Randall v. Scott

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 30, 2010

No. 09-12862

JOHN LEY

________________________

CLERK

D. C. Docket No. 08-02910-CV-TCB-1

EARL RANDALL,

Plaintiff-Appellant,

versus

JEWEL SCOTT,

in her individual capacity,

HEADLEY LEOPOLD SCOTT,

TRACY GRAHAM LAWSON,

Clayton County District Attorney, in

her official capacity,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(June 30, 2010)

Before BIRCH, BARKETT and KRAVITCH, Circuit Judges.

BIRCH, Circuit Judge:

In this 42 U.S.C. § 1983 First Amendment retaliation claim appeal, we

(1) reevaluate the pleading standard requirement for § 1983 cases involving

qualified immunity, (2) determine whether Earl Randall’s (“Randall”) complaint –

alleging state conduct restricting his ability to run for public office – raises a claim

for violation of his First Amendment rights, and (3) resolve whether Jewel Scott

(“Scott”) was entitled to qualified immunity. The district court granted Scott’s

motion to dismiss Randall’s individual and official capacity claims against Scott.

We reject the district court’s application of a heightened pleading standard and the

district court’s determination that Randall failed to allege a First Amendment

violation. We agree, however, with the district court’s determination that Scott

enjoys qualified immunity protection for her actions. Accordingly, we AFFIRM

the district court’s grant of Scott’s motion to dismiss Randall’s individual capacity

claim, and REVERSE the district court’s dismissal of Randall’s official capacity

claim.

I. BACKGROUND

The district court order summarized the factual allegations stated in

Randall’s complaint as follows:

2

Randall was hired as an investigator after Jewell Scott was

elected to the position of district attorney [of Clayton County,

Georgia]. In June of 2005, Randall was promoted by Jewell Scott and

became her chief of staff.

On or about September 21, 2007, Randall was approached by

three colleagues who asked him to consider running for the position of

Chairman of the Clayton County Board of Commissioners

(“Chairman”). On or about September 23, 2007, Randall and his wife

agreed that he should pursue the opportunity.

On September 26, 2007, Randall met with Jewel Scott and told

her that he intended to run for Chairman. According to Randall, Jewel

Scott initially expressed to him that she was pleased with his decision

to run for the position and mentioned that she did not want her

husband, Lee Scott, to run.

That same day, Randall filed a Declaration of Intent to run with

the Clayton County Election Office. Within a few days of filing this

declaration, Randall learned that Lee Scott was very angry about

Randall’s decision to run for the position. Randall alleges that Lee

Scott was seen slamming his fist into the table at a restaurant and

stated that he wanted Jewel Scott to use her position to force Randall

out of the race.

On or about September 28, 2007, Jewel Scott advised Randall

that her husband was very upset about his decision to run. She told

him that Lee Scott wanted to run for Chairman and that Randall’s

campaign could potentially split the voters who wanted to vote against

the incumbent, Eldrin Bell.

Randall refused to withdraw from the race. In October 2007, he

met with Lee Scott, Jewel Scott and employees from the Clayton

County District Attorney’s office. Lee Scott told Randall that he

wanted to run for Chairman, and Randall replied that he did not see a

problem running for the same office. Lee Scott then became upset

and told Randall that they would become enemies if Randall did not

back out of the race, and he threatened to “destroy Randall.” Randall

refused to drop out of the race. Lee Scott then allegedly turned to

Jewel Scott and asked her to fire Randall.

In November of 2007, Jewel Scott allegedly told Randall that

Lee Scott was pressuring her to fire Randall unless he backed out of

the race. She told Randall to look for another job. Randall was

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approached by several mutual acquaintances who told him that Lee

Scott was angry about Randall “reaching out to his political

supporters” and warned him that if he stayed in the race he might lose

his job because “he was making life difficult for Jewel Scott.”

Jewel Scott told Randall that “Lee Scott and Sheriff Hill told

her that she would be perceived as a weak leader if she did not fire

Randall for expressing his political views in a race against Jewel

Scott’s husband, among other candidates.”

On December 17, 2007, Randall sent invitations to a fundraiser

hosted by one of his political supporters. Randall sent an invitation to

Jewel Scott. The next day, Randall learned that Jewel Scott was upset

about the fundraiser and that Lee Scott was angry because Randall

was seeking campaign contributions through the fundraiser.

Five days after Jewel Scott received the invitation to Randall’s

fundraiser, she terminated Randall’s employment.

Randall alleges that following his termination he has been

unable to find permanent employment in law enforcement and has

been forced to curtail his campaign activities because of his financial

condition. Randall seeks lost wages, compensatory damages and

punitive damages.

R1-18 at 2-5.

On 28 April 2008, Randall filed this action in the Superior Court of Clayton

County, Georgia, asserting a First Amendment retaliation claim pursuant to 42

U.S.C. § 1983 against Scott, in her individual and official capacities, and a tortious

interference claim against her husband, Headley Leopold Scott. Id. at 1-2. On 17

September 2008, Scott removed the case to the United States District Court for the

Northern District of Georgia. Id. at 2. On 22 September 2008, Scott filed a motion

to dismiss, in which she argued that Randall’s complaint failed to state a First

Amendment violation and alternatively that she was immune from suit. Id.

