Perez v. Ellington

• Decision Date: 22 August 2005
• Docket Number: No. 04-2181.,04-2181.
• Citation: 421 F.3d 1128
• Parties: David A. PEREZ, Sr.; Tony B. Vigil; Harold Porter; and James D. Porter, Plaintiffs-Appellees, v. T. Glenn ELLINGTON; James Burleson; David Fergeson; Ricky A. Bejarano; and Javier Lopez, in their individual capacities, Defendants-Appellants, Tom Talache, Governor of Nambe Pueblo; Herbert Yates, Tribal Councilman of Nambe Pueblo; Taxation & Revenue Department, State of New Mexico, Movants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1128

421 F.3d 1128

David A. PEREZ, Sr.; Tony B. Vigil; Harold Porter; and James D. Porter, Plaintiffs-Appellees, v. T. Glenn ELLINGTON; James Burleson; David Fergeson; Ricky A. Bejarano; and Javier Lopez, in their individual capacities, Defendants-Appellants Tom Talache, Governor of Nambe Pueblo; Herbert Yates, Tribal Councilman of Nambe Pueblo; Taxation & Revenue Department, State of New Mexico, Movants.

No. 04-2181.

United States Court of Appeals, Tenth Circuit.

August 22, 2005.

John B. Pound of Long, Pound & Komer, P.A., Santa Fe, NM, for Defendants-Appellants.

Daniel Yohalem (Richard Rosenstock with him on the brief), Santa Fe, NM, for Plaintiffs-Appellees.

Before BRISCOE, McKAY, and MURPHY, Circuit Judges.

McKAY, Circuit Judge.

This is an appeal from the district court's denial of summary judgment based on a claim of qualified immunity and absolute immunity. Defendants-Appellants are officials from the New Mexico Tax and Revenue Department (TRD). The underlying facts surrounding this lawsuit are detailed and quite involved. In light of the narrow issues presented by this appeal, we only recite the facts relevant to our holding.

Plaintiffs, a faction of the Nambé Pueblo Indian Tribe, entered into a contract with Mr. Ken Newton (acting for Gasplus, his gasoline distribution corporation) regarding the management of Nambé Pueblo's gasoline distribution business (Gasplus agreement). Plaintiffs entered into the Gasplus agreement on behalf of the Nambé Pueblo Development Corporation (NPDC). The NPDC is a registered gas distributor and can take advantage of the gas tax deduction for Indian tribal distributors in the state of New Mexico.¹ Mr. Newton had previously been investigated by TRD officials for his involvement with a fraudulent tax scheme designed to illegally take advantage of such tax breaks.

Defendants, officials from the TRD, were contacted by Nambé Pueblo's governor,² Tom Talache (Governor Talache), numerous times regarding the Gasplus arrangement. In a series of clandestine meetings, Governor Talache voiced his concern to TRD officials about the validity of the Gasplus agreement. After hearing Governor Talache's accounts of Plaintiffs' involvement with Mr. Newton and Gasplus, Defendants decided to investigate the matter.³

Fearing that a traditional investigation of the nation would prove difficult because of tribal sovereign immunity protections, Defendants decided to issue a jeopardy tax assessment against Plaintiffs. A jeopardy tax assessment is a method used by New Mexico tax officials in emergency situations when an official "reasonably believes that the collection of any tax for which a taxpayer is liable will be jeopardized by delay. . . ." N.M. Stat. Ann. § 7-1-59(A) (Michie 2004). Such jeopardy tax assessments give tax officials greater latitude to investigate potential tax offenders. In this case, by issuing the jeopardy tax assessments, Defendants were able to obtain access to Plaintiffs' financial records.

Defendants' decision to issue the jeopardy tax assessments was buttressed by an opinion from the Bureau of Indian Affairs (BIA) that found the Gasplus agreement invalid. After some preliminary investigation, Defendant Fergeson agreed with the BIA's conclusion regarding the invalidity of the Gasplus agreement, and he reported this to Defendant Ellington who, in turn, issued a lien against Plaintiffs' property pursuant to the New Mexico Tax Administration Act.

