Prager v. LaFaver, 98-3116.

Decision Date15 June 1999
Docket NumberNo. 98-3116.,98-3116.
PartiesDavid PRAGER, III, Plaintiff-Appellee, v. John D. LaFAVER, Secretary of the Kansas Department of Revenue, In His Personal Capacity, Defendant-Appellant,
CourtU.S. Court of Appeals — Tenth Circuit


Thomas V. Murray (Cheryl L. Jackson and Terence E. Leibold, with him on the briefs) of Barber, Emerson, Springer, Zinn & Murray, L.C., Lawrence, Kansas, for Defendant-Appellant.

Alan V. Johnson of Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., Topeka, Kansas, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, MAGILL,* and EBEL, Circuit Judges.

SEYMOUR, Chief Judge.

John LaFaver, the Secretary of the Kansas Department of Revenue, fired David Prager, III, a former attorney with that organization, after Mr. Prager wrote several letters critical of the Department to Governor William Graves. Mr. Prager sued Mr. LaFaver for depriving him of his First and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983. Mr. LaFaver filed a motion to dismiss based on qualified immunity and attached several documents thereto, including a letter from Mr. Prager to the Governor and several letters from Mr. LaFaver to Mr. Prager. The district court refused to consider the additional materials and treated defendant's motion as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). It denied the motion as to the First Amendment claim and granted the motion with leave to amend as to the Fourteenth Amendment claim. Mr. LaFaver appeals, claiming that the district court erred by refusing to consider the materials appended to his motion to dismiss, and by denying him qualified immunity. We affirm.


Mr. Prager was employed as senior tax attorney with the Kansas Department of Revenue.1 In that capacity, he believed that the Department of Revenue was erroneously interpreting a Kansas statute, resulting in a significant illegal tax abatement to a corporation. On October 31, 1996, he wrote a memorandum to his supervisor, Richard Oxendale, General Counsel for the Department of Revenue, analyzing the legal issue, explaining the mistake, and requesting a meeting with Mr. Oxendale and Mr. LaFaver to discuss the matter. Mr. Oxendale never arranged the requested meeting.

On December 18, 1996, Mr. Prager sent a letter to Governor Graves discussing several problems within the Department of Revenue. He asserted that a tax abatement in a well-publicized case involving La Siesta Foods, Inc. was illegal.2 He also addressed the role of political influence in the Department of Revenue's administrative process. Finally, he discussed the public's negative perception of the Department.

Because of this letter, Mr. LaFaver wrote to Mr. Prager on January 8, 1997, suspending him from his employment with pay. Mr. LaFaver opened by saying, "I am in receipt of your unfortunate correspondence to the Governor regarding an array of tax issues at the Department of Revenue." Aplt.App. at 3. He continued, "That you chose to send such a letter to the Governor without discussing it with the General Counsel or me reflects poorly upon your judgment and your willingness and ability to work as member of this team." Id. Mr. Prager appealed his suspension, claiming that Mr. LaFaver retaliated against him for reporting the illegal tax abatement, thereby violating Kan. Stat. Ann. § 75-2973 (West 1996 Supp.), the Kansas whistle-blower statute.

In March 1997, Mr. Prager wrote another letter to Governor Graves expressing the concerns voiced in the October 1996 memorandum to Mr. Oxendale. He sent copies to Mr. LaFaver and Mr. Oxendale. Mr. LaFaver responded on May 9 advising Mr. Prager that he would be terminated from his employment with the Department of Revenue effective May 16. After his termination, Mr. Prager filed this action.


We must first address whether the district court is required to consider materials that a defendant attaches to his motion to dismiss. Mr. LaFaver attached Mr. Prager's December 18 letter to Governor Graves and Mr. LaFaver's January 8, May 9, May 16, and July 30 letters to Mr. Prager. Mr. LaFaver did not attach Mr. Prager's October 31 memorandum to Mr. Oxendale nor his March 17 letter to the Governor. The district court refused to consider any of the attached materials, deciding the motion on the basis of the complaint and answer.

Mr. LaFaver asserts that the court was required to consider the documents attached to its rule 12(b)(6) motion, and that its failure to do so constitutes reversible error. Specifically, he argues that because Mr. Prager referred to and quoted from several of the letters in the complaint, those materials should be considered part of the pleadings. Mr. LaFaver recognizes that some of the attached letters were not referenced in Mr. Prager's complaint but contends that those materials are necessary to "complete the entire documentation surrounding the termination." Aplt. Br. at 12 n. 8.

Mr. LaFaver primarily relies on GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381 (10th Cir.1997), to support this argument. In GFF Corp., this court upheld the district's court consideration of a letter that the plaintiff alleged satisfied the statute of frauds but did not attach to its amended complaint. Id. at 1385. We noted that, in general, a motion to dismiss should be converted to a summary judgment motion if a party submits, and the district court considers, materials outside the pleadings. Id. at 1384.3 We then continued: Notwithstanding these general principles, if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.

Id.; see also Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir.1994) (noting that documents are not "outside the pleadings" if they are "referred to in the plaintiff's complaint and are central to his claim").

We find nothing in GFF Corp. that requires the district court to consider the materials Mr. LaFaver attached to his motion. We agree that GFF Corp. supports the proposition that the district court could have considered those documents Mr. Prager referred to in his complaint which were central to his claim without converting Mr. LaFaver's motion into one for summary judgment. Nevertheless, GFF Corp. did not purport to decide whether consideration of materials appended to a motion to dismiss is mandatory or discretionary. Numerous other circuits use language indicating district courts have discretion in deciding whether to consider such materials. See, e.g., Brooks v. Blue Cross and Blue Shield of Florida, 116 F.3d 1364, 1369 (11th Cir. 1997) ("Where the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal . . . .") (emphasis added); Wright, 29 F.3d at 1248 ("Documents attached to a motion to dismiss that are referred to in the plaintiff's complaint and . . . central to his claim . . . may be considered by a district court ruling on the motion to dismiss.") (emphasis added); Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994) ("We hold that documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a 12(b)(6) motion to dismiss.") (emphasis added); Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir.1993) ("We now hold that a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on that document.") (emphasis added); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) ("Though the district court . . . declined to consider these exhibits, it could have viewed them on the motion to dismiss because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiff's claim.") (emphasis added). We agree with our sister circuits that if a defendant attaches to a 12(b)(6) motion materials referred to by the plaintiff and central to his claim, the court has discretion to consider such materials.

Here, the district court acted well within its discretion in declining to consider the documents attached to Mr. LaFaver's motion to dismiss. The attachments were both over-inclusive and under-inclusive. While Mr. LaFaver appended several documents referenced in Mr. Prager's complaint, he excluded two others, namely the October 31 memorandum to Mr. Oxendale and the March 17 letter to Governor Graves. In addition, Mr. LaFaver attached two documents, the letters of May 16 and July 30, that Mr. Prager did not refer to in his complaint. Given that state of the record, it was reasonable for the district court to decide the motion without consideration of any of the appended materials.


We now turn to the merits of Mr. LaFaver's motion to dismiss on the basis of qualified immunity. We review a district court's decision to grant or deny a motion to dismiss de novo. See GFF Corp., 130 F.3d at 1384. A defendant may immediately appeal the denial of a 12(b)(6) motion based on qualified immunity to the extent that denial turns on an issue of law. See Behrens v. Pelletier, 516 U.S. 299, 307, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).4

"Under the doctrine of qualified immunity, `government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 592-93 (10th Cir.1994) (quoting Harlow v. Fitzgerald, ...

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