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The district court granted Scott’s motion to dismiss on 20 May 2009. Id. at

17. The court concluded that “in light of the heightened pleading standard

applicable in § 1983 cases, the mere fact that Randall decided to run for political

office and held an event in connection with his candidacy is not enough to trigger

First Amendment protection.” Id. at 14. Alternatively, even if the allegations in

the complaint were sufficent to establish a First Amendment violation, the court

concluded that Scott was entitled to qualified immunity because she did not violate

clearly established law. Id. at 15-16.

On appeal, Randall first argues that the district court improperly subjected

his complaint to a heightened pleading standard. Randall suggests that our circuit

precedent has been undermined by the Supreme Court’s decisions in Jones v. Bock,

549 U.S. 199, 127 S. Ct. 910 (2007) and Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct.

1937 (2009). Second, Randall contends that the district court’s First Amendment

protection analysis was flawed, because his First Amendment rights were violated

when Scott fired him for deciding to run for Chairman of the Clayton County

Board of Commissioners. Randall further submits that Scott is not entitled to

qualified immunity for violating his First Amendment rights.

II. DISCUSSION

We review a district court order granting a motion to dismiss de novo,

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applying the same standard as the district court. Hoffman-Pugh v. Ramsey, 312

F.3d 1222, 1225 (11th Cir. 2002). We therefore accept as true the facts as set forth

in the complaint and draw all reasonable inferences in the plaintiff’s favor. See

Wilson v. Strong, 156 F.3d 1131, 1133 (11th Cir. 1998).

A. Pleading Standard

In granting Scott’s motion to dismiss, the district court “employed a

heightened pleading standard.” R1-18 at 6. Citing our opinion in Danley v. Allen,

540 F.3d 1298, 1313-14 (11th Cir. 2008), the court stated that is was “‘bound to

apply the heightened pleading requirement’ in a § 1983 case involving qualified

immunity.” R1-18 at 6. On appeal, Randall argues that our circuit’s heightened

pleading requirement for § 1983 cases involving qualified immunity has been

overruled by Jones and Iqbal.

1. History of Heightened Pleading Requirement

Generally, under the Federal Rules of Civil Procedue, a complaint need only

contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. (8)(a)(2). To survive a 12(b)(6) motion to

dismiss, the complaint “does not need detailed factual allegations,” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964 (2007), but must

“give the defendant fair notice of what the plaintiff’s claim is and the grounds upon

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which it rests,” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957).

Over two decades ago, “in an effort to eliminate nonmeritorious claims on

the pleadings and to protect public officials from protracted litigation involving

specious claims, we, and other courts . . . tightened the application of Rule 8 to

§ 1983 cases.” Arnold v. Bd. of Educ. of Escambia County, 880 F.2d 305, 309

(11th Cir. 1989). Under this heightened pleading standard, plaintiffs were required

to provide “some factual detail” in addition to plain statements showing that they

were entitled to relief. Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485

(11th Cir. 1992). We found such additional factual detail useful in § 1983 cases in

order to make qualified immunity determinations at the motion to dismiss stage

and to prevent public officials from enduring unnecessary discovery.

In 1993, the Supreme Court decided Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160 (1993),

a § 1983 case involving a municipal entity defendant. In Leatherman, the Supreme

Court stated that “it is impossible to square the ‘heightened pleading standard’ . . .

with the liberal system of ‘notice pleading’ set up by the Federal Rules. Rule

8(a)(2) requires that a complaint include only ‘a short and plain statement of the

claim showing that the pleader is entitled to relief.’” Id. at 168, 113 S. Ct. at 1163

(citing Fed. R. Civ. P. (8)(a)(2)).

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Since Leatherman, we have yet to decide whether Leatherman’s holding

applies in cases against individual defendants. See, e.g. GJR Investments, Inc. v.

County of Escambia, Fla., 132 F.3d 1359, 1367-68 (11th Cir. 1998) (stating that

“heightened pleading . . . is the law of this circuit” when § 1983 claims are asserted

against government officials in their individual capacities.). We read

Leatherman’s holding as limited to § 1983 actions against entities. See Swann v.

Southern Health Partners, Inc., 388 F.3d 834, 838 (11th Cir. 2004) (“Leatherman

overturned our prior decisions to the extent that those cases required a heightened

pleading standard in § 1983 actions against entities that cannot raise qualified

immunity as a defense.”).

In 1998, the Supreme Court decided Crawford-El v. Britton, 523 U.S. 574,

118 S. Ct. 1584 (1998), in which it addressed how a § 1983 plaintiff must allege

unconstitutional motive. The Court stated:

In the past we have consistently . . . refused to change the Federal

Rules governing pleading by requiring the plaintiff to anticipate the

immunity defense, or requiring pleadings of heightened specificity in

cases alleging municipal liability . . . . As we have noted, the Court of

Appeals adopted a heightened proof standard in large part to reduce

the availability of discovery in actions that require proof of motive.

To the extent that the court was concerned with this procedural issue,

our cases demonstrate that questions regarding pleading, discovery,

and summary judgment are most frequently and most effectively

resolved either by the rulemaking process or the legislative process.

