Helen J. Guercio v. George Brody (88-2013) and John Feikens (89-1137)

Before KRUPANSKY and WELLFORD, Judges, Circuit CELEBREZZE, Judge. Senior Circuit KRUPANSKY, Judge. Circuit Defendants-appellants, George Brody (Brody) (Feikens) (collec- and John Feikens tively, appellants), appeal the denial of plaintiff-appellee their motion to dismiss (Guercio) complaint Helen Guercio’s on the immunity. basis of official controversy pre- facts of this were set out viously and the reader is referred to the previous circuit’s for a full rendi- Brody, tion. F.2d 1115 Cir.1987) (Guercio I). Guercio, summary, who had dis- been

charged from her as confidential secretary Bankruptcy Judge Brody, to then commenced this action him and Dis- Judge Feikens, formerly trict Chief of the United States District for the Michigan, wrongful Eastern District of employment termination of her in alleged of her violation constitutional to free speech. Guercio asserted a cause of action arising under Bivens v. Six Unknown Agents, (1971), sought injunctive relief, relief, declaratory equitable relief, monetary damages. Specifically, Court for Eastern District States amended second in her prayed Guereio supervision Michigan. Such District termi- that her a declaration oversight of the include unconstitutional, injunc- for an nation was operation of the general same ordering reinstatement tion Office, appointment the Clerk’s ac- Court backpay and for position, or a similar Acting of the Clerk of an for 19,999.0o,1 and up to benefits crued personnel approval of all and the from of million $1 amount in the damages the affecting employees of severally in actions and Brody jointly and Feikens Bankruptcy Court. capacities. their individual judges the May of By an order I related opinion Guereio circuit’s This the Eastern Court for the District of U.S. scenario: following factual the directed Chief Michigan of District alleged in the case, as of this facts The responsi- supervisory to assume record, lead of affidavits complaint and pursuant Bankruptcy Court bility for in the chapter through unfortunate an us of the Coun- order Judicial to earlier for Bankruptcy Court the U.S. history of Sixth Circuit. cil of the peri- Michigan of District the Eastern —a at 1116. I, Guercio asserts that Ms. Guereio od which the res- that discloses further corrup- The record exposing role a central played judges bankruptcy one ignation of Bankruptcy Court. in the tion disclosures had affected been who allegations, Guereio According to of a nomination compelledthe corruption Judge Bro- January hired George Woods that and replacement, From Octo- secretary. his dy serve as to position. fill (Woods) nomiated 1981, Guereio through June ber announcement Subsequent to concerning cor- disclosures various made his confir- nomination, prior to but Woods She Bankruptcy Court. ruption in the “to circulated and mation, amassed Guereio Bankrupt- revealed, example, that the for articles newspaper others” press and assign- case of random system cy Court’s approximately appeared originally had These being manipulated. ments in connection earlier years eleven resigna- eventually led to disclosures States for United nomination Woods’s well as judge as bankruptcy of a tion Id. District. Eastern for the Attorney attorney and convictions criminal dis- apparently newspaper articles The court clerk. bankruptcy representa- legal purported Woods’s cussed result- of events chain part of this As figures crime organized reputed disclosures, alleges Guereio ing from her Ac- career. stage of his earlier during an Sixth of the Council the Judicial um- took complaint, Woods cording the Bank- placed and intervened Circuit and disclosures brage with receivership. The in virtual ruptcy Court “co- withholding his Brody with threatened dated in an order stated Judicial Council as a he be confirmed operation” 6, 1981: May turn, report- Brody, in judge. bankruptcy effec- that the concludes The Council Feikens, Chief his dilemma ed administration expeditious tive and dis- Brody to who, allegedly, instructed this courts within of the business charge Guereio. administration that the requires circuit granted both originally The district the East- Bankruptcy Court suit, rea- immunity absolute un- Michigan placed District ern discharge Guer- soning the decision the United supervision der Circuit (1987). Federal The jurisdic- Courts have District The United States amended second that Guercio’s determined has United States tion over claims the Little a claim state complaint does not $10,000 pursuant to monetary less relief of than Brody, F.2d 1372 1346(a)(2). Guercio Act. Act, Tucker § 28 U.S.C. Little Tucker court, Therefore, and not this (Fed.Cir.1989). however, actions, only in lie Appeals from such Circuit, jurisdiction over has 1295(a)(2); the Federal § U.S.C. Circuit. the Federal appeal. Hohri, United States judicial cio was undertaken in a capacity. remaining then, question, sole panel Another of this court reversed that whether the district court erred on remand I, finding denying judge’s determination motions for dismis- sal, Guercio’s termination was in the premised nature of which motions were on a de- act, a ministerial or op qualified immunity. administrative fense of Resolution of posed type judicial hinges entirely upon function tradi this issue an accurate tionally immunity, comprehensive analysis accorded absolute Guer 1119-20, I, pronounced cio 814 F.2d at test as it remanded has been court, applied expressing opinions Supreme the action to the district judges’ application no Court and this as to entitlement to that test to the protection qualified immunity. facts of the case at bar as Id. they portrayed are in Subsequently, at 1120. Guercio’s second the full court complaint. amended granted rehearing en banc to consider the question immunity of absolute insofar as it In the Fitzger seminal case of Harlow v. applied Judge to Chief Feikens. Guercio ald, 800, 2727, 457 U.S. 102 S.Ct. (6th Cir.1987). Brody, v. 823 F.2d 166 Pri- (1982), Supreme L.Ed.2d 396 Court de rehearing banc, however, or to en the Su “government clared that perform officials preme opinion Court announced its in For ing discretionary generally functions are White, 538, rester v. 484 U.S. S.Ct. liability damages shielded from for civil (1988). 98 L.Ed.2d 555 In response to For insofar as their conduct does not violate rester, grant this circuit vacated its order clearly statutory established or constitu ing banc, rehearing en previ reinstated its rights tional person which a reasonable (rendered I) in ous mandate Guercio rela 818, would have known.” Id. at Feikens, Judge tive to and remanded the application at 2738. Ad hoc of the Harlow entire matter to the district court in order test in the context of the facts of this light to “consider the entire in case particular requires, threshold, case at the Supreme in Court’s decision Forrester v. examination of complaint Guercio’s for a remaining White consider the in issues precise understanding alleged of what she light of Forrester v. White this court’s to have occurred in the course of events April 1, reinstated decision of 1987.” leading discharge. her Her Brody, Guercio v. 859 F.2d pleads single cause of action summarized Cir.1988). paragraphs 24 and 31 as follows:

