Vista Community Services v. Dean

• Decision Date: 19 March 1997
• Docket Number: No. 95-9197,95-9197
• Citation: 107 F.3d 840
• Parties: , 10 Fla. L. Weekly Fed. C 761 VISTA COMMUNITY SERVICES, Movant, James H. Narey, Plaintiff-Appellee, v. Darrell DEAN, Individually and in his official capacity as Georgia Department of Human Resources, District One, District Medical Director, John J. Gates, Individually and in his official capacity as Georgia Department of Human Resources, Division of Mental Health, Mental Retardation and Substance Abuse, Division Director, James G. Ledbetter in his official capacity as Commissioner of the Georgia Department of Human Resources, and James K. Moss, Sr., Individually, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 840

107 F.3d 840

97 FCDR 2003, 10 Fla. L. Weekly Fed. C 761

VISTA COMMUNITY SERVICES, Movant, James H. Narey, Plaintiff-Appellee, v. Darrell DEAN, Individually and in his official capacity as

Georgia Department of Human Resources, District One,

District Medical Director, John J. Gates, Individually and

in his official capacity as Georgia Department of Human

Resources, Division of Mental Health, Mental Retardation and

Substance Abuse, Division Director, James G. Ledbetter in

his official capacity as Commissioner of the Georgia

Department of Human Resources, and James K. Moss, Sr.,

Individually, Defendants-Appellants.

No. 95-9197.

United States Court of Appeals, Eleventh Circuit.

March 19, 1997.

Carol Atha Cosgrove, Senior Asst. Atty. Gen., Ronald R. Womack, Special Asst. Atty. Gen., Lafayette, GA, for Defendants-Appellants.

Benjamin Erlitz, Atlanta, GA, John W. Davis, Jr., David J. Dunn, Jr., Gleason, Davis & Dunn, Rossville, GA, for Narey.

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

Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior Circuit Judges.

FAY, Senior Circuit Judge:

Defendants appeal the district court's denial of their motion for summary judgment based on qualified immunity. We vacate and remand.

I.

James Narey ("Plaintiff") filed suit under 42 U.S.C. § 1983 against Darrel Dean, John Gates, Tommy Olmstead, ¹ and James Moss (collectively "Defendants"), alleging that Defendants violated his Fifth and Fourteenth Amendment rights to due process by demoting him from his tenured position as Director of the Northwest Georgia Community Mental Health Center (the "Center") in Fort Oglethorpe, Georgia. As the reason for Plaintiff's demotion, Defendants cited numerous problems with Plaintiff's management of the Center, including improper commingling of Center funds, improper handling of client funds, misuse of state grant-in-aid funds, failure to comply with accountant recommendations regarding fiscal responsibility and drug inventory, and improper handling of leases. Plaintiff countered, however, that Defendants had concocted these "trivial, technical, minute and inconsequential" charges against him merely to remove him from his position. At trial, Plaintiff asserted two claims relevant to this appeal: First, Plaintiff claimed that Defendants demoted him for pretextual reasons in violation of his constitutional right to substantive due process. Second, Plaintiff claimed that Defendants improperly failed to satisfy the requirements of progressive discipline before demoting him. Both claims were sent to the jury; the jury returned a $1.7 million verdict in Plaintiff's favor.

On appeal, this Court reversed that verdict, holding that our decision in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994), cert. denied, 513 U.S. 1110, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995), precluded Plaintiff from maintaining a substantive due process claim based on pretextual firing. Narey v. Dean, 32 F.3d 1521, 1526-28 (11th Cir.1994). Prior to McKinney, the law of our Circuit was that " '[a] violation of a public employee's right to substantive due process occur[red] when an employer deprive[d] the employee of a property interest for an improper motive and by means that [were] pretextual, arbitrary and capricious, regardless of whether or not a hearing was held.' " McKinney, 20 F.3d at 1558-59 (quoting Nolin v. Douglas County, 903 F.2d 1546, 1553-54 (11th Cir.1990) (internal quotation marks omitted) (alterations not in original)). In McKinney, we overruled the line of cases establishing that law, and instead established that an allegation of pretextual firing implicates only procedural, and not substantive due process. Id. at 1564-65; see also Narey, 32 F.3d at 1526 (discussing McKinney ). Thus, after McKinney, Plaintiff was entitled to maintain only a procedural due process claim against Defendants. Narey, 32 F.3d at 1527. In assessing that claim, we found that Plaintiff had been afforded adequate procedural protection both before and after his demotion; we therefore ruled that Defendants had not deprived Plaintiff of his right to procedural due process. Id. at 1528.

