IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

ANTHONY BERNARD MOORER, ) 

Plaintiff, ) 

) 

v. ) Case No. 2:06-CV-672-WKW 

) 

CITY OF MONTGOMERY; ) 

BERNARD HARRIS, individually; and ) 

THOMAS PROVITT, individually, ) 

Defendants. ) 

BRIEF IN SUPPORT OF 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

COME NOW the above-named Defendants, City of Montgomery, Bernard Harris 

and Thomas Provitt, and respectfully submit this Brief in support of their motion for 

summary judgment, filed separately herein, and state: 

I. PROCEDURAL HISTORY 

1. On or about October 25, 2005, Plaintiff filed a charge of discrimination 

with the Equal Employment Opportunity Commission (“EEOC”). (Doc. 3, at 4-5). On or 

about April 28, 2006, the EEOC issued a Dismissal and Notice of Rights, notifying 

Plaintiff of his right to sue. (Doc. 3, at 1). 

2. On July 27, 2006, Plaintiff filed a Complaint for employment 

discrimination pursuant to Title VII of the Civil Rights Act of 1964. (Doc. 1). In his 

Complaint, Plaintiff alleged he was discharged from his employment with the City of 

Montgomery because of his race. 

3. On August 2, 2006, Plaintiff filed a motion to amend his complaint. (Doc. 

3). On August 9, 2006, the Court granted Plaintiff’s motion to amend (Doc. 6, at 3), and 

ordered Plaintiff to show cause why his Complaint should not be dismissed for lack of 

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jurisdiction. On August 21, 2006, Plaintiff filed a response to this Court’s show cause 

order, seeking to amend his complaint to bring his claims under 42 U.S.C. §1983, and to 

add Bernard Harris (“Harris”) and Thomas Provitt (“Provitt”) as defendants in their 

individual capacity. 

4. On August 23, 2006, this Court dismissed Plaintiff’s Title VII claims, and 

granted Plaintiff leave to amend his Complaint to add Harris and Provitt as defendants in 

their individual capacity, and to assert his claims pursuant to 42 U.S.C. §1983. 

5. Despite ample opportunity and a direct court order to do so (Doc. 10), 

Plaintiff never filed an amended complaint. On February 9, 2007, this Court: 

ORDERED that Plaintiff’s claims now stand as presented. 

These include: Racial Discrimination charged against 

Defendant Harris, in his individual capacity; (2) Violation 

of Due Process against Defendant Provitt, in his individual 

capacity; and (3) Failure to Properly Train charged against 

the City of Montgomery.” (Doc. 12-1, at 2). 

This Court went on to say it would not afford Plaintiff any further opportunity to amend 

his complaint. Id. 

II. STATEMENT OF AGREED FACTS 

6. Plaintiff was employed by the City of Montgomery from April 22, 2003 to 

April 21, 2006 as a service maintenance worker. (Doc. 7). 

7. In April 2005, Defendant Harris was Plaintiff’s supervisor. (Doc. 7; Def. 

Ex. A). Plaintiff worked on a five-man paint crew made up of two black males and three 

white males. (Doc. 7; Def. Ex. A). 

8. April 18, 2006 was Plaintiff’s last day at work for the City. (Doc. 7). 

III. PLAINTIFF’S CLAIMS 

9. Plaintiff’s Claims. Plaintiff makes three claims: (1) Defendant Harris, 

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individually, racially discriminated against Plaintiff; (2) Defendant Provitt, individually 

violated Plaintiff’s Due Process rights; and (3) Defendant City of Montgomery failed to 

properly train Harris and Provitt. 

10. Relief Sought. As relief, Plaintiff seeks compensatory and punitive 

damages. 

IV. MEMORANDUM OF POINTS AND AUTHORITIES 

A. STANDARD OF REVIEW 

11. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary 

judgment is proper “if the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show that there is no genuine issue 

as to any material fact and that the moving party is entitled to judgment as a matter of 

law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

12. The party requesting summary judgment bears the initial burden to inform 

the Court of the basis for its motion and to show the absence of any genuine issue of 

material fact. Id. at 323. The movant can meet this burden by presenting evidence 

showing that there is no dispute of material fact, or by showing the district court that the 

non-moving party has failed to present evidence in support of some element of the case 

on which it bears the ultimate burden of proof. Id. at 322-324. 

13. Once the non-moving party has met its burden, Rule 56(e) requires the 

non-moving party to present specific facts showing that there is a genuine issue for trial. 

Id. at 324. To avoid summary judgment, the non-moving party “must do more than show 

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. 

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 

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14. Once the non-moving party has responded to the motion for summary 

judgment, the court must grant summary judgment if there is no genuine issue of material 

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc. 

Rule 56(c). Similarly, the moving party is entitled to summary judgment if the nonmoving party has failed to prove the elements of his case or there is the absence of 

evidence in the record to support a judgment for the non-moving party on the issue in 

question. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir. 1993). 

B. SPECIFIC CLAIMS 

15. As stated above, Plaintiff claims that: (1) Defendant Harris, individually, 

racially discriminated against Plaintiff; (2) Defendant Provitt, individually violated 

Plaintiff’s Due Process rights; and (3) Defendant City of Montgomery failed to properly 

train Harris and Provitt. 

1. RACIAL DISCRIMINATION 

16. In cases alleging disparate treatment in which § 1983 is employed as a 

remedy for the same conduct attacked under Title VII, the elements of the two causes of 

action are the same. Richardson v. Leeds Police Dept., 71 F.3d 801 (11th Cir. 1995), on 

remand 990 F.Supp. 1331. 

Plaintiff claims he was racially discriminated against by Bernard Harris, his 

supervisor. Specifically, Plaintiff claims he was assigned to paint on a tall ladder because 

of his race. On the face of his Complaint, however, Plaintiff states that he worked for 

Defendant Harris, a black male, on a paint crew that consisted of “two blacks and three 

whites.” (Doc. 7, p. 2, ¶ 6A). Plaintiff goes on to say he was the only member of the crew 

required to do “high work.” Plaintiff points to the three white members of this crew who 

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were not assigned to do “high work,” but fails to mention the other black member of the 

crew, whom the black foreman treated the same as the three white members. There was 

no illegal disparate treatment here. It does not stand to reason that a purportedly racist 

supervisor would only discriminate against one member of the subject class, much less a 

member of his own class. 

17. Be that as it may, Defendant Harris had legitimate, non-discriminatory 

reasons for his task assignments. (Def. Ex. A). Plaintiff was the newest member of 

Defendant Harris’ paint crew and had the least amount of experience. (Def. Ex. A). 

Plaintiff made assignments based on crew members’ skills and abilities. (Def. Ex. A). 

Plaintiff’s race was never a factor in any of Defendant Harris’ decisions about what tasks 

Plaintiff would be assigned to. (Def. Ex. A). Defendant Harris did not treat Plaintiff 

differently than any other crew member (Def. Ex. A), and Defendant Harris certainly did 

not discriminate against Plaintiff because of his race. (Def. Ex. A). 

18. As a paint-crew supervisor, Defendant Harris routinely makes decisions 

about which crew members will perform which tasks and how best to use the manpower 

available to him to accomplish the job. (Def. Ex. A). At all times relevant to Plaintiff’s 

claims, Defendant Harris was acting within the scope of his discretion as a paint crew 

supervisor. (Def. Ex. A). 

19. Plaintiff has failed to make a prima facie case that he was discriminated 

against on the basis of his race. By his own admission, another similarly situated black 

male member of his paint crew did not have to do the “high work.” Plaintiff presents no 

evidence of racial animus toward Plaintiff by his foreman, Defendant Bernard Harris, 

who is also a black male. Further, Plaintiff suffered no adverse employment action. He 

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resigned. (Def. Ex. C). Plaintiff abandoned his job because he did no want to do the work 

he was assigned. Accordingly, Defendant Bernard Harris is entitled to summary 

judgment against Plaintiff on the charge of race discrimination. 

20. Qualified Immunity. The defense of qualified immunity is an affirmative 

defense that shields governmental officials performing discretionary functions from civil 

liability if their conduct violates no clearly established statutory or constitutional right of 

which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 817-

19 (1982). In this case, Defendant Harris is entitled to qualified immunity because he was 

at all times relevant acting within the scope of his discretionary authority and his conduct 

did not violate any clearly established constitutional right. (Def. Ex. A). 

21. To be entitled to qualified immunity, a defendant must prove that he was 

acting within the scope of his discretionary authority when the allegedly wrongful acts 

occurred. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303 (11th Cir.2006). In 

assessing whether a defendant's challenged actions are within the scope of his 

discretionary authority, courts examine “whether the government employee was (a) 

pursuing a legitimate job-related function (that is, pursuing a job-related goal), (b) 

through means that were within his power to utilize.” Holloman ex rel. Holloman v. 

Harland, 370 F.3d 1252, 1265 (11th Cir.2004). 

22. The discretionary authority criteria are clearly satisfied here. Defendant 

Harris was performing job-related functions when he made day-to-day assignments of 

paint crew members assigned to his supervision. (Def. Ex. A). Defendant Harris’ job was 

to supervise his paint crew to complete paint projects for the City. (Def. Ex. A). 

23. Once the official has established that he was engaged in a discretionary 

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function, the plaintiff bears the burden of demonstrating that the official is not entitled to 

qualified immunity. Crosby v. Monroe County, 394 F.3d at 1328, 1332 (11th Cir. 2004). 

The plaintiff then must demonstrate that a reasonable jury could find from record 

evidence that the defendant violated a clearly established constitutional right of which a 

reasonable government official would have been aware. Chesser v. Sparks, 248 F.3d 

1117, 1122 (11th Cir. 2001). 

24. Here, even viewing the evidence in the light most favorable to the 

plaintiff, Defendant Harris did not violate any of Plaintiff’s statutory or constitutional 

rights. It is Defendant Harris’ job as a paint crew supervisor to assign tasks to members 

of his crew. This is exactly what he did. Thus, Defendant Harris is entitled to qualified 

immunity and the claims against him are due to be dismissed. 

2. DUE PROCESS VIOLATION 

25. Plaintiff claims his due process rights were violated by Thomas Provitt, 

Assistant Director of the City of Montgomery Maintenance Department, when Defendant 

Provitt told him to get off the City Lot. (Doc. 7, p. 2, ¶ 6B). Plaintiff goes on to say he 

was terminated, was not given a hearing, and was not advised of any way he could 

contest his termination. Id.

26. The Due Process Clause provides that no state shall “deprive any person 

of life, liberty, or property, without due process of law.” U.S. Const. Amend XIV §1. The 

Fourteenth Amendment protects against the government's deprivation of liberty or 

property without procedural due process. Warren v. Crawford, 927 F.2d 559 (11th Cir. 