While the language of this last mandate 24. Brody Defendants Feikens and suggest would seem to the district were motivated to effect and did effect court on remand was to plaintiff’s reevaluate the solely termination because propriety granting immunity absolute participation exposing of her corrup- light White, of Forrester v. it is difficult to tion in the Bankruptcy Court and her suggestion reconcile that with the court’s newspaper distribution of the 1969 ar- “reinstatement” of its first ticles critical of the nominee who was I, unequivocally Guercio which being denied the replace judge considered to availability immunity of absolute for the corruption exposed whose had by been question. act in panel’s The plaintiff. herein, decision in At all times relevant case, Guercio I is the law of this and both defendants were plaintiff’s aware of were, judges accordingly, participation foreclosed from in exposing corruption in asserting judicial immunity absolute aas the court and of her distribution defense charges Guercio’s in future articles relevant to the Woods nomina- proceedings.2 tion.

2. possibility Forrester, 229-30, that this court desired the dis- decisions. 484 U.S. at immunity trict court to Thus, reconsider the absolute although language S.Ct. at 545-46. light large issue in degree by of Forrester is belied to a unclear, the court's mandate in I unequivocal holding Forrester's immunity further consideration of absolute are not entitled to absolute by foreclosed the Forrester rationale. arising personnel from suit for actions out of clearly so plaintiff’s were is whether rights un- her plaintiff denying By 31. when terminated on established speak Amendment the First der have understood concern, Feikens defendants matters her ordered time he deprived plaintiff at Brody his conduct amendment her discharge secured first privileges violated rights and her question of law right to free Constitution.... —a Anderson court. decided action Guer- single cause of sum, in her S.Ct. Creighton, of conduct course a continuous recited cio Garvie (1987); 1979, ultimate- in December of commenced 649; Jackson, Ramirez at 845 F.2d discharge in October resulting in her ly Webb, F.2d Brody’s activities of matters a disseminator secretary and as was, bar, In the case are best ostensible concluding that correct question, without continuum, starting with a viewed alleged Feikens that Guercio 1979, her disclosures employment initial abstract, clearly was, in the infringed bankruptcy corruption about Supreme in 1981 established concluding her circulation Pickering v. Board in decision Court’s commentary as a accounts newspaper 1969 1731, 563, 20 Education, 88 S.Ct. 391 U.S. which the office to for fitness on Woods’s teachings of Pick- (1967). The L.Ed.2d 811 nominated. been he had for a determina- course ering charted the invoking doc the to dismiss motion the entitlement to Judge Feikens’s tion by immunity filed qualified trine of immunity. In that deci- qualified shield of vio did not his “conduct because Feikens a sion, Supreme Court instructed the all clearly right so established late commenting in interest employee’s public they were know would [Judges] reasonable protected is concern public matters of on to refrain duty an affirmative it is only insofar as first amendment by the to be issues law joins conduct” such in- employer’s than the weight greater exclusively upon by the court decided efficiency of the “promoting terest complaint, into incorporated allegations em- through its performs it public services considering must, purposes for 568, at 88 S.Ct. ployees.” accepted as true. dismiss, be to the motion balance, rule of familiar this Under U.S. Spalding, 467 King & v. Hishon See speech quali- are free rights to employee’s 2232, 59 2229, L.Ed.2d 81 73, 69, 104 S.Ct. his interests of countervailing by the fied Inc. v. Equipment, Process Walker (1984); adju- Pickering claim When a employer. Corp., 382 Machinery Chemical & Food fact-find- merits, for the it is its dicated 348-49, 347, 15 174-75, 172, 86 S.Ct. U.S. determine er, jury 892 Nagle, v. Collins (1965); 247 anti- potentially these weight of relative Cir.1989). “The question 489, (6th 493 F.2d immuni- qualified interests. thetical immunity attaches qualified of whether responsibil- contrast, it is context, by ty legal ques purely ais actions official’s if the law to determine of the ity prior determine judge to trial of the time at the established clearly so 647, Jackson, F.2d 845 v. Garvie to trial.” competent public reasonably a incident that also Ramirez see Cir.1988); (6th a course known official Cir.1987); (6th Webb, F.2d a public be inconsistent action (6th 673, Telb, F.2d Dominque v. Pickering. defined rights as employee’s Hooper, Donta Cir.1987); denied, Cir.1985), first instance cert. having Accordingly, (1987). by “clearly established 107 S.Ct. defined properly must, disposing this court inquiry, law” confronting this Thus, question motion, place qualified of a stated, not whether court, simply non-conclusory well-pleaded, totality first Guercio’s actually violated Feikens the Picker- complaint on of the allegations issue speech free right of amendment —an employee’s ing scale rather, to balance jury but, fact reserved — in commenting pub- interest on matters of have known that the conduct at issue was employer’s lic concern undertaken violation of right. aAs law at the time roneous ancing test took tablished law at the time that the incidents court’s remark that qualified immunity inquiry Service it “to determine proach district F.2d was ordered that, pre-existing conduct. Harlow v. 