Schaper v. City of Huntsville

• Citation: 813 F.2d 709
• Decision Date: 06 April 1987
• Docket Number: No. 86-2377,86-2377
• Parties: Dale SCHAPER, Plaintiff-Appellee, v. CITY OF HUNTSVILLE, et al., Defendants, Gene Pipes and Hank Eckhardt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 709

813 F.2d 709

7 Fed.R.Serv.3d 1464

Dale SCHAPER, Plaintiff-Appellee, v. CITY OF HUNTSVILLE, et al., Defendants Gene Pipes and Hank Eckhardt, Defendants-Appellants.

No. 86-2377.

United States Court of Appeals Fifth Circuit.

April 6, 1987.

Rehearing and Rehearing En Banc Denied May 6, 1987.

James T. McCortt, Susman, Godfrey & McGowan, Houston, Tex., L. Scott Bounds, City Atty., Huntsville, Tex., for defendants-appellants.

Douglas M. Becker, Gray & Becker, Austin, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY and RANDALL, Circuit Judges, and MAHON ^*, District Judge.

REAVLEY, Circuit Judge:

Appellee Dale Schaper brought this Section 1983 action, claiming procedural and substantive due process violations arising out of his termination as captain of the Huntsville Police Department. Defendants-Appellants Hank Eckhardt and Gene Pipes, Huntsville's chief of police and city manager, respectively, answered Schaper's complaint claiming immunity from suit. Also, defendant City of Huntsville answered denying Schaper's claims. All of the defendants subsequently filed motions for summary judgment. The district court denied their motions, and defendants-appellants Eckhardt and Pipes now appeal from the court's order. We reverse.

I

Appellee Dale Schaper was hired by the City of Huntsville Police Department in February, 1981, as captain, and second in command to the chief of police, David Farrar. For three years Schaper received exemplary evaluations for his job performance. In September, 1984, however, Schaper was indicted for falsifying car title documents, and subsequently was suspended from duty without pay. Schaper claimed to be innocent of any knowing wrongdoing. However, Schaper pleaded nolo contendere to the charges, because, he claims, Gene Pipes, the city manager promised that he would be reinstated and could reasonably expect continued employment if he so pleaded. In the meantime, Chief Farrar was indicted for felony theft, arising out of the same set of events, and resigned from the force.

Before being reinstated, Schaper met with Pipes to discuss his future with the Huntsville Police Department. Pipes instructed Schaper to perform three tasks upon his return: (1) formulate a crime stoppers program; (2) submit an evidence policy for the department; and (3) achieve greater regularity and orderliness in the way evidence is handled by the department. Appellants claim that Schaper's failure to complete the third task, as well as assorted other problems with his performance, provided the grounds for Schaper's later dismissal.

Schaper claims that his dismissal was arbitrary and capricious and motivated by "political" concerns, because Pipes had been subjected to intense political pressure ever since his decision to reinstate Schaper. Schaper asserts that during several interviews with applicants for the vacant chief of police position, Pipes stated or implied that the first order of business was to find reasons to terminate Schaper. On March 14, 1985, Hank Eckhardt became the new chief of police, and, according to Schaper, joined Pipes in a conspiracy to remove him from the captaincy. Appellants deny that any such conspiracy was discussed or that any such agreement was made.

On April 29, 1985, Eckhardt gave Schaper a memorandum explaining that he intended to discharge him, and gave him four days to respond orally or in writing, with or without counsel. The memorandum set forth several grounds for the decision, including Schaper's indictment for falsifying the car title documents, alleged violations of policies concerning evidence and confiscated property, alleged violations of weapons policies, and, in general, his failure to remedy his inadequate performance and that of the personnel under his supervision. Schaper responded to the memorandum, in writing, on May 3, 1985, addressing each of the points Eckhardt had made. Eckhardt read the response, but adhered to his original decision.

Schaper appealed Eckhardt's decision to Huntsville's city manager, Gene Pipes, pursuant to the personnel policies enacted by the City Council. ¹ Pipes stayed Eckhardt's decision, and suspended Schaper with pay pending the outcome of the appeal. As city manager, Pipes presided over the hearing concerning Schaper's discharge. The hearing lasted four days, and included approximately 25 hours of sworn testimony. At the conclusion of the hearing, Pipes issued a written order upholding Schaper's termination.

