In Re Montgomery Cty.

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

6-9-2000

In Re Montgomery Cty.

Precedential or Non-Precedential:

Docket 99-1371

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Filed June 9, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 99-1371 and 99-1379

IN RE: MONTGOMERY COUNTY; MONTGOMERY COUNTY

COMMISSIONERS; MARIO MELE; RICHARD BUCKMAN;

JOSEPH M. HOEFFEL, III

Petitioners, No. 99-1371

ROBERT E. WRIGHT, SR.

v.

MONTGOMERY COUNTY; MONTGOMERY COUNTY

COMMISSIONERS; MARIO MELE; RICHARD BUCKMAN;

JOSEPH HOEFFEL; MAILLIE FALCONIERO & COMPANY

LLP; GEORGE FALCONERO

Montgomery County; Montgomery County

Commissioners; Mario Mele; Richard Buckman,

Joseph Hoeffel,

Appellants, No. 99-1379

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 96-cv-04597)

District Judge: The Honorable Herbert J. Hutton

ARGUED July 27, 1999

BEFORE: SLOVITER, NYGAARD, and McKEE,

Circuit Judges.

(Filed June 9, 2000)

Timothy T. Myers, Esq. (Argued)

John M. Elliott, Esq.

Eric J. Bronstein, Esq.

Krista K. Beatty, Esq.

Elliott, Reihner, Siedzikowski

& Egan

925 Harvest Drive

Union Meeting Corporate Center

Blue Bell, PA 19422

Attorneys for Petitioners/

Appellants/Cross Respondent/

Appellee

Theodore Q. Thompson, Esq.

(Argued)

Theodore Q. Thompson & Associates

10 North Main Street

Ambler, PA 19002

Attorney for Respondent/Appellee/

Cross Petitioners/Appellants

OPINION OF THE COURT

NYGAARD, Circuit Judge.

This is an interlocutory appeal from the District Court's

pre-trial denial of the Appellants' claims to absolute and

qualified immunity from suit. Although the District Court

did not expressly address the Appellants' immunity claims,

it denied the motions for summary judgment in which

those claims were asserted. We hold that this implicit

denial of the Appellants' immunity claims is sufficient to

confer appellate jurisdiction. We will affirm.

I. Facts and Procedure

In July 1994, Montgomery County's Salary Board

promoted Robert Wright to Director of the County's

Department of Housing Services. At the time, Wright had

been a County employee for approximately 15 years,

working first for its Redevelopment Authority, and then for

2

the Department of Housing Services. Beginning in 1993, a

number of Montgomery County homeowners contacted the

United States Department of Housing and Urban

Development to lodge complaints against Montgomery

County's Department of Housing Services. The complaints

accused Department officials of mismanagement, negligence

and undue delay in their administration of the County's

HUD-funded Home Improvement Program. The complaints

specifically mentioned Wright by name, as well as other

Department employees and contractors. HUD forwarded the

complaints to the County's Board of Commissioners and,

ultimately, initiated an audit of the Department.

Beginning in December 1995, HUD forwarded a series of

draft audit findings to Wright in his capacity as Department

Director. The draft findings identified a number of

deficiencies in the Department's administration of HUD-

funded programs. In addition to more general shortfalls, the

draft findings concluded that Wright, among others, had

engaged in a number of transactions with HUD contractors

involving impermissible conflicts of interest. HUD forwarded

its final draft finding on April 19, 1996.

On April 22, the Salary Board voted to suspend Wright,

who is African-American, without pay.1 On May 20, HUD

issued its final audit report which, like the draft findings,

was highly critical of Wright's management of the

Department, and of his personal dealings with HUD

contractors. On June 13, the Salary Board voted to

terminate Wright's employment. Two other Department

employees, both of whom were white, were also terminated.

Wright ultimately responded to his termination byfiling a

civil action against Montgomery County, the county

commissioners as a group, and the three commissioners

who served on the Salary Board -- Mario Mele, Richard S.