818, an is whether Guercio’s first amendment predicate Creighton, tionality able minds could not differ on the constitu- clear general teachings der trier of fact—this court must motion to dismiss on the basis of immunity pursuant to the dictates of Har- determining low, comes to rest—a decision reserved for the ees,” id., concluding services it Writing upon a clean “promoting affirmative Plaintiff’s Pickering, place.” Similarly 1171, Malley, measured 102 S.Ct. at at the time in to free is distinct from that followed Employees’ approach of her issue to be decided 107 S.Ct. at where that balance performs through law ... whether discharged by Judge Anderson, Garvie, etc., which mischaracterized the duty as objectively, (viz., whether the discharge. of Ms. Guercio’s [was] 88 S.Ct. at 1735. Without (6th Cir.1988). opposed to the issue was the efficiency “the ... Fitzgerald, to refrain from such Ass’n v. question were so evident from 2738; Pickering) Pickering, reflective of the er- clearly clearly 3038; as one slate, to whether the Pickering he was under Anderson v. allegations dispose that reason- Seiter, violated es- established its Ohio Civil 457 U.S. at rights ultimately then, requiring when This were so firing.” employ- by appeal bal- un- ap- by in plication of abstract, approach questions: Anderson v. striking similarity) clearly cuit Harlow v. qualified immunity motion to dismiss with ley 1092, 1096, out dated consequence F.2d at 1156 not determinative that the asserted the general right: affirmative clearly understood that he that such conduct.’ Ramirez v. 831 F.2d tion, plaintiffs’ ‘rights fendants] lished when the acts were committed [82 were 835 F.2d federal circuit. Cf. Davis v. We should focus on defendants Garvie v. Telb, supra; [0]ur v. Briggs, 475 U.S. applying Garvie v. Supreme erroneously by ^[183] measured clearly cases establish that the 1175, officer 673, have at Jackson Creighton, of its the test that had been man duty Supreme 139 violation of a acted, (quoting fact-specific, 192, 104 Jackson, 89 L.Ed.2d 271 established Court or the courts of this ” Ramirez v. qualified immunity objectively, Fitzgerald, supra; (1984)]; in misdirection, decided the defendant’s to have refrained from were so (6th Cir.1987)). the defendant’s (a (6th Cir.1987). whether, qualified immunity S.Ct. Dominque v. Court and this cir 335, 341, supra; Dominque Pickering supra. counsels the rights Davis broadly ^[3012] was clearly Webb, plaintiff Scherer, would have decisions of at the time opposed Webb, under right asserted at 3018 case of supra; Holly, unless stated (1986); estab “[De Telb, posi It is Mal has 468 ap- alleged official is to have violated discussed, must As hereinafter inquiry “clearly have been established” in a framed the district court was so ab- particularized, more and hence more stract that its consideration of the motion relevant sense: apply qualified dismiss failed to im- contours of munity right must be sufficiently test clear that a and circum- facts sum, In reasonable stances this case. would understand official approach court’s that what apply doing failed to he is Harlow violates that test, in required right. say which the first This is not to instance a that an offi- protected determination of cial action clearly by qualified whether a im- estab- right alleged lished was munity very to have been vio- unless ques- action in lated, and, secondly, a determination previously unlawful; tion has been held public whether a reasonable official should say light but it is to that in knowing- or those who incompetent plainly must unlawfulness law preexisting law.” Id. ly violate apparent. be (citation at 3039 and mindful Anderson, light Pickering, S.Ct. In Mal added]; see also test as de- omitted) [emphasis qualified appropriate (if at 1096 decide Harlow, court must 475 U.S. ley, fined competence could Guercio’s course of of reasonable the continuous from officers issue, immunity December, 1979 and Octo- disagree anon between conduct discharged as she was recognized). ber, when phasis munity should cert. clear fronting the ed’ Garvie 304, 308 102 ing amining abstract lished within legal sonable nized.” test thus (emphasis this as it does court’s first reasonably In ment Anderson, presents leged amendment greed stead, we consider lieve competent officials Garvie’s The standard Briggs ”) (quoting Colaizzi L.Ed.2d “the arguing “clearly established denied, ^[******] issue, in relation reasonableness” framed constitutional added). the Harlow amendment. head retaliatory termination disposition on whether (7th have competence specific Jackson, with immunity, Garvie asserts added). “ample too not as 534 immunity should based however, Cir.1987)); against public official rights too known competent See also clarity: be whether general to be (1988) to the existence facts general protection touchstone stringent as right without 341, 106 S.Ct. and to what defendants’ whether in 1986 applied Garvie’s F.2d at of this (“ Rakovich “if officers qualified specific protected Green unlawful. Cir.1987) defined Walker, ‘the exercise imply, Cir.) (en public official law” question. question reasoning when the clearly to disagree aof test 649-50 reasonably case”). argument all but facts S.Ct. “objective immunity functional law was resolving affording predicate claim Carlson, consider 812 of first (district depart- he act by the at 1096 be-We Malley extent an al- Wade, banc), estab recog- in ex disa- F.2d (em con rea- In- im on Judge Feikens recited sonable could have to free operation, dignity, dence a court have been caused ployment amendment corruption critical