Upon completion of its audit, however, Defendants determined that there was nothing illegal about Plaintiffs' agreement with Gasplus. Consequently, TRD recommended an abatement of the jeopardy tax assessments. The abatements were signed on March 11, 2002, by a TRD official and authorized a month later. However, the liens associated with the tax assessments were not released until July 1, 2003, more than one year later.⁴

As a result of the above, Plaintiffs brought various claims under 42 U.S.C. §§ 1981, 1982, and 1983. Defendants asserted the defense of qualified and absolute immunity and moved for summary judgment on each of the claims. The district court granted summary judgment for Defendants on all of Plaintiffs' claims except their § 1983 claim based on the First Amendment right of association. The district court held there to be "a question of material fact as to whether the Defendants acted in an objectively reasonable manner," Aplt.App., Vol. I, at 413 (Dist.Ct.Order), from which a reasonable juror could find a deprivation of constitutionally protected rights by retaliating against Plaintiffs for their association with Mr. Newton. The district court also denied Defendants' claim of absolute immunity. Defendants brought this interlocutory appeal from the denial of summary judgment on that claim.

Generally, we have jurisdiction to review purely legal questions that arise from the denial of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Our inquiry focuses on "whether the facts alleged. . . support a claim of a violation of clearly established law." Id. at 528 n. 9, 105 S.Ct. 2806. If our de novo review of Plaintiffs' version of the facts reveals that they do not amount to a violation of a clearly established right, we can reverse on an interlocutory basis. Conversely, if Plaintiffs' version of the facts amounts to the violation of a clearly established constitutional right, we lack jurisdiction to review the denial of summary judgment on an interlocutory basis if Plaintiffs' version of the facts is disputed. We review de novo a district court's denial of a summary judgment motion raising qualified immunity questions. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001).

It is first necessary to determine exactly which clearly established constitutional right Plaintiffs claim Defendants violated. In this appeal, Plaintiffs allege Defendants' retaliatory actions violated their First Amendment right to association. The First Amendment bars retaliation for exercising the right of association. See DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir.1990). Although retaliation is not expressly discussed in the First Amendment, it may be actionable inasmuch as governmental retaliation tends to chill citizens' exercise of their constitutional rights. ACLU of Md., Inc. v. Wicomico County, 999 F.2d 780, 785 (4th Cir.1993) (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)). First Amendment retaliation claims are generally brought in the public employment context. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

In this case, Plaintiffs are not employed by Defendants, and no contractual relationship exists between the parties. When the retaliation claim is not grounded in the public employment context, we employ the substantive standard we announced in Worrell v. Henry, 219 F.3d 1197 (10th Cir.2000). Therefore, to establish a violation of the First Amendment right to associate, Plaintiffs must demonstrate: "(1) that [they were] engaged in constitutionally protected activity; (2) that [Defendants'] actions caused [Plaintiffs] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that [Defendants'] adverse action was substantially motivated as a response to [Plaintiffs'] exercise of constitutionally protected conduct." Worrell, 219 F.3d at 1212 (internal quotation marks and citations omitted).

In this case, Plaintiffs have alleged that they were unconstitutionally discouraged from associating with non-tribal members because of Defendants' retaliatory action. Plaintiffs support this allegation citing Defendants' quick issuance of the jeopardy tax assessments, Defendants' failure to follow the normal procedures for issuing jeopardy tax assessments, and Defendants' failure to timely release the liens after their abatement.⁵

Assuming the factual allegations above are true, it is necessary to determine whether the law is so clearly established that under such circumstances persons of "ordinary firmness" would be deterred from associating. Or, in other words, whether the type of conduct above is so egregious that an official would be on clear notice that his actions would deter the ordinary person from continuing in that association. From the facts of this case, we hold that a reasonable factfinder could conclude that Defendants caused Plaintiffs an injury sufficient to meet that standard; Defendants' quick decision to issue jeopardy tax assessments against Plaintiffs could, if ultimately found by the jury to be the case, chill a reasonable person from associating with an outside distributor who, as the facts of this case show, happened to be at odds with Defendants. See Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 847 (10th Cir.2005).

As to the third element of Plaintiffs' First Amendment retaliation claim, Defendants' extreme delay in releasing the liens on Plaintiffs' property evidences a retaliatory motive. See DeLoach, 922 F.2d at 620 ("An act taken in retaliation for the exercise of a constitutionally...