Schaper filed an appeal with the Huntsville City Council as provided by Huntsville's City Charter, ² and Huntsville's Personnel Policies. ³ Apparently, however, there were some scheduling problems, and Schaper's attorney could not attend on the scheduled date. The City Council affirmed Pipes' decision after Schaper and his attorney failed to appear. Schaper filed this Section 1983 suit soon after filing the appeal with the City Council. Pipes and Eckhardt responded with claims of qualified immunity, and moved for summary judgment. The district court denied their motions, and this interlocutory appeal followed.

II Jurisdiction to Hear This Appeal

Initially, we must consider Schaper's argument that this court does not have jurisdiction to hear this appeal. Ordinarily, a district court's denial of a motion for summary judgment is not appealable, and an appellate court is without jurisdiction, because it is not a "final decision" under 28 U.S.C. Sec. 1291. However, in Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), the Court held that the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), is satisfied and "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment." The reason for this exception is that qualified immunity is an immunity from suit, which includes protection from the burdens of broad-reaching discovery. Id. at 524, 105 S.Ct. at 2815. To not allow an appeal from a district court's denial of a claim of immunity would effectively defeat the immunity entitlement. See Jacquez v. Procunier, 801 F.2d 789 (5th Cir.1986).

As the Mitchell Court explained, an appellate court must consider

whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, in cases where the district court has denied summary judgment for the defendant on the ground that even under the defendant's version of the facts the defendant's conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took.

Id. at 528, 105 S.Ct. at 2816. Appellate review in these cases, although limited to questions of law, necessarily "entail[s] consideration of the factual allegations that make up the plaintiff's claim for relief." Id. at 528, 105 S.Ct. at 2817. Therefore, "jurisdiction" over an appeal from a denial of a claim of immunity cannot be settled until the disputed facts, as well as the facts not in dispute, are reviewed to determine whether they state a claim upon which relief may be granted.

The lower court in this case failed to state its reasons for denying the defendants' claims of immunity. Although not technically a "final judgment" under 28 U.S.C. Sec. 1291, the denial of a claim of immunity, as noted above, is a "final decision," because of its conclusive effect on the defendant's claimed right to be free from the burdens of discovery. Mitchell, 472 U.S. at 524, 105 S.Ct. at 2815. Hence, district courts should state for the record, and for the benefit of the circuit court on appeal, their reasons for denying immunity. See Fed.R.Civ.P. 41(b), 52(a). Of course, implicit in the district court's judgment here is the finding that there remain disputed questions of material fact that, if true, would constitute violations of clearly established law by these defendants.

III Procedural Due Process

Schaper's due process claim depends upon his having a property interest in continued employment. Bishop v. Wood, 426 U.S. 341, 343-47, 96 S.Ct. 2074, 2076-79, 48 L.Ed.2d 684 (1976); Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972). The Constitution does not create property interests; "they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Id. at 577, 92 S.Ct. at 2709. In the present case, Schaper derives a property interest from the Personnel Policies enacted by the Huntsville City Council which allow for dismissal only for "just cause." ⁴ See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). Once a state has conferred a property right, it cannot constitutionally deprive such an interest without appropriate procedural safeguards. Id.

It should be emphasized that the claim before us is limited to a pretermination due process denial. Schaper contends that the procedural safeguards and the substantive makeup of the hearings provided by Eckhardt and Pipes prior to termination were constitutionally inadequate and violated clearly established law. In his brief, Schaper also alludes to procedural and substantive due process violations he believes took place at the postdeprivation stage; specifically, his allegation that the Huntsville City Council illegally deprived him of a hearing. But the Huntsville City Council, although still a defendant in this suit, is not before us on appeal. This case is on appeal from the trial court's denial of Eckhardt's and Pipes' claims of immunity. Therefore, our only concern is whether Eckhardt and Pipes provided Schaper with due process prior to his dismissal from the ...