Copsey v. SwearingenCopsey v. Swearingen
GARWOOD, Circuit Judge:
Plaintiff-appellant Kerry Copsey (Copsey) operated a vending facility in the Louisiana state capitol building.1 Copsey, who is blind, received his license through a program operated by the Louisiana Division of Blind Services, which gives preferential
Facts and Proceedings Below
Copsey and his wife Cindy Copsey instituted this action on September 9, 1988. The named defendants in the suit were (1) Jerry Swearingen, the director of the Division of Blind Services at all times material to this case; (2) Guy Dicharry, the manager of the blind vendor program in the capitol;2 (3) Phillip Reichert, an assistant director of the Division of Blind Services; (4) John A. Alario, Jr., the Speaker of the Louisiana House of Representatives; (5) Samuel B. Nunez, Jr., the President of the Louisiana Senate; (6) Sylvia Duke, a member of the Senate staff; (7) Barbara Goodson, a member of the House of Representatives staff; (8) Charles
The facts leading up to Copsey‘s suit are as follows. Louisiana permits blind vendors to operate concession stands in public buildings pursuant to
In February 1987, the Division issued Copsey a license to operate the concession stand in the basement of the capitol under the terms of the 1985 agreement between the Division and the Council. Copsey was the first vendor to receive a license to operate in the capitol basement and at no time had he operated a concession stand in the tower. At some point, Copsey became unhappy with the administration of the program and made many complaints to Swearingen. In Copsey‘s view,
In mid-June 1987, Swearingen sent Copsey a memo informing him that Copsey‘s wife would no longer be allowed to visit the concession stand during business hours. The directive was promptly withdrawn but the bad blood between Copsey and Swearingen remained. On September 9, 1987, a meeting, initiated by Swearingen, was held between the two men. At the meeting, Swearingen offered to give Copsey another vending location in a different government building. Copsey agreed to consider changing locations and went to examine the suggested alternate site with Dicharry. After talking with the vendor operating that concession, Copsey informed Dicharry that he would not be willing to go to the new location. Copsey also communicated this to Swearingen, who said that he had no alternative but to terminate Copsey. On September 10, 1987, Dicharry and Reichert delivered Copsey a letter from Swearingen informing Copsey that his position at the state capitol vending facility and his participation in the blind vendor program would be terminated at the close of business that very day. At Copsey‘s request, Swearingen composed a second letter, also dated September 10, 1987, which set forth the reasons for Copsey‘s termination. The letter cited five reasons for Copsey‘s termination:
“1. Publicity adverse to the program on Baton Rouge Channel 2 and in letters to the National Federation of the Blind, both stimulated by you.
2. Continued reports from individuals, primarily building management, as to your complaints about the facility and the Capitol.
3. Concerns voiced by several other operators over the negative impact on the program of your accusations adverse to the agency and the program and other information released by you to the press.
4. Contacts directly with specific Senators and Representatives regarding various areas of your dissatisfaction.
5. Contacts with suppliers and others after policy violations were specifically brought to your attention.”
The letter also stated in conclusion:
“The above actions on your part were perceived as having an adverse effect on the program through creating the potential of loss of this location and other aspects of the total program.”
Copsey appealed his termination, and a hearing before an administrative law judge (ALJ) was scheduled for February 10, 1988. One day prior to the hearing, on February 9, Swearingen delivered a letter to Copsey which vacated the September 10 termination. The letter indicated that Copsey would be placed on probation and would be considered for future statewide vending facility openings as they occur. The next day, Copsey and the Division stipulated to the following: that Copsey would be reinstated into the blind vendor program retroactive to September 10, 1987; that he would be compensated at a rate of $720 per month from September 10, 1987, for the time that he was removed from the vending stand; that he would receive $500 in attorney‘s fees; that certain documents inserted into his file by the Division would be removed; and that
The instant lawsuit was filed September 9, 1988, and was referred to a magistrate judge and, upon his recommendation, the district court on August 4, 1989, dismissed a number of Copsey‘s claims. On April 23, 1991, the district court granted the defendants’ motion for summary judgment as to all of Copsey‘s claims except for the claim that Swearingen revoked Copsey‘s license in retaliation for the exercise of his First Amendment rights. See Copsey v. Swearingen, 762 F.Supp. 1250 (M.D. La. 1991) (”Copsey I“). A jury trial was commenced on Copsey‘s speech claim against Swearingen but, at the close of plaintiff‘s case, the district court on March 5, 1992, granted Swearingen‘s motion for a directed verdict. See Copsey v. Swearingen, 790 F.Supp. 118 (M.D. La. 1992) (”Copsey II“). Copsey now appeals from these three rulings.6
Discussion
Copsey argues that the district court erred in dismissing his claims under the First and Fourteenth Amendments and his conspiracy claim. He also complains of the court‘s denial of his request for declaratory and injunctive relief, his motion to join an additional party, and his motion for reconsideration of the court‘s April 23, 1991, ruling. As noted (note 3, supra), the claims for declaratory and injunctive relief are moot. Otherwise, we affirm the district court on all counts with the exception of its decision to grant Swearingen a directed verdict on Copsey‘s First Amendment claim.
