Ridpath v. Board of Governors Marshall University

contingencies” pect future because would “cast trial courts into a sea of likelihood of 288-289, ante long. uncertainty,” do not As at simply exagger- humans live Ramdass, problem, O’Connor said ates the however. A case such Justice a all that stands between defen- I hypothetical “Where as the describe above casts ineligibility under state parole party uncertainty dant and no court or into a sea of is, purely a act one genuine question [that law is ministerial there no because is inevitable and foreordained under that is whether a to defendant could live law],” Simmons Furthermore, he is to a keep state entitled it critical is mind instruction, technically “even if he is not Supreme articulated the Court Simmons rale not because it is a rule that ineligible’ at the moment of sen- ‘parole administered, at 120 S.Ct. 2113. tencing.” easily U.S. but because due Simmons, will die before he reach- it. process requires That a defendant is, by today’s stan- years age (O’Connor, J., es 132 S.Ct. 2187 dards, “inevitable and foreordained.” concurring) (explaining process that due requires that a defendant not be sentenced use of the term “min- Justice O’Connor’s to death based on information that he had act” in her Ramdass concurrence isterial no opportunity explain deny). or It is enough my hypothetical. to cover is broad to expect unreasonable a court to con- Her use of the words “inevitable” and front and a factual resolve difficult issue clarify meaning “foreordained” doing necessary protect when so is “purely ministerial act” shows that her Furthermore, right. constitutional Justice range contemplates rule inevitable given O’Connor has courts workable occurrences, beyond commonly those apply determining standard to when a thought of as ministerial. Justice O’Con- parole defendant is ineligible under state apparently nor used the word “ministerial” law: when all that stands between a defen- petitioner it because was used parole ineligibility dant and is a ministerial specific contingency characterize the at is- act that is inevitable and un- foreordained Ramdass, entry judgment sue in of a law, der state the defendant is entitled to a against jury him as a result of a verdict Simmons instruction even if he is not tech- of a crime. Id. finding guilty him nically parole ineligible at the moment of (plurality opinion) (citing- sentencing. This is the standard that con- brief). petitioner’s “Ministerial” is defined today. trols broadly relating or to an act that “[o]f involves obedience to instructions or laws discretion, judgment,

instead of or skill.” (8th ed.2004). Dictionary

Black’sLaw judge’s imposition

Under this definition a mandatory consecutive sentences and a RIDPATH, Plaintiff-Appellee B. David automatic, custodian’s seriatim execution acts, of those sentences are ministerial es- BOARD OF GOVERNORS MARSHALL pecially they insofar as involve no exercise UNIVERSITY; Angel; Layton Dan F. of discretion and are foreordained under Cottrill; Grose, K. Edward Defen- state law. dants-Appellants, agree determining I whether a de- effectively parole fendant would be ineligi- Pruett; Hilliard, require ble could sometimes extra effort. Bob Richard majority’s pros- The contention that this Defendants. Ridpath, Plaintiff-Appellee,

B. David Pruett, Defendant-Appellant,

Bob

Board of Governors Marshall Universi- Cottrill;

ty; Angel; Layton F. K. Dan Hilliard, Grose;

Edward Richard De-

fendants. 04-1314,

Nos. 04-1328. Appeals,

United States Court of

Fourth Circuit.

Argued Feb. May

Decided

Ridpath, a University employee Marshall official, and former alleged athletics multi- ple state and federal causes action against the Defendants in their individual and official capacities, centered on their with respect conduct to an investigation of University’s violations of Col- National (“NCAA”) legiate Athletic Association rules. These causes action included (collective- § under 42 claims U.S.C. “ claims”) § ly, right pro- Fourteenth Amendment to due Board, cess was violated the Ad- ministrators, Hilliard, and that his right First Amendment speech free in infringed byway one the Board and the Administrators, way and in a second these Defendants and Coach As- Pruett. KING, Before WIDENER and Circuit Board, serting grounds, various FLOYD, Judges, and HENRY F. United Administrators, prompt- and Coach Pruett Judge States District for the District of ly 12(b)(6) sought dismissal under Rule Carolina, sitting by designation. South

the Federal Rules of Civil Procedure. The in part in part Dismissed and affirmed part, district court denied these in motions by published opinion. Judge KING wrote alia, rejecting, inter the Board’s and the the opinion, in which Judge FLOYD Administrators’ assertions of im- qualified joined. Judge WIDENER wrote § munity on the three claims. separate opinion concurring part and Governors, Bd. No. CA-03- part. dissenting (S.D.W.Va. 2004) (the “Opin- Feb.

ion”). OPINION Board, By appeals, these Admin- KING, Judge. Circuit istrators, and Coach Pruett seek review district court’s denial of im- David initiated lawsuit munity, relying on collateral doc- order the Southern District of Virginia West appellate jurisdiction. trine for As ex- August against Board of Gover- below, plained Pruett’s dismiss Coach University; nors of Marshall three of the appeal standing, for lack of and con- administrators, we University’s Dan Angel, (collec- appeal clude that the the the Cottrill, of Board and Layton and Edward Grose “Administrators”); properly Administrators is us. On tively, before the then-Head Pruett; qualified of affirm immunity, Football Bob the merits we Coach and Richard Hilliard, reject- who had been the of the court in by retained the decision district 12(b)(6) University Special Legal ing stage as its defense at Rule Counsel.1 this the filed, Angel 1. Operations. appeal When this lawsuit was of been was the Two notices have President, University’s by its Vice Cottrill Presi- filed: one the Board and the Administra- tors; by dent for Executive Affairs and General Coun- and second Coach Pruett. Hilliard sel, party appeals. and its Grose Senior Vice President for is not a to these ¶ Ridpath at informed Complaint 19. the proceedings.2 these allegation, prompting of this an

NCAA I. by investigation conducted the NCAA and ¶ During University. Id. at 20. this the A. investigation, University the discovered appeals these are relevant to The facts informed NCAA of further infrac- and the operative ie., from the com- largely involving drawn “props,” tions certain stu- ie., proceedings, join in these to plaint seeking eligibility dents academic 19, ¶¶ Complaint” of December sports “Amended teams. Id. at 20-21. Members his “Initial 2003, Complaint” superseding coaching of the had allud- improperly staff According 2003.3 to the August employment opportunities ed in recruit- to Ridpath’s chosen ca- in Complaint, props, and them ing Amended these assisted se- intercollegiate athletics jobs wages in adminis- curing reer is above-market —at —with tration, the area oversee- particularly a local known as McCorkle Ma- business ¶¶ compliance with NCAA rules. See ing Shop. chine Id. at 21-22. ¶¶ 14-15, 52. Rid- investigation, Ridpath Prior to the had University Marshall path was hired knowledge no props’ employment as an Assistant Athletic November 1997 Shop, the Machine as relevant infor- Compliance charge Director in Of- been) (but mation was should have not re- fice, “Compliance or Director.” Id. at ported University’s Compliance to Of- ¶ At also point, Ridpath some was 16. ¶¶ 22, Complaint at fice. See Amended teaching an assigned responsibilities as During investigation, 24. members of in the

Adjunct Professor Exercise coaching attempted to cover up staff ¶ Department. Id. at Sports Science Pruett, wrongdoing, their and Coach July testimony, it approximately suggested Ridpath On to reported Compliance any to that several Marshall Office were blame ¶¶ 23, players improprieties. football were involved academic Id. at 25-26. Mean- fraud, while, Ridpath person- not to having copy received advance allowed ally investigate test. See Amended interview or physical education witnesses today, acknowledge ruling permitted Appellants we In ber we to Appellants precluded reasserting are not from reply attach these exhibits to their brief. We immunity summary qualified claims of at the object further allowed to the use of judgment underlying proceedings, stage of the any fact that was shown in exhibits appealing, or from under the collateral order alleged Complaint. otherwise in the Amended doctrine, any rulings adverse district court analysis, In the final have exhibits been of Pelletier, such 299, 306-07, See Behrens v. claims. review, utility Ap- our limited because 133 L.Ed.2d 773 rely pellants largely effort on them in an (1996) (recognizing that defendant raise disprove the contradict and Amended Com- immunity stages at successive of liti- must, course, allegations, plaint's which gation, appeal denial of such defense regard, accept deny as we also true. once). more than pending by Ridpath moot two as motions filed respect to with these exhibits and other mate- obliged, 3. We are in our review of the district Appellants "Appel- submitted rials qualified immunity ruling, accept court’s —the Appellants’ Reply Motion Sur alleged lee's to File true the facts in the Amended Com- light Reply,” January plaint view the most filed and the and to them in on Medford, Ridpath. favorable "Appellee's Appellants’ to See Jenkins to Motion Strike No- (4th Cir.1997) (en banc). Regarding Ridpath's Dr. Lev- tice Decision Complaint, addition to the Amended sever- Grievance,” February on el IV filed 2005. By al exhibits are before us. Order of Octo- (as fer, employment Cottrill relating props’ facts to the at and agents Grose of the ¶ Id. at Indeed, 27. Shop. the Machine he University) agreed to inform the NCAA not specifically was directed interview the public and reassignment owner, Shop’s the Machine Marshall any was not the result of wrongdoing on (who Reynolds history < had a of involve- part Id. at Compliance Director. ment NCAA infractions at the ¶ Universi- 35. In contravention of this agreement, Cottrill, a from ty), directive that came however, Hilliard subsequently informed Hilliard, Id. They and Coach Pruett. and the NCAA that Ridpath’s reassignment however, Angel encouraged Ridpath, awas “corrective by action” taken University vigorously through- defend University to remedy its NCAA rules vio- at a investigation hearing out and con- ¶ lations. Id. at 36. 22, 2001, September on ducted Ridpath was from excluded the decision- Id. at NCAA’s Committee on Infractions. making process respect to desig- with ¶¶ 30-32. Cottrill and Hilliard also as- nation of his as a transfer “corrective ac- Ridpath on sured several occasions that ¶ 51(b). tion.” See Amended Complaint at need, legal did not personal representa- he Moreover, during meeting held on ap- Id. during proceedings. tion the NCAA 1, 2001, proximately November concerning ¶ 51(a). Ridpath’s at defense of the Uni- University’s agreement violation its versity received well Ridpath, with Cottrill warned Ridpath: ¶at 38. Id. NCAA committee. Thereaf- “You [Ridpath] say in have no the matter. ter, although had Ridpath not been in- your You need to think family about young violations, volved in the NCAA rules he ¶ (alteration 57(a) man.” Id. at in origi- scapegoat” became “convenient for the nal). meeting, At this same Grose threat- ¶¶ Id. at University. 38-39. Ridpath: telling you. ened “I am You do approximately On October Rid- anything to resurrect this [NCAA Infrac- path agreed reassigned from being be bury I you personally tions and issues] will University’s Compliance Director to (alteration Id. professionally.” its Programs, become Director of Judicial original). despite lacking necessary education or See Amended training position. for this On December the NCAA Com- ¶¶ Complaint at 33-34.4 published report mittee Infractions its (the See Report”). “Infractions reassignment consented to this ¶ 57(b). Complaint findings at Its included personal “for numerous reasons both ¶ major two NCAA rules violations—aca- Id. at 33. professional.” fraud and impermissible employ- demic given accept position, a raise to the new and, at props Shop at ment the Machine it the time he filed the Amended —and Complaint, paid $15,000 Ridpath’s reassignment labeled as a being he was some “cor- annually response more rective action” taken in predecessor than his as Di- these ¶34. 51(c). ¶¶37, 41, Id. Id. at Programs. rector Judicial infractions. An copy Report As additional inducement for the trans- advance of the Infractions Programs profession intercollegi- chosen is cial enforcement oversees administration, University’s Rights ate but athletics the Director Code of Student and Re- Programs position sponsibilities, of Judicial outside which standards of ex- outlines University’s pected Department student Athletics. conduct establishes disci- ¶¶ 14-15, plinary procedures See Amended for violations of these According through ju- http://www. standards. information available marshall.edu/ website, University's dicial" Director of Judi- affairs. and, University’s the University position mained in his as to the provided