1991), citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 

2701, 2705, 33 L.Ed.2d 548 (1972). State law determines whether a public employee has 

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a property interest in his or her job. Warren v. Crawford, 927 F.2d 559 (11th Cir. 1991), 

citing Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). 

27. It is not necessary, in this case, to reach the issue of whether Plaintiff had 

a property interest in his continued employment because the evidence shows he 

abandoned his job. 

28. Res Judicata. The Honorable Tracy McCooey, Montgomery County 

Circuit Judge, upon conclusion of a bench trial on the circumstances surrounding 

Plaintiffs termination, held that Plaintiff resigned. (Def. Ex. C). 

29. Specifically she held that “Plaintiff refused to perform assigned duties and 

left the work locality after a verbal altercation with a supervisor. That same day he called 

an assistant to the Mayor and was explicitly informed that if he did not return to work 

within three days he would be considered to have voluntarily left his employment. The 

Plaintiff did not return to his work within that time.” (Def. Ex. C). 

30. The Circuit Court went on to find that “The Plaintiff left employment after 

an argument with a supervisor. A superior to that supervisor clearly told the Plaintiff that 

he would have to report back to work to remain employed. The Plaintiff’s failure to 

report evidenced an indifference as to whether he remained employed and constituted an 

abandonment of his employment.” (Def. Ex. C). 

31. Plaintiff did not appeal the Circuit Judge’s decision, and therefore res 

judicata applies to the issue of whether Plaintiff resigned. 

32. No Process Due upon Resignation. In the Eleventh Circuit, a public 

employer does not deprive an employee of due process rights where the employee resigns 

voluntarily. Hargray v. City of Hallandale, 57 F.3d 1560, 1567 (11th Cir. 1995). 

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Employee resignations are presumed to be voluntary, Id., at 1568 (11th Cir. 1995), and 

“This presumption will prevail unless [the employee] comes forward with sufficient 

evidence to establish that the resignation was involuntarily extracted.” Hargray v. City of 

Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995), quoting Christie, 518 F.2d at 587. 

33. There is no evidence that Plaintiff’s resignation was involuntarily 

extracted. To the contrary, the Circuit Court found that Plaintiff was told to go back to 

work and that if he was absent from work for three days, it would be considered job 

resignation by job abandonment. (Def. Ex. C). Plaintiff made an affirmative choice not to 

return to work. (Def. Ex. C). Because Plaintiff voluntarily resigned, he was not entitled to 

due process, therefore, his claim of due process violation against Defendant Provitt 

cannot stand. 

34. Qualified Immunity. Like Harris, Defendant Provitt is entitled to 

qualified immunity, and respectfully incorporates the Qualified Immunity authority and 

argument stated above in Paragraphs 18-22. 

35. At all times relevant, Provitt was acting within his discretionary authority 

as Assistant Director of the City of Montgomery Maintenance Department. On April 19, 

2005, Plaintiff told Defendant Provitt he was going to quit so Defendant Provitt told 

Plaintiff to go fill out the required resignation paperwork. (Def. Ex. B). Plaintiff refused, 

so Defendant Provitt told him to leave City property. (Def. Ex. B). Clearly both decisions 

– the decision to order Plaintiff to complete the resignation paperwork and the decision to 

order an employee who refuses to work off of City property – both fall squarely within 

Defendant Provitt’s discretionary authority as Assistant Director. 

36. Further, as explained more fully below, Defendant Provitt did not violate 

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Plaintiff’s constitutional rights. Therefore, based on the aforementioned authority on 

qualified immunity, Defendant Provitt is entitled to qualified immunity and the charge 

against him is due to be dismissed. 

3. FAILURE TO TRAIN 

37. Plaintiff makes the bare allegation that the City of Montgomery failed to 

properly train Defendants Harris and Provitt (Doc. 7, p. 3, ¶ 6D), but never explains what 

he means or produces any evidence that the City failed to train anyone. 

38. A city can be liable under § 1983 for inadequate training of its employees, 

but only where a municipality's failure to train its employees in a relevant respect 

evidences a “deliberate indifference” to the rights of its inhabitants. City of Canton, Ohio 

v. Harris, 489 U.S. 378, 388-389, 109 S.Ct. 1197, 1204 - 1205 (1989). The Supreme 

Court has explained that there are only ‘limited circumstances' in which an allegation of a 

failure to train or supervise can be the basis for liability under § 1983. Gold v. City of 

Miami, 151 F.3d 1346, 1350 (11th Cir.1998). These “limited circumstances” occur only 

when the municipality inadequately trains or supervises its employees, this failure to train 

or supervise is a city policy, and that city policy causes the employees to violate a 

citizen's constitutional rights.” Id.

39. Plaintiff has not submitted any evidence that the City inadequately trained 

Harris or Provitt, that failure to train was a City policy, or that City policy caused 

employees to violate a citizen’s constitutional rights. In fact, every City employee 

receives a copy of the Personnel Board Rules and Regulations, including the portions 

about discrimination and harassment. (Def. Ex. A). For instance, in his 181⁄2 years with 

the City, Defendant Harris was routinely trained on discrimination and harassment, 

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including training on how to handle discrimination and harassment as a manager. (Def. 

Ex. A). 

40. Plaintiff cannot identify any City policy likely to result in a constitutional 

violation. In fact, Plaintiff’s claim consists entirely of a statement that “Plaintiff alleges 

that the City has failed to properly train the persons who have violated his constitutional 

rights.” Plaintiff cannot point to a City policy resulting in inadequate training of 

employees. Plaintiff has not given any indication what type of training should have 

occurred, nor has he alleged any causal connection between the alleged failure to train 

and any claimed injury. 

41. Conclusory allegations cannot interpose genuine issues of material fact 

into litigation so as to preclude entry of summary judgment. Fed. R. Civ. Proc. Rule 56. 

Plaintiff’s Failure to Train claim against the City is a conclusory allegation, with nothing 

more to explain or support it. Therefore, summary judgment should be granted in favor of 

Defendant City of Montgomery with regard to this claim. 

V. CONCLUSION 

42. In light of the foregoing, it is clear that there is no genuine issue of 

material fact and Plaintiff cannot succeed on any of his claims. Therefore summary 

judgment should be entered in favor of Defendants and against Plaintiff Anthony Moorer. 

43. Defendants Harris and Provitt are entitled to qualified immunity. Both 

were acting within the scope of their discretionary authority at all times relevant. 

Accordingly, Plaintiff’s claims should be dismissed on immunity grounds. 

44. Plaintiff has failed to make a prima facie case that he was discriminated 

against on the basis of his race. By his own admission, another similarly situated black 

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12 

male member of his paint crew did not have to do the “high work.” Plaintiff presents no 

evidence of racial animus toward Plaintiff by his foreman, Defendant Bernard Harris, 

who is also a black male. Further, Plaintiff suffered no adverse employment action; he 

resigned. Plaintiff abandoned his job because he did no want to do the work he was 

assigned. Accordingly, Defendant Bernard Harris is entitled to summary judgment 

against Plaintiff on the charge of race discrimination. 

45. Also, the Circuit Court of Montgomery County determined after a full trial 

that Plaintiff voluntarily resigned. Plaintiff was therefore not entitled to due process. 

Accordingly, the claims against Defendant Provitt are due to be dismissed. 

Finally, Conclusory allegations cannot interpose genuine issues of material fact 

into litigation so as to preclude entry of summary judgment. Fed. R. Civ. Proc. Rule 56. 

Finally, Plaintiff has produced no evidence that the City of Montgomery failed to train 

Harris and Provitt adequately, nor has he shown a causal connection between the alleged 

failure to train and any alleged injury. As shown herein, Plaintiff’s claims are unfounded 

and he cannot prevail on any of them. Plaintiff is not entitled to any relief, therefore 

Summary Judgment in favor of Defendants is just and proper, and all claims against them 

are due to be dismissed with prejudice. 

WHEREFORE, premises considered Defendants petition this Honorable Court to 

enter summary judgment in their favor and against Plaintiff Anthony Moorer as to all 

issues in controversy alleged against them. 

Respectfully submitted this 16th day of November, 2007. 

/s/ Allison H. Highley .

Allison H. Highley (HIG024) 

 Counsel for Defendants 

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OF COUNSEL: 

CITY OF MONTGOMERY 

Legal Department 

Post Office Box 1111 

Montgomery, AL 36101-1111 

(334) 241-2050 Telephone 

(334) 241-2310 Facsimile 

CERTIFICATE OF SERVICE

I hereby certify that on November 16, 2007, I sent a copy of the foregoing to the 

Plaintiff via U.S. mail, first-class postage pre-paid to: 

Anthony Moorer 

4240 Green Meadow Drive 

Montgomery, Alabama 36108 

/s/ Allison H. Highley .

Of Counsel 

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Exhibit A 

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Exhibit B 

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Exhibit C 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

 NORTHERN DIVISION 

ANTHONY BERNARD MOORER, ) 

) 

Plaintiff, ) 

) 

v. ) Case No. 2:06-CV-672-WKW 

) 

CITY OF MONTGOMERY; ) 

BERNARD HARRIS, individually; and ) 

THOMAS PROVITT, individually, ) 

) 

Defendants. ) 

APPENDIX OF EVIDENCE TO BRIEF 

IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

COME NOW the above-named Defendants and submit this Appendix to their 

Brief in Support of Defendants’ Motion for Summary Judgment: 

EXHIBITS 

1. Defendant’s Exhibit A – Affidavit of Bernard Harris 

2. Defendant’s Exhibit B – Affidavit of Thomas Provitt 

3. Defendant’s Exhibit C – Certified Copy of Order, Montgomery Circuit 

Court Case No. CV-2006-3015 

Respectfully submitted this 16th day of November, 2007. 

/s/ Allison H. Highley .

Allison H. Highley (HIG024) 

Counsel for Defendants 

OF COUNSEL: 

CITY OF MONTGOMERY 

Legal Department 

Post Office Box 1111 

Montgomery, AL 36101-1111 

(334) 241-2050 Telephone 

(334) 241-2310 Facsimile 

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CERTIFICATE OF SERVICE

I hereby certify that on November 16, 2007, I sent a copy of the foregoing to the 

Plaintiff via U.S. mail, first-class postage pre-paid to: 

Anthony Moorer 

4240 Green Meadow Drive 

Montgomery, Alabama 36108 

/s/ Allison H. Highley .

