Walton v. Powell

• Decision Date: 19 April 2016
• Docket Number: No. 14–2166.,14–2166.
• Citation: 821 F.3d 1204
• Parties: Peggy WALTON, Plaintiff–Appellee, v. Ray POWELL, Defendant–Appellant, and New Mexico State Land Office ; Donald Britt; Delma Bearden, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

821 F.3d 1204

Peggy WALTON, Plaintiff–Appellee

v. Ray POWELL, Defendant–AppellantandNew Mexico State Land Office ; Donald Britt; Delma Bearden, Defendants.

No. 14–2166.

United States Court of Appeals, Tenth Circuit.

April 19, 2016.

Scott P. Hatcher (Emma D.B. Weber with him on the briefs), Santa Fe, NM, for Defendant–Appellant.

Jack N. Hardwick, Sommer, Udall, Sutin, Hardwick & Hyatt, P.A., Sante Fe, NM, for Plaintiff–Appellee.

Before GORSUCH, MURPHY, and MORITZ, Circuit Judges.

GORSUCH, Circuit Judge.

Sometimes we face questions of procedure; sometimes we face questions of substance. This appeal is heavy, very heavy, on procedure. The parties begin by debating the rules we must follow when analyzing qualified immunity appeals under Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Next they spar over whether the eponymous burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), should or shouldn't be transplanted from the Title VII context to First Amendment retaliation disputes like theirs. Only after exhausting these procedural disputes do they at last reach the substantive question whether the plaintiff in this case has amassed sufficient evidence of a First Amendment violation to warrant trial. And once there it soon seems clear to us, as it did to the district court, that a triable claim exists worthy of a jury's time.

*

Our case arises from Peggy Walton's time in the New Mexico State Land Office. She started there as a political appointee of an elected Republican Land Commissioner, Patrick Lyons. By her own telling, she was a long-time member of the Republican Party, active in Republican politics, and closely associated with Mr. Lyons and his administration. But Mr. Lyons's decision not to seek reelection for a third term put Ms. Walton's job at risk: as a political appointee, after all, the next administration could easily dismiss her. Apparently seeking to avoid just this eventuality, Mr. Lyons decided to appoint Ms. Walton to a senior civil service job where she'd be protected by state law against removal for political reasons. And at first the move must have seemed prescient for Ray Powell, the Democratic candidate, won the election on a platform highly critical of Mr. Lyons and his administration.

But Ms. Walton's promotion did not go unnoticed and soon it unraveled. A local television reporter ran a report titled “[c]ronies move up as officials move out.” As its lead suggested, the report was highly critical of Mr. Lyons and Ms. Walton and charged the pair with trying to frustrate Mr. Powell's incoming administration. Another reporter introducing the story aired his view that Ms. Walton was “distinctly unqualified” for her new job and claimed the hiring was “rigged.” In a meeting just a few days after taking office, Mr. Powell suggested that the Lyons administration had mismanaged state lands and that “men in suits with guns” were going to come to the office and arrest anyone involved in the wrongdoing. Later, two of Mr. Powell's political appointees confronted Ms. Walton and accused her personally of administering an illegal land sale. Comments like these persisted until Mr. Powell decided—protected status or not—Ms. Walton had to go. Eight days after making the decision to dismiss her but before announcing it publicly, Mr. Powell held a meeting with the land office's advisory board; glared across the conference table at Ms. Walton; spoke of the television news report denouncing her appointment; and, referring to her in all but name, said he “was concerned about ... ‘protected employees' ” who “for some reason didn't have to meet the leadership criteria” for their appointments.

That dismissal led to this lawsuit. As a protected civil service employee under state law, Ms. Walton alleged that Mr. Powell unlawfully retaliated against her for exercising her right to free political association in violation of the First Amendment and 42 U.S.C. § 1983. In reply and at summary judgment Mr. Powell claimed qualified immunity. But the district court denied that requested relief and set the case for trial—and it's this ruling we're now asked to review.