had been release, public Programs. to its Judicial days leading up Director in the met of school officials to review Complaint atlffl 34. Mean- group Amended ¶ 57(b). this During it. Id. while, discuss continued to to other apply and he col- participants raised concerns meeting, some leges position universities for a and his “cheap against Ridpath shots” taken field, about chosen as a director compliance or Report. Id. Additional- in the Infractions intercollegiate other athletics administra- Rid- ¶¶ discussed the fact that ly, group the 42, 52. He tor. Id. at was unable to Id. In wish to clear his name. path would however, procure employment, other be- University’s Angel, Presi- regal’d, had professional reputation cause his been cut dent, that he the dead asserted “would damaged permanently by the “corrective if commented Ridpath from tree” limb reassignment placed action” label on his that he Angel Id. further stated publicly. University’s Department from Marshall dealt with similar previously had situa- ¶ According Id. at Athletics. 52. “no tions, problem and that he would have Complaint, “calls this label into if [Ridpath] spot” spoke on the he firing question honesty, integrity profes- his and investigation. the NCAA publicly about competence sional as an NCAA Compli- threats articulated Id. Because Coordinator,” destroying ance his future those made Angel, previously and Cott- intercollegiate opportunities career ath- Grose, initially Ridpath rill refrained ¶¶ And, despite letics. Id. at 40-41. publicly challenging findings from devastating effect the “corrective ac- and the Report the Infractions “corrective label, tion” no were available to means placed had action” label that been on his Ridpath bylaws under NCAA to challenge ¶ reassignment. at 58. Id. it or the other contents of the Infractions Later, however, Ridpath retained coun- ¶ 51(c). Report. Id. filed a alleged

sel and civil action based on constitutional violations. See Amended B. ¶at Subsequently, July 62.5 on Ridpath was relieved of his re- 4, 2003, August Ridpath On instituted Adjunct sponsibilities as an Professor proceedings filing these with the Sports Depart- the Exercise Science Board, Complaint against Initial (but not ment the Director of Judicial Administrators, and Pruett. Coach ¶¶ 46, Programs). During Id. at 59. re- Complaint, alleged, Initial Ridpath inter grievance University lated proceedings, alia, § specifically, the three 1983 claims: acknowledged official under oath that Rid- Board had violated his Fourteenth path discharged teaching po- from his (the right to process Amendment due “due due to negative sition comments he made claim”); Board, process and that the University’s about the conduct during Administrators, Pruett and Coach had in- ¶¶ 47, investigation. Id. at NCAA 61. fringed right his First Amendment (the ways free in two filing speech As of the Amended distinct “free Com- claims”).6 15, 2003, in these plaint proceedings, Ridpath speech September re- On voluntarily In December filed a com- different case number —was dis- against plaint several of the prejudice by Defendants here- Ridpath. without missed in, making allegations to. similar those in proceedings. July these On civil the two asserted each of free separate action—deemed a lawsuit from these speech against and the claims the Board Ad- proceedings assigned court the district

303 Administrators, court and the without trict authorized the filing the Board of the Amended nunc Complaint, pro tunc answering Complaint, sought Initial to De- the 12(b)(6) cember or, 2003. The Amended Com- under in the dismissal Rule alleged plaint the same causes of action as alternative, appropriate the transfer to those in Complaint. the Initial The 30, 2003, September court. On state Amended Complaint added Hilliard as a separately sought Pruett a Rule Coach Defendant, however, and it asserted the 12(b)(6) dismissal. In their motions and process Board, against due claim the law supporting (collectively, memoranda of Administrators, (instead and Hilliard Motions”), “September 2003 these De- alone, against the Board as in the Initial multiple asserted bases for dis- fendants Complaint). § As for the other 1983 missal, qualified but never that contended claims, the Complaint reasserted immunity any shielded of them from suit.7 the two free speech against claims 20, 2003, Ridpath October On filed ie., Defendants, Board, same the Ad- in opposition the motions to response (on ministrators, one of and the two claims Subsequently, on dismiss. October only) Coach Pruett.8 2003, the Board and the Administrators early Board, February (the response a reply filed Administrators, and Coach Pruett filed Brief’). Therein, Reply 2003 “October 12(b)(6) Rule motions to dismiss the for they argued, asserted and the first Amended Complaint (collectively, time, qualified immunity. the defense of Motions”). “February Shortly 2004 there- then, their of this Even discussion defense after, 17, 2004, on February the district paragraphs was limited to a few inserted ruling court filed its on Opinion, Sep- midst largely argu- of a unrelated (which sought tember 2003 Motions had on Eleventh immunity. ment Amendment Complaint), dismissal the Initial and 19, 2003, Sep- On December while the applying those motions to the Amended pending, tember Motions were Rid- Complaint. Opinion The did not address sought (which path leave to amend the February Initial Motions had Complaint. January On the dis- directed to Amended Complaint).9 been ministrators, only against § one them In addition to the three claims Coach Pruett. Ridpath alleged, issue appeals, in these both the Initial the Amended effort, 12(b)(6) 7.In their Rule the Board and Complaint, § separate claim under 1983 for grounds, the Administrators thirteen raised conspiracy. civil also asserted He six state claims, pertained § five which to the claims, arising law under Constitution of as follows: Virginia West and state common law. (1) they that were entitled Eleventh immunity; Amendment February The Motions included the (2) they were entitled to witness immu- following: February Coach Pruett's nity; dismiss, incorporating by motion to refer- (3) possess did not constitu- ence his earlier dismissal motion and assert- tionally protected property right in his em- ing grounds; no additional and the Board's University; ployment with the or, February 2004 motion to dismiss al- (4) they infringe did not on ternatively, proceedings these transfer rights; First and Fourteenth Amendment state court. The motion was accom- Board's panied by a of law submitted memorandum (5) Hilliard, join had failed to name, in its as those of the Adminis- well indispensable party. (who motion, named as trators were not movants in separate In Coach Pruett’s he assert- relief, dismiss). grounds including the motion to This memorandum ed three Elev- grounds immunity. many enth Amendment reasserted relied Educ. Healthy City Sch. Dist. Bd. immunity was not

Although 568, 274, 278, Doyle, 429 97 50 the Administra- U.S. S.Ct. by the Board and raised (1977) Motion, (observing appel- 471 L.Ed.2d September 2003 but in their tors juris- are into Reply obliged inquire 2003 late courts only in their October rather sponte dictional issues sua whenever doubt Brief, this defense. The the court ruled on jurisdiction).12 as to existence of Board and the arises the court concluded quali- not entitled to were Administrators § on claims immunity the 1983 fied A. Complaint. alleged in the Amended course, Normally, of district at 15.10 Opinion 12(b)(6) of court’s denial a Rule motion is 5, 2004, the Board the March On it is appealable ruling, not an because not filed a notice of interlocu-