I. Copsey‘s Property Claims--Exclusive Right.
Copsey argues that he has been unconstitutionally deprived of property without due process of law. See
There is no doubt that property rights created under state law are protected by the Fourteenth Amendment. See, e.g., Board of Regents v. Roth, 92 S.Ct. 2701 (1972).
At the most, then, Copsey is left with the argument that section 333 gives him the right to be the exclusive vendor in the entire capitol, and therefore that the competition provided by the Foundation‘s shop deprived him of property. Section 333 arguably gives Copsey that right--but only arguably. It provides that
“A. Notwithstanding any other provision of law to the contrary, and particularly any contrary provision of R.S. 49:146, the allocation and use of space within the state capitol, pentagon courts buildings, and the Old Arsenal Museum shall be as provided in this Subpart. The provisions of this Subpart shall apply to the subbasement, basement, and all floors of the state capitol, all buildings in the pentagon courts, and the Old Arsenal Museum.
. . . .
E. (1) All areas of the state capitol, pentagon courts buildings, and the Old Arsenal Museum not allocated under the provisions of Subsections B and C herein shall be for the sole use of the legislature, its agencies and officers, and the employees of the legislature and its agencies.”
LA. REV. STAT. ANN. § 49:150.1 (West. Supp. 1993).
The defendants argue that section 150.1, which antedates section 333, gives the legislature complete control over space within the capitol building notwithstanding any other provision of law.7 So far as we know, the Louisiana courts have not attempted to
Even if one assumes arguendo that Copsey does have a state property right by virtue of section 333, he has not shown that he has been deprived of it without due process of law. When a plaintiff alleges that he has been deprived of property because of the random and unauthorized acts of government officials and seeks a post-deprivation remedy, there is no denial of due process if the state provides adequate post-deprivation remedies. See Parratt v. Taylor, 101 S.Ct. 1908 (1981); Hudson v. Palmer, 104 S.Ct. 3194 (1984); Caine v. Hardy, 943 F.2d 1406 (5th Cir. 1991) (en banc). Copsey‘s claim falls squarely within this rule. First, the deprivation of which Copsey complains was a random and unauthorized act, which he alleges was in violation of state law. Second, it is clear that what Copsey seeks is a post-deprivation remedy. Indeed, it can only be that. It cannot be said that Copsey was deprived of property prior to the time that he obtained his license, and once he did so, the deprivation had already occurred, for the Foundation was already in the capitol. Therefore, there is no way that Copsey could have been granted a predeprivation remedy in this instance. Third, Copsey has not demonstrated that Louisiana state law affords an inadequate remedy. In fact, the Louisiana appellate court that denied his request for mandamus reasoned that Copsey had not “proved his entitlement to this extraordinary remedy” because he “also sued under ordinary process, asking for injunctive relief as well as a declaratory judgment. Therefore, other remedies would appear to be available at law to plaintiff.” Copsey v. Joint Legislative Budget Control Council, 607 So.2d 841, 843 (La. App. 1 Cir. 1992). In essence, Copsey complains that some of the defendants have violated state law, i.e., section 333. In the absence of evidence to the contrary, we must presume that Louisiana‘s court system is capable of redressing violations of state law. Cf. Marshall v. Norwood, 741 F.2d 761, 763 (5th Cir. 1984) (“This Court has found that Louisiana law provides an adequate remedy for negligent action.“).