Id. at 595, 118 S. Ct. at 1595 (internal citations omitted). In 2002, the Supreme

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Court decided Swierkiewicz v. Sorema, 534 U.S. 506, 513, 122 S. Ct. 992, 998

(2002), an employment discrimination case, and held that “complaints . . . must

satisfy only the simple requirements of Rule 8(a).” The Court stated:

Rule 8(a)’s simplified pleading standard applies to all civil actions,

with limited exceptions. Rule 9(b) for example, provides for greater

particularity in all averments of fraud or mistake. This Court,

however, has declined to extend such exceptions to other contexts. In

Leatherman we stated: “The Federal Rules do address in Rule 9(b) the

question of the need for greater particularity in pleading certain

actions, but do not include among the enumerated actions any

reference to complaints alleging municipal liability under § 1983 ” . . .

Just as Rule 9(b) makes no mention of municipal liability under [§

1983] neither does it refer to employment discrimination. Thus,

complaints in these cases, as in most others, must satisfy only the

simple requirements of Rule 8(a).

Id. (footnotes omitted)

While a number of circuits relied upon the language in Crawford-El and

Swierkiewicz to reject a heightened pleading standard in § 1983 individual-official

cases,1 our circuit did not. See Swann, 388 F.3d at 838 (reaffirming the heightened

1

See, e.g., Doe v. Cassell, 403 F.3d 986, 988-89 (8th Cir. 2005) (holding that “[t]he only

permissible heightened pleading requirements in civil suits are those contained in the Federal

Rules of Civil Procedure or those in federal statutes enacted by Congress.”); Educadores

Puertorriquenos en Accion et al. v. Hernandez, 367 F.3d 61, 66 (1st Cir. 2004) (“Swierkiewicz

has sounded the death knell for the imposition of a heightened pleading standard except in cases

in which either a federal statute or specific Civil Rule requires that result.”); Alston v. Parker,

363 F.3d 229, 233 (3rd Cir. 2004) (“[A] fact-pleading requirement for civil rights complaints has

been rejected by the Supreme Court in no uncertain terms.”); Phelps v. Kapnolas, 308 F.3d 180,

186-87 (2d Cir. 2002) (using notice pleading in a § 1983 action for violation of the Eighth

Amendment); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002)

(“[N]early all of the circuits have now disapproved any heightened pleading standard in cases

other than those governed by Rule 9(b).”); Goad v. Mitchell, 297 F.3d 497, 503) (6th Cir. 2002)

(“We conclude that the Supreme Court’s decision in Crawford-El invalidates the heightened

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pleading standard in § 1983 cases that involve parties eligible for qualified

immunity after Crawford-El and Swierkiewicz ).

2. Heightened Pleading in a Qualified Immunity Case After Jones and Iqbal

We are bound by the holdings of earlier panels unless and until they are

clearly overruled by this court en banc or by the Supreme Court. United States v.

Smith, 122 F.3d 1355, 1359 (11th Cir. 1997) (per curiam). “While an intervening

decision of the Supreme Court can overrule the decision of a prior panel of our

court, the Supreme Court decision must be clearly on point.” Garrett v. Univ. of

Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003) (per curiam).

a. Jones

We now address for the first time the effect of Jones and Iqbal on our

precedent regarding § 1983 pleading standards for defendants who are able to

assert a qualified immunity defense.2 In Jones, the Supreme Court rejected the

pleading requirement.”); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (holding that “there

are no special pleading rules for prisoner civil rights cases”); Currier v. Doran, 242 F.3d 905,

916 (10th Cir. 2001) (“This court’s heightened pleading requirement cannot survive Crawford-

El.”).

2

We have already applied Iqbal to a § 1983 suit against defendants raising a qualified

immunity defense. Keating v. City of Miami, 598 F.3d 753 (11th Cir. 2010). In that case, we

determined that plaintiffs’ allegations met both the Iqbal pleading standard and our circuit’s

heightened pleading standard. Id. at 762-63. The opinion also, in dicta, equated the two

standards. Id. at 763. We now say explicitly what Keating implied: whatever requirements our

heightened pleading standard once imposed have since been replaced by those of the Twombly-

Iqbal plausibility standard. As we recently emphasized in American Dental Ass’n v. Cigna

Corp., “The [Supreme] Court in Iqbal explicitly held that the Twombly plausibility standard

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contention that Prison Litigation Reform Act (PLRA) plaintiffs were required to

affirmatively plead exhaustion of administrative remedies. Jones, 549 U.S. at 216,

127 S. Ct. at 921. The Court explained that “[t]he argument that screening would

be more effective if exhaustion had to be shown in the complaint proves too much;

the same could be said with respect to any affirmative defense.” Id. at 215, 127 S.

Ct. at 921. The Court further stated that it had explained in Leatherman and

Swierkiewicz “that courts should generally not depart from the usual practice under

the Federal Rules on the basis of perceived policy concerns.” Id. at 212, 127 S. Ct.

at 919.

While the Jones case dicta does speak broadly regarding pleading standards,

the holding is restricted to PLRA plaintiffs and PLRA pleadings. Dicta “is neither

the law of the case nor binding precedent.” Great Lakes Dredge & Dock Co. v.