Allison H. Highley (HIG024) 

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Exhibit A 

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Exhibit B 

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Exhibit C 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

 NORTHERN DIVISION 

ANTHONY BERNARD MOORER, ) 

) 

Plaintiff, ) 

) 

v. ) Case No. 2:06-CV-672-WKW 

) 

CITY OF MONTGOMERY; ) 

BERNARD HARRIS, individually; and ) 

THOMAS PROVITT, individually, ) 

) 

Defendants. ) 

APPENDIX OF AUTHORITY TO BRIEF 

IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

COME NOW the above-named Defendants and submit this Appendix to their 

Brief in Support of Defendants’ Motion for Summary Judgment: 

CITED AUTHORITY 

1. 42 U.S.C. §1983 

2. Rule 56, Federal Rules of Civil Procedure 

3. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) 

4. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) 

5. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir. 1993) 

6. Richardson v. Leeds Police Dept., 71 F.3d 801 (11th Cir. 1995) 

7. Harlow v. Fitzgerald, 457 U.S. 800, 817-19 (1982) 

8. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303 (11th Cir.2006) 

9. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir.2004) 

10. Crosby v. Monroe County, 394 F.3d at 1328, 1332 (11th Cir. 2004) 

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11. Chesser v. Sparks, 248 F.3d 1117, 1122 (11th Cir. 2001) 

12. Warren v. Crawford, 927 F.2d 559 (11th Cir. 1991) 

13. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 

2701, 2705, 33 L.Ed.2d 548 (1972) 

14. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 

(1976) 

15. Hargray v. City of Hallandale, 57 F.3d 1560, 1567 (11th Cir. 1995) 

16. Christie v. U.S, 518 F.2d 584, 587 (Ct. Cl. 1975) 

17. City of Canton, Ohio v. Harris, 489 U.S. 378, 388-389, 109 S.Ct. 1197, 

1204 - 1205 (1989) 

18. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.1998) 

Respectfully submitted this 16th day of November, 2007. 

/s/ Allison H. Highley .

Allison H. Highley (HIG024) 

Counsel for Defendants 

OF COUNSEL: 

CITY OF MONTGOMERY 

Legal Department 

Post Office Box 1111 

Montgomery, AL 36101-1111 

(334) 241-2050 Telephone 

(334) 241-2310 Facsimile 

CERTIFICATE OF SERVICE

I hereby certify that on November 16, 2007, I sent a copy of the foregoing motion 

to the Plaintiff via U.S. mail, first-class postage pre-paid to: 

Anthony Moorer 

4240 Green Meadow Drive 

Montgomery, Alabama 36108 

/s/ Allison H. Highley .

Allison H. Highley (HIG024) 

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42 U.S.C.A. § 1983. Civil action for deprivation of rights 

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of 

any State or Territory or the District of Columbia, subjects, or causes to be subjected, any 

citizen of the United States or other person within the jurisdiction thereof to the 

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, 

shall be liable to the party injured in an action at law, suit in equity, or other proper 

proceeding for redress, except that in any action brought against a judicial officer for an 

act or omission taken in such officer's judicial capacity, injunctive relief shall not be 

granted unless a declaratory decree was violated or declaratory relief was unavailable. 

For the purposes of this section, any Act of Congress applicable exclusively to the 

District of Columbia shall be considered to be a statute of the District of Columbia. 

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Federal Rules of Civil Procedure Rule 56. Summary Judgment 

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim 

or to obtain a declaratory judgment may, at any time after the expiration of 20 days from 

the commencement of the action or after service of a motion for summary judgment by 

the adverse party, move with or without supporting affidavits for a summary judgment in 

the party's favor upon all or any part thereof. 

(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is 

asserted or a declaratory judgment is sought may, at any time, move with or without 

supporting affidavits for a summary judgment in the party's favor as to all or any part 

thereof. 

(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before 

the time fixed for the hearing. The adverse party prior to the day of hearing may serve 

opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law. A summary judgment, 

interlocutory in character, may be rendered on the issue of liability alone although there 

is a genuine issue as to the amount of damages. 

(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not 

rendered upon the whole case or for all the relief asked and a trial is necessary, the court 

at the hearing of the motion, by examining the pleadings and the evidence before it and 

by interrogating counsel, shall if practicable ascertain what material facts exist without 

substantial controversy and what material facts are actually and in good faith 

controverted. It shall thereupon make an order specifying the facts that appear without 

substantial controversy, including the extent to which the amount of damages or other 

relief is not in controversy, and directing such further proceedings in the action as are 

just. Upon the trial of the action the facts so specified shall be deemed established, and 

the trial shall be conducted accordingly. 

(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing 

affidavits shall be made on personal knowledge, shall set forth such facts as would be 

admissible in evidence, and shall show affirmatively that the affiant is competent to 

testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof 

referred to in an affidavit shall be attached thereto or served therewith. The court may 

permit affidavits to be supplemented or opposed by depositions, answers to 

interrogatories, or further affidavits. When a motion for summary judgment is made and 

supported as provided in this rule, an adverse party may not rest upon the mere 

allegations or denials of the adverse party's pleading, but the adverse party's response, by 

affidavits or as otherwise provided in this rule, must set forth specific facts showing that 

there is a genuine issue for trial. If the adverse party does not so respond, summary 

judgment, if appropriate, shall be entered against the adverse party. 

Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 4 of 273
(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party 

opposing the motion that the party cannot for reasons stated present by affidavit facts 

essential to justify the party's opposition, the court may refuse the application for 

judgment or may order a continuance to permit affidavits to be obtained or depositions to 

be taken or discovery to be had or may make such other order as is just. 

(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any 

time that any of the affidavits presented pursuant to this rule are presented in bad faith or 

solely for the purpose of delay, the court shall forthwith order the party employing them 

to pay to the other party the amount of the reasonable expenses which the filing of the 

affidavits caused the other party to incur, including reasonable attorney's fees, and any 

offending party or attorney may be adjudged guilty of contempt.

Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 5 of 273
Celotex Corp. v. Catrett

U.S.Dist.Col.,1986.

Supreme Court of the United States

CELOTEX CORPORATION, Petitioner

v.

Myrtle Nell CATRETT, Administratrix of the Estate of Louis H. Catrett, Deceased.

No. 85-198.

Argued April 1, 1986.

Decided June 25, 1986.

Administratrix of estate of deceased worker

brought action against asbestos manufacturer. The

United States District Court for the District of

Columbia granted manufacturer's motion for summary judgment and administratrix appealed. The

Court of Appeals for the District of Columbia Circuit, 756 F.2d 181, reversed. The Supreme Court,

Justice Rehnquist, held that: (1) Rule 56(c) mandates the entry of summary judgment after adequate

time for discovery against a party who fails to make

a showing sufficient to establish the existence of an

element essential to that party's case as to which

that party will bear the burden of proof at trial; (2)

there is no requirement that moving party support

its motion with affidavits or other similar materials

negating the opponent's claim; and (3) nonmoving

party need not produce evidence in a form that

would be admissible at trial in order to avoid summary judgment.

Reversed and remanded.

Justice White filed an opinion concurring in the

Court's opinion and judgment.

Justice Brennan filed a dissenting opinion in which

Chief Justice Burger and Justice Blackmun joined.

Justice Stevens filed a dissenting opinion.

Opinion on remand, 826 F.2d 33.

West Headnotes

[1] Federal Civil Procedure 170A 2466

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)1 In General

170Ak2465 Matters Affecting Right to

Judgment

170Ak2466 k. Lack of Cause of

Action or Defense. Most Cited Cases

Entry of summary judgment is mandated, after adequate time for discovery and upon motion, against

a party who fails to make a showing sufficient to

establish that existence of an element essential to

that party's case and on which that party will bear

the burden of proof at trial. Fed.Rules

Civ.Proc.Rule 56(c), 28 U.S.C.A.

[2] Federal Civil Procedure 170A 2470

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)1 In General

170Ak2465 Matters Affecting Right to

Judgment

170Ak2470 k. Absence of Genuine

Issue of Fact in General. Most Cited Cases

Where party will have burden of proof on an element essential to its case at trial and does not, after

adequate time for discovery, make a showing sufficient to establish the existence of that element,

there can be no genuine issue as to any material fact

since a complete failure of proof concerning an essential element of the nonmovant's case necessarily

renders all other facts immaterial. Fed.Rules

Civ.Proc.Rule 56(c), 28 U.S.C.A.

[3] Federal Civil Procedure 170A 2535

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2535 k. Presentation of Case in

General. Most Cited Cases

106 S.Ct. 2548 Page 1

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, 54 USLW 4775, 4 Fed.R.Serv.3d 1024

(Cite as: 477 U.S. 317, 106 S.Ct. 2548)

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Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 6 of 273
Party seeking summary judgment always bears the

initial responsibility of informing the district court

of the basis for its motion and identifying those

portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together

with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material

fact. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.

[4] Federal Civil Procedure 170A 2536.1

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2536 Affidavits

170Ak2536.1 k. In General. Most

Cited Cases

(Formerly 170Ak2536)

There is no express or implied requirement in Rule

56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. Fed.Rules Civ.Proc.Rule 56, 28

U.S.C.A.

[5] Federal Civil Procedure 170A 2536.1

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2536 Affidavits

170Ak2536.1 k. In General. Most

Cited Cases

(Formerly 170Ak2536)

Regardless of whether the moving party accompanies its summary judgment motion with affidavits,

the motion may and should be granted so long as

whatever is before the district court demonstrates

that the standard for the entry of summary judgment set forth in Rule 56(c) is satisfied. Fed.Rules

Civ.Proc.Rule 56(c), 28 U.S.C.A.

[6] Federal Civil Procedure 170A 2536.1

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2536 Affidavits

170Ak2536.1 k. In General. Most

Cited Cases

(Formerly 170Ak2536)

Where nonmoving party will bear burden of proof

at trial on a dispositive issue, summary judgment

motion may properly be made in reliance solely on

the pleadings, depositions, answers to interrogatories, and admissions on file and such a motion,

whether or not accompanied by affidavits, will be

“made and supported as provided in this rule” so

that the nonmoving party must go beyond the

pleadings to show that there is a genuine issue for

trial. Fed.Rules Civ.Proc.Rule 56(e), 28 U.S.C.A.

[7] Federal Civil Procedure 170A 2545

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2542 Evidence

170Ak2545 k. Admissibility. Most

Cited Cases

Nonmoving party need not produce evidence in a

form that would be admissible at trial in order to

avoid summary judgment. Fed.Rules Civ.Proc.Rule

56(e), 28 U.S.C.A.

[8] Federal Civil Procedure 170A 2536.1

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2536 Affidavits

170Ak2536.1 k. In General. Most

Cited Cases

(Formerly 170Ak2536)

Federal Civil Procedure 170A 2544

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2542 Evidence

106 S.Ct. 2548 Page 2

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, 54 USLW 4775, 4 Fed.R.Serv.3d 1024

(Cite as: 477 U.S. 317, 106 S.Ct. 2548)

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Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 7 of 273
170Ak2544 k. Burden of Proof.