Administrators Jen § 1291. a final order under 28 U.S.C. 12, 2004, On March Coach tory appeal. Medford, v. 1156, kins 1159 They collec- filed a similar notice. Pruett Cir.1997) (en banc). Appellants rely, The review the district court’s tively seek of however, doctrine, on the order collateral 17, immunity February rul- qualified Supreme under which Court the has ing.11 out a trial carved “small class” of court that, final though judg decisions short of II. ment, Cohen immediately appealable. are Corp., Indus. Loan interlocutory ap- nature of these The Beneficial 546, 541, 1221, course of 93 L.Ed. and the somewhat tortuous peals, (1949). proceedings, appealable court cause us Such are the district decisions be jurisdiction. they “finally our We therefore cause determine claims of question from, appeals separable to, right must first assess whether these and collateral action, See Mount important asserted in too properly rights are before us. the (in support qualified and the 2004 motion to which the Board Administrators dismiss however, motion; issue). 27, earlier immunity April of their dismissal was not on Also Brief, Reply October unlike the the 2004, granted unopposed the court the mo- any did memorandum not articulate claims the tion of Board and the Administrators to qualified immunity. These anomalies in stay proceedings pending the district court i.e., February 2004 the the failure Motions— disposition appeals. Despite our of these qualified immunity to raise and the omission continued, stay, proceedings the district court the as movants—are imma- Administrators and, 23, 2004, September on the court ruled appeals, qualified in these terial because February Board’s on the 2004 motion to ruling pursuant immunity at issue was made rendering dismiss. its decision on that September only 2003 Motions. motion, the court its did not disturb earlier February qualified immunity ruling of 25, 2004, February 10. On after the district subject which remains the sole these Opinion, sought court filed its Hilliard dis- appeals. on the missal of Amended basis alia, of, qualified immunity. On Febru- inter ary Coach filed an answer Pruett 12.Following argument, requested oral we Complaint, invoking qualified the Amended supplemental briefing parties on from the qualified immunity. immunity Those claims Although Ridpath jurisdictional issues. had by were the first raised Hilliard and Coach previously challenged jurisdiction, our he Pruett. supplemental did so in his submission. Meanwhile, Appellants continued to main- filing appeal, After the notices possess jurisdiction we over tain that their February ruled Mo- district court on the appeals. Specifically, April tions. February disposed court of Coach Pruett’s independent qualified denied review and too court’s immunity be ruling, require appellate the cause itself to appeal. must dismiss his By con- trast, until be deferred the whole consideration Board and Administrators adjudicated.” Id. aggrieved Opinion, case is were because it their denied claims of immunity. Forsyth, In Mitchell v. the Court Thus, they standing have to appeal. qualified immunity held that the denial of immediately appealable under the collat C. extent eral order doctrine to the that the however, Finally, there remains availability ques of this defense turns on a doubt on some whether we should consider 530, 511, tion of law. 472 105 U.S. S.Ct. merits appeal by the Board and (1985). 2806, L.Ed.2d 411 This princi 86 Administrators, they belatedly because ple applies qualified immunity whether qualified raised their claims of immunity, (as rejected stage the dismissal in their Reply October 2003 Brief. We summary these or at proceedings), qualified immunity observe that is an affir Jenkins, stage. 119 judgment See F.3d at defense, mative pleading and the burden of Pelletier, n. 2 v. (citing 1159 & Behrens it “rests with the defendant.” Gomez v. 299, 307, 834, 516 U.S. 116 S.Ct. 133 Toledo, 635, 640, 1920, 446 U.S. 100 S.Ct. (1996)). 773 Accordingly, L.Ed.2d (1980); 64 L.Ed.2d 572 see also Sales v. Board, Administrators, and Coach Grant, (4th Cir.2000) 293, 224 F.3d 296 properly Pruett have invoked the collateral (recognizing qualified immunity can order doctrine. waived if “squarely presented” be not to court). Generally, district qualified immu B. nity must in an be raised answer or a jurisdictional Our assessment 8(c) dismissal motion. See Fed.R.Civ.P. not, however, Only does here. if end a (“In pleading preceding pleading, to a a do party standing appeal possess has we shall party affirmatively set forth ... any authority to decide the merits of his con constituting other matter an avoidance or Scott, 805, tentions. See Davis v. 176 F.3d defense.”); affirmative Fed.R.Civ.P. (4th Cir.1999) (citing 807 Bender v. 12(b)(6) (allowing defense failure to Dist., Williamsport Area 475 Sch. U.S. claim upon state which relief can grant be 1326, 106 S.Ct. L.Ed.2d 501 89 motion). pre-answer to be ed raised (1986)). And, standing appeal, a Moreover, where —as here—defendants party “aggrieved” must be a trial qualified immunity raise issue such as judgment. court’s HCA Health Serve. v. only brief, in a reply district court is Co., 120, Metro. Ins. 957 F.2d 123 Life refuse to consider it at that entitled Cir.1992). See, stage of proceedings. e.g., Mon v. Ridge Dep’t, talvo Park Police 170 In these proceedings, the district (N.D.Ill.2001). 800, And, F.Supp.2d 803 only court ruled Board and the refuse to consider this defense on Administrators are to qualified not entitled if appeal it was not preserved See below. immunity § on the 1983 claims. The court McGraw, Corp. Indus. v. 125 Suarez availability thus not did address the of this (4th Cir.1997); 222, Buffington 226 v. Balt. defense Coach Pruett —and had no rea (4th Cir.1990). 113, 122 County, 913 F.2d so, qualified son to do as he had not raised however, immunity not, filing Opinion. precluded as of the We are aggrieved considering Coach Pruett therefore not from an affirmative defense 306 ry rights in the or constitutional of which rea properly asserted trial

that was ” known.’ court, person court nonetheless chosen sonable would have Wil if the has 609, See, Layne, 526 Curry Syracuse, v. son v. S.Ct. e.g., it. to address Cir.2003) (affirm- (1999) (2d 1692, 143 (quoting L.Ed.2d Har 330-31 Fitzgerald, of collateral low v. 457 U.S. application court’s ing district (1982)); 2727, 73 contention that L.Ed.2d see plaintiffs over de- estoppel Graham, Kentucky by raising it also only fendant waived defense 165-67, L.Ed.2d 105 S.Ct. pending memorandum supplemental motion). (1985). are Government officials entitled judgment Such review summary immunity plaintiff if the to the defense unless appropriate particularly following § claim hearing if satisfies the two- prejudice, no suffers (the test”): immunity prong “qualified test strong public policy “the appeal serves (1) allegations claim, judicial underlying if economizing the resources use true, of a relitigation.” id. at 331 substantiate the violation federal by avoiding omitted). (2) (internal statutory right; or and constitutional quotation marks “clearly was this violation of a established” Here, Ridpath say we cannot person “of which a right reasonable would district court’s con prejudiced the Bunting, have known.” See Mellen v. 327 untimely qualified immu sideration (4th Cir.2003) 355, (citing Hope 365 v. the Adminis nity claims of the Board and Pelzer, 2508, 536 U.S. 122 S.Ct. Indeed, rejected court them. trators. the Harlow, (2002); L.Ed.2d 666 457 153 U.S. Moreover, although is no indication there 2727) (internal quotation at 102 S.Ct. allowed in the record to omitted); Wilson, marks see also claims, to these it also does not respond 609, 119 at S.Ct. 1692. sought that he to do so. appear fully qualified addressed relevant im A. us, in his munity issues submissions to and initially jurisdic object he did not to our In principles view of basic circumstances, in tion. In these and easily qualified immunity, dispose we can judicial economy, interest of we will con of the Board’s assertions of defense. the merits of qualified immunity sider Qualified immunity may be invoked a of the Board the Administra claims government personal, official sued in his or tors. individual, Graham, capacity. See 473 165-67, 159 at U.S. 105 S.Ct. 3099. This

III. is not in an official-capac defense available ity brought We novo the denial against government review de suit enti to qualified ty government of a motion based on or a as that entity’s dismiss officer immunity, accepting facts In agent. proceedings, as true the al Id. these leged complaint viewing in the them in Board was named as a defendant in its i.e., light plaintiff. institution,” most capacity “public favorable to the as a Medford, v. proper party See Jenkins sued on behalf be (4th Cir.1997) banc). (en Qualified University. See Amended at ¶ And, immunity government per shields against entity officials 2. an action an like forming discretionary per functions from necessarily official-capacity the Board is Graham, 165-66, sonal-capacity damages liability for civil suit. See U.S. “ § under Accordingly, ‘insofar as their conduct 3099. the Board is S.Ct. qualified immunity clearly does not violate established statuto- entitled to the defense. 166-67, qualified district immunity See id. at We court’s denial the district court’s denial on this claim be therefore affirm must affirmed. immunity to Board on the qualified that, § recognize 1983 claims. We also the extent claims are asserted respect With pro his due against Administrators in their official claim, Ridpath cess has identified the con capacities, likewise are the Administrators right stitutional issue right as the immunity.13 qualified not entitled to procedural process governmen due when however, capacities, them individual person’s tal action liberty threatens in yet possess the Administrators color- terest his reputation and choice of occu immunity. qualified able claims of We Roth, pation. Regents See Bd. turn, focusing assess these claims on the 573 & n. 92 S.Ct. assertions of im-

Administrators’ (1972) L.Ed.2d 548 (recognizing notice to, first, munity respect pro- the due with hearing required would have been if and, second, speech cess claim free State, declining “[t]he rehire re claims. spondent, any against charge [had made] might seriously damage

