Walker v. Schwalbe

injunction is within bond amount of court. of the district discretion the sound Guzman, Dispatch Co. v. Casa Corrigan

See Cir.1978). The Pesee contends, appeal, that the amount

Group on injunction insufficient. We bond is objection was significant that no

deem it the sufficien- district court as to

made find no abuse discre-

cy of the bond. We

tion.

AFFIRMED.4 Plaintiff-Appellee, WALKER,

Michael individually, SCHWALBE, and in

Robert Dean, capacity; Darrell indi-

his official capac-

vidually former official his individually

ity; Roy Parrish, and in his Evans, capacity; David

official only, Defendants-Ap- capacity

official

pellants.

No. 96-8338. Appeals,

United States Court

Eleventh Circuit

May 1997. granted. striking Appellants’ from the record is motion for an order Appellee October 1996 letter of counsel Cosgrove,

Carol Atha Office of State At- General, Atlanta, GA, torney Ronald R. Womack, GA, LaFayette, for Schwal- be/Dean/Evans. Davis, Jr., Rossville, Amy John W. S. GA

Gellins, Gellins, Athens, Amy Law Offices of GA, for Walker. BIRCH, Judge,

Before Circuit *, RONEY and FARRIS Senior Circuit Judges.

FARRIS, Judge: Senior Circuit interlocutorily appeal Defendants the dis- holding trict court’s are not entitled qualified immunity. We have pursuant § to 28 U.S.C. Mitchell Forsyth, 472 U.S. (1985) (denial

L.Ed.2d 411 immu- nity immediately appealable under the col- doctrine). lateral order We affirm.

BACKGROUND Community Programs provides Vista social Catoosa, Chattooga, services for Georgia. Dade counties northern Vista is by County funded the Walker Board of through a Georgia Health contract with the Department of Human Resources. Michael Walker was hired Vista in 1982. In 1986 promoted supervise he was all Vista ser- developmentally vices for the disabled. He responsible budgetary per- was for all issues taining programs. to mental retardation Throughout his career he received excellent performance reviews. charge overseeing

Darrell Dean was in Department as the Vista of Human Re- sources District Health Director. 1988 he Wesley hired Robert as Vista’s Area Director * Farris, Jerome Senior U.S. Honorable Circuit tion. Circuit, Judge sitting by designa- for the Ninth