lect ship and during 1981 curred. were and was Construction perpetuating came revisions courts. clarified and tions ruptcy public interest Pickering, circulation district court. appointment they served Bankruptcy and favoritism. district the considering, her substantially between appointed to the United exercise courts speech without competence Prior interdependent See employment to prerogative existed between Woods, adjuncts disagreed courts 76-87, 102 S.Ct. when Eastern had been elevated complaint, v. Marathon without and to Bankruptcy her first amendment in a by district Code, pursuant (1982). The U.S.C. bankruptcy court any disruption the time judges courts, leaving the bank- this plaintiff’s changed and See by her bankruptcy courts bankruptcy to restoring capacity speak on District of dated 1984 amendments jurisdictional jeopardy States upon whether corroded court should Northern bankruptcy respect, terminated being working relation- if § in a more to the mandate 152. outweighed by asserted judges Pipe Line news disclosures Code, although district here various in 1984 discharge oc- “adjunct” morale, bankruptcy relationship matters to her em- judges and confi- Michigan, The 1984 accounts Pipeline 2874-80, of rea- corrup- thereof judges, judges distinc- insular courts, circuit issue recol- right when first may her Co., co- be- to to submissions, ap- occupied previously. original they than had Guercio’s during pears pleadings from her See 28 U.S.C. § months, developed ensuing plaintiff eleven condition, historical which Mindful of this proof sup- factual additional substantive bankruptcy through- common to courts port irregularity disclosures States, and also mindful of out the United Court, Bankruptcy in turn Detroit which particularized circumstances aris- the more request prompted Judge Feikens to the AO ing Judge specially Feikens’s del- out of investiga- investigate the situation. The egated responsibility pursuant to the man- tion, Judge requested Feikens and date of the Sixth Circuit Judicial Council endorsed, actively partici- he and which morale, cooperation, restore confi- pated along plaintiff and other dence, operation in and efficient the bank- office, limits of his authorities within the court, poten- ruptcy apparent it is that the resignations ultimately resulted in the tial for internecine conflict in the court was Hackett, Bankruptcy Judge Harry Chief and, moreover, palpable Feik- Bankruptcy Court William Clerk of the prevent such conflict was ens’s desire to Kathy Bagoff Harper, Deputy and Clerk compelling.3 genuine both and Concerns 24, 1981. sometime around June cooperation, harmony, for inter-chamber collegiality between and court above, As detailed a concerned Judicial personnel judicially noticed — Council of the Sixth Circuit intervened probability in all central and court—were Bankruptcy placed the Court into virtual Judge. indispensable to the efforts of Chief 6, 1981, May receivership by an order dated implement the Feikens to Sixth Circuit's oversight mandate del- of which mandate. egated May Feikens on primarily at The mandate was directed re- backdrop this factual that the It is within court, habilitating expressly con- allegations of second amended (as sub-delega- upon Judge ferred material resolu- complaint that are tee) responsibility approving per- “all motion to dismiss invok- of defendants’ affecting employees sonnel actions ing the defense of must I, 814 F.2d Court.’’ Guercio pertinent be considered. These assertions mandate) (quoting Council Judicial through appear paragraphs 17 and added). (emphasis paragraph complaint, 27 of the wherein disclosing Guercio relates her activities months, approximately twenty as the For corruption bankruptcy within the investigation proceeded, Bankruptcy Court paragraphs through wherein she plaintiff neither admonished for nor circulating recounts her activities activities, discouraged pursuing her bankruptcy dated news accounts critical of and she continued secure and free from judge designee Woods. employment. the cir- threat to her Under cumstances, nonconclusory during phase this critical Accepting as true the alle- gations incorporated investigation up point in these sec- relevant complaint, appears her that which Guercio circulated the dated news tions of Woods, judges in critical of of reason- Guercio’s initiative—launched 1979—be- articles came, time, period productive competence in able could not but have be- over a job security pro- notifying the District Court for the Eastern lieved that Guercio’s Michigan improprieties interpret- tected the first amendment as District of However, reaching in in implicated Pickering. unethical and criminal con- ed both Bankruptcy disposition final of the defendant’s motion duct within the Detroit Court. dismiss, Although Judge irregu- Ad- disclosure of both Feikens and the bankruptcy in Office of the United States larities must be ministrative (AO)initially formal action considered her circulation of the along Courts withheld with confidence, discharge, operation, public oper- and efficient 3. At the time of Guercio’s Chief special approximately implementing bankruptcy in Feikens had been del- ation morale, egation responsibility to restore co- five months. is, mittee, Attorney’s along States newspaper articles—that United dated Office, newspaper report- conduct over entire continuum of her and various time, encompassing period of an extended ers. alleged in totality of her activities as Brody informed defendant 21.Woods complaint.4 that, plaintiff had because distributed articles, newspaper the 1969 Woods allegations pertinent

