Aрpellee-plaintiff is a blind vendor who holds a license from the state pursuant to 20 USC § 107 et seq., the Randolph-Sheppard Act. Although appellant-defеndant state employees originally terminated appellee’s license without affording him an evidentiary hearing, a post-termination evidentiary hearing did result in the reinstatement of appellee’s license and the award to him of back pay. After reinstatement of his license, appellеe filed this action, alleging that appellants had denied him due process of law and were liable for damages under 42 USC § 1983. Appellants moved to dismiss оn various grounds, but the trial court denied their motion. In Case No. S94A1614, appellants appeal directly from the trial court’s order denying their motion to dismiss and, in Case No. S94A1615, they appeal from that order pursuant to this court’s grant of their application for interlocutory appeal.
Case No. S94A1614
1. One of the grounds of appellants’ unsuccessful motion to dismiss was their claim of qualified immunity to appellee’s § 1983 action. Under federal law, appellants would be entitled to a direct appeal from an adverse pretrial determination as to that issue.
Mitchell v. Forsyth,
It is a legislative function to establish the jurisdictional requirements for the appealability of cases. The appellate courts have heretofore given due consideration to the finality requirement which otherwise serves as a statutory limitation on direct appealability. Neither Hubbard [v. State, 254 Ga. *813 694 (333 SE2d 827 ) (1985)], nor Smith [v. State,169 Ga. App. 251 (312 SE2d 375 ) (1983)], are authority for the proposition that the denial of any and all motions to dismiss would be directly appealable. The direct appealability of interlocutory orders remains the exception rather than the rule.
In the Interest of M. O. B.,
In this state, it has been recognized
“that ‘a broader construction’ of direct appealability ‘is appropriate where the order appealed from is one denying a plea of double jeopardy(,)’ ” and that the denial of an OCGA § 17-7-170 motion is suсh an order. [Cit.]
In the Interest of M. O. B., supra at 476. It is clear, however, that appellants’ claim of qualified immunity is not analogous
to a claim of double jeopardy so as to entitle [them] to a direct appeal under the authority of Patterson v. State,248 Ga. 875 (287 SE2d 7 ) (1982), or Smith v. State, [supra]. Obviously, there has been no prior adjudication favorable to the appellants] in the present case, by operation of law or otherwise.
Austin v. State,
Moreover, an order denying a claim of qualified immunity in a § 1983 action is not substantially separate from the issues raised by the complaint. Compare
Scroggins v. Edmondson,
Accordingly, we decline to adopt the federal rule permitting a direct appeal from an adverse pretrial determination of the issue of qualified immunity in a § 1983 action. Nevertheless, we recommend that, except in clear cases, the trial courts issue a certificate of imme
*814
diate review under OCGA § 5-6-34 (b) for interlocutory orders denying dismissal or judgment on the basis of qualified immunity. See
Phillips Constr. Co. v. Cowart Iron Works,
Case No. S94A1615
2. One ground of appellants’ unsuccessful motion to dismiss is the trial court’s asserted lack of subject-matter jurisdiction over appellee’s § 1983 action. In urging that this ground is meritorious, appellants rely upon the 1990 amendment to Art. I, Sec. II, Pаr. IX (d) of our state constitution, which provides, in relevant part, that state officers and employees “shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions.”
It is clear that, prior to the 1990 constitutional amendment, the courts of this state did have subject-matter jurisdiction over § 1983 claims.
Wyman v. Popham,
3. Appellants urge that appellee has no property interest in his license which would be subject to constitutional protection under the Fourteenth Amendment.
Applicable federal law requires a state to issue a license for an indefinite period and permits tеrmination only if the vending facility is not being operated in accordance with prescribed rules and regulations. 20 USC § 107a (b); 34 CFR § 395.7 (b). Thus, appellee’s license is а property right. See
State Bd. of Ed. v. Drury,
4. After an evidentiary hеaring which comported with procedural due process, appellee’s license was reinstated and he was awarded back pay. Appellants urge that, under these circumstances, appellee has no viable § 1983 claim.
In Parratt v. Taylor,451 U. S. 527 (101 SC 1908, 68 LE2d 420) (1981), the Supreme Court held that in order for the conduct of а state official to give rise to a constitutional due process violation, the official must have acted in accordance with establishеd policy rather than in defiance of it, with the result that available state remedies are not themselves adequate to provide the claimant with redress for the alleged injury. Otherwise, the Court ruled, the requirements of due process will be deemed satisfied “[although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983 . . . .” [Cits.] The adequacy of the state remedy in this case has been conclusively established by the fact that it resulted in [appellee’s] reinstatement with back pay .... It follows that [appellee] has no remaining cause of action for damages for violation of [his] procedural due process rights under 42 USC § 1983. [Cit.]
Henderson v. Sherrington,
5. Appellants’ remaining contentions are moot and need not be addressed.
Appeal dismissed in Case No. S94A1614. Judgment reversed in Case No. S94A1615.