H29 manag- system policies. business merit The defendants claim Nickell as Vista’s and Tom Wesley superior Taylor prepared at Vista. impro- was Walker’s had the list of er. prieties person primarily and was the con- tenure, Wesley Nickell’s Vista During improprieties, cerned about the that Walker employees supplied to be- budget information only did not know about the list complained to accurate. Walker came less job, protect involved to and that budget prac- Wesley and Nickell some legislators already problems. knew of these Department regulations and tices violated effectively managing prevented Walker from meeting As a legis- result of the with state responsible. budgets for which he was the lators, Department the of Human Resources con- and others voiced these After Walker began investigation impropriety at Vis- cerns, began Wesley to withhold and Nickell investigation, ta. David Nave conducted the employees. budget information from Vista by October, .assisted Robert Schwalbe. In (the expressed Wesley Department also concern to Walker Dean of Human Resources (1) Vista) garage used to service its employee that the Vista who oversaw informed Vista (chosen Wesley receiving by without Wesley vehicles being staff that and Nickell were bids) prices not charged dismissed, exorbitant and was assuming that Dean would be the (2) vehicles, fixing Wesley had properly Director, responsibilities of Area and that employees to have their Vista directed all assuming Schwalbe would be Nickell’s for- at run vehicles cleaned a business Vista position. delegated responsibility mer Dean relatives, employees and their and em- daily to Schwalbe for most administrative committees, during met work ployee which activities at Vista. hours, fund-raising in the commu- conducted completed In 1991 Nave November money allegedly nity to raise for Vista but investigative report. It that concluded Vista money for weekend social instead used the mismanaged, had been that there had been activities. law, Georgia misconduct and violations of and July Georgia’s governor In directed that Vista administration had shown little budget agencies to submit reduction all state regard Department policy. report for The Wesley that and proposals. learned Walker investigations alleged in- included of several closing proposed had Vista’s Chattoo- Nickell nepotism stances of and concluded at ga County urged Walker Service Center. least one was a clear violation. The investi- he them to reconsider because believed gation report generated great and deal of proposed closure was inconsistent with the Georgia. media attention northwest Dean budget Department of Human Resources’ ultimately resigned position his at the De- proposal request. The defendants claim that partment Human due to Resources propos- also learned that there was a Walker investigation media attention. and position. al to cut his County Board of Health Some Walker Wesley efforts with When Walker’s legislators, upset members were that the sought failed he assistance state Nickell from Board, had been contacted about legislators. August high-level In Vista improprieties. The Board was also embar- Swafford, employees Taylor, Nora Ernest negative publicity. It rassed about the con- represen- met with state and Walker several county’s refusing sidered to renew the status They tatives and senators. discussed Walk- county funding as lead for Vista. Members budgetary three-page and a list er’s concerns of the Board were aware that Walker was “possible improprieties” at Vista. When among complained leg- had to the those who knowledge particular impro- had of a Walker islators. priety he shared that information. He was wife, budget Crystal primarily expendi- concerned with 1990 and 1991 Walker’s tures, service, Walker, car a Vista teacher consultant. the car wash and the served as repair deposi- supervisor Her was Amanda service. Walker stated immediate Wesley’s Boyd, County that he Director of the Walker Service tion never feared bud- job Boyd’s superior in get proposal him his because Center. was would cost Walker program. Prior to protected by he he was the state Vista mental retardation believed Boyd employees disciplined anti- re- were hiring Mrs. policies. policies regard- nepotism written viewed all available that it to ensure ing employment relatives meeting legislators, .with the After suggested Boyd permitted. Walker was (the Taylor employee pre- Vista who had regarding the personnel office contact the pared improprieties) removed the list Georgia Department of Human issue. management from the team Vista Policy Administrative and Proce- Resources authority placed under the of one of his employment of rel- dures Manual stated investigation, After the Swaf- subordinates. atives, spouses, preclud- is not which includes (the employee ford third Vista who met with ed, employed shall not be but that relatives legislators) man- was removed superior-subor- in which a direct situations agement team at Vista and transferred from relationship would exist. dinate office she had worked for twelve where years. justifications given were No these Boyd concluded that Mrs. actions. hired, agreed Boyd Walker could be and wholly responsible supervi- all would be § 42 Walker filed suit under U.S.C. 1983 terms, sion, employ- of and conditions her against and his Schwalbe Dean Walker, Wesley, and Dean each ment. speech by right to First Amendment demot- signed Mrs. Walker’s contract. ing him in for his retaliation conversation legislators. with the Defendants moved for documents, produced Defendants have summary judgment. The court held district poli- they allege applicable were the which genuine that Walker had established a issue cies, employment any prohibit of material fact that he was demoted retal- employee’s chain of relatives in an entire speech iation for his and that the defendants command. ruling a were therefore entitled to investigative re- After the release qualified immunity prior to trial. The defen- port, met with and stated Schwalbe Walker appeal interlocutorily. dants County Board that a member of the Walker of Health had asked Schwalbe review DISCUSSION contracts with Mrs. Walker. The next Vista QUALIFIED IMMUNITY gave pro- day Walker a notice of Schwalbe A. Standard disciplinary salary Review posed re- demotion charged that duction. The notice Walker ruling A district court’s that an offi policies Vista conflict of interest had violated cial’s conduct violated established law by hiring his wife. It also stated that Walk- ruling official not a so entitled to “negligent for direct- er was and inefficient” prior to trial is re ing approval to obtain subordinate Forsyth, viewed de novo. Mitchell v. 472 superior for the contract with his Walker’s 511, 530, 2806, 2817-18, U.S. 105 S.Ct. 86 wife. (1985); Clifton, 411 L.Ed.2d Johnson v. 74 1087, (11th Cir.), F.3d 1090 cert. denied sub pursued appeal Walker a written to Dean — U.S.-, Clifton, nom Hill v. 117 S.Ct. 16, upheld on December 1991. Dean (1996). 51, 136 L.Ed.2d 15 reduction, proposed salary demotion $3,200 year. which amounted to almost B. Method Review Dean Schwalbe and each knew Walker employees may interlocutorily ap A had been one of the who had defendant legislators. peal holding spoken with the On December a district court’s that he is not qualified immunity. Dean informed he would be trans- entitled to Mitchell v. 511, 530, forty Forsyth, to another center miles 472 U.S. ferred Vista (1985). 2817-18, applied from his home. Walker later for a 86 L.Ed.2d Where this previous position effectively promotion to his but was occurs there are two issues on (1) appeal: an interview. He subse- whether the district court’s hold denied without ing that a quently abandoned his career at Vista. De- issue exists as to what correct, presented engaged conduct official in was fendants evidence that other Vista

