The opinion
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No. 95-3405
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Evelyn Susan Hafley, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Janette Lohman, Director, *
Department of Revenue, *
State of Missouri; James *
Callis, Director, Department of *
Revenue, State of Missouri; *
Dean Powell, Assistant *
Administrator, Field Services *
Bureau, Department of Revenue, *
State of Missouri; Rich Lamb, *
Administrator, Field Services *
Bureau, Department of Revenue, *
State of Missouri; Raymond *
Hune, Director, Division of *
Motor Vehicle, Department of *
Revenue, State of Missouri; *
William Siedhoff, formerly, *
Director, Division of Motor *
Vehicle and Driver's Licensing, *
Department of Revenue, State of *
Missouri State of Missouri; *
Mary Ann Reuter, formerly, *
Field Services, Manager, *
Department of Revenue, State of *
Missouri; Lynn Bexten, *
Personnel Officer, Department *
of Revenue, State of Missouri; *
Zoe Lyle, Deputy Division *
Director, Motor Vehicle and *
Driver's Licensing, Department *
of Revenue, State of Missouri; *
Ellie James, formerly, *
Administrator, Field Services *
Bureau, Department of Revenue, *
State of Missouri; William H. *
Melcher, formerly, Deputy *
Director and Acting Director, *
Department of Revenue, State of *
Missouri, *
*
Appellant. *
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Submitted: April 12, 1996
Filed: July 19, 1996
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Before McMILLIAN, JOHN R. GIBSON, and BOWMAN, Circuit Judges.
___________
BOWMAN, Circuit Judge.
The sole issue in this case is whether the eleven defendants, current
and former employees of the state of Missouri, are entitled to qualified
immunity. The District Court1 denied the defendants' motion to dismiss the
complaint on the basis of qualified immunity, and we affirm.
Evelyn Susan Hafley is an administrative coordinator with the field
services bureau of the Missouri Department of Revenue. In her complaint,
Hafley alleges that defendant Ellie James instructed her "to hide a file
containing information about the Department of Revenue's University City
Fee Office" and "to say nothing about said file." Complaint at ¶ 9.
Hafley alleges that she refused to do as instructed because she believed
that hiding the file would have been illegal. She then reported the
incident to defendant Dean Powell, who allegedly told her to follow James's
instructions and "stay out of it." Complaint at ¶ 11. Hafley also alleges
that she reported the instructions she had received from James and Powell
to defendants Rich Lamb and Mary Ann Reuter. She alleges that the
defendants thereafter retaliated against her in a variety of ways for her
attempts to report the actions of James and Powell and for her refusal to
hide the file, which later allegedly was seized in a criminal investigation
of the University City fee office. She alleges that the defendants took
these actions "to
1
The Honorable Fernando J. Gaitan Jr., United States District
Judge for the Western District of Missouri.
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punish Plaintiff for refusing to commit an illegal act and exercising her
First Amendment rights," specifically the "right to exercise freedom of
speech." Complaint at ¶¶ 16-17. The defendants have not filed an answer
to the complaint. Instead, the defendants moved to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).
The District Court denied the motion to dismiss and the subsequent
motion to reconsider "because there is insufficient evidence for the Court
to weigh the applicability of defendants' assertion of qualified immunity.
. . . Plaintiff is required to put defendants on notice by the filing of
her complaint. This she has done." Hafley v. Lohman, No. 95-4078-CV-C-2,
order at 1 (W.D. Mo. Sept. 7, 1995) (denying motion to reconsider order
denying motion to dismiss) (citations omitted).
"The denial of a defendant's motion to dismiss on the grounds of
qualified immunity, although interlocutory in nature, is a final appealable
order within the meaning of 28 U.S.C. § 1291." Weaver v. Clarke, 45 F.3d
1253, 1255 (8th Cir. 1995). We review de novo a district court's order
denying a motion to dismiss, viewing the allegations in the complaint in
the light most favorable to the plaintiff. Id. We note that "qualified
immunity is an affirmative defense," and "it will be upheld on a 12(b)(6)
motion only when the immunity is established on the face of the complaint."
Id. The defendants in this case are entitled to qualified immunity unless
Hafley has alleged the violation of a constitutional right that was clearly
established at the time of the alleged violation. Id. Like the District
Court, we must accept the allegations of the complaint as true when
considering a Rule 12(b)(6) motion to dismiss. Hishon v. King & Spalding,
467 U.S. 69, 73 (1984). "[D]ismissal is inappropriate `unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.'" McCormack v. Citibank, N.A.,
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979 F.2d 643, 646 (8th Cir. 1992) (quoting Conley v. Gibson, 355 U.S. 41,
45-46 (1957)).