The more would, appointed, if refuse to upon work amended that bear second Brody plaintiff’s to ex- unless between Guercio’s with defendant balance rights and the employment ercise her first amendment were terminated. Defen- morale, coopera- restoring Brody thereupon dant discussed with tion, respect and confidence to the Feikens the demand defendant Bankruptcy for the Eastern District Court plaintiff be fired. Woods was, at Michigan effort least belief, Judge —which Upon 23. information and July August of from the until or Judge Brody Feikens demanded facts, expeditiously progressing pleaded plaintiff’s employment terminate effectively pleaded in the follow- —are light of the above disclosures concern- amended ing paragraphs of the second 16, 1981, ing Woods. On October complaint: Brody plaintiff’s did terminate resigned, Hackett Shortly after employment. district court committee of federal Brody Feikens and 24. Defendants attorney George E. judges nominated to effect and did effect were motivated as a Bank- replace Hackett Woods plaintiff’s solely termination because Judge. three-attorney A ruptcy exposing corrup- participation of her Michigan screening attor- committee Bankruptcy Court and her neys approved judges’ nomination newspaper ar- of the 1969 distribution gener- Woods’ nomination of Woods. of the nominee who was ticles critical public controversy, was ated much judge being replace considered to defended, and widely criticized and exposed by corruption had been whose media subject of extensive plaintiff.... coverage. Bankruptcy disruption 27. The 1981, plaintiff dis- 19. In the summer of may if workplace, any, Court newspaper articles describ- covered old plaintiff’s disclosures re- resulted from controversy Woods’ 1969 ing the over of the ran- garding manipulation Attorney and its nomination for U.S. assignment system and other dis- dom in- subsequent Plaintiff withdrawal. minor, illegal activity, was closures Brody defendant about formed any, in fact disruption, if and such discovered newspaper articles she had only by those associated caused she intend- regarding Woods and that persons whose sympathetic to, among to distribute the articles ed partici- plaintiff had illegal activities considering others, committee pated exposing. Woods para- nonconclusory allegations