Miller, 957 F.2d 1575, 1578 (11th Cir. 1992). We therefore conclude that Jones

does not overrule our precedent regarding heightened pleading requirements in

§ 1983 actions involving individuals able to assert qualified immunity as a defense.

applies to all civil actions. . . because it is an interpretation of Rule 8.” 605 F.3d 1283, 1290

(11th Cir. 2010) (emphasis added). Thus, like complaints in all other cases, complaints in §

1983 cases must now “‘contain either direct or inferential allegations respecting all the material

elements necessary to sustain a recovery under some viable legal theory.’” Bryson v. Gonzales,

534 F.3d 1282 (10th Cir. 2008) (quoting In re Plywood Antitrust Litigation, 655 F.2d 627, 641

(5th Cir. Unit A 1981), quoted with approval in, Twombly, 550 U.S. at 562 (quoting Car

Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984) (quoting In re Plywood

Antitrust Litig., 655 F.2d at 641))).

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b. Iqbal

Iqbal dealt with an individual who “filed a Bivens action 3 in the United

States District Court for the Eastern District of New York against . . . [numerous]

federal officials.” Iqbal, 556 U.S. __, 129 S. Ct. at 1943. “[T]he complaint

allege[d] that [federal officials] adopted an unconstitutional policy that subjected

[Mr. Iqbal] to harsh conditions of confinement on account of his race, religion, or

national origin.” Id. at __, 129 S. Ct. at 1942. In the district court, the defendant

federal officials “raised the defense of qualified immunity and moved to dismiss

the suit, contending the complaint was not sufficient to state a claim against them.”

Id. at __, 129 S. Ct. at 1942. On appeal, the Supreme Court addressed the issue of

whether Mr. Iqbal, “as the plaintiff in the District Court, plead factual matter that,

if taken as true, states a claim that petitioners deprived him of his clearly

established constitutional rights.” Id. at __, 129 S. Ct. at 1942-43.

In analyzing the sufficiency of Mr. Iqbal’s complaint, the Supreme Court

stated that “[u]nder Federal Rule of Civil Procedure 8(a)(2), a pleading must

3

See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 389, 91 S. Ct. 1999,

2001 (1971). While Iqbal involved a Bivens action, and the case before us involves a § 1983

suit, the difference is inconsequential. Both deal with an unconstitutional deprivation of rights

which the Supreme Court compares on equal footing for certain analysis. See Iqbal, 556 U.S.

__, 129 S. Ct. at 1949; Harlow v. Fitzgerald, 457 U.S. 800, 809, 102 S. Ct. 2727, 2733 (1982)

(“[I]t would be untenable to draw a distinction for purposes of immunity law between suits

brought against state officials under [§ 1983] and suits brought directly under the Constitution

against federal officials.”) (quotation marks and citation omitted).

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contain a ‘short and plain statement of the claim showing that the pleader is

entitled to relief.’” Id. at __, 129 S. Ct. at 1949 (citing Fed. R. Civ. P. 8(a)(2)).

The Court, citing Twombly, continued: “[t]wo working principles underlie our

decision . . . [f]irst, the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions [and] . . . second, only

a complaint that states a plausible claim for relief survives a motion to dismiss.”

Id. at __, 129 S. Ct. at 1949-50 citing Twombly, 550 U.S. at 555, 556, 127 S. Ct. at

1955.

The Court went on to state that Mr. Iqbal’s argument that Twombly “should

be limited to pleadings in the context of an antitrust dispute . . . is not supported by

Twombly and is incompatible with the Federal Rules of Civil Procedure.” Iqbal,

556 U.S. at __, 129 S. Ct. at 1953. “Rule [8] . . . governs the pleading standard ‘in

all civil actions and proceedings in the United States district courts.” Id. at __,

129 S. Ct. at 1953 (citing Fed. R. Civ. P. 1). “Our decision in Twombly expounded

the pleading standard for ‘all civil actions.’” Id. at __, 129 S. Ct. at 1953.

Addressing qualified immunity and the discovery process, the Court stated:

Respondent next implies that our construction of Rule 8 should

be tempered where, as here, the Court of Appeals has “instructed the

district court to cabin discovery in such a way as to preserve”

petitioners’ defense of qualified immunity “as much as possible in

anticipation of a summary judgment motion.” Iqbal Brief 27. We

have held, however, that the question presented by a motion to

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dismiss a complaint for insufficient pleadings does not turn on the

controls placed upon the discovery process. Twombly, supra, at 559,

127 S. Ct. 1955 (“It is no answer to say that a claim just shy of a

plausible entitlement to relief can, if groundless, be weeded out early

in the discovery process through careful case management given the

common lament that the success of judicial supervision in checking

discovery abuse has been on the modest side” (internal quotation

marks and citation omitted)). . . . The basic thrust of the qualified-

immunity doctrine is to free officials from the concerns of litigation,

including “avoidance of disruptive discovery.” Siegert v. Gilley, 500

U.S. 226, 236, 111 S. Ct. 1789 (1991) (KENNEDY, J., concurring in

judgment).

....

. . . It is no answer to these concerns to say that discovery for

petitioners can be deferred while pretrial proceedings continue for

other defendants. It is quite likely that, when discovery as to the other

parties proceeds, it would prove necessary for petitioners and their

counsel to participate in the process to ensure the case does not

develop in a misleading or slanted way that causes prejudice to their

position. Even if petitioners are not yet themselves subject to

discovery orders, then, they would not be free from the burdens of discovery.

We decline respondent’s invitation to relax the pleading requirements

on the ground that the Court of Appeals promises petitioners

minimally intrusive discovery. That promise provides especially cold

comfort in this pleading context, where we are impelled to give real

content to the concept of qualified immunity for high-level officials

who must be neither deterred nor detracted from the vigorous

performance of their duties.