Buckman, and Joseph M. Hoeffel, III -- in their individual

capacities ("Appellants").2

_________________________________________________________________

1. The Salary Board consisted of three County Commissioners and the

County Controller.

2. Defendants Maillie Falconiero and Co. and George Falconiero are not

County Commissioners and are not parties to this appeal.

3

Wright's complaint included a wide range of claims. In

Count One, he alleged that the Appellants discriminated

against, retaliated against, and harassed him on account of

his race. He based this Count on 42 U.S.C. SS 1981, 1982,

1983, 1985(1-3), 1986, and 1988, but did not invoke Title

VII. The remaining counts alleged a litany of state-law

claims ranging from defamation to intentional and negligent

infliction of emotional distress, as well as a variety of other

tort claims.

In September 1998, the Appellants filed three separate

motions for summary judgment based on: (1) claims of

absolute and qualified immunity; (2) flaws in Wright's state-

law claims; and (3) flaws in Wright's constitutional claims.

In a December 22, 1998 Memorandum and Order, the

District Court granted the unopposed motion to dismiss the

state-law claims. See Wright v. Montgomery County, No. 96-

CV-4597 (E.D. Pa. Dec. 22, 1998). In the same

Memorandum and Order, the court erroneously

characterized Count One of Wright's complaint as asserting

claims under Title VII. See id., slip op. at 5-8. Finding that

Wright had established a prima facie case of discrimination

under Title VII, the court denied the Appellants' motion for

summary judgment on Count One.

Because the District Court had characterized Count One,

now the only surviving count, as asserting claims under

Title VII, the Appellants filed a fourth motion for summary

judgment on January 28, 1999. This time, the Appellants

argued that summary judgment was proper because Wright

had failed "to exhaust his legally mandated administrative

remedies as a condition precedent of commencing suit."

App. at 1364a. Thereafter, Wright informed the court that

the federal claims asserted in Count One of his complaint

were not based on Title VII, but rather on, inter alia, 42

U.S.C. S 1981. See A1389. The Appellants responded by

filing yet another motion for summary judgment on

February 16, asserting various grounds for summary

judgment, and again asserting absolute immunity. See

A1393-96 (motion); 1450-51 (Memorandum of Law).

Subsequently, on February 19, the Appellants filed a

motion to dismiss based on allegations that Wright was

refusing to cooperate in discovery. See Fed. R. Civ. P. 37.

4

On March 15, the District Court filed a second

Memorandum and Order. Therein, the court corrected

itself, noting that Wright's claims in Count One were not

based on Title VII, but rather, inter alia, 42 U.S.C. S 1981.

See Wright v. Montgomery County, No. 96-CV-4597, 1999

WL 145205, at *1 (E.D. Pa. Mar. 15, 1999). In this second

order, the court dismissed all claims asserted in Count One

except Wright's retaliation claims. In the course of doing so,

the District Court purported to address a number of

motions, including the Appellants' January 28th motion for

summary judgment based on exhaustion. The court did not

address the January 28th motion's immunity claims,

however, nor did it acknowledge the subsequent February

16th motion reasserting those claims.

On April 29, 1999, the District Court set the case for trial

on May 10. Appellants filed their first notice of appeal on

May 7. On that day, the District Court entered a number of

orders disposing of the parties' remaining motions,

including, apparently, Appellants' February 16th motion for

summary judgment. Once more, however, the court did not

address the Appellants' immunity claims. Instead, the court

merely noted in a footnote that it had "already addressed

the issues raised in this motion for summary judgment" in

its March 15th Memorandum and Order. In response,

Appellants filed an amended notice of appeal on May 11,

indicating that they were also appealing from the May 7

Order.3

II. Standard of Review

Absolute immunity is a purely legal question over which

we exercise plenary review. See Carver v. Foerster, 102 F.3d

96, 99 (3d Cir. 1996). Our review of the Appellants'

qualified immunity claims is strictly limited to the legal

questions involved. Therefore, our review of that issue is

also plenary. See Abbott v. Latshaw, 164 F.3d 141, 145 (3d

Cir. 1998), cert. denied, 119 S. Ct. 2393 (1999).