Defendants did not challenge the propriety of Plaintiff's progressive discipline claim, but Plaintiff conceded that his progressive discipline claim alone could not support the jury's $1.7 million verdict. Id. We remanded the case to the district court for further consideration of that claim. Id.

On remand, however, the district court permitted Plaintiff to amend his complaint to allege that Defendants terminated him because of his speech in violation of his First Amendment rights. ² Once again Plaintiff claimed that Defendants' cited reasons for demoting him were pretextual; this time, Plaintiff argued that Defendants actually demoted him in retaliation for statements made by Plaintiff to the Governor's Advisory Council on Mental Health/Mental Retardation/Substance Abuse (the "Council"). During a discussion with Council members, Plaintiff explained that his program at the Center saved state funds by shifting local revenue sources. Those comments followed a presentation by Plaintiff's staff member regarding their program's significant accomplishments without state funding. Plaintiff's statements apparently angered and embarrassed Defendants because they were requesting $6-7 million in state appropriations. After Plaintiff made the statements, Defendants became hostile toward him, and according to Plaintiff, thereafter sought to remove him from his position.

Defendants moved for summary judgment on both the remanded progressive discipline claim and the newly added First Amendment claim; on the First Amendment claim, Defendants argued that they were entitled to qualified immunity. The district court granted Defendants' motion as to the progressive discipline claim, ³ but denied the motion as to the First Amendment claim. In so doing, however, the court explicitly stated that it did not reach the qualified immunity issue. Instead, the court concluded that Plaintiff had produced sufficient evidence to create a jury question as to whether he was demoted for his speech, or for his inappropriate actions as revealed by Defendants' investigation. The existence of that jury question, according to the court, obviated the need to address whether Defendants were entitled to qualified immunity. Defendants now challenge that ruling.

Defendants also challenge the district court's decision to permit Plaintiff to amend his complaint after this Court's remand of the case. They argue that, in permitting the amendment, the district court improperly expanded our mandate on remand. See Litman v. Massachusetts Mut. Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir.1987) (stating that district court acting under appellate court's mandate cannot give any relief further than that necessary to settle so much as has been remanded). Defendants further argue that the doctrine of res judicata bars Plaintiff's First Amendment claim, or in the alternative, that Plaintiff waived that claim in the first trial of this case. Those issues, however, are not appealable at this stage of the proceedings. ⁴ See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-44, 113 S.Ct. 684, 686-88, 121 L.Ed.2d 605 (1993); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). We properly consider only whether the district court erred in failing to decide if Defendants were entitled to qualified immunity. We hold that the court did so err.

II.

We review de novo a district court's ruling that a government official's conduct violated clearly established law such that the official is not entitled to qualified immunity. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 51, 136 L.Ed.2d 15 (1996) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985)). Summary judgment is proper if the evidence, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

III.

Qualified immunity shields government officials performing discretionary functions from civil liability "insofar as their conduct does not violate clearly established.... constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

A.

Plaintiff contends that, under the Supreme Court's decision in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), this Court does not have jurisdiction to hear Defendants' interlocutory appeal of the denial of qualified immunity. We disagree.

A government official may immediately appeal the denial of qualified immunity when the issue appealed concerns whether or not certain facts show a violation of "clearly established law." Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). In Johnson, the Supreme Court further elaborated on that concept by making it explicit that where the only issue on appeal is a question of " 'evidence sufficiency,' i.e., which facts a party may or may not, be able to prove at trial", the district court's ruling on qualified immunity is not immediately appealable. Id. at ----, 115 S.Ct. at 2156. The issue in Johnson was whether there was sufficient evidence to raise a genuine issue of material fact as to whether the government defendants had been involved in the plaintiff's beating. Id. at ---- - ----, 115 S.Ct. at 2153-54. The defendants admitted both that the beating was unconstitutional and that it violated clearly established law; their only argument on appeal was that the district court erred in finding an issue of material fact as...