The defendants first contend that Hafley's complaint does not meet
the heightened pleading standard that this Court has applied to
"[c]omplaints seeking damages against government officials," Edgington v.
Missouri Dep't of Corrections, 52 F.3d 777, 779 (8th Cir. 1995). They also
contend that the Complaint fails to set forth specific acts committed by
defendants Lohman, Callis, Hune, Siedhoff, Bexten, Lyle, and Melcher.
Those issues, however, are not properly before us. While an interlocutory
order that decides the issue of qualified immunity may be final and
appealable under § 1291, a denial of a motion to dismiss for failure to
state a claim is not a final appealable order. See United States v.
Brakke, 813 F.2d 912, 913 (8th Cir. 1987) (per curiam); see also Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275-76 (1988) (noting
that denial of motion to dismiss is not appealable unless it fits within
"a `small class' of decisions that are appealable . . . even though they
do not terminate the underlying litigation"). Thus we lack jurisdiction
to consider the defendants' arguments regarding the sufficiency of the
allegations in the complaint.
The defendants also contend that Hafley's complaint fails to allege
that the defendants violated a constitutional right that was clearly
established at the time of the alleged violation, thus showing that the
defendants are entitled to qualified immunity on the face of the complaint.
We disagree. We reiterate that we must accept the allegations in the
complaint as true and construe all reasonable inferences therefrom in favor
of Hafley at this early stage in the litigation. See McCormack, 979 F.2d
at 646. In essence, Hafley alleges that she has been retaliated against
for speaking to her supervisors about a matter of public concern,
specifically an attempt to hide government records from an impending
criminal investigation of the handling of public funds by
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the Missouri Department of Revenue at its University City fee office. At
the time, it was clearly established that such retaliation could have
violated the First Amendment. See, e.g., Pickering v. Board of Educ., 391
U.S. 563, 574 (1968) ("statements by public officials on matters of public
concern must be accorded First Amendment protection"); Kincade v. City of
Blue Springs, 64 F.3d 389, 396 (8th Cir. 1995) ("We generally have held
that speech about the use of public funds touches upon a matter of public
concern."), cert. denied, 116 S. Ct. 1565 (1996). In Dunn v. Carroll, 40
F.3d 287 (8th Cir. 1994), this Court stated that
[a] disciplinary action against a public employee violates his
First Amendment rights if: (1) the conduct for which he was
punished can be "fairly characterized as constituting speech on
a matter of public concern," Connick v. Myers, 461 U.S. 138,
146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); and (2) the
interest of the employee in commenting on the matter of public
concern outweighs the public employer's interest in promoting
its efficiency by prohibiting the conduct. Pickering v. Board
of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d
811 (1968).
Id. at 291. Whether the protected speech is actually communicated to the
public is irrelevant. See Givhan v. Western Line Consol. Sch. Dist., 439
U.S. 410, 415-16 (1979) ("Neither the [First] Amendment itself nor our
decisions indicate that this freedom is lost to the public employee who
arranges to communicate privately with his employer rather than to spread
his views before the public."); Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d
668, 674 (8th Cir. 1986). The defendants' argument that the allegations
in the complaint fail to state a claim under Pickering is specious. Under
Pickering, courts must balance "the interest of the [public employee] as
a citizen, in commenting upon matters of public concern, and the interest
of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees." Pickering, 391 U.S. at 568.
Construing the allegations and all reasonable inferences therefrom in favor
of
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Hafley, it is clear that her interest in exposing an attempt to obstruct
a criminal investigation into the handling of public funds outweighs the
state's interest in the efficiency of its public services. The Pickering
balance understandably favors the plaintiff when the test is based solely
on the allegations in the complaint.
The defendants argue that the allegations in the complaint can be
construed differently, that is, in a way such that Hafley's speech appears
to be related only to internal department policies. Such an argument is
irrelevant, as we must construe the complaint in the light most favorable
to Hafley. The defendants also asserted at oral argument that the
allegations are baseless. Hafley may indeed fail to prove her allegations
at trial, but that is irrelevant to the consideration of the defendants'
Rule 12(b)(6) motion to dismiss. Moreover, the defendants ultimately may
establish that they are entitled to qualified immunity, but we agree with
the District Court that they have not done so yet.
For the reasons stated, the order of the District Court denying the
defendants' motion to dismiss on the basis of qualified immunity is
affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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