight, but rather was limited to a legal inquiry, such as that conducted on a motion for a directed verdict. Id.

In the present case, Drake raises two claims: that he suffered a discharge without due process and that the discharge rested on an intent to retaliate for his exercise of First Amendment rights. Drake seeks damages and equitable relief. The supervisors raise two defenses to the due-process claim: that they are immune from the suit for damages, and that Drake's complaint fails to state a claim because Drake could be fired at will and thus lacked any property interest in his job. As to the First Amendment claim, defendants argue (as they did in Wright ) that Drake has failed to raise a genuine issue of fact as to retaliatory or otherwise improper motivation.

A further complication arises because Drake seeks both damages and equitable relief. The Supreme Court in Mitchell left open the question whether a denial of qualified immunity is immediately appealable when the underlying claim seeks both damages and equitable relief. 105 S.Ct. at 2812 n. 5. This Circuit addressed the issue prior to Mitchell, and held that an interlocutory appeal may be taken from a denial of immunity even when the employee's claim, in addition to seeking damages subject to the immunity defense, also seeks equitable relief, to which immunity is not a defense. Tubbesing v. Arnold, 742 F.2d 401, 404 (8th Cir.1984). We see no reason to depart from this rule. See Kennedy v. City of Cleveland, 797 F.2d 297, 305-06 (6th Cir.1986); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1189-90 (1st Cir.1986) (following the Tubbesing rule in light of Mitchell ). ³ Based on this authority, we accept jurisdiction to review the magistrate's denial of immunity.

As noted, appellants claim not only qualified immunity, but also that the due-process claim is deficient as a matter of law because Drake had no property interest. The question of Drake's property interest in continued employment is a different issue from that of immunity. Whether we have jurisdiction to review this issue on an interlocutory appeal appears to be a question of first impression discussed by neither Mitchell nor any court of appeals.

If Drake possesses no property interest, he cannot succeed on his claim, and we need not reach the immunity issue. The Mitchell Court stated that an appellate court "need not ... determine whether the plaintiff's allegations actually state a claim," 105 S.Ct. at 2816, but that language referred to the factual content of the plaintiff's claim, not an underlying question of law that must be answered prior to application of the immunity defense. We think it makes sense for us to assume jurisdiction of the property-interest question. This question is analytically antecedent to, and in a sense also pendent to, the qualified-immunity issue that is concededly properly here under Mitchell. If we did not decide the property-interest question, and if we then upheld the District Court's rejection of the qualified-immunity defense, on remand it might still be necessary for the District Court to decide whether Drake had a property interest. If it decided he did not, the question of qualified immunity would drop out of the case, would never have to be reached, thus making the whole interlocutory appeal on the question of qualified immunity a needless ritual. In addition, in the present case the question of qualified immunity itself depends in large part on whether defendants knew or should have known that Drake had a clearly established property interest in the job at the time they fired him. If in fact there was as a matter of law no property interest, it follows a fortiori that no such interest was clearly established at the relevant time. We hold that when an interlocutory appeal is properly before us under Mitchell as to the defense of qualified immunity, we have jurisdiction also to decide closely related issues of law, such as whether the complaint fails to state a claim because of the absence of a property interest protected by the Due Process Clause.

As to Drake's First Amendment claim, the defendant supervisors contend that the allegation that the discharge rested on whistleblowing is without substance as a matter of fact. This defense is reachable in this interlocutory appeal. That issue is exactly the one raised and decided in Wright.

Thus, we take jurisdiction of the appeal and turn to the merits.

III.

Plaintiff did not have a contract of employment for a fixed period of time. The general rule in Arkansas, with respect to both public and private employees, is that employment is terminable at will if the employment contract has no fixed term. Accordingly, employees who have no fixed term would normally have no property interest in employment for purposes of the Due Process Clause of the Fourteenth Amendment. Drake contends, however, that a regulation of the Department of Human Services, Administrative Regulation...