Allan F. Archer, Jr. v. Gilbert Sanchez

BALDOCK, Circuit Judge, dissenting.

“[QJualified immunity ... provides ample protection to all but the plainly incompetent *1532 or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092, 1096 , 89 L.Ed.2d 271 (1986). In defining this “ample protection,” the Supreme Court has provided guidance for lower courts. In Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), the Court directed the inquiry to “the objective reasonableness of an official’s conduct, as measured by reference to clearly established law.... ” Id. at 818 , 102 S.Ct. at 2738 . For the law to be “clearly established,” “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987).

In this case, the contours of plaintiffs right are unclear under New Mexico law. Unclear is what effect the Secretarial, Clerical and Physical Plant Personnel Policy & Procedures Manual (manual), if incorporated, would have on the plaintiffs employment contract. The manual contains two pertinent provisions: (1) that it has been adopted by the Board of Regents of the University; and (2) that administrative personnel serve “at the pleasure of the President of the University.” If the manual is indeed a regulation of the Board of Regents and hence a part of plaintiffs contract, New Mexico law does not provide a clear answer as to the nature of the contract. New Mexico courts, at the time defendant fired plaintiff, had not decided whether a “pleasure of the employer” contract was an “at will” contract or an entitlement subject to due process requirements; however, New Mexico courts had determined that “[wjhere a contract provides for a manner by which termination can be effected, those provisions must ordinarily be enforced as written.” Smith v. Price’s Creameries, 98 N.M. 541 , 650 P.2d 825, 830 (1982). The phrase, “at the pleasure of the President of the University,” could be construed as “a manner by which termination can be effected_” Id. If the phrase were to be construed in this manner, plaintiffs employment contract would be considered an “at will” employment contract, not an entitlement subject to due process concerns. Faced with this ambiguity in the relevant law, “officers of reasonable competence could disagree on this issue” of whether defendant’s summary firing of plaintiff was illegal. Malley, 475 U.S. at 341 , 106 S.Ct. at 1096 . Therefore, qualified immunity should be granted.

This court, however, refuses to grant qualified immunity because of the “factual dispute” over whether the manual applies to plaintiff’s contract — this, in spite of the explicit provision in the plaintiff’s contract incorporating the “Regulations” of the University Board of Regents. Ct. Op. at 1531. The court states:

given the factual dispute about the meaning and relevance of the Manual, we cannot say “in the light of'preexisting law the unlawfulness must be apparent.” Anderson, 107 S.Ct. at 3039 . Nor can we say the converse. However, we can begin to particularize the right at issue to decide whether plaintiff’s termination, without any notice or hearing, violates that particular right.

Id. (emphasis supplied). This passage reflects an uncertainty as to the proper legal interpretation of plaintiff’s contract; such uncertainty requires the court to grant qualified immunity, for it is the plaintiff’s burden on summary judgment to show that defendant’s alleged conduct violated a “clearly established” right. See Coen v. Runner, 854 F.2d 374, 377 (10th Cir.1988). If the existence of a legal right is uncertain it is not “clearly established.” The court avoids the problem, stating that plaintiff has met his burden because he “particularized this constitutional right not only by relying on New Mexico law but also by offering evidence of how former members of the administration of the University acted with regard to that known right.” Ct.Op. at 1530-31. This, however, is precisely the type of fact-based inquiry that the Tenth Circuit has declared illegitimate. See Pueblo Neighborhood Health Center, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.1988) (“The question for the trial court to resolve is a legal one; the court cannot avoid the question by framing it as a factu *1533 al issue.”). The evidence plaintiff would offer simply is not material to the qualified immunity inquiry. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 , 106 S.Ct. 2548, 2552 , 91 L.Ed.2d 265 (1986) (only material factual disputes preclude summary judgment).

In this case we are called upon to make a legal determination, given the manual and the contract’s explicit incorporation of the Board of Regents’ “Regulations,” of whether “officers of reasonable competence could disagree on” the legality of summarily firing plaintiff. Malley, 475 U.S. at 341 , 106 S.Ct. at 1096 . Essentially, the dispute is over the interpretation of the word “Regulations.” The plaintiff contends that the regulations do not encompass the manual, and the defendant contends that they do. When considering that the manual explicitly states that it has been adopted by the Board of Regents, one would be hardpressed to conclude that defendant was unreasonable in interpreting the word regulations to include the manual. Stated another way, it was not “apparent” to defendant that his conduct was illegal. See Anderson, 483 U.S. at 640 , 107 S.Ct. at 3039 (“in the light of preexisting law the unlawfulness must be apparent”). Because of this ambiguity over the nature of plaintiff’s contract rights, defendant should be granted qualified immunity. 1 I respectfully dissent.

. This is not to say that a court may grant summary judgment to a defendant because of qualified immunity when there are material facts in dispute. A disputed fact that would preclude summary judgment would be one which relates to the alleged conduct or motive. See, e.g., Pueblo Neighborhood Health Center, Inc., 847 F.2d at 647-50 (dispute over whether defendants were motivated by racial animus in conspiring to interfere with plaintiffs’ free speech rights); Garrett v. Rader, 831 F.2d 202 (10th Cir.1987) (dispute over whether defendant committed the alleged act that violated clearly established law). In this case, defendant does not dispute the allegation that plaintiff was fired without notice or hearing. Rather, he disputes plaintiffs legal interpretation of the employment contract. This legal dispute casts considerable doubt on the right plaintiff seeks to litigate. Because that right is uncertain, it is not "clearly established," and qualified immunity is appropriate.