Most Cited Cases

Last two sentences of Rule 56(e) precluding a nonmoving party from resting on its pleadings to avoid

summary judgment were added to disapprove a line

of cases allowing a party opposing summary judgment to resist a properly made motion by reference

only to its pleadings and were not intended to reduce the burden of the moving party or to add to

that burden. Fed.Rules Civ.Proc.Rule 56(e), 28

U.S.C.A.

[9] Federal Civil Procedure 170A 2461

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)1 In General

170Ak2461 k. In General. Most Cited

Cases

Summary judgment procedure is properly regarded

not a disfavored procedural shortcut but, rather, as

an integral part of the federal rules as a whole,

which are designed to secure the just, speedy, and

inexpensive determination of every action.

Fed.Rules Civ.Proc.Rules 1, 56, 28 U.S.C.A.

[10] Federal Civil Procedure 170A 2461

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)1 In General

170Ak2461 k. In General. Most Cited

Cases

Rule 56 must be construed with due regard not only

for the rights of persons asserting claims and defenses that are adequately based in fact to have

those claims and defenses tried to a jury but also for

the rights of persons opposing such claims and defenses to demonstrate, in the manner provided by

the Rule prior to trial, that the claims and defenses

have no factual basis. Fed.Rules Civ.Proc.Rule 56,

28 U.S.C.A.

**2549 *317 Syllabus FN*

FN* The syllabus constitutes no part of the

opinion of the Court but has been prepared

by the Reporter of Decisions for the convenience of the reader. See United States v.

Detroit Lumber Co., 200 U.S. 321, 337, 26

S.Ct. 282, 287, 50 L.Ed. 499.

In September 1980, respondent administratrix filed

this wrongful-death action in Federal District

Court, alleging that her husband's death in 1979

resulted from his exposure to asbestos products

manufactured or distributed by the defendants, who

included petitioner corporation. In September 1981,

petitioner filed a motion for summary judgment, asserting that during discovery respondent failed to

produce any evidence to support her allegation that

the decedent had been exposed to petitioner's

products. In response, respondent produced documents tending to show such exposure, but petitioner

argued that the documents were inadmissible

hearsay and thus could not be considered in opposition to the summary judgment motion. In July 1982,

the court granted the motion because there was no

showing of exposure to petitioner's products, but

the Court of Appeals reversed, holding that summary judgment in petitioner's favor was precluded

because of petitioner's failure to support its motion

with evidence tending to negate such exposure, as

required by Federal Rule 56(e) of Civil Procedure

and the decision in Adickes v. S.H. Kress & Co.,

398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142.

Held:

1. The Court of Appeals' position is inconsistent

with the standard for summary**2550 judgment set

forth in Rule 56(c), which provides that summary

judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Pp. 2552-2559.

(a) The plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time for

discovery and upon motion, against a party who

fails to make a showing sufficient to establish the

existence of an element essential to that party's

106 S.Ct. 2548 Page 3

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, 54 USLW 4775, 4 Fed.R.Serv.3d 1024

(Cite as: 477 U.S. 317, 106 S.Ct. 2548)

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case, and on which that party will bear the burden

of proof at trial. In such a situation, there can be

“no genuine issue as to any material fact,” since a

complete failure of proof concerning an essential

element of the nonmoving party's case necessarily

renders all other facts immaterial. The moving

party is “entitled to a judgment as a matter of law”

because the nonmoving party has failed to *318

make a sufficient showing on an essential element

of its case with respect to which it has the burden of

proof. Pp. 2552-2553.

(b) There is no express or implied requirement in

Rule 56 that the moving party support its motion

with affidavits or other similar materials negating

the opponent's claim. On the contrary, Rule 56(c),

which refers to the affidavits, “if any,” suggests the

absence of such a requirement, and Rules 56(a) and

(b) provide that claimants and defending parties

may move for summary judgment “with or without

supporting affidavits.” Rule 56(e), which relates to

the form and use of affidavits and other materials,

does not require that the moving party's motion always be supported by affidavits to show initially

the absence of a genuine issue for trial. Adickes v.

S.H. Kress & Co., supra, explained. Pp. 2553-2554.

(c) No serious claim can be made that respondent

was “railroaded” by a premature motion for summary judgment, since the motion was not filed until

one year after the action was commenced and since

the parties had conducted discovery. Moreover, any

potential problem with such premature motions can

be adequately dealt with under Rule 56(f). Pp.

2554-2555.

2. The questions whether an adequate showing of

exposure to petitioner's products was in fact made

by respondent in opposition to the motion, and

whether such a showing, if reduced to admissible

evidence, would be sufficient to carry respondent's

burden of proof at trial, should be determined by

the Court of Appeals in the first instance. P. 2555.

244 U.S.App.D.C. 160, 756 F.2d 181, reversed and

remanded.

REHNQUIST, J., delivered the opinion of the

Court, in which WHITE, MARSHALL, POWELL,

and O'CONNOR, JJ., joined. WHITE, J., filed a

concurring opinion, post, p. ---. BRENNAN, J.,

filed a dissenting opinion, in which BURGER, C.J.,

and BLACKMUN, J., joined, post, p. ---.

STEVENS, J., filed a dissenting opinion, post, p. -

--.

Leland S. Van Koten argued the cause for petitioner. With him on the briefs were H. Emslie Parks

and Drake C. Zaharris.

Paul March Smith argued the cause for respondent.

With him on the brief were Joseph N. Onek, Joel I.

Klein, James F. Green, and Peter T. Enslein.*

* Stephen M. Shapiro, Robert L. Stern, William H.

Crabtree, Edward P. Good, and Paul M. Bator filed

a brief for the Motor Vehicle Manufacturers Association et al. as amici curiae urging reversal.

*319 Justice REHNQUIST delivered the opinion of

the Court.

The United States District Court for the District of

Columbia granted the motion of petitioner Celotex

Corporation for summary judgment against respondent Catrett because the latter was unable to

produce evidence in support of her allegation in her

wrongful-death complaint that the decedent had

been exposed to petitioner's asbestos products. A

divided panel of the Court of Appeals for the District of Columbia Circuit reversed, however, holding that petitioner's failure to support its motion

with evidence tending to negate such exposure precluded the entry of summary judgment in its favor.

Catrett v. Johns-Manville Sales Corp., 244

U.S.App.D.C. 160, 756 F.2d 181 (1985). This view

conflicted with that of the Third Circuit in In re Japanese **2551 Electronic Products, 723 F.2d 238

(1983), rev'd on other grounds sub nom. Matsushita

Electric Industrial Co. v. Zenith Radio Corp., 475

U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538

(1986).FN1 We granted certiorari to resolve the

conflict, 474 U.S. 944, 106 S.Ct. 342, 88 L.Ed.2d

285 (1985), and now reverse the decision of the

District of Columbia Circuit.

FN1. Since our grant of certiorari in this

case, the Fifth Circuit has rendered a decision squarely rejecting the position adop106 S.Ct. 2548 Page 4

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, 54 USLW 4775, 4 Fed.R.Serv.3d 1024

(Cite as: 477 U.S. 317, 106 S.Ct. 2548)

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ted here by the District of Columbia Circuit. See Fontenot v. Upjohn Co., 780 F.2d

1190 (1986).

Respondent commenced this lawsuit in September

1980, alleging that the death in 1979 of her husband, Louis H. Catrett, resulted from his exposure

to products containing asbestos manufactured or

distributed by 15 named corporations. Respondent's

complaint sounded in negligence, breach of warranty, and strict liability. Two of the defendants

filed motions challenging the District Court's in

personam jurisdiction, and the remaining 13, including petitioner, filed motions for summary judgment. Petitioner's motion, which was first filed in

September 1981, argued that summary judgment

was proper because respondent had “failed to produce evidence that any [Celotex] product ... was the

proximate cause of the injuries alleged within the

jurisdictional*320 limits of [the District] Court.” In

particular, petitioner noted that respondent had

failed to identify, in answering interrogatories specifically requesting such information, any witnesses

who could testify about the decedent's exposure to

petitioner's asbestos products. In response to petitioner's summary judgment motion, respondent then

produced three documents which she claimed

“demonstrate that there is a genuine material factual dispute” as to whether the decedent had ever

been exposed to petitioner's asbestos products. The

three documents included a transcript of a deposition of the decedent, a letter from an official of one

of the decedent's former employers whom petitioner planned to call as a trial witness, and a letter

from an insurance company to respondent's attorney, all tending to establish that the decedent had

been exposed to petitioner's asbestos products in

Chicago during 1970-1971. Petitioner, in turn, argued that the three documents were inadmissible

hearsay and thus could not be considered in opposition to the summary judgment motion.

In July 1982, almost two years after the commencement of the lawsuit, the District Court granted all of

the motions filed by the various defendants. The

court explained that it was granting petitioner's

summary judgment motion because “there [was] no

showing that the plaintiff was exposed to the defendant Celotex's product in the District of

Columbia or elsewhere within the statutory period.”

App. 217.FN2 Respondent*321 appealed only the

grant of summary judgment in favor of petitioner,

and a divided panel of the District of Columbia Circuit reversed. The majority of the Court of Appeals

held that petitioner's **2552 summary judgment

motion was rendered “fatally defective” by the fact

that petitioner “made no effort to adduce any evidence, in the form of affidavits or otherwise, to support its motion.” 244 U.S.App.D.C., at 163, 756

*322 F.2d, at 184 (emphasis in original). According

to the majority, Rule 56(e) of the Federal Rules of

Civil Procedure,FN3 and this Court's decision in

Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90

S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970), establish

that “the party opposing the motion for summary

judgment bears the burden of responding only after

the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact.” 244 U.S.App.D.C., at 163,

756 F.2d, at 184 (emphasis in original; footnote

omitted). The majority therefore declined to consider petitioner's argument that none of the evidence produced by respondent in opposition to the

motion for summary judgment would have been admissible at trial. Ibid. The dissenting judge argued

that “[t]he majority errs in supposing that a party

seeking summary judgment must always make an

affirmative evidentiary showing, even in cases

where there is not a triable, factual dispute.” Id., at

167, 756 F.2d, at 188 (Bork, J., dissenting). According to the dissenting judge, the majority's decision “undermines the traditional authority of trial

judges to grant summary judgment in meritless

cases.” Id., at 166, 756 F.2d, at 187.

FN2. Justice STEVENS, in dissent, argues

that the District Court granted summary

judgment only because respondent presented no evidence that the decedent was exposed to Celotex asbestos products in the

District of Columbia. See post, at

2560-2561. According to Justice

STEVENS, we should affirm the decision

of the Court of Appeals, reversing the Dis106 S.Ct. 2548 Page 5

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, 54 USLW 4775, 4 Fed.R.Serv.3d 1024

(Cite as: 477 U.S. 317, 106 S.Ct. 2548)

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trict Court, on the “narrower ground” that

respondent “made an adequate showing”

that the decedent was exposed to Celotex

asbestos products in Chicago during

1970-1971. See Ibid.