him that standing and associations his communi B. ty” stigma or had on him “imposed or test, qualified immunity disability Under the other freedom foreclosed his initial to question respect with the due to take of other advantage employment Gabbert, process Ridpath claim is whether has suffi- opportunities”); Conn v. 526 cf. 291-92, 286, 1292, of ciently alleged the violation a Four- 119 143 Mellen, (1999) right. teenth L.Ed.2d (observing Amendment See 327 399 that “the liberty at The question component 365. next is wheth- of the Fourteenth er, at the time of the Administrators’ al- Process Amendment’s Due Clause includes conduct, leged right clearly generalized right this a due process was some to per- private established of which a choose one’s of employment, one reasonable field subject right son would have known. Id. For the follow- a which is nevertheless to but reasons, ing government regulation”).14 claim In process due reasonable claim, that, support prongs, Ridpath satisfies each these the this asserts against Supreme recognized, § 13. The claims Administra- the Court has 1983 the As essentially capacities tors are in their official requirements procedural pro- due "[t]he against § duplicative of the 1983 claims apply deprivation only cess of interests to Martin, Board. See 355 F.3d Love-Lane encompassed by the Fourteenth Amendment's 766, Graham, Cir.2004) (citing 783 473 protection liberty property.” 165-66, 3099). Although U.S. at 105 S.Ct. Roth, Administrators, 92 S.Ct. 2701. U.S. at the Board and the in their capacities, are protected property official not entitled order to have a interest in claims, immunity they may § on be employment, person possess a his a must le- entitled to and defenses. other immunities created, gitimate claim of entitlement it— Graham, 473 U.S. at S.Ct. 3099. example, by or state law. See id. contract example, that For district court ruled 577-78, 2701; Rogers, at Robertson v. 92 S.Ct. Ridpath from Eleventh Amendment bars ob- (4th Cir.1982). Ridpath, 679 F.2d (but taining money damages prospective not University, employee an of the is not at-will relief) injunctive any official-ca- from of the claiming any property protected interest claims, pacity § Defendants see employment. his Opinion ruling a us in not before these appeals. charge a of a seri- action” label on tion” label constituted the “corrective by placing (b) defect; label character that his ous Compliance Di- reassignment from any em- accompanied damage Ridpath’s Programs at to Director of Judicial rector status; (c) pub- made ployment that it was know- University, the Administrators (d) lic; that it are thus false. We opportunities in foreclosed his career ingly obliged to assess four the Administrators’ intercollegiate field of athletics his chosen contentions, liberty interest order op- him an allowing without administration n whether has sufficient- determine See Amended to defend himself. portunity a Amendment viola- ly alleged Fourteenth ¶¶ 40, Complaint at prong thus tion and satisfied first pro- that he was Ridpath maintains qualified immunity test. re- any procedural safeguards with vided action” to the use of the “corrective spect a. Complaint specifical- The Amended label. liberty first interest The not to blame ly alleges that is that “corrective action” contentions violations, and ex- NCAA rules for the liberty implicate protected did not label in much of from participating cluded it understood to interest because cannot be investigation, that he was related but charge constitute a of a serious character “scapegoat” made for the nonetheless type The defect.15 of communication infractions; discouraged from he was gives protected liberty rise to interest during the in- retaining personal counsel implies “the serious character existence of place vestigation; the decision immorality.” as dishonesty defects such or reassign- action” on his “corrective label Rogers, Robertson v. input made and in ment was without (4th Cir.1982) Roth, (citing agreement between contravention 2701). In assessing liberty 92 S.Ct. inter and that he University; him and the had claims, distinguished state est have this label or other challenge no means to imply character ments such serious Report. of the Infractions The aspects simply allege defects from statements that Administrators dispute do that not these “incompetence.” Compare Boston v. allegations are sufficient to establish a (4th Webb, 1163, 783 F.2d 1165-66 Cir. procedural safeguards. lack of 1986) (recognizing liberty plaintiffs that contend, however, The Administrators surely implicated” by public interest “was they required provide to were not discharged announcement he was af any safeguards, with procedural failing disprove allegation of receiv ter Comm’n, because the “corrective action” label did bribe), v. ing Transp. Cox N. Va. implicate protected liberty (4th Cir.1976) (af not a interest. 551 F.2d 557-58 Relying precedent establishing on ele- firming trial determination that court’s claim, liberty they liberty ments of a valid interest plaintiffs infringed interest was Complaint’s maintain that Amended employer publicly when linked her dis investigation irregu are insufficient to establish the allegations charge to of financial larities, “liberty following (collectively, “insinuating dishonesty”), interest thus contentions”): (a) Butz, “corrective ac- McNeill v. 319-20 that the 480 F.2d others, if, example, publish- the Administra- ranted there were no 15. On this issue and extensively point. rely unpublished ed decision on Because such circum- tors on decisions here, however, course, present we do of Court. Of under Local Rule stances are not this 36(c), unpublished unpublished decisions cited citations decisions are not address might be disfavored. These citations war- Administrators.

309 (4th Cir.1973) (concluding that federal em- of serious character defects such as dis- ployees’ liberty implicated interests Robertson, were honesty immorality.” or by government-employer’s charges of Indeed, F.2d at 1092. Ridpath contends Agriculture Department regulation viola- that, within intercollegiate athletics tions that “smack of fraud” and deliberate community in particular, the use of the “in dishonesty”), Zepp effect with v. allege “corrective action” label context (4th Cir.1996) Rehrmann, 79 F.3d typically dishonesty understood to connote liberty (rejecting deprivation of interest and other serious character on defects employer claim where announced that This, part the label’s bearer. as the plaintiff being forced to retire “due to recognized, district court question is a accusation, management problems” —an fact, not a properly assessed on Rule most, incompetence unsatisfactory “of or 12(b)(6) reject motion. We therefore Robertson, job performance”), and first liberty Administrators’ interest con- F.2d at (concluding liberty 1091-92 tention, that the “corrective action” label implicated interest was not nonrenewal cannot be imply understood serious employment “incompetence contract for character defect. activities,” such outside because alle- gations plaintiffs did involve attack not b. honor). integrity or The Administrators’ second that, maintain The Administrators liberty interest contention is that “cor label, by using they the “corrective action” rective implicate action” label did not provided no reasons for reas protected liberty it interest because did signment, or at least nothing indicated accompany damage not em incompetent more than he as that, ployment We required status. have Compliance alleges, Director. Ridpath in order to deprive employee of a liber however, question that this label into calls interest, ty public employer’s stigmatiz only competence “professional his ing be remarks must “made in the course Coordinator,” Compliance an NCAA but a discharge significant or demotion.” also “honesty” “integrity.” Corp., v. Med. Sys. Stone Univ. ¶ of Md. Complaint course, Amended 41. Of (4th Cir.1988) (citing n. 12(b)(6) obliged, applying are Rule Lawson v. Tippecanoe County, principles, accept allegations Sheriff Cir.1984); 725 F.2d Mosrie as true and to view (D.C.Cir. Barry, 1160-62 them in light most favorable to Rid- 1983); Otero, Moore v. 438 Jenkins, path. See 119 at F.3d (5th Cir.1977)). As deci established standard, with Utilizing agree this Rid- of our circuits on which we sions sister path: the Administrators’ of the “cor use Stone, “significant relied a demo such him lays rective action” label for blame may of an reassignment tion” include the the University’s NCAA rules violations— employee field position to a outside his of including impermissi fraud academic and Lawson, 1139; ble of 725 at employment props at the Machine choice. See Moore, Shop thus insinuates “the existence 557 438 & n. 11.16 F.2d at —and allegations § 16. Stone and the decisions relied on therein serted a claim based on 1983 Supreme defendant-police followed the Court's decision in that the chief had included Davis, plaintiff’s flyer photograph Paul v. and on a 96 S.Ct. 47 name (1976), posting explaining Shoplifters” L.Ed.2d earlier de- of “Active 405 its distributed for merchants, plaintiff branding cision in The had him as a Roth. in Paul as- local thus 310 Hence, of disregard significant offer inducements. Administrators

The reassignment raise, outside Ridpath’s given gravity pay he was a and was eventu- Athletics, from Com Department $15,000 ally making previ- more than the to Director of Judicial pliance Director Programs. ous Director of Judicial More Rather, the Administrators Programs. importantly, falsely promised also he was having that Ridpath, contend essentially that he would be exonerated blame for changed positions, was nei “voluntarily” program the athletics infractions. Once a given significant nor de discharged ther promise reassign- this was broken and his assessing Ridpath’s al Properly motion. a ment was characterized as “corrective light most in the favorable legations NCAA, Ridpath action” to threat- however, allegations him, these establish against challenging ened publicly this label reassignment was neither that or the in the other conclusions Infractions nor an innocuous transfer. voluntary Report. Ridpath warned that Cottrill a Rather, significant a demotion to it was “[y]ou your family to think about need field, his chosen render position outside young man.” Amended at to an dis outright tantamount ing it ¶ 57(a). “bury threatened to [Rid- Grose charge. path] personally professionally.” and Id. Complaint paints ugly The Angel, President, University’s And as- surrounding picture the circumstances serted that he “would cut the dead limb reassignment. key compo- As a prob- from tree” and would have “no “scape- to make him a to the scheme nent firing [Ridpath] spot” lem on the if he University’s vio- goat” for the NCAA rules ¶ 57(b). Id. at publicly. commented lations, Ridpath banished from any These circumstances belie notion that of Athletics. was then Department He Ridpath’s reassignment cannot be consid- position to a which he lacked relegated Indeed, a significant ered demotion. necessary training education —a strongly suggest circumstances position have prized been Administrators knew the reassignment constituted, best, others, but to at significant constituted a demotion thus and, perilous on his at path detour career attempted it worst, voluntary to frame as a trans- a dead end. had to be fer, persuaded accept so if attempts transfer with their muzzle test, seriously impairing "stigma plus” his future ferred criminal to as its the Paul opportunities. employment deprivation 424 Court U.S. instructed that no aof lib- when, rejecting erty 96 S.Ct. 1155. In this claim as in the interest occurs course of alone, Supreme defaming person, public solely defamation Court one for official previous impairs person's employment op- characterized its decision in Roth as future governmental recognizing portunities, subjecting "that pres- action defam- without him to a ing declining government injury an individual in the course ent such as termination Id.; person employment. Siegert could entitle the to notice Gilley, rehire him accord opportunity be and an heard as to the 111 S.Ct. U.S. Paul, 709-10, ("Defamation, (1991) hy itself, U.S. at L.Ed.2d defamation.” Roth, (citing a tort S.Ct. 1155 actionable under the laws of most States, 2701) added). (emphasis deprivation.” The Paul a constitutional S.Ct. but not added)); language (emphasis deemed the to be Court of Roth see also Johnson v. Mor- ris, (4th Cir.1990) ("Publi- any "inconsistent with notion that a defama- F.2d alone, by government charges perpetrated stigmatizing a official but cation tion of without any damages 'tangible with refusal would unconnected to rehire interests such as em- ployment,’ under the process be actionable Fourteenth Amend- does not invoke the due Paul, Paul, at (quoting ment.” 96 S.Ct. 1155. clause." 1155)). Accordingly, under what sometimes re-

