holding that a retaliatory adverse action "must constitute an injury that would likely chill a person of ordinary firmness from engaging in the protected [First Amendment] activity,” and that it must be "motivated at least in part as a response to the exercise of the plaintiff's constitutional rights”
How later courts described this case
- holding that a retaliatory adverse action "must constitute an injury that would likely chill a person of ordinary firmness from engaging in the protected [First Amendment] activity,” and that it must be "motivated at least in part as a response to the exercise of the plaintiff's constitutional rights”
- labeling the district court's determination that there was no genuine issue of material fact as to the motivation element a "factual determination" for purposes of deciding whether there was interlocutory appellate jurisdiction to review the denial of qualified immunity
- holding that the interest in public safety outweigh’s the state’s interest in conducting its affairs collegially
- “[A]s a matter of pure law, the rights here are clearly established: a reasonable official would know that terminating an employee with the motivation, even in part, of quieting the plaintiff’s public speech about the illegal activities of the Department violates the Constitution.”
Written by the judges who cited it.
The opinion
GUY, Circuit Judge,
concurring in part, dissenting in part.
This case presents four issues for our review: (i) whether the district court erred in denying qualified immunity to the individual defendants for terminating Hoover based on his free speech rights; (ii) whether the district court erred in denying qualified immunity to the individual defendants for Hoover’s procedural due process claim for lack of' notice of a pre-disciplinary meeting; (in) whether the district court erred in denying qualified immunity for Hoover’s procedural due process claims for lack of notice of his ability to appeal his termination; and (iv) whether the district court erred in denying summary judgment to the City of Circleville based on principles of municipal liability. The majority considers only the first issue. Because I believe that all four issues merit some attention, and because I disagree with the scope of the majority’s analysis of the first issue, I write separately.
On the first issue, although we decline interlocutory appellate jurisdiction over the denial of qualified immunity for the protected speech claim, we do. so because appellants dispute facts in their appeal. Our jurisdiction in an interlocutory appeal of a denial of qualified immunity allows us to consider issues of law in the context of “the undisputed facts or the evidence viewed in the light most favorable to plaintiff.” Klein v. Long, 275 F.3d 544, 549 (6th Cir.2001), petition for cert. filed, 70 USLW 3758 (May 28, 2002) (No. 01-1742); Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir.1998) (“A defendant who is denied qualified immunity may file an interlocutory appeal with this Court only if that appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law.”). Despite that limitation, appellants extend their argument beyond the undisputed facts or the evidence *470 viewed in a light most favorable to the plaintiff — they ask this Court to address disputed questions of fact. Consequently, we lack jurisdiction over that portion of appellants’ appeal. Had appellants instead appealed the qualified immunity denial as a matter of law on the basis of the undisputed facts or on plaintiffs version of the facts, we would have jurisdiction to consider their appeal of that issue.
Once it admits that we lack jurisdiction over the protected speech issue, the majority should go no further in considering that argument. Instead, the majority continues to evaluate the second qualified immunity prong — whether the federal right at issue is clearly established. The majority attempts to retain jurisdiction by noting that the second qualified immunity prong involves a pure question of law over which we have interlocutory appellate jurisdiction. While that may be true, our lack of jurisdiction over the first qualified immunity prong means that there is no need for us to address the second prong, and the majority goes too far by doing so.
The majority next fails to consider appellants’ arguments regarding the denial of qualified immunity for Hoover’s claimed procedural due process violations. Because neither of those issues involves disputed questions of fact, we have jurisdiction to consider both arguments here. Rather than belabor those issues here, I simply note my agreement with the district court’s thoughtful treatment of those issues, see Hoover v. Radabaugh, 123 F.Supp.2d 412, 422-25 (S.D.Ohio 2000).
Finally, the City of Circleville seeks to have this Court exercise pendent appellate jurisdiction over its claim based on principles of municipal liability. However, the exercise of pendent appellant jurisdiction is proper only where there is an inextricable link between the pendent appellate claim and the claim over which we have jurisdiction. See Swint v. Chambers County Comm’n, 514 U.S. 35, 51 , 115 S.Ct. 1203 , 131 L.Ed.2d 60 (1995); Mattox v. City of Forest Park, 183 F.3d 515, 523-24 (6th Cir.1999). Here, because the city’s liability depends on an issue separate from the qualified immunity analysis — -whether there was a municipal policy, custom, or practice in place that chilled employees’ free speech rights — the City of Circleville’s argument is not inextricably intertwined with the qualified immunity analysis. Consequently, this Court lacks pendent appellate jurisdiction over that argument.
In short, the majority should have addressed the four issues presented in this appeal. On the denial of qualified immunity for the protected speech issue, there is no interlocutory appellate jurisdiction, and consequently, there is no need to address the second qualified immunity prong. On the denial of qualified immunity for the procedural due process issues, we have jurisdiction, and I would affirm the district court’s reasoning. Finally, we lack pendent appellate jurisdiction over the City of Circleville’s appeal. For those reasons, we should have DISMISSED this appeal in part and AFFIRMED the district court’s judgment in part.