judgeship.... amend- through 27 of the second graphs 17 copies of the 1969 Plaintiff sent the dated news complaint recite that ed had discovered newspaper articles she circulated of Woods were FBI, accounts critical the concerning nominee Woods to of federal district nominating after a committee AO, com- judges’ the the employer’s bring decision. pro- about the implicate cient to not the rule 4. This case does present motive” situa- Healthy not a "dual by Supreme This case does Court in Mt. nounced the tion; complaint, according she was to Guercio’s Doyle, S.Ct. City U.S. 97 School Dist. continuing of con- (1977). response course Healthy, to a fired in Under Mt. 50 L.Ed.2d duct, bankrupt- her solely a of successfully challenge and not as result employee may her not an discharge solely a result of her cy as court disclosures or reasons for the if one of two asserted newspaper articles crit- old distribution of the and the other termination —one constitutional would, alone, standing ical of Woods. have been suffi- not — terminated, competent a employment were Michigan had District of the Eastern of Judge Feikens of in the judge as a replace to Hackett him nominated reasonably: background his after bankruptcy judge, investigated, had been the qualifications of and if the circulation questioned endorsed had nomination been after his an and constituted accounts dated news Michi- of three committee screening a by the protected of expression sum, and In the attorneys. nominative gan amendment; first including the re- procedures, appointive expressions plaintiff's 2. concluded exhausted investigations, had been quired concerning Woods and activities the released completion when Guercio to implementa- the to frustrate served accounts, had been which dated news Judicial the Sixth Circuit tion of eleven approximately public record re- delegated mandate Council’s accompa- was not years. The circulation De- public confidence the store disclosures newly by any discovered nied they Bankruptcy court because troit misdeeds or past or current concealed ap- and embarrassed discredited to the substance wrongdoing relative raised procedure and pointive critical of Woods. accounts circulated news conflict between spectre of genuine to the truthfulness not attest did Guercio court; judges of the accounts circulated news accuracy of the or expression that Guercio’s concluded as express an directly nor did force a had become and activities ability, or other honesty, integrity, disruptive to counterproductive and as a bank- Woods to serve qualifications of and to rehabilitate ongoing effort ruptcy judge. Detroit operation of the revitalize disruptive implications Mindful of the Court;5 and Detroit Division the turmoil within longer no 4. concluded Guercio together with the Bankruptcy Court speaking out on matters delegated Council’s Circuit Sixth Judicial begun to interest, rather had but confidence restore mandate to pri- matters employee speak as an by, the court operation of efficient and marily personal concern. actions, appoint- expeditiously among other of her considering Guercio’s recitation vacancy created ing judge incorporat- of conduct course continuous Hackett; the dis- resignation proceed- before complaint, but ed into by Guercio’s distribu- harmony precipitated resolution of ing to a final articles, dishar- tion of dated news the con- to dismiss within motion affected mony has conceded empha- pleadings, this fines of her Bankrupt- degree operation some disposition is not anchored its sizes that sympa- Court, among personnel cy at least dis- point single heretofore doctrinal activities whose to those individuals thetic alone, en- cussed, which, standing con- incipient exposed; and of she had Rather, the prevail. appellants able resent- by the bitter frontation manifested effects in the cumulative decision is rooted he advised displayed when Woods ment discussed, together with points would, appointed, if Brody he general state informed assessment Brody unless Guercio’s to work with refuse ultimately impair effi- disharmony, (3) especially (2) rea- were 5. Conclusions agency. ciency light admonition of Justice Powell’s an office sonable in 134, 168, S.Ct. Kennedy, U.S. Arnett 1633, 1651, (1974) (quoted Government, employer, must have as an 138, 151, manage- Myers, control approval wide over discretion in Connick affairs. personnel 1684, 1688, (1983)). of its internal ment As S.Ct. 75 L.Ed.2d em- prerogative to remove This ployees Connick, includes realiza- it is “common-sense noted oper- hinders efficient conduct whose government not function offices could tion that Prolonged dispatch. ation and to do so every employment a consti- decision became if disruptive unsatis- or retention of factory employee otherwise 143, 103 S.Ct. at 461 U.S. at tutional matter.” adversely affect disci- can place, foster pline in the work and morale amendment; protection of the first inquiry law, of an all the context objective necessarily on the focuses act when scale, of an official’s reasonableness Pickering with all 2. where pleaded light properly all competing viewed parties’ interests balance, ultimately facts. would come to rest. accepting as true the totali Accordingly, allegations reciting a course herein, ty of Guercio’s Consequently, for the reasons it for the conduct and events of continuous right judgment is the court’s that Guercio’s December, 1979, through the period from protection under the first amendment 1981, must on this court balance summer of clearly at the time was not so established deciding scale—without Pickering that Feikens ordered her termination that ultimately come to will where the balance competence in the any judge of reasonable (a of fact reserved for question rest Judge Feikens, objec- position measured express right freely jury) tively, clearly have understood that would —Guercio’s upon a citizen matters herself as duty an affirmative to have he was under in Court’s refrained from such conduct. terest, through Judge Feik- effectuated as reasons, Judge Feikins For these both pub ens, efficiency of the promoting pro Judge Brody6 are entitled to the through employ performs its lic services it immunity. qualified The district tection 568, 88 391 U.S. Pickering, ees. See reversed dispositions court’s are therefore S.Ct. at remanded with instruc and the cases are including progeny, and its Gar-