3H failed, they could still evade liabil- 725 F.2d at 1138. The court further ob- ity any litigation. in future employee’s served that an liberty interest may infringed by firing be a or other precedent, Ridpath’s allega- our Under employment action that serves to “exclu[de tions are more than sufficient to show that occupation.” from his him] Id. at 1139. subjected involuntary was to an he Accordingly, the court held public that a in significant demotion connection with the employer cannot liability “by avoid offer- stigmatizing “corrective action” label. ing employee job a far beneath the one all, spelled First of we have out that a had,” he where being so demoted “is to be in change employment status is not volun- as effectively excluded from one’s trade or if it tary employer’s is “obtained calling by being as thrown out on the misrepresentation deception” or or “forced Moore, Similarly, street.” Id. the Fifth employer’s duress or coercion.” Stone, recognized at 174. Circuit The circumstances the internal trans- alleged including the fer of employee support ruse Rid- would a liberty here— path would not be blamed for the NCAA interest claim if the transfer “constitutes if agreed rules violations he to the reas- such a change of status as to regarded be signment within squarely the Stone essentially a employment.” loss of —are (conclud- standard. id. at 172 n. 438.18 The circumstances of Rid- Cf that, ing showing misrep- absent of either path’s reassignment neatly fit with those coercion, plaintiff resentation or vol- Stone that the Lawson and Moore courts have untarily resigned employment and thus recognized, approval, our sup- with would claim). liberty could not sustain interest port liberty a interest claim. simply transferred from position one

Moreover, the Lawson and Moore deci- Stone, slightly less desirable or even a sions, better relied in which we estab- (no one salary matter what his as Director reassignment an employee lish Programs appealing of Judicial or how position to a outside his field of choice others). position might have been to very “significant well constitute a demo- Rather, in a change dramatic of status process pro- tion” sufficient to invoke due Lawson, equivalent outright discharge, tections.17 the Seventh Circuit he was University’s ousted from the specifically recognized concept Department that “[t]he liberty juris- completely Fourteenth Amendment Athletics and excluded from prudence liberty long intercollegiate has included the to his chosen field of athletics trade, profession, calling.” reject follow a or other administration.19 We therefore (which, police corporal janitor obviously, 17. The third decision of a sister circuit on work). change which we relied in D.C. Circuit's Stone—the would constitute a in line of point decision in not on with the Mosrie—is See 557F.2dat438 n. 11. Mosrie, issues herein. See 718 F.2d at 1161 (concluding that lateral transfer within same 19.These stand in stark contrast to those facts work, line of reduction in rank with no or support that have been deemed insufficient to pay, deprivation liberty). did not constitute Morris, liberty claims. In Johnson v. interest example, rejected liberty interest court, plaintiff merely 18. Unlike the court who Lawson Moore claim of demoted explicitly significance position Virgi- did not discuss the from one to another within the Corrections, liberty pursuing Department presumably one's interest a chosen nia However, (as occupation calling. change or as an exam- with no in line of work there was ple type might allegation contrary). of internal transfer that no to the See 903 F.2d claim, 1990). Likewise, support liberty interest the Moore 997-99 Cir. Moore, hypothetical court identified a demotion from the Fifth Circuit concluded that no 312 on a denial of witness liberty peal premised is not second interest

Administrators’ contention, immunity, action” la- the denial of the “corrective but on that result, to Rid- their claims of accompany damage immunity only. As a not bel did us, in- immunity and status sufficient are not before path’s employment witness procedural process.20 liberty due third right to we must conclude that their voke his merit. interest contention is without

c. liberty third The Administrators’ d. is that the “corrective interest contention liberty final The Administrators’ implicate protected did not label action” is that the “corrective interest contention interest, public. as it was not made liberty implicate protected not action” label did process protections, to invoke due In order liberty interest because it did not consti must charge of a character defect serious can no tute a false statement. There be disclosed. See Wooten v. publicly be Clif liberty stigmatiz deprivation of unless the (4th Bd., 552, Forge Sch. ton Stone, false. See ing charges at issue are Cir.1981); County Fuller v. Laurens Sch. n. 855 F.2d at 172 5. The Administrators 56, 137, 141 No. Cir. Dist. alleged that that assert has 1977). matter, Ridpath plainly In has reassignment his was not a “corrective ac that the “corrective action” label alleged tion.” This contention is belied and to communicated to the NCAA was repeatedly Complaint. Ridpath large. disputing Rather than public disputes implication the central therein sufficiency allegation, of this the Ad i.e., label, the “corrective action” that he contend that absolute witness ministrators responsible University’s for liability for immunity shields them from Indeed, NCAA rules violations. the es public use of the “corrective any otherwise process claim sence of due is during label administra action” NCAA provided he v. should have been notice process. generally Briscoe La tive Hue, 325, 1108, culpabili a hearing prove 75 and his lack of 460 U.S. 103 S.Ct. (1983) ty clear name. is a matter in (recognizing parties his This L.Ed.2d falsity im of a stigmatizing charge are entitled to absolute which the and witnesses not, instance, munity damages liability fervently from for their for contested — testimony judicial plaintiff previously one which the had proceedings). Unfor Administrators, tunately ap- stigmatizing charges, their conceded the truth of liberty implicated (recognizing defamatory interest where the remark im only police corpo- plicate liberty plaintiff was demoted from interest made in connection if patrolman. discharge employment). at 438. ral See 557 F.2d with from See Sie 233-34, 1789; gert, 500 U.S. at S.Ct. see supra rejecting Siegert's aspect also note 16. In his dissent on this of the Admin claim, liberty explained appeal, distinguished colleague the Court istrators’ our interest process alleged "[t]he mischaracterizes due claim defamation was not uttered in and, doing, Siegert’s employ one for in so cident to the termination of ment,” defamation alone (1) voluntarily resigned erroneously analogizes in that "he the facts before us to (2) position,” alleged presented Siegert Gilley, defa those 500 U.S. from (1991). S.Ct. 114 L.Ed.2d 277 mation did not occur until "several weeks There, Supreme rejected plain Siegert, U.S. at Court later.” contrast, Here, by alleged tiff-employee’s liberty stark interest claim for fail "stigma plus” previously the "corrective ac satisfy test defamation—the use of ure to Davis, Ridpath's label—occurred incident to Paul v. 709- tion” outlined in (1976) involuntary significant demotion. 47 L.Ed.2d 405 96 S.Ct. acting in as his own accuser and what doing effect he is right.” violates that McNeill, Hope, 739, rendering hearing useless. 536 U.S. at 122 S.Ct. 2508 Cf. (internal omitted). reject quotation 480 F.2d at 326. therefore We marks That “ is, ‘in liberty light Administrators’ final interest con- of pre-existing law the ” tention. unlawfulness must be apparent,’ id. (quoting Anderson v. Creighton, 483 U.S. summary, contrary to the Adminis- 107 S.Ct. 97 L.Ed.2d 523 contentions, liberty trators’ interest the al- (1987)), very but “the question action in legations Ridpath’s Complaint Amended [need not previously have] been held un- and the reasonable inferences drawn (internal lawful,” id. quotation marks omit- therefrom establish the Administra- “ ted), ‘general because statements of the publicly tors made a charge against false inherently law are not incapable of giving Ridpath, connoting dishonesty and other fair and clear warning, general and ... a serious character in part, defects on his constitutional rule already identified subjecting the course of him signifi- to a may apply decisional law with obvious clar- position cant demotion to a outside his ” ity to specific in question,’ conduct id. Moreover, field of choice. it undisputed is at 122 S.Ct. 2508 (quoting United that the reflects that Lanier, 259, 270-71, States v. provided was not notice or an (1997)). S.Ct. Thus, 137 L.Ed.2d 432 opportunity respect to be heard with “officials can still be on notice that their charge. Ridpath therefore has suffi- conduct violates established law even in ciently alleged the violation of his Four- novel factual circumstances.” Id. The “sa- right teenth Amendment process due question” lient is whether the state of the And, liberty when a interest is stake. law the time of question the events in thus, allegations underlying his due gave the “fair warning” officials that their process satisfy claim prong the first conduct was unconstitutional. Id. qualified immunity test. key alleged

The events here —the labeling of Ridpath’s reassignment outside Turning to the prong Department second of Athletics as a “correc test, immunity we must next tive action” giving without him notice or a assess whether hearing the Fourteenth Amend in late At —occurred right time, ment allegedly by contravened the state of the law was such that the “clearly Administrators was a established” Administrators were on notice that their right “of person which reasonable infringed liberty would conduct on a interest held have Bunting, known.” Mellen v. Ridpath, rendering pro their failure to (4th Cir.2003) (internal him quo procedural vide with safeguards a vio omitted). tation marks In its decision lation of his Fourteenth Amendment right Pelzer, Hope v. Supreme process. Indeed, earlier, Court clari to due decades appropriate fied the inquiry Roth, on this issue. its decision Board Regents v. 730, 739-41, See 536 U.S. Supreme Court recognized that “notice (2002); 153 L.Ed.2d 666 see opportunity also Jones v. and an to be heard are essen Buchanan, 531-32 public employee’s liberty Cir. tial” when a in 2003). As the explained, Court a constitu infringed charge implying terest is tional right clearly established when “its such serious character defects as “dishon sufficiently contours esty[ immorality” [are] clear that a rea or lodged ] in the course sonable official would understand that injury of an such as failure to rehire. See 2701, 564, 573, charge at issue can be understood to 92 33 the