H31 Walker, is entitled to most favorable to the official speech was on a matter of concern. immunity for that conduct. The factual, legal. the second John- first issue is Second, significant had a interest — U.S.-,---, Jones, v. son speaking legislators in order to with (1995). 2156-59, L.Ed.2d 238 prevent program harm to the Vista and the community argue they it serves. Defendants "Where, here, the defendants con as significant enforcing interest legal holding, court’s we test the district anti-nepotism policy. This is beside the because it is the factual issue also consider point. government The issue is whether the qualified immunity analysis. part of the core preventing speech. an has interest Clifton, at 1091. do v. 74 F.3d We government Johnson Whether the had valid reasons so, take, given, only the facts that for its actions is relevant to “simply as the third part Viewing of the test. the evidence in the when it denied the district court assumed light most favorable to defendants (purely legal) summary judgment for that legitimate preventing have no reason for Smith, Id.; Cooper see reason.” speech. Walker’s The second element of the Cir.1996) (in most Bryson test is satisfied.. immunity interlocutory appeals appellate Third, employee’s initial burden to facts that the district court accepts court retaliatory demonstrate that a intent was a assumed). government’s substantial factor behind the heavy employment decision is not a one. Fact Issue Material as to C. Genuine of Beckwith, pro- 58 F.3d at 1565. Walker has Conduct Defendants’ duced evidence that Dean had a motive to analyze retalia We First Amendment against speech retaliate Walker because his tory four-part a test: demotion claims under investigation led to the led to Dean’s (1) speech a employee’s the involves resignation. investigation embarrassed (2) concern, public of whether the County matter members of the Walker Board of outweighs in- employee’s speaking interest in Health. The Board asked Schwalbe to vestigate Mrs. contract. Walker’s Schwalbe government’s legitimate interest in effi the had a motive to retaliate because he an- (3) service; speech public cient whether the to Dean and the Board. swered government’s in played part a substantial the decision, challenged employment genuine nepo- There is a issue as to which government have made policy whether the would tism was in effect when Mrs. Walker Viewing light was hired. the evidence a employment in the absence the same decision Walker, he did not violate most favorable City protected conduct. Beckwith v. any applicable policy. Even if the broader Shores, Daytona Beach of effect, anti-nepotism policy was in (11th Cir.1995) (citing Bryson v. 1563-64 ap- penalty a where it still received severe City Waycross, 888 F.2d 1565-66 of pears everything he could to make he did (11th Cir.1989)). regulations. acting within Vista sure he was content, form, First, we examine the addition, of the two reasons the second employee’s speech context of the to deter- demotion, given for the that Walker public it a matter of mine whether addresses having “negligent and a sub- inefficient” Bryson, Viewing 1565. concern. 888 F.2d at superior check with a about the ordinate light in the most favorable to the evidence considering proper regulations, illogical Walker, spoke legislators the with well have been the situation. Walker that there was no attempting because he was concerned with how Vista to make sure it, impropriety appearance and no actual being spent. funds were core concern “[A] questions fact. do not resolve but we protection of of the first amendment is the expose attempting the ‘whistle-blower’ Finally, employment actions were adverse government corruption.” Id. at 1566. Walk- Swafford, Taylor against also taken meeting spoke er at a with elected employees who met with other two Vista improving the factfinder legislators. officials about services Vista From this evidence a reasonably people public. Viewing could conclude provides to the the evidence