Roberson v. Mullins

• Decision Date: 08 July 1994
• Docket Number: No. 93-1618,93-1618
• Citation: 29 F.3d 132
• Parties: George Larkin ROBERSON, Plaintiff-Appellee, v. Edgar MULLINS, individually and as a member of the Wise County Board of Supervisors; Sam Church, individually and as a member of the Wise County Board of Supervisors; Claude Collins, individually and as a member of the Wise County Board of Supervisors; Jack Kiser, individually and as a member of the Wise County Board of Supervisors; Julius Fred Tate, individually and as a member of the Wise County Board of Supervisors; Donnie Dowell, individually and as a member of the Wise County Board of Supervisors; Wise County Board of Supervisors, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 132

29 F.3d 132

George Larkin ROBERSON, Plaintiff-Appellee, v. Edgar MULLINS, individually and as a member of the Wise

County Board of Supervisors; Sam Church, individually and

as a member of the Wise County Board of Supervisors; Claude

Collins, individually and as a member of the Wise County

Board of Supervisors; Jack Kiser, individually and as a

member of the Wise County Board of Supervisors; Julius Fred

Tate, individually and as a member of the Wise County Board

of Supervisors; Donnie Dowell, individually and as a member

of the Wise County Board of Supervisors; Wise County Board

of Supervisors, Defendants-Appellants.

No. 93-1618.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 27, 1993.

Decided July 8, 1994.

ARGUED: James Parker Jones, Penn, Stuart, Eskridge & Jones, Bristol, VA; Susan Debra Oglebay, Legal Dept., United Mine Workers of America, Castlewood, VA, for appellants. William Henry Hurd, Richmond, VA, for appellee. ON BRIEF: John Mack Farmer, Wolfe & Farmer, Norton, VA, for appellee.

Before RUSSELL and WILLIAMS, Circuit Judges, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part and dismissed in part by published opinion. Judge DONALD RUSSELL wrote the opinion, in which Judge WILLIAMS and Senior District Judge CLARKE joined.

OPINION

DONALD RUSSELL, Circuit Judge:

Defendants, the Board of Supervisors for Wise County, Virginia (the County Board) and some of its members, appeal the district court's denial of their motions to dismiss plaintiff George Roberson's section 1983 action against them on the grounds that it is barred by absolute legislative immunity and, even if not barred, cannot succeed on the merits. We find that the district court correctly denied defendants' absolute immunity motion and, further, that we are without jurisdiction to review its denial of defendants' motion to dismiss on the merits. We therefore affirm in part and dismiss in part.

I.

The eight-member County Board is the governing body of Wise County. At a meeting of the Board in July, 1992, it was moved and seconded that plaintiff George Roberson be removed from his position as the Public Works Superintendent for Wise County. The Board then went into executive session and voted, with six members in favor and two opposed, to remove Roberson from his position.

Roberson, a Republican, brought this section 1983 action against the Board and the six County Board members who voted to terminate him, all Democrats, alleging that their votes were motivated by his political party affiliation in violation of the First and Fourteenth Amendments. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

All defendants, the Board members as well as the Board itself, moved to dismiss Roberson's claim as barred by absolute legislative immunity. They also filed a second dismissal motion asserting that even if they were not entitled to legislative immunity, they were permitted to terminate Roberson for his political party affiliation because party affiliation was an appropriate requirement for effective performance of the duties of his office. See Branti, 445 U.S. at 518, 100 S.Ct. at 1294.

The district court rejected both arguments and denied defendants' motions to dismiss; they took this immediate appeal.

II.

We must first address whether the district court correctly determined that the six members of the County Board who voted in favor of Roberson's termination were not entitled to absolute legislative immunity from his section 1983 claim. ¹ We conclude that the district court was correct in this determination.

Members of local governmental bodies are entitled to absolute legislative immunity from claims against them arising out of their actions in a "legislative capacity." Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th Cir.1989); Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir.1980). ² Their actions are in a "legislative capacity" if they are an "integral part," Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975), of legislative actions undertaken by the local governmental body. Scott v. Greenville County, 716 F.2d 1409, 1423 (4th Cir.1983) (indicating that county council members acted in their legislative capacity if the action taken by the council in which they participated was legislative). ³