408 U.S. (1972) (internal dishonesty serious quotation insinuate and other L.Ed.2d 548 Thus, omitted); Gilley, precedent character defects. our Siegert see also v. marks 1789, warning 114 fair that gave 111 S.Ct. Administrators Davis, (1991); just 424 Paul v. the “corrective action” label was 277 L.Ed.2d 709, 1155, protected 693, type charge implicates 47 L.Ed.2d of 96 S.Ct. (1976). liberty of Roth and its interest.21 In the wake 405 expound- reiterated and we have progeny, Similarly, that a specified public we have liberty of such a requirements ed on the employer’s stigmatizing remarks in on numerous occasions. interest claim liberty if fringe employee’s on an interest decisions, of a several such remarks are “made the course provided, haveWe examples types public discharge significant of or demotion.” Stone concrete Sys. implying Corp., the existence of seri v. Univ. Md. Med. 855 F.2d statements of (4th Cir.1988). 167, dishonesty 172 n. For that character defects such as 5 ous Webb, immorality. proposition, Boston v. 783 we relied on decisions of our and See (4th Cir.1986) (an circuits, including v. 1165-66 sister Lawson F.2d Sheriff 1136, 1139 County, 725 F.2d plaintiff discharged Tippecanoe nouncement of (7th Otero, Cir.1984), disprove allegation of re and Moore v. failing after (5th Cir.1977). bribe); N. ceiving Transp. Although Cox v. Va. F.2d (4th Comm’n, F.2d 557-58 Cir. had no occasion to elaborate on the defini 1976) (statement Stone, linking plaintiffs “significant dis tion of demotion” in so, investigation irregu of financial courts in charge to Lawson Moore did with Butz, larities); approval. they our McNeill And definitions (4th Cir.1973) job (charges against gov provided 319-20 as an offer of “a far —such had,” employees Agriculture Depart being ernment beneath the one he where so regulation effectively ment violations such as fraudu demoted “is to be as excluded obtaining lently payments calling federal for farm from one’s trade or being course, Of none of these deci thrown out on the operators). squarely corre street” — spond Ridpath’s reassignment sions involved use the “corrective with from action” label in Compliance the course an NCAA Director to Director of Judi (a However, investigation. Programs cial logical position wholly there no outside instance, field). Lawson, between, linking distinction his chosen 725 F.2d employee’s discharge investiga to an 1139. The Administrators therefore were Cox, irregularities, that, tion of financial provided warning see with fair and clear 557-58, tying F.2d at by banishing Ridpath Depart reas from the Athletics, signment Department they from the of Athlet unlawfully ment were University’s ics to the him subjecting “significant serious NCAA rules to a demotion” (as meaning violations the “corrective action” label within the Stone authori do). scenarios, served to In each of these ties relied on therein.22 that, precedent 21. Our also clarifies in order rective action” label was communicated to claim, public large, falsely the NCAA and to the liberty stigma to sustain a interest conveying was at fault for the tizing charge at issue must have been both University’s prec- NCAArules violations. Our See, publicized e.g., and false. Stone v. Univ. applies clarity edent with obvious to this al- Sys. Corp., Med. 855 F.2d 172 n. 5 of Md. leged conduct. 1988); Forge Cir. Wooten v. Sch. Clifton Bd., (4th Cir.1981). Ac Moreover, the Administrators cannot have cording Complaint, to the Amended the "cor- equated the circumstances of reas- low, undisputed it is we conclude that each claim meets Finally, because any procedural this test.23 provided Ridpath was labeling to the

safeguards respect with action,” “corrective reassignment as a questioned that the Adminis- it cannot be question The first before us on the free requirement Roth’s trators contravened whether, claim, speech claims is as to each opportunity to be for “notice and Ridpath sufficiently alleged has a violation 573, 92 heard.” See 408 U.S. at right. of a First Amendment See Mellen allegations of Accordingly, accepting the (4th Bunting, v. 327 F.3d Cir. true, Complaint the as the Ad- Amended 2003). Ridpath has raised two distinct clearly a estab- ministrators contravened speech against free claims the Administra procedural lished Fourteenth Amendment First, being tors. he maintains that re process right of which a reasonable due adjunct teaching position lieved from his They have known. therefore person would Department Sports of Exercise and immunity qualified are entitled impermissible Science constituted retalia stage proceedings of these on Rid- this tion, in part speaking against “for his out path’s process claim. due University’s] during conduct [the process,” part NCAA infractions and for C. “having exercised his First Amendment right petition maintain that government The Administrators next for re in denying grievance by retaining court erred their dress of counsel the district 12(b)(6) filing response motion to dismiss a civil action in to ... Rule (the immunity qualified constitutional violations” “retaliation speech free claims on ¶¶ claim”). grounds. Complaint are entitled Amended 61- The Administrators Second, immunity these claims un- 62.24 he maintains that the Ad qualified on professionally of the him prongs less each claim satisfies both ministrators threatened (and personally) spoke publicly if he out qualified immunity explained test. As be- Stone, allegations signment we on the with the facts of in which Based Amended liberty rejected plaintiff's say Complaint, interest claim on we are unable to ground voluntarily resigned that he had cannot build a factual record to demonstrate employment. from his See 855 F.2d at 172 n. clearly established First Amendment Stone, spelled change 178. As we out in put, rights Simply were contravened. voluntary employment status is not if it is qualified immunity open further issue is employer’s misrepresenta- “obtained development upon of the factual assessment employ- deception” tion or or "forced record, decision nor the dis and neither this er’s duress or coercion.” Id. at 174. View- Opinion precludes the Adminis trict court's ing Complaint allegations.of the Amended reasserting claims of trators from light Ridpath, in the most favorable to immunity stage proceed at a later of these readily reassignment of his circumstances McVey Stacy, ings. 157 F.3d Cf. meet standard. 1998) (affirming rul Cir. district court's immunity ing deciding qualified issue to defer affirming court’s denial of the district developed plaintiff's until record better qualified immunity to the Administrators on claim). First Amendment claims, speech emphasize free 12(b)(6) proceedings that these are at the dis- alleges 24. We observe that he stage, required missal and that we are thus teaching position, of his not his was relieved accept alleged Amend- as true the facts in the Director, Compliance retalia- position as light Complaint most ed and view them in Medford, exercise of his First Amendment Ridpath. tion for the favorable to See Jenkins v. banc). (4th Cir.1997) (en rights. that, investigation employer’s in providing about the NCAA “interest effective result, immediately he “refrained from and efficient public.” services to the Id. challenging the In- publicly Third, NCAA there must have been a sufficient and/or Report fractions ‘corrective action’ la- causal protected speech nexus between the ¶¶ (the claim”). “chilling bel” Id. at 57-58. retaliatory and the employment action. sufficiency in turn the We assess of the Id. at 277-78.26 allegations underlying speech each free

claim. i.

a. prong Under the first test, McVey we must assess whether the regard to the With retaliation sufficiently has al claim, public employer contravenes a leged that Ridpath’s speech pri was as a public employee’s rights First Amendment vate citizen on a public matter of concern. it discharges when or “refuses to rehire McVey, employ See 157 F.3d at 277. An employee,” [the] or when it makes deci speech ee’s public involves a matter of transfer, relating “promotion, sions re social, concern if it addresses “an issue of call, hiring and on the based exercise of’ political, community.” or other interest to a that employee’s speech rights. free Sua Gilmore, 401, Urofsky v. 216 F.3d 406-07 McGraw, Corp. 676, rez Indus. v. 202 F.3d (4th Cir.2000) (en banc). (4th Cir.2000) (internal Importantly, 686 quotation omitted).25 place speech “the where the occurs is irrel marks prove order to that a employee may evant: An speak as a citi retaliatory employment action violated a zen on a of public public matter concern at employee’s free the speech rights, the workplace, may speak and as an employee satisfy employee must prong-test the three away from McVey workplace.” we laid out in the Id. Stacy, 157 F.3d at 407. (the Cir.1998) test”). 271 inquiry While into “McVey protected “[t]he sta First, law, public employee speech fact,” tus of of spo must have one not citizen, 138, ken as a employee, Myers, 7, not as an Connick v. 461 on a 148 n. public 1684, (1983), matter of concern. Id. at 277. 103 S.Ct. 75 Sec L.Ed.2d 708 such ond, employee’s interest in expres status “must be by determined the con sion tent, at issue outweighed form, must have given context of a state- Contrary 25. to the McVey prong, Administrators' conten employ- test’s first whether the tion, public employee pro need not have a speech ee’s public addressed a matter of con- property employment tected interest in his cern, question.” is "[t]he threshold See Ran- state a Healthy retaliation claim. See Mount McPherson, kin v. 483 U.S. 274, 283-84, City Doyle, Sch. Dist. v. 429 U.S. 2891, (1987). S.Ct. 97 L.Ed.2d 315 The sec- (1977) ("Even 97 S.Ct. 50 L.Ed.2d 471 prong, ond employee's whether the interest in though discharged he could have been for no speaking outweighed employer's interest whatever, reason ... he nonetheless es services, provision public the efficient tablish claim to reinstatement if the decision Pickering’s original embodies formula. See by to rehire him was made reason of his Pickering, 391 U.S. at 88 S.Ct. 1731. constitutionally protected exercise of First causation, McVey prong, The test's third re- freedoms.”). Amendment quires employee to demonstrate a suffi- protected cient speech nexus between the 26. McVey The balancing test fleshes out the employment by employ- an adverse action test first Supreme articulated Court in Education, Governors, Pickering Huang er. v. Board v. Bd. (1968), (4th Cir.1990) (requiring S.Ct. employ- 20 L.Ed.2d 811 explained connection). further in later decisions. The ee to show "but for” ment, record,” alleged speaking private as revealed whole id. he was as a 147-48, 103 public citizen on matter of concern and prong satisfied the first McVey Complaint alleg The Amended test.27 of his teach es that was relieved for, alia, ing “speaking duties inter out ii.