_________________________________________________________________

3. In addition to this appeal, Appellants filed a Petition for Writ of

Mandamus, asking us to order the District Court to address the

immunity issue. Because we determine that the issues are properly

before us, we will deny the Petition by separate order.

5

III. Discussion

The Appellants raise a number of issues in this appeal.

As a threshold matter, we must first determine which of

those issues, if any, we have jurisdiction to review. We

conclude that we have jurisdiction to consider the

Appellants' claims to absolute and qualified immunity, but

lack jurisdiction to consider their remaining claims. We

next consider whether the District Court erred by implicitly

denying the Appellants' immunity claims. We hold that it

did not.

A. Jurisdiction

1. Timeliness of Appeal

Wright contends that we lack jurisdiction to review the

Appellants' claims because they failed to file notice of

appeal within the 30-day limit established by Federal Rule

of Appellate Procedure 4(a). See Fed. R. App. P. 4(a)(1). We

disagree.

The Rule 4(a) deadline for civil cases applies to"all

appealable orders, including collateral orders, specifically

orders denying immunity." Weir v. Propst, 915 F.2d 283,

286 (7th Cir. 1990); see also Kenyatta v. Moore , 744 F.2d

1179, 1186-87 (5th Cir. 1984). In Weir, the court held that,

"[i]f the deadline is missed, the order is not appealable. The

defendant must then wait until another appealable order

(normally, the final judgment) is entered, upon appeal of

which he can challenge any interlocutory order that has not

become moot." Weir, 915 F.2d at 286.

Wright argues that this appeal should be deemed as

arising from, at the latest, the District Court's March 15th

Order denying the Appellants' various motions for summary

judgment. That argument overlooks one critical fact,

however. The District Court did not explicitly rule on the

Appellants' immunity claims in its March 15th Order, nor

at any time before or after. In its December 22, 1998 Order,

the court characterized Wright's federal claims as arising

under Title VII. This, of course, temporarily took the

immunity issues out of contention. Under Title VII, a public

official may be held liable in her official capacity only,

6

making the doctrine of qualified immunity, which protects

only against personal liability, inapplicable. See Harvey v.

Blake, 913 F.2d 226, 227-28 (5th Cir. 1990) ("Because the

doctrine of qualified immunity protects a public official from

liability for money damages in her individual capacity only,

the doctrine is inapplicable in the Title VII context."). When

the District Court corrected itself in its March 15th Order,

the original motion for summary judgment on immunity

grounds was still properly before it.

The Appellants were entitled to believe that the District

Court would eventually address their immunity claims at

least until the court had denied all of their outstanding

motions and set the case for trial. The District Court set the

case for trial on April 29, and denied all of the Appellants'

outstanding motions on May 7. The Appellants clearlyfiled

their May 7th notice of appeal, as well as their May 11th

amended notice of appeal, within 30 days of those dates,

and thus within Rule 4(a)'s time limit. Accordingly, we

reject Wright's argument that we must dismiss the

Appellants' appeal as untimely.

2. Jurisdiction over an Interlocutory Appeal

Wright also raises an alternative challenge to our

jurisdiction over this appeal. He argues that the Appellants'

claims to qualified immunity do not fit within the collateral-

order doctrine. We find his arguments on this point

unpersuasive, however. Moreover, Wright ignores or

overlooks the fact that the Appellants have also asserted a

claim to, and appeal from the denial of, absolute immunity.

As a general rule, the federal appellate courts have no

jurisdiction under 28 U.S.C. S 1291 to review interlocutory

decisions such as a denial of summary judgment.