Id. at __, 129 S. Ct. at 1953-54. The Court concluded its analysis of Rule 8 by

stating: “Rule 8 does not empower respondent to plead the bare elements of his

cause of action, affix the label ‘general allegation,’ and expect his complaint to

survive a motion to dismiss.” Id. at __, 129 S. Ct. at 1954.

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In short, while the Iqbal opinion concerns Rule 8(a)(2) pleading standards in

general, the Court specifically describes Rule 8(a)(2) pleading standards for actions

regarding an unconstitutional deprivation of rights. The defendant federal officials

raised the defense of qualified immunity and moved to dismiss the suit under a

12(b)(6) motion. The Supreme Court held, citing Twombly, that the legal

conclusions in a complaint must be supported by factual allegations, and that only

a complaint which states a plausible claim for relief shall survive a motion to

dismiss. The Court did not apply a heightened pleading standard.

While Swann, GJR, and Danley reaffirm application of a heightened

pleading standard for § 1983 cases involving defendants able to assert qualified

immunity, we agree with Randall that those cases were effectively overturned by

the Iqbal court. Pleadings for § 1983 cases involving defendants who are able to

assert qualified immunity as a defense shall now be held to comply with the

standards described in Iqbal. A district court considering a motion to dismiss shall

begin by identifying conclusory allegations that are not entitled to an assumption

of truth – legal conclusions must be supported by factual allegations. The district

court should assume, on a case-by-case basis, that well pleaded factual allegations

are true, and then determine whether they plausibly give rise to an entitlement to

15

relief.4

Regarding the order at issue here, two days after Iqbal was decided, the

district court granted Scott’s motion to dismiss employing a “heightened pleading

standard.” R1-18 at 6. We conclude that the district court erred in applying a

heightened pleading standard to Randall’s complaint. After Iqbal it is clear that

there is no “heightened pleading standard” as it relates to cases governed by Rule

8(a)(2), including civil rights complaints. All that remains is the Rule 9 heightened

pleading standard.

B. First Amendment Violation

The district court found that Randall’s actions were “not enough to trigger

First Amendment protection.” Id. at 14. While we would generally remand to the

district court to reconsider its analysis of Randall’s constitutional rights under the

Iqbal pleading standard before discussing Randall’s constitutional rights, in this

case we must go further. The court’s statements make explicit that under any

pleading standard Scott’s motion to dismiss would have been granted.5

4

For a thorough discussion of Twombly and Iqbal precedent, see American Dental Ass’n,

605 F.3d at 1290.

5

Rather than remanding to the district court to draw the same conclusion under a

different pleading standard – regarding a First Amendment violation and qualified immunity –

and requiring Randall to appeal that decision, for the purposes of judicial efficiency we will

address whether the allegations of Randall’s complaint could allege a violation of his First

Amendment rights, and whether Scott was entitled to qualified immunity.

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1. Was Randall Entitled to First Amendment Protection?

Precedent in the area of constitutional protection for candidacy can be best

described as a legal morass. See Cutcliffe v. Cochran, 117 F.3d 1353, 1360 (11th

Cir. 1997) (Harris, Senior U.S. District Judge sitting by designation and specially

concurring) (“Is there confusion in this area of law? Members of the Supreme

Court are among those who have expressed their belief that there is, and my study

of the subject matter leads me to the same conclusion.”). Rather than wading

through the bog to determine exactly what level of scrutiny should be applied, and

what constitutional protection there is, we will instead determine whether Randall

enjoys enough First Amendment protection to overcome Scott’s motion to dismiss.

See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.

Ct. 1319, 1325 (1988) (“A fundamental and longstanding principle of judicial

restraint requires that courts avoid reaching constitutional questions in advance of

the necessity of deciding them.”). We conclude that he does.

a. Supreme Court Precedent

In a 1968 case challenging Ohio election laws regulating new political

parties being placed on the state ballot, the Supreme Court stated:

No extended discussion is required to establish that the Ohio

laws before us give the two old, established parties a decided

advantage over any new parties struggling for existence and thus place

substantially unequal burdens on both the right to vote and the right to

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associate. The right to form a party for the advancement of political

goals means little if a party can be kept off the election ballot and thus

denied an equal opportunity to win votes. So also, the right to vote is

heavily burdened if that vote may be cast only for one of two parties

at a time when other parties are clamoring for a place on the ballot. In

determining whether the state has a power to place such unequal

burdens on minority groups where rights of this kind are at stake, the

decisions of this Court have consistently held that “only a compelling

state interest in the regulation of a subject within the State’s

constitutional power to regulate can justify limiting First Amendment

freedoms.” The State has here failed to show any “compelling

interest” which justifies imposing such heavy burdens on the right to

vote and to associate.

Williams v. Rhodes, 393 U.S. 23, 31-32, 89 S. Ct. 5, 10-11 (1968) (citing NAACP

v. Button, 371 U.S. 415, 438, 83 S. Ct. 328, 341 (1963)). Although the issue of

new parties being allowed on the ballot was decided under the Equal Protection

Clause of the Fourteenth Amendment, the Court viewed the listing of a party or

candidate on the state ballot as a First Amendment right to associate, only to be

burdened for a “compelling state interest.” See id.