Copsey argues that the termination of his license was without due process and therefore in violation of the Fourteenth Amendment. The district court ruled that the hearing held on February 10, 1988, satisfied Copsey‘s right to procedural due process. See Copsey I, 762 F.Supp. at 1260-61. We agree. Copsey does not allege that the post-deprivation procedure used in this case itself violated due process. Nor is there any doubt that an adequate post-deprivation hearing can satisfy due process in this context, as noted above. See Parratt v. Taylor, 101 S.Ct. at 1915. Copsey‘s only complaint appears to be about the outcome of the hearing. One day prior to the hearing, Copsey and the Division of Blind Services entered into an agreement that Copsey would be reinstated into the blind vendor program, that he would be compensated $720 a month for the time that he was out of his location, that he would receive $500 in attorney‘s fees, that certain documents placed in his file would be removed, and that he would be placed on probation. The ALJ adopted these stipulations as his decision. Two weeks later, Copsey‘s probationary status was ended. We believe that Copsey was afforded due process. We are unsympathetic to the claim that it was improper for the ALJ to adopt as a remedy that to which Copsey had freely agreed. What is more, since Copsey was returned to his concession stand in the capitol basement, with agreed compensation for the intervening period and attorney‘s fees, he was in the same position that he had been in prior to the termination of his license. See also Robinson v. Boyer, 825 F.2d 64, 67 (5th Cir. 1987).
III. Copsey‘s First Amendment Claim.
Copsey argues that the termination of his license in September 1987 was in retaliation for the exercise of his First Amendment right to free speech. There is really no dispute that Copsey‘s license was terminated, at least in part, because of his speech. The defendant‘s brief concedes that “Copsey was removed from the vending facility located in the breezeway of the Louisiana State Capitol Building for the reasons stated in the two letters” of September 10 from Swearingen. The second letter, which was drafted by Swearingen for the express purpose of setting forth the reasons for the termination of Copsey‘s license, cited Copsey‘s appearance on local television, his letter to the National Federation of the Blind, and his communications with Louisiana state senators and representatives. There can be no doubt that these are First Amendment activities. That Copsey was punished for speaking, however, does not necessarily prove that his First Amendment rights were violated. Analogizing Copsey‘s status as a license-holder to that of a public employee, the district court analyzed Copsey‘s claim under the two-prong test announced in Pickering v. Board of Education, 88 S.Ct. 1731 (1968), and Connick v. Myers, 103 S.Ct. 1684 (1983); see Copsey II, 790 F. Supp. at 120-23. Under Pickering and Connick, when the state penalizes a public employee for speaking, no First Amendment violation occurs unless the speech is “fairly characterized as constituting speech on a matter of public concern,” Connick, 103 S.Ct. at 1690, and the employee‘s interest in speaking outweighs “the interest of the State, as an
Copsey argues that, because he is not employed by the state, the Pickering/Connick test is misplaced here and his claim should instead be evaluated under a more First Amendment friendly standard. We cannot entirely agree with Copsey that the Pickering/Connick test finds no application in this context. Copsey is not a public employee. Nevertheless, the Rules and Regulations of the Randolph Sheppard Vending Facility Program (June 1987) bear the mark of an employment-type relationship. After being selected, vendors are trained by the state. The vendors are issued their licenses for an indefinite term, but may be suspended or terminated for noncompliance with program rules and regulations after a full evidentiary hearing. Section 333 itself provides that blind vendors may not be “disturbed in the security of the operation of the vending stand” without reasonable or just cause. The actual vending space is owned by the state; the state furnishes vendors with such substantial equipment as refrigerators, microwave ovens, and cash registers. The vendor must maintain this equipment, but the state is responsible for making repairs. The vendor is provided with an initial inventory, title to which
The applicability of the Pickering/Connick test to certain license holders, moreover, has been accepted in prior cases in this Circuit and others. In Davis v. West Community Hospital, 755 F.2d 455, 461 (5th Cir. 1985), we analyzed the First Amendment claim of a surgeon whose staff privileges were permanently suspended by a public hospital under Pickering and Connick. We made no mention of the fact that the surgeon was not an employee of the hospital. Similarly, in Caine v. Hardy, 943 F.2d 1406, 1415-16 (5th Cir. 1991), this Court sitting en banc used Pickering and Connick to evaluate the free speech claim of an anesthesiologist who lost his clinical privileges at a public hospital. Even the dissenters in Caine argued within the Pickering and Connick framework. See id. at 1421 (Williams, J., dissenting).
Other circuits have taken a similar approach. Smith v. Cleburne County Hospital, 870 F.2d 1375 (8th Cir.), cert. denied, 110 S.Ct. 142 (1989), also involved a doctor deprived of staff privileges at a public hospital. The court recognized that the
“While there is not a direct salaried employment relationship, there is an association between the independent contractor doctor and the Hospital that have similarities to that of an employer-employee relationship. For instance, there is an application process for privileges, there are required duties to be performed by both parties, and there are potential liabilities each party is responsible for jointly and severally for tortious conduct. As a result of these similarities, the application of the Pickering balance test and its progeny in this case is appropriate.” Id.