punished rights. “Only legislators were Id. the rarest spoke who with government officials doing cases will reasonable so. truly discipline know that the termination or presented credible evi- Defendants ‘clearly public employee estab- violated only legis- with the talked dence Walker rights.” lished’ federal Hansen v. Solden- job for his own and that lators out of concern (11th Cir.1994). wagner, 19 F.3d only anti-nepo- he was fired for However, light viewed in the policy. tism contend that im- Defendants Walker, the facts demon- most favorable objective munity requires analy- doctrine played a speech substantial strate that sis that does consider defendant’s state satisfied in his demotion. Walker has Therefore, role argue, they of mind. defendants Bryson test. the third element of are entitled to because anti-nepotism policy Walker’s violation Fourth, inferences from the reasonable objectively was an valid reason to demote evidence, light fa- viewed most same him, subjective, allegedly and the defendants’ Walker, that the defendants vorable to show retaliatory, doing intent so is irrelevant. taken the same action in the would not have (subjective See id. at 578 motivation of offi- protected conduct. absence of Walker’s cials is irrelevant to whether immu- properly court could conclude The district exists). nity that, most favorable to viewed and direct the circumstantial evi- Defendants are correct that there is produced Walker established that dence generally subjective component quali no speech. in retaliation for his he was demoted immunity analysis fied the test is objective legal on based reasonableness. Qualified Immunity D. 635, 641, 107 Creighton, Anderson 483 U.S. 3034, 3039-40, (1987); 97 L.Ed.2d 523 though Walker has established Even Lassiter, However, 28 F.3d at 1150. in the fact, issue of material the defen subjective cases that held there should not be liability by protected be dants analysis, of the official’s state mind was not qualified immunity. Qualified im doctrine of underlying an essential element of the consti munity “protects government officials ... Vickers, Tompkins tutional violation. v. 26 liability if their conduct violates no (5th Cir.1994). 603, F.3d 607-08 Where the ‘clearly statutory established or constitution official’s state of mind is an essential element rights person al of which a reasonable would ” violation, underlying of of mind the state v. A have known.’ Lassiter Alabama & M qualified immunity must be considered (11th 1146, University, 28 F.3d 1149 Cir. analysis plaintiff or a would almost be never 1994) (en banc) (quoting Fitzger v. Harlow prove able to that the officialwas not entitled ald, 800, 818, 2727, 2738, 102 457 U.S. qualified immunity. to (1982)). 73 L.Ed.2d 396 hold, considering every whether the law as Circuit that has “When We held, applicable clearly certain is to facts estab considered this issue has where lished, upon subjective pre the facts of cases relied as motive or intent is a critical ele important. alleged are The facts need not be ment of the constitutional cedent violation government the same as the facts of the immediate ease. the intent of the actor is rele (5th materially Tompkins, But do need to be similar.” vant. 26 F.3d at 608 See Cir.) Lassiter, (subjective (quoting 28 F.3d at 1150 Adams v. intent must be considered in County immunity analysis Dept., qualified St. Lucie where the offi Sheriff's (11th Cir.1992) 1563, 1573, (Edmonson, 1575 cial’s motive or intent is a critical element of J., banc, violation); dissenting), approved en 998 the constitutional Branch v. Tun F.2d (11th Cir.1993)). (9th Cir.1991) nell, Qualified (same); 923 fo 937 F.2d 1382 (D.C.Cir.1990) actual, specific Siegert Gilley, cuses on the details con v. 895 F.2d 797 of Lassiter, (same), 226, grounds, crete cases. 28 F.3d at 1149-50. on other 500 U.S. aff’d 1789, (1991); discharge by 114 Plaintiffs their burden 111 S.Ct. L.Ed.2d 277 referring general Neighborhood Pueblo Health v. Lo- to rules and abstract Centers