Justice STEVENS' position is factually incorrect. The District Court expressly stated

that respondent had made no showing of

exposure to Celotex asbestos products “in

the District of Columbia or elsewhere.”

App. 217 (emphasis added). Unlike Justice

STEVENS, we assume that the District

Court meant what it said. The majority of

the Court of Appeals addressed the very issue raised by Justice STEVENS, and decided that “[t]he District Court's grant of

summary judgment must therefore have

been based on its conclusion that there was

‘no showing that the plaintiff was exposed

to defendant Celotex's product in the District of Columbia or elsewhere within the

statutory period.’ ” Catrett v. JohnsManville Sales Corp., 244 U.S.App.D.C.

160, 162, n. 3, 756 F.2d 181, 183, n. 3

(1985) (emphasis in original). In other

words, no judge involved in this case to

date shares Justice STEVENS' view of the

District Court's decision.

FN3. Rule 56(e) provides:

“Supporting and opposing affidavits shall

be made on personal knowledge, shall set

forth such facts as would be admissible in

evidence, and shall show affirmatively that

the affiant is competent to testify to the

matters stated therein. Sworn or certified

copies of all papers or parts thereof referred to in an affidavit shall be attached

thereto or served therewith. The court may

permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and

supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his

response, by affidavits or as otherwise

provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond,

summary judgment, if appropriate, shall be

entered against him.”

[1][2] We think that the position taken by the majority of the Court of Appeals is inconsistent with

the standard for summary judgment set forth in

Rule 56(c) of the Federal Rules of Civil

Procedure.FN4 Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter

of law.” In our view, the plain language of Rule

56(c) mandates the entry of summary judgment,

after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will

bear the burden of proof at trial. In such a

situation,*323 there can be “no genuine issue as to

any material fact,” since a complete failure of proof

concerning an essential element of the nonmoving

party's case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving

party has failed to make a sufficient showing on an

essential element of her case with respect to which

she has the burden of proof. “[T]h[e] standard [for

granting summary judgment] mirrors the standard

for a directed verdict under Federal Rule of Civil

Procedure 50(a)....” Anderson v. Liberty Lobby,

Inc., 477 U.S. **2553 242, 250, 106 S.Ct. 2505,

2511, 91 L.Ed.2d 202 (1986).

FN4. Rule 56(c) provides:

“The motion shall be served at least 10

days before the time fixed for the hearing.

The adverse party prior to the day of hearing may serve opposing affidavits. The

judgment sought shall be rendered forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file,

together with the affidavits, if any, show

106 S.Ct. 2548 Page 6

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, 54 USLW 4775, 4 Fed.R.Serv.3d 1024

(Cite as: 477 U.S. 317, 106 S.Ct. 2548)

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that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A

summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue

as to the amount of damages.”

[3][4][5] Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion,

and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,”

which it believes demonstrate the absence of a

genuine issue of material fact. But unlike the Court

of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its

motion with affidavits or other similar materials

negating the opponent's claim. On the contrary,

Rule 56(c), which refers to “the affidavits, if any”

(emphasis added), suggests the absence of such a

requirement. And if there were any doubt about the

meaning of Rule 56(c) in this regard, such doubt is

clearly removed by Rules 56(a) and (b), which

provide that claimants and defendants, respectively,

may move for summary judgment “with or without

supporting affidavits” (emphasis added). The import of these subsections is that, regardless of

whether the moving party accompanies its summary

judgment motion with affidavits, the motion may,

and should, be granted so long as whatever is before the district court demonstrates that the standard

for the entry of summary judgment, as set forth in

Rule 56(c), is satisfied. One of the principal purposes of the summary judgment rule is to isolate

and dispose of factually unsupported*324 claims or

defenses, and we think it should be interpreted in a

way that allows it to accomplish this purpose.FN5

FN5. See Louis, Federal Summary Judgment Doctrine: A Critical Analysis, 83

Yale L.J. 745, 752 (1974); Currie,

Thoughts on Directed Verdicts and Summary Judgments, 45 U.Chi.L.Rev. 72, 79

(1977).

[6] Respondent argues, however, that Rule 56(e),

by its terms, places on the nonmoving party the

burden of coming forward with rebuttal affidavits,

or other specified kinds of materials, only in response to a motion for summary judgment “made

and supported as provided in this rule.” According

to respondent's argument, since petitioner did not

“support” its motion with affidavits, summary judgment was improper in this case. But as we have

already explained, a motion for summary judgment

may be made pursuant to Rule 56 “with or without

supporting affidavits.” In cases like the instant one,

where the nonmoving party will bear the burden of

proof at trial on a dispositive issue, a summary

judgment motion may properly be made in reliance

solely on the “pleadings, depositions, answers to interrogatories, and admissions on file.” Such a motion, whether or not accompanied by affidavits, will

be “made and supported as provided in this rule,”

and Rule 56(e) therefore requires the nonmoving

party to go beyond the pleadings and by her own

affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate

“specific facts showing that there is a genuine issue

for trial.”

[7] We do not mean that the nonmoving party must

produce evidence in a form that would be admissible at trial in order to avoid summary judgment.

Obviously, Rule 56 does not require the nonmoving

party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials

listed in Rule 56(c), except the mere pleadings

themselves, and it is from this list that one would

normally expect the nonmoving party to make the

showing to which we have referred.

*325 The Court of Appeals in this case felt itself

constrained, however, by language in our decision

in Adickes v. S.H. Kress & Co., 398 U.S. 144, 90

S.Ct. 1598, 26 L.Ed.2d 142 (1970). There we held

that summary judgment had been improperly

entered in favor of the defendant restaurant in an

action brought under 42 U.S.C. § 1983. In the

course of its opinion, the Adickes Court said that

“both the commentary on and the background of the

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1963 amendment conclusively**2554 show that it

was not intended to modify the burden of the moving party ... to show initially the absence of a genuine issue concerning any material fact.” Id., at 159,

90 S.Ct., at 1609. We think that this statement is accurate in a literal sense, since we fully agree with

the Adickes Court that the 1963 amendment to Rule

56(e) was not designed to modify the burden of

making the showing generally required by Rule

56(c). It also appears to us that, on the basis of the

showing before the Court in Adickes, the motion for

summary judgment in that case should have been

denied. But we do not think the Adickes language

quoted above should be construed to mean that the

burden is on the party moving for summary judgment to produce evidence showing the absence of a

genuine issue of material fact, even with respect to

an issue on which the nonmoving party bears the

burden of proof. Instead, as we have explained, the

burden on the moving party may be discharged by

“showing”-that is, pointing out to the district courtthat there is an absence of evidence to support the

nonmoving party's case.

[8] The last two sentences of Rule 56(e) were added, as this Court indicated in Adickes, to disapprove a line of cases allowing a party opposing

summary judgment to resist a properly made motion by reference only to its pleadings. While the

Adickes Court was undoubtedly correct in concluding that these two sentences were not intended to

reduce the burden of the moving party, it is also obvious that they were not adopted to add to that burden. Yet that is exactly the result which the reasoning of the Court of Appeals would produce; in effect, an amendment to Rule 56(e) designed to *326

facilitate the granting of motions for summary

judgment would be interpreted to make it more difficult to grant such motions. Nothing in the two

sentences themselves requires this result, for the

reasons we have previously indicated, and we now

put to rest any inference that they do so.

Our conclusion is bolstered by the fact that district

courts are widely acknowledged to possess the

power to enter summary judgments sua sponte, so

long as the losing party was on notice that she had

to come forward with all of her evidence. See 244

U.S.App.D.C., at 167-168, 756 F.2d, at 189 (Bork,

J., dissenting); 10A C. Wright, A. Miller, & M.

Kane, Federal Practice and Procedure § 2720, pp.

28-29 (1983). It would surely defy common sense

to hold that the District Court could have entered

summary judgment sua sponte in favor of petitioner

in the instant case, but that petitioner's filing of a

motion requesting such a disposition precluded the

District Court from ordering it.

Respondent commenced this action in September

1980, and petitioner's motion was filed in September 1981. The parties had conducted discovery, and

no serious claim can be made that respondent was

in any sense “railroaded” by a premature motion for

summary judgment. Any potential problem with

such premature motions can be adequately dealt

with under Rule 56(f),FN6 which allows a summary judgment motion to be denied, or the hearing

on the motion to be continued, if the nonmoving

party has not had an opportunity to make full discovery.

FN6. Rule 56(f) provides:

“Should it appear from the affidavits of a

party opposing the motion that he cannot

for reasons stated present by affidavit facts

essential to justify his opposition, the court

may refuse the application for judgment or

may order a continuance to permit affidavits to be obtained or depositions to be

taken or discovery to be had or may make

such other order as is just.”

In this Court, respondent's brief and oral argument

have been devoted as much to the proposition that

an adequate showing of exposure to petitioner's asbestos products was *327 made as to the proposition that no such showing should have been required. But the Court of Appeals declined to address either the adequacy of the showing made by

respondent in opposition to petitioner's motion for

summary judgment, or the question whether such a

showing, if **2555 reduced to admissible evidence,

would be sufficient to carry respondent's burden of

proof at trial. We think the Court of Appeals with

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its superior knowledge of local law is better suited

than we are to make these determinations in the

first instance.

[9][10] The Federal Rules of Civil Procedure have

for almost 50 years authorized motions for summary judgment upon proper showings of the lack of

a genuine, triable issue of material fact. Summary

judgment procedure is properly regarded not as a

disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which

are designed “to secure the just, speedy and inexpensive determination of every action.” Fed.Rule

Civ.Proc. 1; see Schwarzer, Summary Judgment

Under the Federal Rules: Defining Genuine Issues

of Material Fact, 99 F.R.D. 465, 467 (1984). Before

the shift to “notice pleading” accomplished by the

Federal Rules, motions to dismiss a complaint or to

strike a defense were the principal tools by which

factually insufficient claims or defenses could be

isolated and prevented from going to trial with the

attendant unwarranted consumption of public and

private resources. But with the advent of “notice

pleading,” the motion to dismiss seldom fulfills this

function any more, and its place has been taken by

the motion for summary judgment. Rule 56 must be

construed with due regard not only for the rights of

persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to

trial, that the claims and defenses have no factual

basis.

*328 The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for

further proceedings consistent with this opinion.

It is so ordered.

Justice WHITE, concurring.

I agree that the Court of Appeals was wrong in

holding that the moving defendant must always

support his motion with evidence or affidavits

showing the absence of a genuine dispute about a

material fact. I also agree that the movant may rely

on depositions, answers to interrogatories, and the

like, to demonstrate that the plaintiff has no evidence to prove his case and hence that there can be

no factual dispute. But the movant must discharge

the burden the Rules place upon him: It is not

enough to move for summary judgment without

supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence

to prove his case.