Nevertheless, the collateral-order doctrine excepts a narrow

range of interlocutory decisions from the general rule. See

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

To fall within the doctrine, an interlocutory decision must

conclusively determine the disputed issue, the issue must

be completely separate from the merits of the action, and

the decision must be effectively unreviewable on appeal

from a final judgment. See Coopers & Lybrand v. Livesay,

437 U.S. 463, 468 (1978).

7

The Supreme Court has repeatedly applied the collateral-

order doctrine to hold that orders denying absolute

immunity are reviewable on interlocutory appeal. See, e.g.,

Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690 (1982)

(finding appellate jurisdiction over denial of president's

claim to absolute immunity); Helstoski v. Meanor , 442 U.S.

500 (1979) (reviewing claim of immunity under Speech and

Debate Clause); Abney v. United States, 431 U.S. 651

(1977) (reviewing claim of immunity under Double Jeopardy

Clause); see also Carver v. Foerster, 102 F.3d 96, 98-99 (3d

Cir. 1996). In doing so, the Court has explained that

absolute immunity creates not only protection from liability,

but also a right not to stand trial. See Mitchell v. Forsyth,

472 U.S. 511, 525 (1985). If required to await final

judgment on the merits of the underlying action before

seeking appellate review, the appellant would irretrievably

lose the right not to stand trial in the first place. See id.

Thus, interlocutory review of the Appellants' absolute

immunity claims is necessary to preserve the protections

such immunity affords.

In Mitchell, the Supreme Court extended the collateral-

order doctrine to include denial of claims to qualified

immunity. See id.; see also Brown v. United States, 851

F.2d 615, 619 (3d Cir. 1988). Nevertheless, denial of

qualified immunity falls within the collateral-order doctrine

only to the extent the denial turns on an issue of law. See

Johnson v. Jones, 515 U.S. 304, 313 (1995); see also Grant

v. City of Pittsburgh, 98 F.3d 116, 119-20 (3d Cir. 1996)

("To the extent they turn on an issue of law , decisions

denying public officials qualified immunity are considered

final under the collateral order doctrine.") (emphasis

added). Generally, the relevant issue of law is whether the

right the defendant is alleged to have violated was"clearly

established" at the time the defendant acted or failed to act.

See Behrens v. Pelletier, 516 U.S. 299, 313 (1996). Where,

however, denial turns on the sufficiency of the evidence, it

may not be appealed until the district court entersfinal

judgment in the case. See Johnson, 515 U.S. at 313.

Wright argues that the Appellants' qualified immunity

claims are not reviewable on interlocutory appeal because

the District Court's December 18, 1998, Memorandum and

8

Order "sets forth the clearly established right which the

Appellants violated and therefore denied them the

protection of qualified immunity." Appellee's Br. at 13

(citing App. at 1779a). But this argument demonstrates a

complete failure to understand the collateral-order doctrine,

as well as the nature of our review. Had the District Court

actually ruled that Wright had alleged a violation of a

clearly established right, that would be exactly the type of

ruling we would have jurisdiction to review on interlocutory

appeal.

The fact is, however, the District Court never rendered

any such ruling, nor addressed the Appellants' immunity

claims in any manner. Indeed, although the court began its

December 18th Memorandum and Order by stating that it

was addressing, among other things, Appellants'"Motion

for Summary Judgment Concerning Their Immunity," the

court did not analyze the immunity issue, and instead

limited its discussion to the viability of Wright's substantive

claims. In its March 15th Memorandum and Order, the

court again addressed the substantive issues only.

Because the District Court never explicitly addressed the

Appellants' immunity claims, we must decide whether we

have interlocutory jurisdiction to review an implied denial

of those claims. We join the other Circuit Courts of Appeals

that have addressed this issue and hold that we do. See

Lowe v. Town of Fairland, 143 F.3d 1378, 1380 (10th Cir.

1998); Zayas-Green v. Casaine, 906 F.2d 18, 23 (1st Cir.

1990); Musso v. Hourigan, 836 F.2d 736, 741 (2d Cir.