against University’s] during conduct [the process.” infractions the NCAA Amended McVey Under the test’s second ¶ Complaint specify It does not prong, commonly referred to “Pickering whether remarks concerned the balancing,” we must assess whether the University’s Ridpath, gen treatment of its sufficiently has al response eral to the viola NCAA rules leged interest First tions, perpetration underlying or its expression Amendment outweighed the Nevertheless, violations. a district court University’s provi interest the efficient 12(b)(6) may reject a claim at the Rule public McVey, sion of services. See stage only appears beyond if “it all doubt Pickering F.3d at 277. For balancing, “we prove that the can no plaintiff set facts must take into account the context of the claim support of his that would entitle employee’s speech” and “the extent Freeh, him to relief.” Trulock v. disrupts operation which it and mis (4th Cir.2001). Allegations sion” of the institution. Id. at 278. Fac prominent violations NCAA rules tors relevant to inquiry include wheth major at a sports program public universi (1) public er a employee’s speech impaired ty, university’s and the nature of the han discipline by supervi maintenance of dling allegations, of such are matters of (2) sors; impaired harmony among co “social, great political, or other interest to (3) workers; damaged personal close rela community.” Urofsky, 216 F.3d at See (4) tionships; impeded performance say therefore cannot that We Rid- (5) duties; public employee’s inter path will a factual be unable build rec institution; operation fered with the of the that ord which demonstrates his remarks (6) undermined the mission of the institu public were on a matter of concern. More (7) tion; public was communicated to the over, Complaint supports the Amended (8) in private; or to coworkers conflicted Ridpath inference that commented on the responsibilities employee with the of the University’s during the in conduct NCAA (9) institution; within the abused the in process personal capacity fractions authority public accountability that the representative and not as a of the Univer sity. Accordingly, Ridpath sufficiently employee’s has role entailed. M28 J., Complaint alleges ghan, concurring part concurring 27. The also that in in Amended teaching position was relieved of his judgment) (emphasizing importance "retaining filing counsel and a civil action considering Pickering public interest in bal- response in to ... constitutional violations.” (Michael, J.) ancing); (concurring id. at 282 ¶ Complaint appeal, at 62. In their by Judge "except to the extent ... challenged the Administrators have not Rid- Judge Murnaghan's separate opinion”). path’s position filing that his of a civil action that, Connick, Murnaghan in observed " protected speech. constituted stronger Supreme Court cautioned that 'a showing employer interest] be neces- [of majority McVey panel 28. A of the observed sary employee's speech substan- if the more Supreme that both this Court and the Court ” public tially concern.' involved matters employ- have also included the value of the Connick, (quoting Id. speech public Pickering ee's to the in the 1684) (alteration original). 103 S.Ct. in (Murna- McVey, balance. See 157 F.3d at 279 Here, say [Ridpath] prove we cannot that can no set of facts” in to show that his interest tip Pickering will be unable in his balance favor. expression outweighed Amendment Trulock, First According- See 275 F.3d at 405. University’s interest in the efficient ly, Ridpath sufficiently has shown in operation workplace. Nothing of his speaking outweighed interest the Uni- indicates, for ex the Amended versity’s in promoting interest the effi- impaired that his comments ample, services, provision public cient and he discipline, hurt workplace maintenance of prong has satisfied the second of the morale, posi or constituted abuse of his McVey test. Moreover, tion. the Administrators have suggested how—or even that—Rid- iii. remarks interfered with the path’s Univer prong Under the third sity’s operation.29 efficient test, McVey Ridpath must demonstrate a developed Once a factual record is relationship protected causal between his through discovery, the evidence could speech teaching and the termination of his support the inference McVey, duties. See 157 F.3d at 277-78. workplace impaired as a result of his requirement “rigorous” The causation simply comments and that he had to be protected expression must have adjunct teaching po- terminated from his for” been “but cause of the adverse however, sition. a question, Such is not employment alleged. action Huang v. Bd. 12(b)(6) to be under assessed Rule but Governors, summary judgment Rule 56 proceedings. Cir.1990). below, explained As McVey, 157 F.3d at (affirming 278-79 Amended Complaint sufficiently has al district court’s deciding decision defer leged causation. qualified immunity until “record is better developed” part complaint because did Complaint alleges The Amended not prong “resolve on its face” second during that grievance pro related internal test). 12(b)(6) McVey At stage, the Rule ceedings, “testified, a University official Ridpath’s allegations warrant the infer- oath, adjunct under that Dr. Ridpath’s fac speech ence that his free interests out- ulty position terminated, in whole or weigh effect, any, the detrimental if his part, in for his speaking against out [the efficiency comments have had on the University’s] during conduct the NCAA Indeed, of his in workplace. read the process.” infractions Complaint Amended proper light, Complaint the Amended al- aUI61. It alleges Ridpath further that leges adjunct that he was relieved of his was relieved of teaching position his “in teaching position protected for statements direct ... retaliation for having exercised that impact workplace had no on his right petition his First Amendment to whatsoever. the Accepting allegations those government grievance by as true and for redress of giving Ridpath the benefit of inferences, the retaining filing reasonable factual we can- counsel and a civil action in say appears beyond that “it all ... response doubt constitutional violations.” however, Instead, present analysis, the we need not the Administrators contend that Ridpath's speech University assess the value of place to the the was a more efficient after public, Ridpath teaching position as it would be difficult calculate was relieved of his Complaint, University longer based on the Amended pay and we because the no had to Ridpath's salary can decide in favor without reach- he had been an inefficient ing it. teacher. ¶ Later, in Thus, original). Angel ation at asserted Id. meeting protected University at a officials if alleges speech Ridpath “cheap cause of the termination commented on the was the for” shots” “but duties, satisfying at him in the causa- taken the NCAA Infractions teaching of his in Report, Angel “would cut the dead tion embodied the third limb requirement ¶ 57(b). McVey Having Angel test. met from the tree.” Id. at prong even at on McVey stage, point, asserting test elaborated prong each he sufficiently alleged had handled Ridpath a First similar situations before and has firing [Ridpath] claim. would have problem Amendment retaliation “no spot” on the if he commented on the inves- b. (alteration tigation. original).31 Id. in turn next to second of We against Because the the chill- prohibition claims, speech chilling free ing speech prohi- of free from the derives precedent, public claim. our “a Under retaliation, against we must bition utilize a threatening from employer prohibited analysis McVey-tjpe to determine whether employee discharge public effort speech chilling issue in the claim is rights chill under the First employee’s protection. entitled to Amendment First City Amendment.” Edwards Golds Edwards, (inquir- at 245-49 See 178 F.3d boro, Cir.1999).30 231, 246 A 178 F.3d ing single analysis McVey-type whether chilling essentially the claim is derivative protected for speech both retaliation public if a employer retaliation claim: claims). chilling previ- As discussed demote, fire, similarly or punish cannot ously, against the NCAA rules violations engaging public employee protected University’s response University, speech, employer also cannot intimi violations, University’s to the and the employee date into silence threaten Ridpath pub- treatment of were matters of ing impermissible retribution. McVey, lic concern. on Complaint, (requiring employee’s speech to the Amended be mat- According concern). Furthermore, public if ter of each the Administrators warned that have, again, not asserted publicly commented the NCAA Administrators investigation, professional, why they face even feared the Uni- he would —or that — might repercussions. versity’s operation be as well as On efficient personal, if longer told harmed who was no Ridpath, Cottrill November Director, “[y]ou say Compliance spoke publicly. ... no You have matter. (“[W]e into your young id. at 278 must take account family need to think about ¶ 57(a). Complaint employee’s speech man.” the context of the in- at in the telling you. cluding employee’s him: “I am role institu- Grose then advised disrupts and the to which it anything You do to resurrect tion extent [NCAA agency”). bury you operation and I will and mission of the Infractions issues] (alter- in Accordingly, at issue speech personally professionally.” Id. [Ridpath] explained, ing Angel to "fire Supreme As has "the when threatened 30. Court and, not, public employment spot" threat of dismissal from and how on the if when he potent inhibiting speech.” ... a means Angel’s Reading later learned of remarks. 574, Educ., 563, Pickering v. Bd. proper light, the Amended (1968). 88 20 L.Ed.2d 811 S.Ct. however, that, Ridpath we should infer if present meeting, he was not at the made Complaint, 31. On the Amended it the face of shortly Angel’s aware of threats thereafter. Ridpath was at is unclear whether the meet- 320 protected protected speech.”); claim is the First interest freedom of

chilling Myers, v. 461 Connick 103 Amendment. (1983) (“For 75 L.Ed.2d 708 at Reading the statements attributed years least 15 it has been settled that a proper light, in the to the Administrators public employment State cannot condition seeking posi them was to use his each of infringes employee’s on a basis that University at the to intimidate Rid- tion constitutionally protected interest free- Edwards, path into silence. Under expression.”); McVey Stacy, dom of v. power misuse of the vest Administrators’ (4th Cir.1998) (“The F.3d First University ed in them the contravened protects public employees Amendment Ridpath’s speech rights. Accordingly, free employment from termination of their Ridpath alleged sup has facts sufficient to speech retaliation for their exercise of on result, port chilling his claim. As a each of concern.”). public matters of Further- Ridpath’s speech sufficiently free claims more, by Ridpath the time was relieved of states the violation of First Amendment teaching position University, his at the right, and each claim thus survives the applying “McVey had been test” to prong qualified immunity first of the test. such retaliation claims for more than a See, e.g., McVey, decade. at 277- 78; Dist., County Stroman Colleton Sch. prong Under the second (4th Cir.1992). Thus, test, immunity we assess whether the free prohibition against pro- retaliation for speech clearly claims would contravene es- speech clearly tected established rights per- tablished of which a reasonable the time was relieved of his teach- son would have known. See Mellen v. ing position. Cir.2003). Bunting, 327 F.3d to, all, apply We this test first of inquiry Our on this issue does end and, secondly, retaliation claim to his chill- here, however, because we must also ex- ing claim. amine whether persons reasonable would relieving have been aware that Ridpath of