A plaintiff need not initiate any discovery or reveal

his witnesses or evidence unless required to do so

under the discovery Rules or by court order. Of

course, he must respond if required to do so; but he

need not also depose his witnesses or obtain their

affidavits to defeat a summary judgment motion asserting only that he has failed to produce any support for his case. It is the defendant's task to negate,

if he can, the claimed basis for the suit.

Petitioner Celotex does not dispute that if respondent has named a witness to support her claim, summary judgment should not be granted without

Celotex somehow showing that the named witness'

possible testimony raises no genuine issue of material fact. Tr. of Oral Arg. 43, 45. It asserts, however,

that respondent has failed on request to produce any

basis for her case. Respondent, on the other hand,

does not contend that she was not obligated to reveal her witnesses and evidence but insists that she

has revealed enough to defeat the motion for summary judgment. Because the Court of Appeals

found it unnecessary to address this aspect *329 of

the case, I agree that the case should be remanded

for further proceedings.

Justice BRENNAN, with whom THE CHIEF

JUSTICE and Justice BLACKMUN join, dissenting.

This case requires the Court to determine whether

Celotex satisfied its initial **2556 burden of production in moving for summary judgment on the

ground that the plaintiff lacked evidence to establish an essential element of her case at trial. I do not

disagree with the Court's legal analysis. The Court

clearly rejects the ruling of the Court of Appeals

that the defendant must provide affirmative evidence disproving the plaintiff's case. Beyond this,

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however, the Court has not clearly explained what

is required of a moving party seeking summary

judgment on the ground that the nonmoving party

cannot prove its case.FN1 This lack of clarity is unfortunate: district courts must routinely decide summary judgment motions, and the Court's opinion

will very likely create confusion. For this reason,

even if I agreed with the Court's result, I would

have written separately to explain more clearly the

law in this area. However, because I believe that

Celotex did not meet its burden of production under

Federal Rule of Civil Procedure 56, I respectfully

dissent from the Court's judgment.

FN1. It is also unclear what the Court of

Appeals is supposed to do in this case on

remand. Justice WHITE-who has provided

the Court's fifth vote-plainly believes that

the Court of Appeals should reevaluate

whether the defendant met its initial burden of production. However, the decision

to reverse rather than to vacate the judgment below implies that the Court of Appeals should assume that Celotex has met

its initial burden of production and ask

only whether the plaintiff responded adequately, and, if so, whether the defendant

has met its ultimate burden of persuasion

that no genuine issue exists for trial. Absent some clearer expression from the

Court to the contrary, Justice WHITE's understanding would seem to be controlling.

Cf. Marks v. United States, 430 U.S. 188,

193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260

(1977).

*330 I

Summary judgment is appropriate where the Court

is satisfied “that there is no genuine issue as to any

material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed.Rule Civ.Proc.

56(c). The burden of establishing the nonexistence

of a “genuine issue” is on the party moving for

summary judgment. 10A C. Wright, A. Miller, &

M. Kane, Federal Practice and Procedure § 2727, p.

121 (2d ed. 1983) (hereinafter Wright) (citing

cases); 6 J. Moore, W. Taggart & J. Wicker,

Moore's Federal Practice ¶ 56.15 [3] (2d ed. 1985)

(hereinafter Moore) (citing cases). See also, ante, at

2551; ante, at 2553 (WHITE, J., concurring). This

burden has two distinct components: an initial burden of production, which shifts to the nonmoving

party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains

on the moving party. See 10A Wright, Miller &

Kane § 2727. The court need not decide whether

the moving party has satisfied its ultimate burden of

persuasion FN2 unless and until the Court finds that

the moving party has discharged its initial *331

burden of production. Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157-161, 90 S.Ct. 1598, 1608-10, 26

L.Ed.2d 142 (1970); 1963 Advisory Committee's

Notes on Fed.Rule Civ.Proc. 56(e), 28 U.S.C.App.,

p. 626.

FN2. The burden of persuasion imposed on

a moving party by Rule 56 is a stringent

one. 6 Moore ¶ 56.15[3], pp. 56-466; 10A

Wright, Miller & Kane § 2727, p. 124.

Summary judgment should not be granted

unless it is clear that a trial is unnecessary,

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255, 106 S.Ct. 2505, ----,91 L.Ed.2d

202 (1986), and any doubt as to the existence of a genuine issue for trial should be

resolved against the moving party, Adickes

v. S.H. Kress & Co., 398 U.S. 144,

158-159, 90 S.Ct. 1598, 1608-09, 26

L.Ed.2d 142 (1970). In determining whether a moving party has met its burden of

persuasion, the court is obliged to take account of the entire setting of the case and

must consider all papers of record as well

as any materials prepared for the motion.

10A Wright, Miller & Kane § 2721, p. 44;

see, e.g., Stepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922,

930 (CA1 1983); Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653,

656 (CA5 1979). As explained by the

Court of Appeals for the Third Circuit in

In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (1983), rev'd

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on other grounds sub nom. Matsushita

Electric Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574, 106 S.Ct. 1348, 89

L.Ed.2d 538 (1986), “[i]f ... there is any

evidence in the record from any source

from which a reasonable inference in the

[nonmoving party's] favor may be drawn,

the moving party simply cannot obtain a

summary judgment....” 723 F.2d, at 258.

**2557 The burden of production imposed by Rule

56 requires the moving party to make a prima facie

showing that it is entitled to summary judgment.

10A Wright, Miller & Kane § 2727. The manner in

which this showing can be made depends upon

which party will bear the burden of persuasion on

the challenged claim at trial. If the moving party

will bear the burden of persuasion at trial, that party

must support its motion with credible evidence-using any of the materials specified in Rule 56(c)-that

would entitle it to a directed verdict if not controverted at trial. Ibid. Such an affirmative showing

shifts the burden of production to the party opposing the motion and requires that party either to produce evidentiary materials that demonstrate the existence of a “genuine issue” for trial or to submit an

affidavit requesting additional time for discovery.

Ibid.; Fed.Rules Civ.Proc. 56(e), (f).

If the burden of persuasion at trial would be on the

non-moving party, the party moving for summary

judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party

may submit affirmative evidence that negates an essential element of the nonmoving party's claim.

Second, the moving party may demonstrate to the

Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. See 10A Wright, Miller &

Kane § 2727, pp. 130-131; Louis, Federal Summary

Judgment Doctrine: A Critical Analysis, 83 Yale

L.J. 745, 750 (1974) (hereinafter Louis). If the nonmoving party cannot muster sufficient evidence to

make out its claim, a trial would be useless and the

moving party is entitled to summary judgment as a

matter of law. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249, 106 S.Ct. 2505, ----,91 L.Ed.2d 202

(1986).

Where the moving party adopts this second option

and seeks summary judgment on the ground that the

nonmoving party-who will bear the burden of persuasion at trial-has *332 no evidence, the mechanics of discharging Rule 56's burden of production

are somewhat trickier. Plainly, a conclusory assertion that the nonmoving party has no evidence is insufficient. See ante, at 2551 (WHITE, J., concurring). Such a “burden” of production is no burden

at all and would simply permit summary judgment

procedure to be converted into a tool for harassment. See Louis 750-751. Rather, as the Court confirms, a party who moves for summary judgment on

the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record. Ante, at 2553. This may require

the moving party to depose the nonmoving party's

witnesses or to establish the inadequacy of documentary evidence. If there is literally no evidence

in the record, the moving party may demonstrate

this by reviewing for the court the admissions, interrogatories, and other exchanges between the

parties that are in the record. Either way, however,

the moving party must affirmatively demonstrate

that there is no evidence in the record to support a

judgment for the nonmoving party.

If the moving party has not fully discharged this

initial burden of production, its motion for summary judgment must be denied, and the Court need

not consider whether the moving party has met its

ultimate burden of persuasion. Accordingly, the

nonmoving party may defeat a motion for summary

judgment that asserts that the nonmoving party has

no evidence by calling the Court's attention to supporting evidence already in the record that was

overlooked or ignored by the moving party. In that

event, the moving party must respond by making an

attempt to demonstrate the inadequacy of this evidence, for it is only by attacking all the record evidence allegedly supporting the nonmoving party that

a party seeking summary judgment satisfies Rule

56's burden of production.FN3 Thus, if the record

disclosed that the **2558 moving *333 party had

overlooked a witness who would provide relevant

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testimony for the nonmoving party at trial, the

Court could not find that the moving party had discharged its initial burden of production unless the

moving party sought to demonstrate the inadequacy

of this witness' testimony. Absent such a demonstration, summary judgment would have to be

denied on the ground that the moving party had

failed to meet its burden of production under Rule

56.

FN3. Once the moving party has attacked

whatever record evidence-if any-the nonmoving party purports to rely upon, the

burden of production shifts to the nonmoving party, who must either (1) rehabilitate

the evidence attacked in the moving party's

papers, (2) produce additional evidence

showing the existence of a genuine issue

for trial as provided in Rule 56(e), or (3)

submit an affidavit explaining why further

discovery is necessary as provided in Rule

56(f). See 10A Wright, Miller & Kane §

2727, pp. 138-143. Summary judgment

should be granted if the nonmoving party

fails to respond in one or more of these

ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of

persuading the court that there is no genuine issue of material fact for trial. See, e.g.,

First National Bank of Arizona v. Cities

Service Co., 391 U.S. 253, 289, 88 S.Ct.

1575, 1592, 20 L.Ed.2d 569 (1968).

The result in Adickes v. S.H. Kress & Co., supra, is

fully consistent with these principles. In that case,

petitioner was refused service in respondent's lunchroom and then was arrested for vagrancy by a

local policeman as she left. Petitioner brought an

action under 42 U.S.C. § 1983 claiming that the refusal of service and subsequent arrest were the

product of a conspiracy between respondent and the

police; as proof of this conspiracy, petitioner's complaint alleged that the arresting officer was in respondent's store at the time service was refused.

Respondent subsequently moved for summary judgment on the ground that there was no actual evidence in the record from which a jury could draw an

inference of conspiracy. In response, petitioner

pointed to a statement from her own deposition and

an unsworn statement by a Kress employee, both

already in the record and both ignored by respondent, that the policeman who arrested petitioner was

in the store at the time she was refused service. We

agreed that “[i]f a policeman were present, ... it

would be open to a jury, in light of the sequence

that followed,*334 to infer from the circumstances

that the policeman and Kress employee had a

‘meeting of the minds' and thus reached an understanding that petitioner should be refused service.”

398 U.S., at 158, 90 S.Ct., at 1609. Consequently,

we held that it was error to grant summary judgment “on the basis of this record” because respondent had “failed to fulfill its initial burden” of

demonstrating that there was no evidence that there

was a policeman in the store. Id., at 157-158,98

S.Ct., at 1608-1609.

