Roth v. Veteran's Admin. of Government of U.S.

• Citation: 856 F.2d 1401
• Decision Date: 12 September 1988
• Docket Number: No. 87-2214,87-2214
• Parties: Barry H. ROTH, M.D., Plaintiff-Appellee, v. VETERAN'S ADMINISTRATION of the GOVERNMENT OF the UNITED STATES, Defendant, and Charles I. Kaufman, M.D.; Peter Banys, M.D.; Nick Kanas, M.D., Defendants- Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1401

856 F.2d 1401

5 Indiv.Empl.Rts.Cas. 447

Barry H. ROTH, M.D., Plaintiff-Appellee, v. VETERAN'S ADMINISTRATION of the GOVERNMENT OF the UNITED STATES, Defendant and Charles I. Kaufman, M.D.; Peter Banys, M.D.; Nick Kanas M.D., Defendants- Appellants.

No. 87-2214.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 10, 1988.

Decided Sept. 12, 1988.

Andrew M. Wolfe, Asst. U.S. Atty., San Francisco, Cal., for defendants-appellants.

Alanna G. Cline, Law Offices of Alanna G. Cline, Brighton, Mass., Michael F. Ram, Rasch-Chabot & Ram, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before SKOPIL, PREGERSON and BEEZER, Circuit Judges.

PREGERSON, Circuit Judge:

Barry H. Roth, M.D. brought suit against the United States, the Veterans The supervisors brought three motions before the district court: (1) a motion to dismiss the three Bivens constitutional tort claims for failure to state a claim; (2) a motion for judgment on the pleadings as to the three Bivens claims; and (3) a motion for summary judgment on those three claims on the ground that the supervisors were entitled to qualified immunity. The district court denied all three motions. On appeal, we consider only whether the district court erred in denying defendants' third motion--their motion for summary judgment on the issue of qualified immunity. ¹ We affirm the district court's rulings regarding qualified immunity as to the first amendment "whistleblower" claim and the fifth amendment property claim, but reverse as to the fifth amendment liberty claim.

                Administration (VA), and three of his former supervisors, Charles I. Kaufman, M.D., Peter Banys, M.D., and Nick Kanas, M.D., alleging that they deprived him of his job as Chief of the Alcohol Inpatient Unit (AIU) at the VA in violation of his first amendment rights as a "whistleblower," his fifth amendment property rights, and his fifth amendment liberty rights.  Roth sued the supervisors in their individual capacities under the cause of action recognized in Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).  In Bivens, the Supreme Court held that an individual can sue federal officials acting under color of authority who have violated the individual's constitutional rights.   Id. at 389, 91 S.Ct. at 2001
                

FACTS

On August 15, 1984, defendant Kaufman wrote to Roth offering him the position of Chief of the Alcohol Inpatient Unit (AIU) at the Veterans Administration Medical Center in San Francisco (VA), for a period of at least thirteen months. Roth accepted the offer by letter dated August 20, 1984. Roth was hired as a "troubleshooter," and his responsibilities included overseeing and supervising all aspects of patient care in the AIU and implementing whatever policies or changes were necessary to redress a variety of serious problems plaguing the AIU at the VA. These problems included delivery of primary care to patients by nonphysicians; poor reputation in the medical community arising from a 1977 "60 Minutes" television program, which revealed that the VA's alleged "inpatient program" actually had no inpatients; isolation of the AIU from other medical and service units of the VA; erratic, nonmedical standards for patient admission and care; and conflict between the nursing staff and psychiatrists.

The defendants warned Roth during employment negotiations that he would face substantial difficulties in attacking these problems, and they instructed Roth to undertake necessary steps to fulfill his duties. Roth did so. He altered staffing responsibilities, staff/patient ratios, personnel, and admission criteria for patients. He also improved the treatment of patients and facilitated their movement through the program.

In the process of devising and implementing these changes, Roth repeatedly reported wastefulness, mismanagement, unethical conduct, violations of regulations, and incompetence to his superiors and to administrative personnel. Roth's criticisms apparently provoked some hostility and resistance from existing staff and administrative personnel. Defendants had predicted this outcome and promised to support Roth. Roth alleges that, rather than provide the promised support, defendants undermined Roth's attempt to exercise his job responsibilities.