*

Before getting to the substance of that decision, we first have to work our way through the parties' procedural puzzles. And here we begin with Ms. Walton's challenge to our power to hear this appeal under Johnson. It's long since settled that government officials usually may take interlocutory appeals (like this one) challenging district court orders denying qualified immunity at the summary judgment stage. After all, qualified immunity is supposed to be a defense from suit and not just liability, a defense that's effectively lost if its vindication on appeal must await final judgment. Mitchell v. Forsyth, 472 U.S. 511, 525–27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). But to this longstanding rule the Supreme Court has added an exception of more recent vintage. In Johnson the Court indicated that, when reviewing an order denying qualified immunity at the summary judgment stage, a court of appeals should usually take as true the facts the district court has determined a reasonable jury could find at trial. 515 U.S. at 313, 115 S.Ct. 2151. Now before us, Ms. Walton contends that Johnson 's exception to Mitchell 's rule effectively precludes us from reviewing most (or maybe all) of this appeal. In particular, she suggests we are powerless to assess the district court's holding that a reasonable jury could find her dismissal was the result of (caused by) her political affiliation.

We can see how Ms. Walton might read Johnson as standing for so much, but in our opinion it is too much. In an effort to ensure the “wise use of appellate resources,” Johnson did tell us to take as given the district court's assessment of what facts a reasonable jury could accept at trial and focus our attention instead on “abstract” questions of law. Id. at 317, 115 S.Ct. 2151. But what was supposed to be a labor-saving exception has now invited new kinds of labor all its own. Often enough, a party will argue that the district court failed to identify what facts a jury might reasonably find—an assertion that requires us, first, to decide if the district court did or didn't determine the facts a jury could find and, second, to determine the facts for ourselves if the district court didn't. See, e.g., id. at 319, 115 S.Ct. 2151 ; Behrens v. Pelletier, 516 U.S. 299, 312–13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) ; Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir.2010). Then there are the cases where the district court's assessment of the facts is “blatantly contradicted” by the record—or someone alleges it is—and we must again sort out the dispute by asking whether there is a “blatant” contradiction and, if so, what a reasonable jury could find given the record at hand. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Lewis, 604 F.3d at 1225–26. Indeed, without special modifications like these the Johnson exception would leave appellate courts often unable to adjudicate appeals from interlocutory rulings denying qualified immunity (rendering Mitchell 's promise a dead letter) or bound to accept a clearly mistaken factual account and so left to decide less a case or controversy than a hypothetical question. See id. at 1226 n. 2 ; Mark R. Brown, The Fall and Rise of Qualified Immunity: From Hope to Harris, 9 Nev. L.J. 185, 217–24 (2008). Neither, we must always remember, is the Johnson exception applicable outside the summary judgment context. When we review denials of qualified immunity at the motion to dismiss stage or after trial the Supreme Court has told us not to apply Johnson and instead determine for ourselves de novo which facts are and are not sufficiently well-pleaded or proven that a reasonable jury could adopt them before proceeding to determine whether those facts suffice to state a claim or support the verdict. See Ashcroft v. Iqbal, 556 U.S. 662, 674–75, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Johnson, 515 U.S. at 316–17, 115 S.Ct. 2151 ; Lewis, 604 F.3d at 1226 ; Marshall v. Columbia Lea Reg'l Hosp., 474 F.3d 733, 738–40 (10th Cir.2007). Much as we do when reviewing decisions granting summary judgment outside the qualified immunity context. Lewis, 604 F.3d at 1225. Indeed, in most every situation but those Johnson carves out appellate courts traditionally and routinely do assess de novo what facts a jury might accept and that task is not considered incompatible with normal principles of appellate review or unduly inefficient.

But however far Johnson 's exception extends and whatever its consistency with general practice or capacity to fulfill its promised efficiencies, it doesn't extend so far as to bar consideration of Mr. Powell's appeal or any part of it. To be sure, Johnson requires us to accept as true the facts the district court expressly held a reasonable jury could accept. And in our recitation above and analysis below we do just that, treating as true all the facts the district court held a reasonable jury could find even as we are quite confident Mr. Powell would dispute nearly all of them. But Johnson does not also require this court to accept the district court's assessment that those facts suffice to create a triable question on any legal element essential to liability. That latter sort of question is precisely the sort of question Johnson preserves for our review.

To be fair, we can understand why Ms. Walton might think otherwise. Indeed, we have struggled ourselves to fix the exact parameters of the Johnson innovation. But the Supreme Court has recently provided some helpful and clarifying guidance in Plumhoff v. Rickard, ––– U.S. ––––, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014). There the Court explained that Johnson only forecloses courts of appeals from reconsidering a district court's assessment of “evidence sufficiency, i.e., which facts a party may, or...