a. adjunct teaching position for his re- The Administrators contend that constitutionally protect- marks violated his claim speech rights. retaliation is not based on ed free In making such a clearly determination, established First Amendment aptly we have observed right. disagree. We are constrained to are not liable for “[officials bad areas; According Complaint, guesses to the Amended in gray they are liable adjunct was relieved of his teach transgressing bright McVey, lines.” (internal ing position July quotation See Amend F.3d marks ¶ omitted). ed Complaint long at 59. At that time a “sophisticat- And because of the decisions, line Supreme both the balancing” Court’s ed involved in First Amend- own, and our that a public questions, “only infrequently established ment itwill employee solely clearly could not be fired for mak that public be established a em- See, ing protected e.g., ployee’s speech statements. Ran a public on matter of con- McPherson, (in- kin v. constitutionally 107 cern is protected.” Id. (1987) (“It omitted). Still, quotation L.Ed.2d 315 is ternal marks clearly only established that a public employers enjoy qualified State —not an discharge employee immunity, public employ- on a basis that and a absolute— infringes that in employee’s constitutionally refuge qualified immunity er can find no in employment years prior alleged to the events decision when an adverse that, Amended held clearly public employee’s Complaint, a we under contravenes “a rights. applicable legal principles, public First Amendment employer prohibited threatening is from development further factual While discharge public in an effort employee murky may present picture this case that employee’s rights chill under the First why teaching relieved his Ridpath was Amendment.” Cir. and context of his position, the content 1999). we precedent, Given this are statements, negative any impact obliged that the Administra conclude efficiency of his work- remarks had on clearly tors’ threats violated established by the Amended place, painted the scene persons law of which reasonable would clear. in the Complaint crystal Read Accordingly, have known. the Administra that the proper alleges it Adminis- light, qualified immunity tors are not entitled against trators for mak- retaliated speech on claims at free that ing protected they did not statements stage proceedings.33 in the activity merely impli- like. does not Such edges right Ridpath cate of the gray

asserts; very to its And goes it core. IV. taking of the allegations Amended foregoing, Pursuant to the we dismiss true, Complaint a clearer violation affirm appeal Coach Pruett and speech constitutionally protected free qualified immunity denial of to the Board Therefore, fathom. would difficult to be and the Administrators. alleges Ridpath’s retaliation claim a viola- law PART AND clearly tion of established of which a DISMISSED IN AF- IN would have known.32 FIRMED PART. person reasonable b. WIDENER, Judge, concurring Circuit similarly as The Administrators and dissenting: chilling sert claim is not I complaint, As to Count I of the re- clearly based First established II, I As to spectfully dissent. Count con- right. previously Amendment As dis cur in the result. I concur the dismissal cussed, by Ridpath concerning comments Pruett. appeal of the of Coach violations, NCAA rules Universi violations, on account of respectfully I dissent ty’s response to those or the court, majori- and the would failure district University’s treatment case, City ty qualified immunity Edwards grant be our clearly protected. Goldsboro, at Marshall Universi- by us more than two to administrators decided 12(b)(6) accept the principles, Rule Adminis- appeal assert on The Administrators eliminated, Ridpath’s position was contrary assertion. trators' factual "no official would have known reasonable that, canceling budget- a class because of Finally, Appellants contend that Rid- concerns, ary exposed he or she would be to a speech path's should be dismissed free claims adjunct faculty First claim Amendment he exhausted his state admin- because has not professor.” Reply Appellants Br. of However, Appel- as the istrative remedies. However, Complaint the Amended al- 28-29. immunity only appealed lants rul- leges Ridpath was relieved of his teach- ings, jurisdiction to review their have no University ing position at the retaliation for contention. administrative-exhaustion protected speech, see ¶¶ 61-62, cannot, controlling under and count, ty respect to the generally by with defamation is understood con- those I complaint. college Count of the to a nected athletics to be code importing dishonesty term incom- § on The 1983 claims are based two petence part on the of to individuals NCAA infrac- incidents. The first is the (Italics alleged. whom it is J.A. 242. report of an ad- tion December added.) copy supplied of vance which had been to my opinion, In by this case is controlled University That previously. the sometime Gilley, described, Siegert v. 111 S.Ct. of U.S. report at the instance (1991). In L.Ed.2d 277 that University, com- of] the “transfer ... [ case, Hospital, facility St. Elizabeths a pliance director from athletics another States, Siegert, the United notified a clini- at as a depax-tment university” “correc- cal psychologist, that it was preparing action tive [...]” employment, terminate his as giving use, plaintiff The claims such “ reason that his ‘proposed removal was University, of the term action” “corrective upon inability duty based his to report for defamatoxy reputa- and has his damaged manner, dependable and reliable his opportunities employ- tion so that his for comply supervisory failure to with di- within profession, college ment his chosen rectives, and charges cumulative ab- athletics, been, be, damaged. have or will approved sence without leave.’ ... After incident, In the first based defama- officials, with meeting hospital Siegert tion, the record does not disclose the agreed resign from hospital which University words were used thereby avoid a might termination that reporting to the Ridpath’s NCAA Dr. reputation.” his damage at transfer as a corrective action. Neither SiegexT S.Ct. 1789. began then work it show whether does that communication psychologist as a clinical in a United States oral or written. hospital Bremerhaven, Army Ger- West moment, I assume for argument, for many. Army signed At that hospital, he labeling that Dr. transfer from form, request credential information ask- department the athletic to be Director ing provide that Elizabeths St. all informa- Programs Judicial defamatory could be job perfoxunanee tion on and privileges action, when described as a corrective but Siegert’s request while at St. Elizabeths. that does not end the inquiry. Damage to Gilley, was referred who had been Sie- Ridpath’s reputation, Di\ which is the root gert’s supexvisor at Gilley St. Elizabeths. suit, cause of this law is not actionable Army notified the that § under “he could not [Siegert] recommend coxxrt, privileges psychologist.” The ... opinion, district in its de- letter, Gilley Dr. wrote that “consid- scribed he claim: Siegert ered Dr. inept to be both Ridpath, hand, on the other contends unethical, perhaps trustworthy the least that he has not alleged that he had a I supervised my individual have thir- property employment interest in his at years teen [St. Elizabeths].” Instead, MU. he asserts that ‘correc- 111 S.Ct. tive action’ assigned label his transfer position to the receiving letter, Director Judicial Gilley’s Army After programs at process MU without due Siegert told reports because about ho,sdestroyed reputation in extremely unfavorable, him were its Cre- field collegiate recommending athletics because label dential Committee giv- He later was a defamation suit for slander or libel in credentialed. a he be jurisdiction, credentials limited to his court of he provisional appropriate might en so, Siegert’s against question suit done not a work with adults. have but that is Siegert that Gilley contended us. followed. before at the Bremerha- position “the of his loss Haines, that, I in DiMeglio note v. by the refusal of the Hospital,

ven followed (4th Cir.1995), § F.3d 790 a 1983 case as Army Stuttgart in to consider his hospital here, Siegert and held followed “[i]n gener- and employment, his application for claims, deciding qualified immunity courts comparable be- inability al to find work plaintiff the should determine whether has letter, constituted such a Gilley’s cause of alleged violation of a constitutional 'liberty interest’ secured deprivation [of right clearly established at to by the Fifth Amendment the United actions, before they time defendant’s 232, 111 500 U.S. at Constitution].” States ancillary proceed any to address issues.” S.Ct. 1789. 45 F.3d at 797. injury reputa- The decided that Court my opinion, Siegert In in the facts protected is interest under the tion not an present case and the facts in the case are “Defamation, by itself, is a Constitution. nearly Siegert must so same that con- the laws most tort under actionable language Siegert The defamatory trol. States, depriva- not a Constitutional but equally defamatory as as claimed 233, 111 tion.” at S.Ct. 1789. here; and Dr. Siegert the claims of Rid- The reasoned that Court process, are path each based on due The contained the letter statements Amendment whether under the Fifth or undoubtedly damage reputa- would Fourteenth, indifference; is a matter position, impair tion one in his Ridpath and both and Dr. claim Siegert prospects.... But employment future resulting damage injury is because damage inju- flows from long so as such reputation, held not which the Court ry plain- the defendant to a caused Siegert actionable under as Constitution- it be reputation, tiffs recoverable 233, 111 al at deprivation. 500 U.S. S.Ct. it is under tort law but not recov- state in a Bivens action. 500 erable U.S. right No violation of a Constitutional 111 S.Ct. 1789. established, having been immuni- The court affirmed the dismissal of Sie- granted as ty should have been claim, its gert’s holding Bivens Rizzo, Slattery v. defamation claim. explicit from doubt: and free Cir.1991); Kitchen v. F.2d petitioner in this case We hold that (4th Cir.2002); Upshaw, F.3d satisfy inqui- failed to the first [Siegert] DiMeglio, 45 at 808. claim; ry of such in the examination allege he the violation of a failed incident, II for the Count As second clearly right. established constitutional speech, I complaint, based on free 231, 111 concur in result on the basis our noted, Stacy, 157 F.3d 271 McVey decision And at 229 and the Court (4th Cir.1998). the district McVey, Siegert not make a claim of diverse did a claim court had declined to dismiss First citizenship prosecute for defa- claim, here, rejected it Dr. Amendment mation. We note that has stage qualified immunity “at made state law claim defamation no had not litigation” because “the record bring here. If Dr. had wished to 324-342 developed.” McVey, 157 F.3d at 275.

been to “affirm decision was the district

Our ruling to defer on deciding

court’s immunity until issue the record is developed immunity issues.”

better I

McVey, 157 F.3d at 279. continue to majority

disagree with the that the com

plaint justifies finding alone that Ridpath a citizen rather

spoke as than as em

ployee, largely because he had been in superiors not to speak

structed out

publicly. Myers, Connick v. esp. p. 103 S.Ct. 75 L.Ed.2d (1983) State, (deciding for the found, p.

Court 103 S.Ct. Pickering requires

“The balance full con government’s

sideration of the interest

the effective and efficient fulfillment of its

responsibilities public.”); to the and Di Haines,

Meglio v. 45 F.3d 790 Cir.

1995) (holding municipal government em

ployee’s protected remarks not be

under if speaking Connick he was as an citizen).

employee, rather than as a Nev

ertheless, I believe a concurrence in the

result is more in order than a dissent majority’s

view of the decision that

matter is not closed. See footnote

supra. any present So error on this ac

count is harmless.

Case Details

Case Name: Ridpath v. Board of Governors Marshall University

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 11, 2006

Citation: 447 F.3d 292

Docket Number: 04-1314, 04-1328

Court Abbreviation: 4th Cir.