Finally, in Havekost v. United States Dep‘t of the Navy, 925 F.2d 316 (9th Cir. 1991), plaintiff was a grocery bagger licensed to work at a military installation. She sued after her license was revoked allegedly in retaliation for her speech. The Ninth Circuit recognized that Pickering and Connick “are not directly on point” because “Havekost was a licensee on the Navy‘s premises rather than a salaried employee.” Id. at 318. The court concluded, however, that “[b]ecause Havekost‘s dispute, like that of the plaintiff in Connick, is nothing more than a workplace grievance, ruling for her would be inconsistent with the principle stated in Connick.” Id. Havekost cited both Smith and Davis in support of its statement that “Pickering-Connick immunity has been applied, moreover, in cases where an employer-employee relationship did not exist.” Id. at 319.
We now turn to the question whether Copsey‘s speech was on a matter of public concern. The district court‘s answer, as we have said, was no. This is an issue that we review de novo. See Rankin v. McPherson, 107 S.Ct. 2891, 2898 n.9 (1987). Whether Copsey‘s
“This court has previously found that issues rise to the level of public concern if an individual speaks primarily as a citizen rather than as an employee, or if the information conveyed would be of relevance to the public‘s evaluation of the performance of governmental agencies. The existence of an element of personal interest on the part of an employee in the speech does not prevent finding that the speech as a whole raises issues of public concern. On the other hand, an employee cannot transform a personal conflict into an issue of public concern simply by arguing that individual concerns might have been of interest to the public under different circumstances. . . .
To rise to the level of public concern, the speech must have been made primarily as a citizen rather than as an employee. The court may therefore be required to assess the primary motivation of the speaker in evaluating whether her speech addresses a matter of public concern.” Id. at 273 (footnotes and internal quotation marks omitted).
Based upon the reasons offered for the termination of Copsey‘s license in Swearingen‘s September 10, 1987, letter, the district court determined, and we agree, that there were three occasions on which Copsey spoke that are relevant here: first, his letter to the National Federation of the Blind; second, his televised interview with a news reporter; and third, his discussions or contacts with his state representatives. Fidelity to the First Amendment requires that we examine all three to see if they are fairly characterized as speech on matters of public concern.
Most of the letter to the National Federation of the Blind, dated May 30, 1987, and addressed to the Federation president, is
Copsey‘s television appearance aired on June 17, 1987. The brief broadcast apparently concerned Copsey‘s displeasure at being
Finally, there is the issue of Copsey‘s communications with his state representatives. The evidence is sketchy, but apparently Copsey asked Senator Osterberger to request the Louisiana Attorney General to issue an opinion on section 333. Certainly, the legal meaning of this statute raises an issue of some public concern.
While it is plain that much of Copsey‘s speech was in no small part motivated by personal concerns, some of it clearly addressed matters of public interest and concern beyond his individual situation. The part of speech which is on matters of public concern does not lose its First Amendment protection merely because other parts are essentially related to personal workplace concerns.8 Whether section 333 extended to the capitol building as a whole, whether section 333 is subject to section 150.1, and whether the Foundation‘s operation in the tower is lawful, are all matters of general public concern, apart from their effect on Copsey. The larger essence of Copsey‘s publicly aired speech as to these matters was not related to the ongoing operation of his own stand, or to the day-to-day interaction with the Division which that operation entailed, as in the typical Pickering/Connick-type case. These aspects of Copsey‘s speech, so far as they might impact his own situation, would impact aspects of it that were not those which are analogous to the employee-employer relationship.
We also conclude that the district court erred in awarding qualified immunity to Swearingen. The relevant question here is not whether the law was settled in the abstract, but whether, measured by an objective standard, a reasonable official would have known that his action was illegal. See Click v. Copeland, 970 F.2d 106, 109 (5th Cir. 1992). A reasonable officer, we think, would have to know that revoking a blind vendor‘s license in retaliation for such publicly-aired complaints violated the First Amendment.