Malley judgments below tions to vacate vie, in this cir- Dominque, and Ramirez of action inso plaintiff’s causes dismiss cuit, if of reasonable monetary mandate that recovery of they far as seek the Judge Feik- position of competence in the Brody and Feikens in their damages from termination, Existing ens at the time of Guercio’s precedent capacities.7 individual disagreed however, could have objectively, circuit, measured dictates that within Pickering immunity protects as to where the balance qualified the defense of rest, protection of ultimately come to monetary dam only from suit for officials granted. immunity 269, should be qualified Wilson, F.2d 273 850 ages. Hensley v. accepting opinion, Rose, this court’s considered F.2d (6th Cir.1988); Littlejohn v. well-pleaded denied, alle- totality plaintiff’s Cir.1985), 765, (6th cert. true, com- judges of reasonable gations 1045, 1260, 106 S.Ct.

petence to immu (1986). is not entitled “An official controversy, ob- measured or only injunctive the time here seeking nity from actions disagreed Walters, as to: jectively, could Spruytte declaratory relief.” Cir.1985), (6th de 498, cert. extent Guer- 753 F.2d and to what 1. whether 1054, nied, 106 S.Ct. pub- 474 U.S. on a matter of cio’s (1986). concern, entitling her to claim the L.Ed.2d 767 lic (1985). 2815, immunity ap- question must be qualified 6. The Feikens, challenge the suffi perspective properly proached from the A "defendant clearly alleged Brody 12(b)(6) only, because F.R.C.P. ciency only upon direction from qualified terminated Feikens, entitled he was on the basis that independent or reasons and not for pleaded would not immunity because facts Having that Feik- concluded his own initiative. clearly estab violated show that his conduct too, Brody, immunity, then is entitled to ens person would a reasonable lished law of which that determination. benefits from Telb, Dominque time.” have known at the added). Kennedy (emphasis See 831 F.2d at 677 may properly dispose case for of a 7. A court Cleveland, City immunity qualified on a motion to reasons clearly 1986) (failure plead of a violation Cir. discovery pleadings, without dismiss on reasonable official of which a established summary judgment. filing of a motion plaintiff from "precludes known would have pleading defendant “[A] further, engaging in dis- proceeding even the commencement to dismissal before entitled covery_”). Forsyth, discovery.” Mitchell v. an coverage of from claims equitable underlying the doc policy light of the In qualified immu defense valid not otherwise immunity, it is worth qualified trine of apply accept and must panel nity, claims and this equitable excepting the rule ing that enunciated circuit’s immunity of this qualified a the dictates a defense from reason, re Guercio’s applied without For this validity if precedents. dubious assumes against cases. claims asserted equitable for individual maining concern particularized entity governmental Forsyth, appropriate v. Mitchell —the (1985), the Su for a declaratory judgment, request for a S.Ct. “the ‘conse ordering Guercio’s noted preme mandatory injunction concerned posi with which or a similar quences’ was] the same [it to reinstatement liability limited to not time of Harlow are held at the which she for tion to 526, 105S.Ct. Id. at up money damages_” backpay and benefits discharge, and for Rather, added). in for (emphasis at 2815 be remanded $9,999.009 to —must doctrine, immunity qualified mulating consideration, additional court for district concerned with primarily the Court to entitlement notwithstanding appellants’ offi the distraction preventing claim for mon immunity from the qualified their discre performance cials from notes, further court ey damages. This shielding duties tionary governmental unlikely that however, appears it trial_Id. risks of “‘from the them equitable all of may recover Guercio 816, 102 S.Ct. Harlow, 457 U.S. at (quoting complaint. in her requests relief Cir- added). The Sixth 2737) (emphasis authority of the district Specifically, claims from equitable excepting rule cuit’s to “her reinstated to order Guercio court predi- immunity is qualified the defense position” equivalent position or former against that “actions on the notion cated First, court question. to subject is are, es- capacities in their parties official fact that notice of takes for entities sentially, actions Brody retired from has Littlejohn agents.” are the officers which posi secretarial Guercio’s consequently and as this Rose, at 772. Insofar 768 F.2d v. Second, the availabil longer exists. tion no place not does equitable claims approach debatable positions” is “equivalent ity of defending peril officials at judge of that a court doubts and this im- held they have been for which actions em may ordered bankruptcy court is no liability, there personal from mune or secretary not of his confidential ploy a language quoted conflict genuine selection. her personal Forsyth. Mitchell from the district Accordingly, judgment however, pre difficult, discern It is to dismiss motion denying appellants’ court “entity” as will governmental cisely which REMAND- case is is REVERSED defending against the burden sume adjudication for the district ED to on remand.8 equitable claims Guercio’s for claims remaining equitable Guercio’s by means clear Thus, it is no in this case relief. equitable all but that dismissal of purpose for fully serve the will claims concurring WELLFORD, Judge, Circuit under granted dissenting part: part cases re Sixth Circuit The cited Harlow. to dissent most reluctant I am respect to limiting principle with flect no very difficult in this thoughtful not) to exclude (or appropriate it is when In con- Act. brought Little Tucker under the disposi- its the Federal Circuit As noted stated claim cluding had not jurisdictional ques- that Guercio Act of the Little Tucker Act, employ- tion, "an Federal Circuit supra Guercio Little see note to Tucker appointed” regula- “statutory any she was ee the court which unable to discover agency. governmental person might not of discernible authority entitle tory Brody, at 1374. 884 F.2d pay....” Guercio of back position to an award Guercio’s Therefore, Brody, at 1374. 1, Guercio limited explained supra at note 9. As will be to among burdens on remand $9,999.00 backpay benefits her claim of action of a valid cause prove the existence jurisdiction preserve the so toas backpay. presumed to be a claim over what she case. Had summary a motion for judg- (emphasis added). While Pickering would ment been filed in this case defendants cause defendants to be aware plaintiff that rather dismiss, than motion a I per- am retained her first right amendment to criti- suaded application of the balancing cize publicly general policies of her test under Pickering v. Board Edu- employer, they were obviously aware that cation, 88 S.Ct. 20 the question conduct in was directed to- (1967), would presented a Woods, ward who was to cog be a vital in less complex problem to solve. the bankruptcy operation, and her conduct in circulating Persons old standing newspaper in the arti- defen- dants, cles critical asserting of Woods good threatened or faith im- the har- munity, monious and reasonably plaintiffs effective view relations necessary bringing bring actions as expeditious about disharmony, re- about administra- crimination, and continued tion of justice turmoil in that business and in the bank- court, which ruptcy was in receivership, virtual court. with Judge Feikens named as an effectual problem here which I escape, cannot 332(d)(2), receiver. 28 U.S.C. dealing § and the my reason for dissent in part, is with the operation formation and of circuit that the requires motion to dismiss us to judicial councils, judicial directs that “[a]ll take as conclusory true allegations in the officers employees and of the circuit shall amended bemay inconsist- promptly carry into effect all orders of the ent with predicates other factual circuit council.” placed Feikens complaint and with the historical record of “supervisory ultimate responsibility what happened actually in bankruptcy oversight” and directed to restore court based on Guercio’s whistleblowing harmonious, court’s efficient effective responses of others brought who about operations. See Guercio I. the resignations of a bankruptcy judge, the Pickering stands for the propo- essential clerk, deputy and a clerk. says in (in sition that a public employee that case a her complaint that she charges instituted public teacher) school could not be com- corruption about over twenty-month peri- a pelled by of discharge relinquish threat od, and no action whatever was taken to first public amendment criticism threaten her position as confidential secre- public (the of the employer board). school tary during all this time. It would seem time, At the same Supreme Court rec- only her later after distribution of old ognized that “the State has interests as an newspaper accounts about Woods and the employer in regulating the speech of its latter’s any reaction there motivation employees that differ significantly from purpose bring about her termination. possesses those it in regu- connection with She concedes that gave ap- lation of the citizenry proval thorough for a investigation year a general.” Id. at 88 S.Ct. at 1734. The discharge, before her knowing of her role proceeded problem to state the as a plaintiff Yet whistleblower. asserts such a case: “to arrive at a balance be- (paragraph 24) that “solely because of her tween the interests of the teacher ... and participation exposing corruption in the State, the interest of the employer, as an Bankruptcy Court and her distribution of promoting efficiency ser- articles,” (em- discharged vices performs_” Id. at phasis added). at 1734-35. Because Pickering’s general policies If considering criticism we was “in no were the issue way based person directed on a. summary judgment, towards motion for with whom a bal- appellant [Pickering] ancing important public normally be in interests of contact in preserving the course of his daily harmony work avoiding as a discord teacher,” there was question therefore “no an employee’s shattered of maintaining discipline either by immedi- first amendment to distribute stale superiors ate or harmony among cowork- information important directed towards 569-70, ers....” Id. at figure S.Ct. at 1735 might that court well result respect to the district with mand to on qualified based finding for defendants made Guercio. claims balancing equitable Pickering immunity and on the however, cannot, properly take test. We reversal of I on the dissent per- my colleague’s step, despite aspect plain- damages on the court order opinion, majority analysis suasive complaint. tiff’s 12(b)(6) dealing with a Rule we are because course, a sum- recognize, of I motion. engender judgment motion mary I no complaint and make beyond the