Three years later, in a case challenging the large filing fees required by

Texas statutes as a condition to having one’s name placed on the primary ballot,

the Supreme Court stated:

The initial and direct impact of filing fees is felt by aspirants for

office, rather than voters, and the Court has not heretofore attached

such fundamental status to candidacy as to invoke a rigorous standard

of review. However, the rights of voters and the rights of candidates

do not lend themselves to neat separation; laws that affect candidates

always have at least some theoretical, correlative effect on voters.

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Bullock v. Carter, 405 U.S. 134, 142-43, 92 S. Ct. 849, 855-56 (1972). The Court

thus reaffirmed that the right to candidacy is linked to voters’ rights. While there

is no “fundamental status to candidacy” requiring the “rigorous standard of

review” that is applied in voters’ rights cases, there is at least some constitutional

right to candidacy. Id.

In 1976, the Supreme Court spoke directly to the issue of individual public

workers’ employment conditioned on supporting a political party, holding that to

survive a constitutional challenge:

conditioning the retention of public employment on the employee’s

support of the in-party . . . must further some vital government end by

a means that is least restrictive of freedom of belief and association in

achieving that end, and the benefit gained must outweigh the loss of

constitutionally protected rights.

Elrod v. Burns, 427 U.S. 347, 363, 96 S. Ct. 2673, 2685 (1976). Although being a

candidate is not the same as supporting a candidate, the two acts are closely

related. See Carter, 405 U.S. at 142-43, 92 S. Ct. at 855-56. Thus, restricting

candidacy, like conditioning public employment on support of a political party,

must be the least restrictive means of furthering a “vital government end.” Elrod,

427 U.S. at 363, 96 S. Ct. 2685.

Finally, speaking directly to candidacy rights, the Supreme Court explained

that “[f]ar from recognizing candidacy as a ‘fundamental right,’ we have held that

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the existence of barriers to a candidate’s access to the ballot ‘does not of itself

compel close scrutiny.’” Clements v. Fashing, 457 U.S. 957, 963, 102 S. Ct. 2836,

2843 (1982) (citing Carter, 405 U.S. at 143, 92 S. Ct. at 856). Rather,

“[d]ecision[s] in this area of constitutional adjudication [are] a matter of degree,

and involve[ ] a consideration of the facts and circumstances behind the law, the

interests the State seeks to protect by placing restrictions on candidacy, and the

nature of the interests of those who may be burdened by the restrictions.” Id. at

963, 102 S. Ct. at 2844. Even though Clements does not make clear the degree of

constitutional scrutiny required for candidacy restrictions, the Court does suggest

that political candidacy is entitled to at least a modicum of constitutional

protection.

b. Circuit Precedent

While our circuit precedent describes, in dicta, a constitutional right to run

for office,6 our previous case holdings regarding candidacy-terminations all

involve plaintiffs who were discharged for supporting a candidate running for

office, as opposed to discharges related to running for office themselves.7

6

See Flinn v. Gordon, 775 F.2d 1551, 1554 (11th Cir. 1985) (stating that a Florida

legislator who ran for office “certainly had a constitutional right to run for office and to hold

office once elected.”).

7

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to 1

October 1981. While not Eleventh Circuit decisions, two binding former Fifth Circuit decisions

20

Regarding deputy sheriffs, clerks, investigators, dispatchers, jailers, and process

servers who were replaced by persons supporting the newly elected sheriff, we

held that:

“[u]nder the Elrod-Branti standard, loyalty to the individual sheriff

and the goals and policies he seeks to implement through his office is

an appropriate requirement for the effective performance of a deputy

sheriff. Such a requirement strikes at the heart of the Elrod-Branti

least restrictive means test which balances first amendment rights of

the deputies and the need for efficient and effective delivery of public

services. We can find no less restrictive means for meeting the needs

of public service in the case of the sheriff’s deputy than to

acknowledge a sheriff’s absolute authority of appointment and to

decline to reinstate those who did not support him.

....

. . . [However,] [i]t has not been established that loyalty to an

individual sheriff is an appropriate requirement for effective job

performance for the . . . positions of clerk, investigator, dispatcher,

jailer, and process server. This is a determination that depends upon

the actual responsibilities of each position and the relationship of each

to the sheriff.

Terry v. Cook, 866 F.2d 373, 377-78 (11th Cir. 1989). In Terry, we balanced the

regarding statutory restrictions on the right to run for office speak broadly about candidacy. In

Morial v. Judicial Commission of Louisiana, 565 F.2d 295 (5th Cir. 1977) (en banc), the Fifth

Circuit considered a state law prohibiting sitting judges from running for non-judicial elective

office. Although the court ultimately upheld the law through an intermediate scrutiny analysis,

in reaching that conclusion it described the plaintiff’s interest in running for office as “an

important, if not constitutionally ‘fundamental’ right.” Id. at 301. Two years later, in United

States v. Tonry, 605 F.2d 144 (5th Cir. 1979), the Fifth Circuit addressed a probation condition

limiting the right of a probationer to participate in political activity. Again applying

intermediate scrutiny, the court stated that “[t]here is no question that candidacy for office and

participating in political activities are forms of expression protected by the first amendment.” Id.

at 150. While the Morial and Tonry decisions address broad statutory restrictions on a right to

candidacy, as opposed to single-case terminations, the language, like that in Flinn v. Gordon,

outlines a general First Amendment protection.