1988); Craft v. Wipf, 810 F.2d 170, 173 (8th Cir. 1987);

Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986)

(per curiam); see also Nelson v. Jashurek, 109 F.3d 142,

146-147 (3d Cir. 1997) (suggesting interlocutory

jurisdiction might exist where denial of qualified immunity

claim can be inferred); Ryan v. Burlington County, 860 F.2d

1199, 1203 (3d Cir. 1988) (holding that a district court's

"order is `final' and immediately reviewable under Mitchell if

[the appellants] properly raised a claim of qualified

immunity in the District Court."). Allowing this case to

proceed to trial without considering the Appellants'

immunity claims would irreversibly deprive them of any

right to avoid trial.

9

Of course, the fact that we have jurisdiction to review the

Appellants' immunity claims does not automatically mean

that we should also decide them. Some courts confronted

with this situation have simply remanded the case for the

district court to rule on the claims in the first instance.

See, e.g., Musso, 836 F.2d at 742; Craft v. Wipf, 810 F.2d

at 173; Helton v. Clements, 787 F.2d at 1017. Without

establishing a fixed rule, we conclude that remand on the

immunity claims would not be appropriate given the

particular circumstances of this case.

The Supreme Court's decisions in this area make it clear

that an immune official's right to avoid trial is based not on

the individual's desire to avoid the personal costs and

aggravations of presenting a defense. Rather, the right not

to stand trial is based on far broader concerns for avoiding

the social costs of the underlying litigation, and for

ensuring and preserving the effectiveness of government.

See Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). The

concern is that, absent immunity from suit as well as

liability, the attention of public officials will be diverted

from important public issues. Additionally, qualified

individuals might avoid public service altogether, while the

threat of litigation may undermine the willingness of those

who do serve to act when action is necessary. See id. at

814.

The Appellants in this case have already been distracted

for nearly four years by the need to defend themselves in

this action. They have presented the District Court with

numerous motions, including multiple assertions of their

claims to immunity from suit. They have received and

responded to the District Court's disposition of those

motions, energetically pursued an appeal in this court, and

awaited our decision. Where, as here, the issues are purely

legal and ripe for review, we see little benefit in requiring

these Appellants to press their claims anew in the District

Court, and to risk yet further delay should that court's

ultimate decision lead to a subsequent appeal.

3. Jurisdiction Over Remaining Issues

In addition to their claims of absolute and qualified

immunity, the Appellants ask us to dismiss Wright's race-

10

based retaliation claims, asserted under S 1981, on three

alternative grounds. First, they argue that Wright'sS 1981

claim must be dismissed because he has admitted that

three of the four Salary Board members who voted to

terminate him did not act with improper motive. See

Appellants' Br. at 42-45. To hold the County or the

Commissioners liable, they contend, Wright must prove

that a majority of the Salary Board members "voted to

terminate Plaintiff for the improper purpose of retaliating

against him for protesting mistreatment because he is

black." Id. at 42 (internal quotation marks and citations

omitted).

Appellants next argue that we must dismiss Wright's

S 1981 claim because he cannot establish a prima facie

case of retaliation under that statute. See id. at 45. More

specifically, they argue that Wright cannot, as a matter of

law, demonstrate that the activity for which the Appellants

allegedly retaliated was a "protected" activity. See id. at 46.

They similarly argue that Wright cannot establish a causal

link between the activity in question and his subsequent

termination. See id. at 48. Finally, the Appellants argue

that even if Wright could establish a prima facie case of

retaliation, they have presented "multiple legitimate, non-

discriminatory reasons for [his] termination." Id.

We express no opinion on the merits of these arguments.

Unlike absolute and qualified immunity, Appellants'

remaining claims do not fall within the collateral-order

doctrine. Indeed, they do not satisfy any of the doctrine's

three requirements. See Transtech Indus., Inc., v. A&Z

Septic Clean, 5 F.3d 51, 55 (3d Cir. 1993) (citing Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). The District

Court's denial of their motion for summary judgment has

not conclusively resolved the issues the Appellants raise on

appeal. Those issues are not completely separable from the

merits of the action. And, finally, they will not effectively be

unreviewable on appeal from a final judgment.