proof respect to the ultimate

prejudgment with motion summary judgment

ruling aon immunity.

based two agree with

Regretfully, cannot I majority’s analysis: in the propositions Maher, Gary LONG, James Dennis judge in the Davey, (1) competent “a Theunick, and Robert reasonably have Feikens could Plaintiffs-Appellants, dated if circulation questioned expression constituted news accounts Corpo SAGINAW, Municipal OF CITY first amend- protected 129; ration; and the Teamsters Local ment,” and Team Brotherhood International reasonably (2) defendants Chauffeurs, sters, Warehousemen longer was no “Guercio concluded that America, Defendants-Appel Helpers of public inter- matters of speaking out on lees. primarily est, on matters rather ... but personal concern.” No. 89-1022. 138, 103 Myers, Connick Appeals, States Court of United (1982), us gives S.Ct. Sixth Circuit. regard, con- latter but the guidance expressions Sept. and nature Argued tent Myers, from those of who materially differ Aug. Decided looking preserve out found to en- rather than personal interests own public of matters of

gage in discussion prop- puts matter in

interest. Connick perspective:

er Pickering on emphasis in repeated employee “as a public right of a upon

citizen, commenting matters concern,” was not accidental. reiterated in all of Picker- language,

This both the histori- progeny, reflects

ing’s

cal evolvement real- the common-sense

employees, and officers could government

ization that deci- every employment function if

not matter. constitutional

sion became a Myers, 461 U.S. Connick omitted). (footnotes

S.Ct. majority agreement

I am posture concerning procedural

analysis I controversy. also background of this re- concerning the

concur conclusion

Case Details

Case Name: Helen J. Guercio v. George Brody (88-2013) and John Feikens (89-1137)

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 13, 1990

Citation: 911 F.2d 1179

Docket Number: 88-2013, 89-1137

Court Abbreviation: 6th Cir.