21

state’s interest in office loyalty with the First Amendment rights of the discharged

workers. Finding some discharges constitutional, and others not, we concluded

that all the discharged-workers did have some First Amendment protection. A

second and third sheriff deputy-dismissal case reiterated the Terry application of

the Elrod-Branti standard. See Cutcliffe, 117 F.3d at 1356-58; Silva v. Bieluch,

351 F.3d 1045, 1047 (11th Cir. 2003).

More recently, in Epps v. Watson, we addressed whether a county tax

commissioner clerk’s First Amendment rights were violated when she was

discharged by the newly-elected tax commissioner for allowing the

commissioner’s opponent to place campaign signs on her property. See Epps v.

Watson, 492 F.3d 1240, 1242 (11th Cir. 2007). Analyzing the issue under Elrod-

Branti and Terry, we concluded that Epps’ job did not “require[ ] her to function as

the alter ego of the Tax Commissioner or ensure that the policies and goals of the

office are implemented.” Id. at 1245 (quotation marks and citation omitted).

Because “Epps was not in any decision making role within the department, . . . [we

found that] Epps ha[d] factually alleged the deprivation of a constitutional right to

freely associate.” Id. at 1245 (quotation marks and citations omitted).

In summary, our circuit precedent represents a balancing test between a

discharged employee’s First Amendment right to support a candidate and the

22

state’s interest in office loyalty. Each case found that the discharged employee had

some constitutional protection.

While we have no circuit precedent regarding the right to candidacy in a

case squarely similar to this, we conclude the constitutional-right-versus-the-

state’s-interests analysis to be no different for a restriction on candidacy than a

restriction on candidate support. Scott cites precedent from other circuits

regarding an explicit determination that there is no First Amendment right to

candidacy, however, each cited case relates to an employee subject to the Hatch

Act (which prohibits civil servants from being candidates for elective office) or a

discharged-employee running against a discharging-supervisor. See, e.g., Molina-

Crespo v. United States Merit Sys. Protection Bd., 547 F.3d 651, 658 (6th Cir.

1997) (finding that the “[Hatch] Act’s prohibition on candidacy for elective office

is rationally related to the government’s interest because it allows the government

to remove actual or apparent partisan influence from the administration of federal

funds”); Carver v. Dennis, 104 F.3d 847, 852-53 (6th Cir. 1997) (concluding that

the discharge of a deputy clerk after she announced her candidacy for clerk was

“neutral in terms of the First Amendment” because “[t]he First Amendment does

not require that an official . . . nourish the viper in the nest”); Bart v. Telford, 677

F.2d 622, 626 (7th Cir. 1982) (upholding mayor’s requirement that employee take

23

leave of absence after announcing intent to run for mayor); Jantzen v. Hawkins,

188 F.3d 1247, 1250-52 (10th Cir. 1999) (addressing issue of sheriff warning

office employees that anyone opposing his re-election would be seen as disloyal).

c. Conclusion

Supreme Court and circuit precedent is not entirely clear regarding the

degree of First Amendment protection for candidacy, however, every case

addressing the issue has found at least some constitutional protection. A plaintiff’s

candidacy cannot be burdened because a state official wishes to discourage that

candidacy without a whisper of valid state interest. An interest in candidacy, and

expression of political views without interference from state officials who wish to

discourage that interest and expression, lies at the core of values protected by the

First Amendment.

2. Whether Randall’s First Amendment Rights Were Violated?

We agree that if Randall decided to run against Scott for Clayton County

District Attorney, Scott would have good legal reason to discharge him due to the

state’s interest in office loyalty. That is not the case here. Randall was not

discharged for a conflict with Scott or the position of Clayton County District

Attorney; Randall’s discharge was entirely related to Scott’s husband, and Scott’s

personal relationship with her husband.

24

The district court evaluated Scott’s motion to dismiss by first looking at

whether Randall could properly allege action qualifying for First Amendment

protection. R1-18 at 8. The court split Randall’s arguments for potential First

Amendment protection into two categories: (1) political patronage – whether he

was subjected to an adverse employment action based on his political beliefs or

party affiliation, and (2) employee expression – whether he was subjected to an

adverse action based on his political speech. Id. at 9. We opine that the analysis is

different. The dismissal of Randall’s complaint can only be affirmed if the state’s

interest in permitting Scott to fire Randall is of sufficient importance to justify the

infringement of Randall’s First Amendment right to run for Chairman of the

Clayton County Board of Commissioners. These are the same considerations as

the Elrod-Branti standard applied in Terry v. Cook and Epps v. Watson. However,

we are now comparing the state’s interest in preventing an individual from running

for office to the individual’s First Amendment right to run (as opposed to the

state’s interest in preventing an individual from supporting a particular candidate

compared to the individual’s First Amendment right to support a candidate).

Since Scott’s interest in firing Randall was, as alleged in the complaint, for

purely personal reasons, the state has no interest in preventing Randall from

running for office. While we have not decided the level of scrutiny to be applied,

25

Randall’s decision to run for office enjoys some First Amendment protection.

Comparing this level of protection to the state’s interest – manifestly none – the

dismissal of Randall’s complaint cannot be affirmed on the failure to state the

denial of a First Amendment right.