The opinion in Adickes has sometimes been read to

hold that summary judgment was inappropriate because the respondent had not submitted affirmative

evidence to negate the possibility that there was a

policeman in the store. See Brief for Respondent

20, n. 30 (citing cases). The Court of Appeals apparently read Adickes this way and therefore required Celotex to submit evidence establishing that

plaintiff's decedent had not been exposed to

Celotex asbestos. I agree with the Court that this

reading of Adickes was erroneous and that Celotex

could seek summary judgment on the ground that

plaintiff could not prove exposure to Celotex asbestos at trial. However, Celotex was still required to

satisfy its initial burden of production.

II

I do not read the Court's opinion to say anything inconsistent with or different than the preceding discussion. My disagreement with the Court concerns

the application of these principles to the facts of

this case.

Defendant Celotex sought summary judgment on

the ground that plaintiff had “failed to produce” any

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evidence that her **2559 decedent had ever been

exposed to Celotex asbestos.FN4 App. 170. Celotex

supported this motion with a *335 two-page

“Statement of Material Facts as to Which There is

No Genuine Issue” and a three-page “Memorandum

of Points and Authorities” which asserted that the

plaintiff had failed to identify any evidence in responding to two sets of interrogatories propounded

by Celotex and that therefore the record was

“totally devoid” of evidence to support plaintiff's

claim. See id., at 171-176.

FN4. Justice STEVENS asserts that the

District Court granted summary judgment

on the ground that the plaintiff had failed

to show exposure in the District of

Columbia. He contends that the judgment

of the Court of Appeals reversing the District Court's judgment should be affirmed

on the “narrow ground” that it was

“palpably erroneous” to grant summary

judgment on this basis. Post, at 2561

(dissenting). The Court replies that what

the District Court said was that plaintiff

had failed to show exposure in the District

of Columbia “or elsewhere.” Ante, at 2560,

n. 2. In my view, it does not really matter

which reading is correct in this case. For,

contrary to Justice STEVENS' claim, deciding this case on the ground that Celotex

failed to meet its burden of production under Rule 56 does not involve an “abstract

exercise in Rule construction.” Post, at

2560 (STEVENS, J., dissenting). To the

contrary, the principles governing a

movant's burden of proof are straightforward and well established, and deciding

the case on this basis does not require a

new construction of Rule 56 at all; it

simply entails applying established law to

the particular facts of this case. The choice

to reverse because of “palpable erro[r]”

with respect to the burden of a moving

party under Rule 56 is thus no more

“abstract” than the choice to reverse because of such error with respect to the elements of a tort claim. Indeed, given that

the issue of the moving party's burden under Rule 56 was the basis of the Court of

Appeals' decision, the question upon which

certiorari was granted, and the issue

briefed by the parties and argued to the

Court, it would seem to be the preferable

ground for deciding the case.

Approximately three months earlier, Celotex had

filed an essentially identical motion. Plaintiff responded to this earlier motion by producing three

pieces of evidence which she claimed “[a]t the very

least ... demonstrate that there is a genuine factual

dispute for trial,”id., at 143: (1) a letter from an insurance representative of another defendant describing asbestos products to which plaintiff's decedent had been exposed, id., at 160; (2) a letter

from T.R. Hoff, a former supervisor of decedent,

describing asbestos products to which decedent had

been exposed, id., at 162; and (3) a copy of decedent's deposition from earlier workmen's compensation proceedings, id., at 164. Plaintiff also apparently indicated*336 at that time that she intended to call Mr. Hoff as a witness at trial. Tr. of Oral

Arg. 6-7, 27-29.

Celotex subsequently withdrew its first motion for

summary judgment. See App. 167.FN5 However, as

a result of this motion, when Celotex filed its

second summary judgment motion, the record did

contain evidence-including at least one witnesssupporting plaintiff's claim. Indeed, counsel for

Celotex admitted to this Court at oral argument that

Celotex was aware of this evidence and of

plaintiff's intention to call Mr. Hoff as a witness at

trial when the second summary judgment motion

was filed. Tr. of Oral Arg. 5-7. Moreover, plaintiff's

response to Celotex' second motion pointed to this

evidence-noting that it had already been provided to

counsel for Celotex in connection with the first motion-and argued that Celotex had failed to “meet its

burden of proving that there is no genuine factual

dispute for trial.” App. 188.

FN5. Celotex apparently withdrew this

motion because, contrary to the assertion

made in the first summary judgment mo106 S.Ct. 2548 Page 13

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tion, its second set of interrogatories had

not been served on the plaintiff.

On these facts, there is simply no question that

Celotex failed to discharge its initial burden of production. Having chosen to base its motion on the

argument that there was no evidence in the record

to support plaintiff's claim, Celotex was not free to

ignore supporting evidence that the record clearly

contained. Rather, Celotex was required, as an initial matter, to attack the adequacy of this evidence.

Celotex' failure to fulfill this simple requirement

constituted a failure to discharge its initial **2560

burden of production under Rule 56, and thereby

rendered summary judgment improper.FN6

FN6. If the plaintiff had answered Celotex'

second set of interrogatories with the evidence in her response to the first summary

judgment motion, and Celotex had ignored

those interrogatories and based its second

summary judgment motion on the first set

of interrogatories only, Celotex obviously

could not claim to have discharged its Rule

56 burden of production. This result should

not be different simply because the evidence plaintiff relied upon to support her

claim was acquired by Celotex other than

in plaintiff's answers to interrogatories.

*337 This case is indistinguishable from Adickes.

Here, as there, the defendant moved for summary

judgment on the ground that the record contained

no evidence to support an essential element of the

plaintiff's claim. Here, as there, the plaintiff responded by drawing the court's attention to evidence

that was already in the record and that had been ignored by the moving party. Consequently, here, as

there, summary judgment should be denied on the

ground that the moving party failed to satisfy its

initial burden of production.FN7

FN7. Although Justice WHITE agrees that

“if [plaintiff] has named a witness to support her claim, summary judgment should

not be granted without Celotex somehow

showing that the named witness' possible

testimony raises no genuine issue of material fact,” he would remand “[b]ecause the

Court of Appeals found it unnecessary to

address this aspect of the case.” Ante, at

2555-2556 (concurring). However, Celotex

has admitted that plaintiff had disclosed

her intent to call Mr. Hoff as a witness at

trial before Celotex filed its second motion

for summary judgment. Tr. of Oral Arg.

6-7. Under the circumstances, then, remanding is a waste of time.Justice

STEVENS, dissenting.

As the Court points out, ante, at 2551, petitioner's

motion for summary judgment was based on the

proposition that respondent could not prevail unless

she proved that her deceased husband had been exposed to petitioner's products “within the jurisdictional limits” of the District of Columbia.FN1 *338

Respondent made an adequate showing-albeit possibly not in admissible form FN2-that her husband

had been exposed to petitioner's product in

Illinois.FN3 Although the basis of the motion and

the argument had been the lack of exposure in the

District of Columbia, the District Court stated at the

end of the argument: “The Court will grant the defendant Celotex's motion for summary judgment

there being no showing that the plaintiff was exposed to the defendant Celotex's product in the District of Columbia or elsewhere within the statutory

period.” App. 217 (emphasis added). The District

Court offered no additional explanation and no

written**2561 opinion. The Court of Appeals reversed on the basis that Celotex had not met its burden; the court noted the incongruity of the District

Court's opinion in the context of the motion and argument, but did not rest on that basis because of the

“or elsewhere” language.FN4

FN1. See Motion of Defendant Celotex

Corporation for Summary Judgment, App.

170 (“Defendant Celotex Corporation, pursuant to Rule 56(b) of the Federal Rules of

Civil Procedure moves this Court for an

Order granting Summary Judgment on the

ground that plaintiff has failed to produce

evidence that any product designed, manufactured or distributed by Celotex Corpora106 S.Ct. 2548 Page 14

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, 54 USLW 4775, 4 Fed.R.Serv.3d 1024

(Cite as: 477 U.S. 317, 106 S.Ct. 2548)

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tion was the proximate cause of the injuries alleged within the jurisdictional limits

of this Court”) (emphasis added); Memorandum of Points and Authorities in Support of Motion of Defendant Celotex Corporation for Summary Judgment, id., at

175 (Plaintiff “must demonstrate some link

between a Celotex Corporation product

claimed to be the cause of the decedent's

illness and the decedent himself. The record is totally devoid of any such evidence

within the jurisdictional confines of this

Court”) (emphasis added); Transcript of

Argument in Support of Motion of Defendant Celotex Corporation for Summary

Judgment, id., at 211 (“Our position is ...

there has been no product identification of

any Celotex products ... that have been

used in the District of Columbia to which

the decedent was exposed”) (emphasis added).

FN2. But cf. ante, at 2553 (“We do not

mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary

judgment”).

FN3. See App. 160 (letter from Aetna Life

Insurance Co.) (referring to the “asbestos

that Mr. Catrett came into contact with

while working for Anning-Johnson Company” and noting that the “manufacturer of

this product” was purchased by Celotex);

id., at 162 (letter from Anning-Johnson

Co.) (confirming that Catrett worked for

the company and supervised the installation of asbestos produced by the company

that Celotex ultimately purchased); id., at

164, 164c (deposition of Catrett)

(description of his work with asbestos “in

Chicago”).

FN4. See Catrett v. Johns-Manville Sales

Corp., 756 F.2d 181, 185, n. 14 (1985)

(“[T]he discussion at the time the motion

was granted actually spoke to venue. It was

only the phrase ‘or elsewhere,’ appearing

with no prior discussion, in the judge's oral

ruling at the close of argument that made

the grant of summary judgment even conceivably proper”).

Taken in the context of the motion for summary

judgment on the basis of no exposure in the District

of Columbia, the *339 District Court's decision to

grant summary judgment was palpably erroneous.

The court's bench reference to “or elsewhere”

neither validated that decision nor raised the complex question addressed by this Court today. In

light of the District Court's plain error, therefore, it

is perfectly clear that, even after this Court's abstract exercise in Rule construction, we should nonetheless affirm the reversal of summary judgment

on that narrow ground.FN5

FN5. Cf. n. 2, supra. The Court's statement

that the case should be remanded because

the Court of Appeals has a “superior

knowledge of local law,” ante, at 2555, is

bewildering because there is no question of

local law to be decided. Cf. Bishop v.

Wood, 426 U.S. 341, 345-347, 96 S.Ct.

2074, 2077-2079, 48 L.Ed.2d 684 (1976).

The Court's decision to remand when a

sufficient ground for affirmance is available does reveal, however, the Court's increasing tendency to adopt a presumption

of reversal. See, e.g., New York v. P.J.

Video, Inc., 475 U.S. 868, 884, 106 S.Ct.