Not all actions undertaken by local governmental bodies that have legislative responsibilities are necessarily "legislative." E.g., Scott, 716 F.2d at 1423 (holding that county council's action in delaying consideration of zoning permit was not legislative); Trevino v. Gates, 17 F.3d 1189, 1191 (9th Cir.1994) ("[N]ot all governmental acts by ... a local legislature ... are necessarily legislative in nature.") (quotation omitted); Brown v. Griesenauer, 970 F.2d 431, 437 (8th Cir.1992) (using same quotation); see also Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988) (stating that the characterization of an action undertaken by an official or a governmental body is not determined by the title of the official or body); Harlow v. Fitzgerald, 457 U.S. 800, 810-11, 102 S.Ct. 2727, 2734-35, 73 L.Ed.2d 396 (1982) (same); Butz v. Economou, 438 U.S. 478, 511, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978) (same). Rather, a local governmental body only acts in a legislative capacity when it engages in the process of "adopt[ing] prospective, legislative-type rules." Front Royal, 865 F.2d at 79 (quotation omitted); Scott, 716 F.2d at 1423. ⁴

Every other court of appeals that has attempted to define when a local governmental body acts in a legislative capacity has set forth the same, or a very similar, standard. Brown, 970 F.2d at 437 (8th Circuit); Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 23 (1st Cir.1992); Hughes v. Tarrant County, 948 F.2d 918, 921 (5th Cir.1991); Crymes v. DeKalb County, 923 F.2d 1482, 1485 (11th Cir.1991); Ryan v. Burlington County, 889 F.2d 1286, 1290-91 (3d Cir.1989); Haskell v. Washington Township, 864 F.2d 1266, 1278 (6th Cir.1988); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985); see also Developments in the Law--Zoning, 91 Harv. L.Rev. 1427, 1510-12 (1978) (discussing the standard that was subsequently adopted by the First and Fifth Circuits).

Here, the County Board terminated Roberson as the Public Works Superintendent for Wise County. Terminating a county employee is plainly unrelated to the process of "adopt[ing] prospective, legislative-type rules." Front Royal, 865 F.2d at 79; Scott, 716 F.2d at 1423. We conclude, therefore, that the Board's termination of Roberson was not a legislative action; as a result, the County Board members did not act in their legislative capacity when they participated in it. Thus, we hold that the district court did not err in determining that the Board members are not absolutely immune from Roberson's section 1983 claim arising out of the termination.

III.

Still before us is the contention that the County Board itself is entitled to absolute legislative immunity from Roberson's claim. This contention will not long detain us. If a local governmental body itself, or, equivalently, the municipality for which it is the governing body, is ever entitled to absolute legislative immunity, ⁵ it is only when the body engages in "legislative" actions. Baker, 894 F.2d at 682. As we established in Part II supra, the County Board's termination of Roberson was not a legislative action; the Board, therefore, is not absolutely immune from Roberson's section 1983 claim arising out of this termination.

IV.

Defendants also ask that we review the district court's denial of their second motion to dismiss, which sought dismissal on the ground that they were permitted to terminate Roberson for his political party affiliation because party affiliation was an appropriate requirement for performance of the duties of his office. See Branti, 445 U.S. at 518, 100 S.Ct. at 1294. The district court's ruling denying this motion to dismiss is obviously not a final decision that concludes the litigation. See 28 U.S.C. Sec. 1291. And, unlike the district court's ruling denying defendant's motion to dismiss on the ground of absolute immunity, this ruling, denying a motion that seeks dismissal on the ground that Roberson's claim cannot succeed on the merits, is not a collateral order reviewable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Spiess v. C. Itoh & Co. (America), Inc., 725 F.2d 970, 974 (5th Cir.), cert. denied, 469 U.S. 829, 105 S.Ct. 115, 83 L.Ed.2d 58 (1984). We are without jurisdiction to review this ruling unless it falls within our pendent appellate jurisdiction.

When we properly have jurisdiction over an interlocutory ruling by the district court, pendent appellate jurisdiction permits us to consider another district court ruling in the same case that is not independently appealable if the issues involved in the two rulings "substantially overlap and review will advance the litigation or avoid further appeals." Akers v. Caperton, 998 F.2d 220, 223 (4th Cir.1993) (quotation omitted); O'Bar v. Pinion, 953 F.2d 74, 80 (4th Cir.1991). ⁶

The interlocutory ruling which we have jurisdiction to review, the district court's denial of defendants' absolute legislative immunity motion, required us to address whether termination of a county employee was a legislative action. Reviewing defendants' motion to dismiss on the merits, in contrast, would require us to consider whether the duties of Roberson's position were such that political party affiliation was an appropriate...