C. Qualified Immunity

Randall sued Scott in her individual and official capacities. R1-18 at 1-2.

Since federal law provides government officials a qualified immunity when sued

individually for an alleged violation of a constitutional right, if Scott can establish

qualified immunity, then the individual capacity claim against her must be

dismissed. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S. Ct. 3099, 3105-06

(1985); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (per curiam).

Qualified immunity offers complete protection for individual government

officials performing discretionary functions “insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738 (1982).8 “Qualified immunity balances two important interests – the

need to hold public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and liability when

8

The parties do not dispute that Scott was acting in a discretionary capacity. R1-18 at 7.

26

they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. __, 129 S.

Ct. 808, 815 (2009) . In Saucier v. Katz, the Supreme Court mandated a two step

analysis for resolving qualified immunity claims. Saucier v. Katz, 533 U.S. 194,

201, 121 S. Ct. 2151, 2156 (2001). First, a court must decide whether the facts that

a plaintiff has alleged “show the [defendant’s] conduct violated a constitutional

right.” Id. Second, the court must decide “whether the right was clearly

established.”9 Id. For the purposes of this qualified immunity analysis, since we

have already determined that Randall had some First Amendment protection

violated, we are only concerned with whether the violated right was clearly

established.

“Clearly established law” is law that is sufficiently established so as to

provide public officials with “fair notice” that the conduct alleged is prohibited.

Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002) (“For a

constitutional right to be clearly established, its contours must be sufficiently clear

that a reasonable official would understand that what he is doing violates that right.

This is not to say that an official action is protected by qualified immunity unless

the very action in question has previously been held unlawful; but it is to say that

9

Saucier mandated that courts first determine whether a constitutional violation

occurred, and then decide whether the violated right was clearly established. In Pearson, the

Supreme Court gave courts the discretion to decide which step they address first. 555 U.S. __,

129 S. Ct. at 818.

27

in the light of pre-existing law the unlawfulness must be apparent.” (internal

citations and quotation omitted)). “[T]he Supreme Court in Saucier and Hope, as

well as this Court en banc in [Marsh v. Butler County, 268 F.3d 1014 (11th Cir.

2001) (en banc)], explained that such fair and clear notice can be given in various

ways.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002).

First, we turn to broad case law. “When looking at case law, some broad

statements of principle . . . can clearly establish law applicable in the future to

different sets of detailed facts.” Id. at 1351; see also Mercado v. City of Orlando,

407 F.3d 1152, 1159 (11th Cir. 2005). “[I]f some authoritative judicial decision

decides a case by determining that ‘X Conduct’ is unconstitutional without tying

that determination to a particularized set of facts, the decision on ‘X Conduct’ can

be read as having clearly established a constitutional principle.” Vinyard, 311 F.3d

at 1351. In the case at hand, based on the scrupulous legal analysis required to

determine whether Randall had a First Amendment right violated, we conclude that

Randall’s rights were not clearly established under broad case law.10

Second, we look for a case based on materially similar facts. When looking

at materially similar facts, “if the circumstances facing a government official are

10

While Flinn did discuss a “constitutional right to run for office,” the mentioning was

purely dicta as opposed to law actually deciding a case as Vinyard describes. Flinn, 775 F.2d at

1554.

28

not fairly distinguishable [from fact-specific precedent that has established law]

. . . the precedent can clearly establish the applicable law.” Id. at 1352. Since we

are aware of no precedential case with similar facts to those described here, we

conclude that Randall’s rights were not clearly established under materially similar

facts.

Third, and finally, Randall “could show that this case fits within the

exception of conduct which so obviously violates [the] [C]onstitution that prior

case law is unnecessary.” Mercado, 407 F.3d at 1159. The peculiar facts of

Randall’s case must be “so far beyond the hazy border between excessive and

acceptable that [every objectively reasonable district attorney] had to know that

[she] was violating the Constitution even without caselaw on point.” Priester v.

City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (quotation mark and

citation omitted) (concluding that law was clearly established and force was

“clearly-excessive-even-in-absence-of-case-law” when officer released police dog

to attack plaintiff who did not pose a threat to officers or others). We conclude that

Scott’s alleged unconstitutional act of working to prevent Randall from running for

office was not “obviously” clear.

It appears to us that any such right to run for office was not heretofore

clearly established. Scott therefore enjoys individual qualified immunity

29

protection for her alleged violation of Randall’s First Amendment rights.

Accordingly we affirm the district court’s judgment on the qualified immunity

issue regarding Randall’s individual capacity claim against Scott.

III. CONCLUSION

Randall appeals the district court order granting Scott’s motion to dismiss.

As we have explained: (1) § 1983 cases involving qualified immunity shall now

be held to comply with the pleading standards described in Iqbal; (2) the

allegations described in Randall’s complaint are enough to state a claim for

violation of his First Amendment rights; and (3) Scott is entitled to qualified

immunity because Randall’s constitutional rights at issue were not clearly

established at the time of Scott’s alleged misconduct. Accordingly, the order

granting Scott’s motion to dismiss is AFFIRMED regarding Randall’s individual

capacity claim, and REVERSED in regards to Randall’s official capacity claim.

AFFIRMED in part and REVERSED in part, and REMANDED for

further proceedings consistent with this opinion.

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