Randall R. Bradford v. Mike Huckabee

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-3929

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Randall R. Bradford, *

*

Appellee, *

*

v. *

*

Mike Huckabee, Individually and as *

Governor of the State of Arkansas; * Appeal from the United States

Kelly Boyd, Individually and as * District Court for the Eastern

Technology Liaison for the Office of * District of Arkansas.

the Governor; Brenda Turner, *

Individually and as Chief of Staff for *

the Governor; Doug Elkins, *

Individually and as Director of the *

State of Arkansas, Department of *

Information Systems; Jim Harris, *

Individually and Senior Staff for the *

Governor; *

*

Appellants, *

*

John Doe, #1 and #2, *

*

Defendant. *

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Submitted: May 14, 2003

Filed: June 5, 2003

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Before WOLLMAN and BEAM, Circuit Judges, and NANGLE,1 District Judge.

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BEAM, Circuit Judge.

Mike Huckabee, Kelly Boyd, Brenda Turner, Doug Elkins, and Jim Harris

(collectively "Appellants") appeal the district court's order denying, in part, their

motion to dismiss based on qualified immunity. We find that the district court did not

rule on the qualified immunity issue, and therefore we remand.

I. BACKGROUND

Randall R. Bradford (Bradford) formerly worked for the State of Arkansas as

the Executive Chief Information Officer. He alleges that he resigned from this

position as a result of being "constructively discharged" on June 13, 2002. Upon

receipt of his resignation, Governor Huckabee terminated his employment. Bradford

filed a complaint under 42 U.S.C. § 1983 for alleged violations of his First

Amendment rights, as well as claims under the False Claims Act, 31 U.S.C. § 3730(h)

(FCA), the Arkansas Whistle-blower Act, Ark. Code Ann. § 21-1-602 et. seq., and

pendent state law claims for wrongful discharge and civil conspiracy. Bradford

named each appellant in both their individual and official capacities for each claim.

Appellants filed a motion to dismiss on several grounds. Relevant to this

appeal is their contention that they were all entitled to qualified immunity for the

claims against them in their individual capacities. The district court granted the

motion to dismiss against the Appellants in their individual capacities under the FCA,

in their individual capacities under the Arkansas Whistle-blower Act, and in their

1

The Honorable John F. Nangle, United States District Judge for the Eastern

District of Missouri, sitting by designation.

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individual capacities for wrongful discharge.2 He also ruled, correctly, that Bradford

would only be entitled to injunctive and declaratory relief on his claims against

Appellants in their official capacities, not to damages. These rulings leave Bradford

with claims against Appellants in their official capacities for all of the claims, and

against Appellants in their individual capacities for the First Amendment claim

(through section 1983) and the civil conspiracy claim. The district court did not

explicitly rule on whether Appellants were entitled to qualified immunity for these

two remaining individual capacity claims, but it did conclude its order with, "In all

other respects the motion to dismiss is denied." Appellants interpret this to mean that

their qualified immunity defense was denied. Thus, they appeal this aspect of the

district court's ruling.

II. DISCUSSION

Our jurisdiction to review the qualified immunity issue on interlocutory appeal

depends upon whether the district court actually ruled on the issue.3 Szwedo v.

Arkansas, 284 F.3d 826, 827 (8th Cir. 2002) ("[B]ecause the district court did not

2

The district court found that Appellants were not employers in their individual

capacities and thus Bradford's FCA, Arkansas Whistle-blower Act, and wrongful

discharge claims against Appellants in their individual capacities failed to state a

claim.

3

The denial of a motion to dismiss is not usually immediately appealable

because it is not a final order. Pendleton v. St. Louis County, 178 F.3d 1007, 1010

(8th Cir. 1999). The Supreme Court, however, has carved out an exception to this

rule for cases involving qualified immunity claims. Behrens v. Pelletier, 516 U.S.

299, 307 (1996). Thus, the order in the instant case would be considered a final order

subject to immediate appeal on the narrow issue of whether Appellants violated a

"clearly established law," if the district court ruled on the qualified immunity issue,

as Appellants contend it did. Johnson v. Jones, 515 U.S. 304, 313 (1995). An order

on qualified immunity is not appealable to the degree that it turns on an issue of

evidence sufficiency. Id. at 314.

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address the qualified immunity defense, it did not enter a final appealable order with

respect to qualified immunity [sufficient] to confer appellate jurisdiction."); Krein v.

Norris, 250 F.3d 1184, 1188 (8th Cir. 2001) ("Because there has been no decision,

conclusive or otherwise, rendered below on the disputed question of qualified

immunity, the defendants' appeal is premature."). We have examined every aspect of

the district court's opinion and have determined that there is no explicit determination

or analysis of Appellants' qualified immunity claim. The district court dealt with (and

rejected) Appellants' sovereign immunity defense against the First Amendment claim

against them in their official capacities, noting that the plaintiff "has stated a claim

for civil conspiracy," and that in "all other respects the motion to dismiss is denied."

While we understand the parties' contention that these statements imply a denial of

qualified immunity, we do not think that such an inference is sufficient for an

interlocutory appeal at this point in time.

The district court needed to first determine whether the complaint alleged

enough facts to demonstrate the violation of a clearly established statutory or

constitutional right arising under the First Amendment and civil conspiracy statute.4

Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). "Dismissal 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." Id. (internal quotations omitted).

Public officials are entitled to qualified immunity in suits against them in their

individual capacity as long as their actions do not violate "clearly established

statutory or constitutional rights of which a reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is an affirmative

defense, to be upheld in a motion to dismiss only when the immunity can be

established on the face of the complaint. Hafley, 90 F.3d at 266.

4

To this extent, the civil conspiracy claim relies upon the First Amendment

claim for its validity.

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As part of this determination, the district court also needed to follow a two-step

inquiry to determine whether Bradford's purported speech, as a public employee, was

protected by the First Amendment. See Sparr v. Ward, 306 F.3d 589, 594 (8th Cir.

2002). First, Bradford's speech must be on a matter of public concern. Id. Second,

the district court must balance Bradford's right to speak against the interests of the

public employer. Sexton v. Martin, 210 F.3d 905, 910 (8th Cir. 2000). The district

court failed to apply either step of the analysis as outlined by Sparr. Additionally, the

district court should identify the actual "speech" that Bradford is alleging was

infringed upon by Appellants' actions. It is difficult to tell from the allegations

whether any specific statements made by Bradford, free or otherwise, were either

inhibited by the Appellants or became the source of the adverse employment action

claimed.

The Supreme Court has emphasized that qualified immunity should be

addressed as early as possible in litigation. Hunter v. Bryant, 502 U.S. 224, 227

(1991). Thus, we raise this jurisdictional defect sua sponte, conclude that we have

no jurisdiction to hear this appeal, and remand for a proper determination of

Appellants' qualified immunity. See Krein, 250 F.3d at 1187-88.

III. CONCLUSION

Because there has been no determination on the qualified immunity issue raised

by Appellants, we lack jurisdiction to hear this appeal. Accordingly, we remand to

the district court for such a determination and further proceedings.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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