On March 18, 1985, allegedly in response to Roth's "whistleblowing," defendant Kaufman removed Roth as Chief of AIU, demoting him to the position of staff psychiatrist. Kaufman also informed Roth at

that time that he planned to terminate Roth's employment by July 1, 1985. Consequently, Roth left active duty on June 15, 1985, but remained an employee on part-time/leave status from July 1 to August 31, 1985.

SCOPE OF APPELLATE REVIEW

We can review an appeal only of a final judgment. 28 U.S.C. Sec. 1291 (1982). A district court's order denying a motion for summary judgment or a motion to dismiss is thus ordinarily not reviewable. See Simons v. United States, 497 F.2d 1046, 1050 (9th Cir.1974). The final judgment rule does not apply, however, to certain collateral orders. Velasquez v. Senko, 813 F.2d 1509, 1511 (9th Cir.1987) (citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). The Supreme Court has held that an order denying a motion for summary judgment on the issue of qualified immunity may, under certain circumstances, constitute an appealable collateral order. Mitchell v. Forsyth, 472 U.S. 511, 528, 530, 105 S.Ct. 2806, 2817, 2818, 86 L.Ed.2d 411 (1985). The only appealable issue "is a purely legal one: whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law." Id. at 528 n. 9, 105 S.Ct. at 2816-2817 n. 9. It is within this framework that we review the claim raised by the defendants that the district court improperly denied their motion for summary judgment because they are entitled to qualified immunity.

DISCUSSION

Defendants contend they are entitled to qualified immunity on each of Roth's three Bivens claims, i.e. that defendants violated Roth's first amendment rights as a whistleblower, his fifth amendment property interest in his VA job, and his fifth amendment liberty interest. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held that a federal official has qualified immunity unless s/he "violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738. In Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court explained that this "clearly established right" must be viewed with some particularity: "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 3039. The Court did not require that the specific action in question have been held illegal before the action occurred, but the Court did insist that the unlawfulness of the action be "apparent" under preexisting law. Id.

Roth's First Amendment "Whistleblower" Claim

The defendants contend that they are entitled to qualified immunity on Roth's claim that they terminated him in retaliation for his whistleblowing activities. We must decide whether the right which Roth alleges the defendants violated was clearly established at the time the defendants acted. See Velasquez, 813 F.2d at 1511.

Twenty years ago, the Supreme Court held that an individual's exercise of his or her "right to speak on issues of public importance may not furnish the basis for his dismissal from public employment." Pickering v. Board of Educ., 391 U.S. 563, 574, 88 S.Ct. 1731, 1737, 1738, 20 L.Ed.2d 811 (1968). Roth alleges that the defendants reassigned and ultimately dismissed him from public employment because he reported wastefulness, unethical conduct, mismanagement, violation of government regulations and policies, and danger to the safety and health of VA patients in defendant's management of the VA AIU. Roth presented evidence in his affidavits that defendants instructed him not to voice these criticisms outside their ranks and that defendants censored his written reports. Defendants argue, however, that these allegations do not constitute retaliation for whistleblowing because Roth was not commenting on matters of public concern, but merely gave his opinions on matters of personal interest and office management.

Whether an employee's speech involves a matter of public concern is a question of law. Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 1690-91 n. 7, 75 L.Ed.2d 708 (1983). ² In Connick, the Supreme Court set forth the parameters for determining when speech addresses matters of public concern. The Court stated that the reviewing court must characterize the speech in question by looking at its content, form, and context in light of the entire record. Id. at 147-48, 103 S.Ct. at 1690-91.

In evaluating the content of the speech, courts have recognized certain subjects as inherently of public concern. For example, in Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), the Court held that a public school teacher's private comments to the school principal charging racially discriminatory policies and practices within the district were public expression warranting protection under Pickering. Id. at 412-15, 99 S.Ct. at 694-96. The Connick Court characterized Givhan's allegations of racial discrimination as "a matter inherently of public concern." Connick, 461 U.S. at 148 n. 8, 103 S.Ct. at 1690-91 n. 8; see also Rode v. Dellarciprete, 845 F.2d 1195, 1201 (3d Cir.1988) (plaintiff alleged she was a victim of retaliation resulting from racial hostility--"a matter of grave public concern").

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