1133 Cir.1988) (10th (same); speech. was demoted retaliation for his savio, he F.2d 642 (6th Cir.1988); immunity analysis F.2d 418 The is therefore Haydon, 858 Poe v. (2d Cir. Hourigan, 836 F.2d 736 assumption that he was de- Musso made under 1988) (same); v. DeKalb see also moted for this reason. Ratliff Cir.1995) County, F.3d A official could not have reasonable Vista im- to (subjective intent is relevant thought against that he could retaliate Walk- a discriminatory if intent is munity analysis exercising er for his First Amendment tort). of the constitutional specific element Further, rights. speech reasonable official state of government official’s

The thought could not have that he could retaliate element in First Amend is a critical mind against exercising rights un- It retaliatory claims. must ment demotion guise anti-nepotism policy. der in this case. Because Walker be considered AFFIRMED. material issue of has established retaliation, it assumed at must be fact as RONEY, concurring: Judge, Circuit Senior retaliate stage that defendants did this I When the defendants first speech. him for his concur. against qualified immunity, the district moved the defendants acted At the time untimely. appeal, denied it as On court reasonable clearly law informed established panel of this Court issued a writ manda- could not that Walker government officials prior directing the district court to rule mus speech. punished for his First Amendment be to trial on defendants’ defense Pickering v. Board Education See by immunity. responded court district 205, 391 U.S. Township High School District deciding not entitled that the defendants are (1968) 1731, 20 L.Ed.2d 811 qualified immunity on this record. It (criticism employee of Board of Education seems to me we a matter of school funds is for its allocation decide, trial, responsibility prior protected by the First concern and properly denied the district court Amendment); Bryson, F.2d at 1566 not, harm that motion. Even if we do no (core Amendment is concern of First way. trial would continue either done. The attempting to protection of whistle-blower Judge opinion I Farris’s as decid- understand corruption). The facts of expose government law, presented ing only squarely issue of materially to the in- these cases are similar qualified immunity, and by the motion for Lassiter, F.3d at 1150. The case. stant evidentiary although and factual issues against retaliation for exercise of First law appeal, the affir- argued on this have been rights was established. Amendment hinge on a by this Court does not mance argue qualified that denial of Defendants factual issues. resolution of those equivalent to immunity here would be the employee holding that once an has court’s BIRCH, part in Judge, concurring Circuit speech may engaged in First Amendment he dissenting part: in longer punished for valid reasons. no be employ- An argument point. the This misses majority’s agree I the determination with punished for valid reasons. may still be ee fairly case speech at issue this the However, employee can establish a when the speech constituting may be characterized as of material fact that the true issue I therefore on a matter of concern. actually punishment was the reason for majority’s that the concur in the conclusion go trial. speech, then the case must light most presented, viewed facts sufficiently plaintiff, estab- favorable to the portion of spend a substantial Defendants underlying claim. First Amendment lish they arguing that are entitled to their briefs however, believe, I that we lack immunity there is no clear- qualified because funda- remaining more to review the ly law that a demotion viola- established —and argument advanced the defen- a anti-nepotism policy tion of an violates mental — immunity. qualified issue of inapposite. dants on the rights. argument This is person’s reason, respectfully I dissent from genuine issue that For this has established a 1134 majority’s sufficiency nothing decision dis- in the determination is portion concluding that the defendants