Consequently, the collateral-order doctrine confers no

jurisdiction to consider Appellants' non-immunity based

claims on interlocutory appeal.

The Appellants suggest that we have discretion to

consider their additional claims under pendent appellate

11

jurisdiction. In fact, we have previously recognized a

discretionary, though "narrow," doctrine of pendent

appellate jurisdiction. See United States v. Spears, 859 F.2d

284, 287 (3d Cir. 1988) (citation omitted). But we have also

concluded that the doctrine should be used "sparingly,"

and only where there is a sufficient overlap in the facts

relevant to both the appealable and nonappealable issues

to warrant plenary review. See id. We have also stated that

" `pendent appellate jurisdiction over an otherwise

unappealable order is available only to the extent necessary

to ensure meaningful review of an appealable order.' "

National Union Fire Ins. v. City Sav., F.S.B., 28 F.3d 376,

382 (3d Cir. 1994) (quoting Hoxworth v. Blinder, Robinson

& Co., 903 F.2d 186, 209 (3d Cir. 1990)); see also Swint v.

Chambers County Comm'n, 514 U.S. 35 44-50 (1995)

(cautioning against an expansive application of pendent

appellate jurisdiction, and overturning the Eleventh

Circuit's decision to review a county commission's

summary judgment motion as pendent to its review of the

qualified immunity claims asserted by individual

defendants).

In this case, the Appellants' non-immunity claims depend

on questions of fact that the District Court has yet to

resolve. Consequently, plenary review of those claims would

be inappropriate. Additionally, the Appellants' immunity

claims are entirely susceptible to meaningful review without

any consideration of their non-immunity claims.

Accordingly, we decline to exercise pendent appellate

jurisdiction over the non-immunity claims.

B. The Immunity Claims

1. Absolute Immunity

The Appellants claim that they are entitled to absolute

immunity from suit. Their decision to terminate Wright,

they argue, is "precisely" the type of policy-making decision

the Supreme Court has held to be " `in the sphere of

legitimate legislative activity' and entitled to absolute

immunity." Appellants' Br. at 29 (quoting Bogan v. Scott-

Harris, 523 U.S. 44, 54-55 (1998)). We disagree.

12

It is true that local legislators, like federal and state

legislators, are absolutely immune from liability for their

legislative activities. See Bogan, 523 U.S. at 49; see also

Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983). To be

legislative, however, the act in question must be both

substantively and procedurally legislative in nature. See

Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996). An act

is substantively legislative if it involves "policy-making of a

general purpose" or "line-drawing." Id. It is procedurally

legislative if it is undertaken "by means of established

legislative procedures." Id.

The Appellants' decision to terminate Wright fails the

substantively-legislative test. The decision did not involve a

matter of general policy, applicable to a variety of

circumstances, nor to a range of County employees. Quite

to the contrary, the decision targeted a particular employee

suspected of specific acts of mis- and malfeasance. Urging

the opposite conclusion, the Appellants argue that their

decision to terminate Wright is analogous to the decision

held to be legislative in Bogan. Even a passing review of the

Supreme Court's decision in that case belies the argument,

however.

In Bogan, the act at issue involved the elimination of the

plaintiff 's position as part of a larger, city-wide downsizing

prompted by declining financial resources. See Bogan, 523

U.S. at 46; see also Aitchison, 708 F.2d at 97 (holding that

borough council members who voted to abolish assistant

building inspector position on efficiency and economy

grounds had absolute immunity from S 1983 claims

brought by employee who held the position). This case, in

contrast, involves a decision to eliminate a particular

employee rather than the position that employee happens

to hold. Indeed, as the Court expressly noted in Bogan, the

act at issue in that case

reflected a discretionary, policymaking decision

implicating the budgetary priorities of the city and the

services the city provides to its constituents. Moreover,

it involved the termination of a position, which, unlike

the hiring or firing of a particular employee, may have

prospective implications that reach well beyond the

particular occupant of the office.