IV. Copsey‘s Conspiracy Claim.
Copsey argues that there existed a conspiracy among the defendants to violate his constitutional rights. The district court dismissed all of Copsey‘s conspiracy claims when it granted the defendants’ motion for summary judgment. See Copsey I, 762 F.Supp. at 1260. Because we hold that Copsey‘s Fourteenth Amendment rights were not violated, Copsey cannot claim that there was a conspiracy to violate those rights. But it remains a possibility that some or all of the defendants conspired to revoke Copsey‘s license in violation of the First Amendment. As we read his complaint, Copsey alleges that Swearingen, Alario, Nunez,
Copsey‘s complaint itself fails to offer any facts which would justify a finding that a conspiracy existed; it contains only naked, conclusional allegations. The defendants said as much in their motion for summary judgment and the district court agreed with them: “[T]he allegations made in the complaint regarding an alleged conspiracy are vague and conclusory. No specific facts are alleged which actually indicate that anyone conspired with anyone else about anything.” Copsey I, 762 F.Supp. at 1260. Copsey‘s opposition to the motion for summary judgment, however, does attempt to flesh out the alleged conspiracy. To survive summary
We begin by noting that Swearingen testified at his deposition that he acted alone in his decision to revoke Copsey‘s license and that all other defendants submitted affidavits denying that they participated in any conspiracy. Copsey must therefore have evidence which could lead a reasonable jury to believe otherwise. Reichert stated in his deposition that he and Dicharry delivered the first letter of September 10, 1987, in which Swearingen revoked Copsey‘s license, and that the two read over the second September 10th letter outlining the reasons for the revocation. Swearingen also said in his deposition that the two men read the letter and approved of its contents. This evidence does not establish a conspiracy on the part of Reichert and Dicharry (the latter of whom is in any event deceased and no longer a party, see note 2, supra). These two were Swearingen‘s subordinates and may have helped
Copsey‘s evidence against Stockman is a memo written by Schwing to his file in which Schwing says that he “suggested that he [Stockman] try to get Carey [Copsey] to curtail his trying to contact individual people in the building to enlist their support.” This evidence does not prove a conspiracy between Stockman and Schwing, let alone Stockman and Swearingen. That Schwing may have suggested that Stockman urge Copsey to curtail his “campaign” is not evidence of the charged conspiracy.
The evidence that Nunez and Alario conspired with Swearingen comes from an affidavit executed by Copsey.
“On September 9, 1987, I was required to meet Mr. Jerry Swearingen at his office. Mr. Swearingen wanted to have a discussion with me alone. At this meeting, I was given two options; either to transfer to another stand, or to be terminated. The reason I was given these options was because individuals were complaining about me at the State Capitol. When I insisted on being told who these individuals were, Mr. Swearingen stated he would not tell me. I then asked ‘It was Senator Nunez and Representative Alario, wasn‘t it?’ He then replied ‘yes,’ but stated he would deny this if ever asked.”
Swearingen testified at his deposition that it was his “perception” that Nunez and Alario wished Copsey removed and that this was an “inference” he had picked up from Duke. However, Swearingen denied having made the statement alleged by Copsey and said further that he was not pressured by anyone into making the decision to revoke Copsey‘s license, that the decision was his alone. Swearingen‘s deposition, in our view, fails to establish a conspiracy because he
In sum, the district court properly granted summary judgment dismissing Copsey‘s conspiracy claims.
V. Copsey‘s Motion to Join an Additional Defendant.
On May 15, 1990, Copsey filed a motion to join Michael Baer, III, as a defendant pursuant to
VI. Copsey‘s Motion for Reconsideration.
Following the district court‘s grant of summary judgment to defendants on April 23, 1991, Copsey moved for reconsideration on the ground of newly discovered evidence. The district court denied the motion on June 5, 1991, ruling that Copsey‘s evidence “is neither newly discovered nor relevant as to any issues in this action.” Copsey himself admits that the evidence in question was in his possession four weeks before the district court ruled on the summary judgment motion. The only explanation that Copsey offers for his failure to bring the evidence to the court‘s attention during the pendency of the summary judgment motion is that he thought the court already had more than enough evidence to rule in his favor. The district court did not abuse its discretion in denying the motion. See Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173-175 (5th Cir. 1990).11
Conclusion
For the foregoing reasons, the judgment of the district court is
Notes
“A. State agencies, boards, commissions, and institutions owning, maintaining, or controlling state property shall in all cases give preference to blind persons . . . in the operation of vending stands, vending machines, and other small business concessions to be operated on the premises. No other vending stands, vending machines, or small business concessions shall be operated on the same premises with vending stands, vending machines, or other small business concessions operated, or contemplated, under the provisions of this Section. No blind person under this Subpart shall be required to pay any fee, service charge, or equivalent thereof upon the operation of a vending stand, vending machines, and other small business concessions in public buildings or premises, nor shall the blind person be disturbed in the security of the operation of the vending stand, vending machine, and other small business concession in any way, without reasonable or just cause.”
LA. REV. STAT. ANN. § 46:333 (West 1982).
“The phrase, ‘Notwithstanding any other provision of law to the contrary’ serves as a powerful indication that the Legislature intended to keep complete control of all space in the capitol in its own hands, even if other laws were to the contrary.” Copsey I, 762 F.Supp. at 1258.