cussing sup- more than whether the could evidence qualified immunity with are not entitled to port finding particular conduct oc- respect retaliation claim. curred, to Walker’s truly question decided is not claim, “separable” plaintiff’s from the recently Supreme Court most articu decision”____ hence there is not a “final underpinnings jurisdictional of an lated the summary-judg- Johnson reaffirmed that interlocutory on im appeal based —— appealable ment determinations are when Jones, U.S.-, munity in v. Johnson they dispute concerning resolve a an “ab- 2151, 115 S.Ct. 132 L.Ed.2d 238 — relating stract issue of law” Pelletier, U.S.-, v. 116 Behrens S.Ct. (1996). immunity typically, the issue whether the Johnson, 834, In 133 L.Ed.2d 773 — right allegedly infringed federal was although appealed the denial the defendants “clearly established.” summary judgment motion of their based on defense, of a the assertion — Behrens, at-, 116 U.S. 842 Supreme they had Court found (citations omitted). Bearing in and brackets legal question of failed to raise the purely Johnson, language mind the our court has is, whether, qualified immunity viewing —that narrowly juris been careful to construe our the facts in the most favorable to the interlocutory appeals involving diction over plaintiff, established that the law See, qualified immunity question. e.g., plaintiff’s the defendants violated consti Clifton, 1087, Johnson F.3d Rather, right. tutional the Court found that Cir.) (“[T]he only factual issue ... can be only appeal issue on was whether the necessary part heard it is a because plaintiff’s supported record thus far claim qualified immunity analysis, core the resolu engaged in that the defendants had the con final, tion of which constitutes a collateral plaintiff duct of which the accused them. order; qualified immunity when the core is The district court had found this factual issue appealed, is not sue then the factual issue that, dispute. The Court concluded be — either.”), denied, may not be cert. U.S. although this factual issue arose in the con -, 51, (1996); 117 S.Ct. 136 L.Ed.2d 15 qualified immunity, it text nonetheless was 338, County, v. DeKalb Ratliff nothing question evidentiary more than (11th Cir.1995) (“[W]e decline to review the may, sufficiency, party “Le. facts a or which summary judgment ground denial of [the] on Johnson, not, trial,” prove at be able to ... considering the district court in [that] — at-, 2156, 115 S.Ct. at and as U.S. defendant’s motions assumed erroneous facts final appealable, such was not an order. unsupported by or assumed facts which were decision, reaching the Court noted that its record.”). the evidence “ qualified immunity ruling ‘a ... ... The defendants submit that demoted legal that can decided with issue be reference only anti-nepotism a state undisputed facts and in isolation fcom policy; according to remaining of the case.’” the defendants’ version issues Id. events, 511, (quoting Forsyth, 472 the fact that Walker also Mitchell v. U.S. rights exercised his 530 n. 2817 n. under the First Amend- (1985)) (omissions (which they dispute) original). ment is irrelevant and L.Ed.2d view, Supreme subsequently my In Court clarified coincidental. the do defendants Behrens, whether, in 834. Al posit question assuming Johnson not the of though primarily pro Behrens concerned the that the defendants did fire en- interlocutory priety multiple appeals of on gaging activity, in protected the defendants qualified immunity, the issue of the Court qualified are entitled to immuni- nonetheless explained: rather, ty; the ask that defendants we as- held, allege sume all facts as the simply,

Johnson that defendants them determinations find, basis, evidentiary sufficiency summary to be and on that of at their any judgment immediately appealable clearly conduct did not violate are not estab- merely they happen juris- I because to arise in a lished law. believe that we do have case; qualified-immunity if what is at issue diction to determine whether the district

H35 that, argue appeal in this support the defen fendants do not findings factual court’s viewing in the violated the facts most favorable contention that Walker dants’ factual they place plaintiff, to the nonetheless are entitled anti-nepotism policy in at the a valid Rather, Moreover, immunity. qualified to transpired.1 defen these events time essence, evidentiary sup argue, viewing dants to find conclusive were we be, allege to version of the facts facts as the defendants them for the defendants’ port they legitimate case, precedent suggests had another reason for de our circuit in this moting separate apart any jurisdiction to resolve could exercise that we by the defendants First Amendment concerns. Because there question presented immunity. support not is no conclusive for the defendants’ qualified This is regarding facts, challenge presented here. The dis version of the defendants’ the circumstance effectively requires predicate fact to be we decide a factual trict court found is, question court found a issue—whether there is conclusive foundation dispute —that specific to confirm the defendants’ contention that fact to exist as to what state of employees was Walker did violate state law—based neither regulation governing VISTA acted; drawing have on the record nor the of reasonable place the time we previously with inferences based on facts found. that the district court erred not found my opinion, type purely of finding. I do not believe that this factual respect to this subject decision-making proper is not of ease as it has been framed posture of this interlocutory appeal qualified an based on permits us to “assume” the defendants fact, did, immunity.2 violate a state either that Walker him demoted sole