13

Brogan, 523 U.S. at 55-56 (emphasis added).

In short, we need not consider whether the act offiring

Wright by vote of the Salary Board was procedurally

legislative. Regardless of the procedure, the act was not

legislative in substance. Firing a particular employee is a

personnel decision that does not involve general policy

making. Appellants' firing of Wright did not reach beyond

"the particular occupant of the office." Nor was their action

an "integral step[ ] in the legislative process." Id. Actions of

an executive or administrative nature such as this are not

entitled to absolute immunity. See Carver, 102 F.3d at 100.

As a result, Appellants' reliance on Bogan is misplaced and

their claim of absolute immunity must be denied.

2. Qualified Immunity

Appellants claim that in addition to absolute immunity,

they are also entitled to qualified immunity. As they

correctly note, the doctrine of qualified immunity shields

government officials from personal liability to the extent the

conduct at issue "does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known." See Appellants' Br. at 37 (citing

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Unfortunately, the Appellants' attempt to establish that

their decision to terminate Wright did not violate a clearly

established right wholly misunderstands the limited nature

of our interlocutory review.

The Appellants contend that their decision to terminate

Wright was based on HUD's audit report, which suggested,

at best, that he was a poor manager, and, at worst, that he

was guilty of potentially criminal conflicts of interest. They

further contend that their reliance on the report, whether

or not mistaken, was not unreasonable under the

circumstances. They conclude, therefore, that because

Wright "cannot demonstrate that the individual Defendants

were `plainly incompetent' or `knowingly violating the law'

when they terminated him, [his] claims . . . must be

dismissed on grounds of qualified immunity." Appellants'

Br. at 42. As we have already suggested, the argument is

misplaced.

14

Wright has not alleged that the Appellants' reliance on

the audit report was unreasonable. Quite to the contrary,

he alleges that the Appellants' claimed reliance on the

report is merely a pretext. The Appellants terminated him,

Wright alleges, in retaliation for speaking out against the

County's allegedly racially discriminatory employment

practices. There is no question that such racially-based

retaliation would violate a right that was clearly established

at the time Wright was terminated.4 See, e.g., Liotta v.

National Forge Co., 629 F.2d 903, 907 (3d Cir. 1980)

(holding that appellant had submitted sufficient evidence of

race-based retaliation to survive summary judgment on his

S 1981 claim), cert. denied, 451 U.S. 970 (1981); Patrick v.

Miller, 953 F.2d 1240, 1249-50 (10th Cir. 1992) (holding

that six cited cases "were sufficient to inform a reasonable

government official in 1988" that racially based retaliatory

actions "may violate the employee's rights as enumerated in

S 1981.").

Whether the Appellants' decision to terminate Wright was

made in response to HUD's audit findings as they claim, or

in retaliation as Wright alleges, is a question of fact to be

decided in the District Court. Our review on interlocutory

appeal is strictly limited to determining whether the right

alleged to have been violated was clearly established at the

time of the act in question. Until the District Court has

entered a final judgment, we do not consider whether the

plaintiff has produced sufficient evidence to prove his

allegations. Holding as we do that Wright has alleged the

violation of a clearly established right, we must also hold

that the Appellants are not entitled to qualified immunity at

this stage of the proceedings.

IV. Conclusion

For the reasons stated, we will affirm the District Court's

implicit denial of Appellants' immunity claims. We decline

_________________________________________________________________

4. Appellants cite Swineford v. Snyder County Pa., 15 F.3d 1258, 1271

(3d Cir. 1994), for the proposition that "speech intended to air personal

grievances" is not protected by the First Amendment. That, of course, is

inapposite to the question of whether retaliation for such speech violates

42 U.S.C. S 1981.

15

to address the Appellants remaining claims, and will

remand the case for further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

16