law or that the defendants say may that we never This is not speech. ly asserting right to free As underlying whenever the exercise result, properly the we cannot evaluate intent of a state actor is intertwined with the materially application extent to which indeed, immunity; cir- issue of our might clearly to the law similar facts See, e.g., precedent cuit holds otherwise. conduct vio that the defendants’ established Johnson, McMillian v. 88 F.3d 1554 at 1566 (or violate) not Walker’s constitu lated did (11th Cir.1996) (“[W]e have held that intent rights. tional ignored in- or motivation not be when justification for tent or motivation is essential element The defendants offer no underlying tort---- right constitutional When First Amendment on Walker’s purpose punish plaintiff] right [defendants’] [the of that basis that Walker’s exercise considered, question is no that their ability “promote the efficien is there affected their law.”) violated established per conduct cy [the state] services subjec- cross, forms,” question of how to reconcile the City Way 888 F.2d The Bryson v. Cir.1989), component of the intent determination they con tive because in a discrimination action entirely implicated often they demoted him for an tend immu- i.e., objective nature of of a with the the violation valid different reason — Indeed, recently Foy v. nity addressed policy. the de- was most anti-nepotism state findings accept precedent court’s if noting cretion to the district that our circuit It is worth regarding entirely adequate. required to which clear extent But we are not are independent omitted). factual them.”) (citations we conduct review quotation accept interlocutory appeal disputed of fact in an issues immunity. Compare based on Ratliff Grimm, 74 F.3d 2. See Carnell v. also (“[W]e County, F.3d at decline to DeKalb (9th Cir.1996) ("DQnsofar issue of [as] summary judgment [the] on review the denial trial, namely whether material fact exists for considering ground ... the district court in [that] had been informed the officers that she Camell motions assumed erroneous facts or defendant’s jurisdic raped, we we do not have conclude that unsupported by the assumed facts which were that ] v. Jones to address [under tion Johnson record.”) with Cottrell v. Cald- evidence in disputed of that issue issue. And the resolution well, 1480, (11th Cir.1996) ("In 85 F.3d 1486 impacts question reasonable of fact jurisdiction exercising interlocutory our review their conduct ... could have believed cases, officials required qualified immunity we are not in (cita circumstances.”) was lawful in of the of the facts for to make our own determination omitted). summary judgment purposes; the dis- tion we have 1136

Holston, (11th Cir.1996). Foy ... [T]he F.3d 1528 record does show Defendants 94 had, fact, removal of two children in cause to that [a involved the state’s understand community possibly to foster care. religious being from a mistreated. The child] were, plaintiffs claimed the state’s conduct was record also shows in Defendants discrimination; fact, by religious motivated aware information that would war- children____ proffered investigation to show that state evidence rant of other being mistreated. Acknowl- children were edging discriminatory-intent that ele- ____Because, given the circumstances and question ment “can cloud the of whether the law, of the state reasonable child lawfully unlawfully in official acted or custody worker could have considered De- 1534, circumstances,” id. at we held that arguably proper fendants’ conduct if even qual- defendants nonetheless were entitled to in Defendants were motivated substantial immunity:

ified motives, by part unlawful Defendants’ con- objectively duct was reasonable for the trigger application to doctrine’s

One purposes qualified immunity. depends upon whether the record estab- defendant, fact, pos- Foy, Foy, in lishes that the did 94 F.3d at 1534-35. unlike this case, record, fact, acting sess a substantial lawful motive for “the substan show[ed] intent, adequate ruling as he did act. At least when an tial lawful while not out some intent, Id. at 1535 n. 9. present, that a lawful motive is discrimina- unlawful too.” Moreover, tory might assuming motive also exist does not even that the defen Foy sweep qualified discriminatory from the field dants in acted with some animus, summary judgment stage____ even at the the law did not establish that summary the facts for Where assumed a reasonable social worker faced with evi judgment purposes involving in a case dence of child abuse should not act to remove qualified immunity show mixed motives a mistreated child from the abusive environ (lawful motivations) and unlawful pre- critically distinguish ment. These factors Foy action; existing here, law does dictate that the mer- from the instant the record plaintiffs conclusively its of the case must be decided does not show the defen favor, possessed, part, the defendant is entitled to immuni- dants least a lawful ty- differently, motive for their conduct.3 Stated Cir.1996) ("[Wjhether Again, precedent ambiguous I note that our is it was reasonable for the regarding analytical the correct framework in a officers to believe their actions met the standard qualified-immunity context when intent is an ele- by principles depends set those on whether one Compare ment of the cause of action. an, McMilli- believes their version of the facts. That version (in assumed, 88 F.3d 1554 which the court sharply disputed, is and the matter of the offi purposes qualified-immunity analysis, qualified immunity cers’ therefore cannot be re possessed punish the defendants an intent to law.”); solved as a matter of tosh, Jackson v. McIn plaintiff, regardless possible evidence of a law- Cir.) (stating 90 F.3d defendants), part ful motive on the with argue "[t]he doctors further that Jackson failed (“[W]hen Foy, adequate at 1534—35 F.3d genuine to show a issue of material fact as to present, discriminatory lawful motive is that a indifferent, they deliberately whether fact, were might sweep qualified motive also exist does not question to his medical needs. As to that field____Unless it, immunity matter, legal from the as a jurisdiction____ question we lack It is a review plain specific is under the facts and cir- able after trial. We are instructed the Su cumstances of the case that the defendants’ con- preme appellate [in ] Court Johnson v. Jones that despite having adequate lawful reasons duct— lacking____ Given the district support to motive, the act—was the result of his unlawful court's determination that there is a issue triable immunity.”). the defendant is entitled to indifference, as to deliberate the doctors were There are other contexts in which the role of summary judgment ground not entitled to on the subjective evidence of intent of a state actor reasonably could believe their conduct complicates qualified-immunity question. clearly-established did not nied, -U.S.-, law.” de violate cert. found, instance, Some courts have that a L.Ed.2d finding respect aof issue of fact with (citations omitted). The claim of subjective necessarily pre- a defendant's intent obviously deliberate indifference is not at qualified immunity issue cludes entitlement to when this case. An examination of this claim does the claim advanced is deliberate indifference however, highlight, Eighth medical See, under the serve the unsettled state of needs Amendment. Okst, (2nd e.g., Weyant pertains as it the law the court's basis for not reveal definitive- the record does because anti- violated a valid state

ly that Walker the time the relevant

nepotism policy at occurred, explicitly it also does

events could have demoted that the defendants

show part, this at least Indeed, cannot discern because we

policy. juncture the de-

conclusively at this justification for some lawful

fendants had Walker, we do not decision to demote

their application there exists

know whether

materially facts to law that or similar placed the defendants on notice not have violated a estab- their conduct words, cannot right; in other we de-

lished immunity question. core

cide the reason, inappro- that it is I believe

For this remaining issue raised

priate reach appeal.

this DENTAL MANUFACTURING

YOUNG

COMPANY, INC., Plaintiff-

Appellant,

Q3 INC., PRODUCTS, SPECIAL Kraenzle,

David Defendants- G.

Appellees.

No. 96-1298. Appeals,

United States Court of

Federal Circuit.

April 1997. Denied; Suggestion

Rehearing

Rehearing In Banc Declined

June disputed predicate question analytical approach— jurisdiction. tent is raised as a well as its —as ' subjective qualified-immunity in- fact. cases when

Case Details

Case Name: Walker v. Schwalbe

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 15, 1997

Citation: 112 F.3d 1127

Docket Number: 96-8338

Court Abbreviation: 11th Cir.