1610, 1619, 89 L.Ed.2d 871 (1986)

(MARSHALL, J., dissenting); Icicle Seafoods, Inc., v. Worthington, 475 U.S. 709,

715, 106 S.Ct. 1527, 1530, 89 L.Ed.2d 739

(1986) (STEVENS, J., dissenting); City of

Los Angeles v. Heller, 475 U.S. 796, 800,

106 S.Ct. 1571, 1573, 89 L.Ed.2d 806

(1986) (STEVENS, J., dissenting);

Pennsylvania v. Goldhammer, 474 U.S. 28,

31, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985)

(STEVENS, J., dissenting). As a matter of

efficient judicial administration and of respect for the state and federal courts, I believe the presumption should be precisely

106 S.Ct. 2548 Page 15

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the opposite.

I respectfully dissent.

U.S.Dist.Col.,1986.

Celotex Corp. v. Catrett

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, 54

USLW 4775, 4 Fed.R.Serv.3d 1024

END OF DOCUMENT

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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp.

U.S.Pa.,1986.

Supreme Court of the United States

MATSUSHITA ELECTRIC INDUSTRIAL CO.,

LTD., et al., Petitioners

v.

ZENITH RADIO CORPORATION et al.

No. 83-2004.

Argued Nov. 12, 1985.

Decided March 26, 1986.

American manufacturers of television sets brought

suit against Japanese manufacturers alleging that

the Japanese manufacturers had illegally conspired

to drive the American manufacturers from the

American market by engaging in a scheme to fix

and maintain artificially high prices for television

sets sold by the Japanese manufacturers in Japan

and, at the same time, to fix and maintain low

prices for the sets exported to and sold in the

United States. The United States District Court for

the Eastern District of Pennsylvania, 513 F.Supp.

1100, granted summary judgment in favor of the Japanese manufacturers. The United States Court of

Appeals for the Third Circuit, 723 F.2d 238, affirmed in part and reversed in part, and the Japanese manufacturers petitioned for certiorari. The Supreme Court, Justice Powell, held that: (1) American television manufacturers could not recover antitrust damages against Japanese television manufacturers for any conspiracy by the Japanese manufacturers to charge higher than competitive prices in

the American market since such conduct could not

injure the American manufacturers who stood to

gain from any such conspiracy, and (2) in order to

survive a motion for summary judgment by Japanese manufacturers, American manufacturers were

required to establish a material issue as to whether

the Japanese manufacturers entered into an illegal

conspiracy which caused the American manufacturers to suffer cognizable injury; because the factual

context rendered the claims of the American manufacturers implausible, the American manufactures

were required to offer more persuasive evidence to

support their claims than would otherwise be necessary.

Reversed and remanded.

Justice White filed a dissenting opinion in which

Justice Brennan, Justice Blackmun and Justice

Stevens joined.

West Headnotes

[1] Antitrust and Trade Regulation 29T 945

29T Antitrust and Trade Regulation

29TXVI Antitrust and Foreign Trade

29Tk945 k. In General. Most Cited Cases

(Formerly 265k12(7))

American television manufacturers could not recover antitrust damages from Japanese television manufacturers based solely on an alleged cartelization

of the Japanese market since American antitrust

laws do not regulate the competitive conditions of

other nations' economies.

[2] Antitrust and Trade Regulation 29T

963(3)

29T Antitrust and Trade Regulation

29TXVII Antitrust Actions, Proceedings, and

Enforcement

29TXVII(B) Actions

29Tk959 Right of Action; Persons Entitled to Sue; Standing; Parties

29Tk963 Injury to Business or Property

29Tk963(3) k. Particular Cases.

Most Cited Cases

(Formerly 265k28(2))

American television manufacturers could not recover antitrust damages against Japanese television

manufacturers for any conspiracy by the Japanese

manufacturers to charge higher than competitive

prices in the American market since such conduct

could not injure the American manufacturers who

stood to gain from any such conspiracy; further106 S.Ct. 1348 Page 1

475 U.S. 574, 106 S.Ct. 1348, 7 ITRD 2057, 89 L.Ed.2d 538, 54 USLW 4319, 1986-1 Trade Cases P 67,004, 4

Fed.R.Serv.3d 368

(Cite as: 475 U.S. 574, 106 S.Ct. 1348)

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more, the American manufacturers could not recover for a conspiracy to impose nonprice restraints

that had the effect of either raising market prices or

limiting output.

[3] Federal Civil Procedure 170A 2544

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2542 Evidence

170Ak2544 k. Burden of Proof.

Most Cited Cases

In order to survive a motion for summary judgment

by Japanese manufacturers of television sets, American manufacturers were required to establish a material issue as to whether the Japanese manufacturers entered into an illegal conspiracy which caused

the American manufacturers to suffer cognizable

antitrust injury; because the factual context

rendered implausible the claims of the American

manufacturers that the Japanese manufacturers had

conspired to increase prices in Japan while reducing

them in the United States, the American manufacturers were required to offer more persuasive evidence to support their claims than would otherwise

be necessary.

[4] Federal Civil Procedure 170A 2544

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2542 Evidence

170Ak2544 k. Burden of Proof.

Most Cited Cases

To survive a motion for summary judgment or for a

directed verdict, a plaintiff seeking damages for a

violation of § 1 of the Sherman Act must present

evidence that tends to exclude the possibility that

the alleged conspirators acted independently. Sherman Anti-Trust Act, § 1, 15 U.S.C.A. § 1.

**1349 *574 Syllabus FN*

FN* The syllabus constitutes no part of the

opinion of the Court but has been prepared

by the Reporter of Decisions for the convenience of the reader. See United States v.

Detroit Lumber Co., 200 U.S. 321, 337, 26

S.Ct. 282, 287,50 L.Ed.2d 499.

Petitioners are 21 Japanese corporations or Japanese-controlled American corporations that manufacture and/or sell “consumer electronic products”

(CEPs) (primarily television sets). Respondents are

American corporations that manufacture and sell

television sets. In 1974, respondents brought an action in Federal District Court, alleging that petitioners, over a 20-year period, had illegally conspired

to drive American firms from the American CEP

market by engaging in a scheme to fix and maintain

artificially high prices for television sets sold by

petitioners in Japan and, at the same time, to fix and

maintain low prices for the sets exported to and

sold in the United States. Respondents claim that

various portions of this scheme violated, inter

alia,§§ 1 and 2 of the Sherman Act, § 2(a) of the

Robinson-Patman Act, and § 73 of the Wilson Tariff Act. After several years of discovery, petitioners

moved for summary judgment on all claims. The

District Court then directed the parties to file statements listing all the documentary evidence that

would be offered if the case went to trial. After the

statements were filed, the court found the bulk of

the evidence on which respondents relied was inadmissible, that the admissible evidence did not raise

a genuine issue of material fact as to the existence

of the alleged conspiracy, and that any inference of

conspiracy was unreasonable. Summary judgment

therefore was granted in petitioners' favor. The

Court of Appeals reversed. After determining that

much of the evidence excluded by the District

Court was admissible, the Court of Appeals held

that the District Court erred in granting a summary

judgment and that there was both direct and circumstantial evidence of a conspiracy. Based on inferences drawn from the evidence, the Court of Appeals concluded that a reasonable factfinder could

find a conspiracy to depress prices in the American

market in order to drive out American competitors,

which conspiracy was funded **1350 by excess

profits obtained in the Japanese market.

106 S.Ct. 1348 Page 2

475 U.S. 574, 106 S.Ct. 1348, 7 ITRD 2057, 89 L.Ed.2d 538, 54 USLW 4319, 1986-1 Trade Cases P 67,004, 4

Fed.R.Serv.3d 368

(Cite as: 475 U.S. 574, 106 S.Ct. 1348)

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Held: The Court of Appeals did not apply proper

standards in evaluating the District Court's decision

to grant petitioners' motion for summary judgment.

Pp. 1354-1362.

(a) The “direct evidence” on which the Court of

Appeals relied-petitioners' alleged supracompetitive

pricing in Japan, the “five company *575 rule” by

which each Japanese producer was permitted to sell

only to five American distributors, and the “check

prices” (minimum prices fixed by agreement with

the Japanese Government for CEPs exported to the

United States) insofar as they established minimum

prices in the United States-cannot by itself give respondents a cognizable claim against petitioners for

antitrust damages. P. 1354.

(b) To survive petitioners' motion for a summary

judgment, respondents must establish that there is a

genuine issue of material fact as to whether petitioners entered into an illegal conspiracy that

caused respondents to suffer a cognizable injury. If

the factual context renders respondents' claims implausible, i.e., claims that make no economic sense,

respondents must offer more persuasive evidence to

support their claims than would otherwise be necessary. To survive a motion for a summary judgment,

a plaintiff seeking damages for a violation of § 1 of

the Sherman Act must present evidence “that tends

to exclude the possibility” that the alleged conspirators acted independently. Thus, respondents here

must show that the inference of a conspiracy is

reasonable in light of the competing inferences of

independent action or collusive action that could

not have harmed respondents. Pp. 1355-1357.

(c) Predatory pricing conspiracies are by nature

speculative. They require the conspirators to sustain

substantial losses in order to recover uncertain

gains. The alleged conspiracy is therefore implausible. Moreover, the record discloses that the alleged

conspiracy has not succeeded in over two decades

of operation. This is strong evidence that the conspiracy does not in fact exist. The possibility that

petitioners have obtained supracompetitive profits

in the Japanese market does not alter this assessment. Pp. 1357-1359.

(d) Mistaken inferences in cases such as this one

are especially costly, because they chill the very

conduct that the antitrust laws are designed to protect. There is little reason to be concerned that by

granting summary judgment in cases where the

evidence of conspiracy is speculative or ambiguous,

courts will encourage conspiracies. P. 1360.

(e) The Court of Appeals erred in two respects: the

“direct evidence” on which it relied had little, if

any, relevance to the alleged predatory pricing conspiracy, and the court failed to consider the absence

of a plausible motive to engage in predatory pricing. In the absence of any rational motive to conspire, neither petitioners' pricing practices, their

conduct in the Japanese market, nor their agreements respecting prices and distributions in the

American market sufficed to create a “genuine issue for trial” under Federal Rule of Civil Procedure

56(e). On remand, the Court of Appeals may consider whether there is other, unambiguous evidence

of the alleged conspiracy. Pp. 1360-1362.

723 F.2d 238 (CA3 1983), reversed and remanded.

*576 POWELL, J., delivered the opinion of the

Court, in which BURGER, C.J., and MARSHALL,

REHNQUIST, and O'CONNOR, JJ., joined.

WHITE, J., filed a dissenting opinion, in which

BRENNAN, BLACKMUN, and STEVENS, JJ.,

joined, post, p. ---.

Donald J. Zoeller argued the cause for petitioners.

With him on the briefs were John L. Altieri, Jr.,

Harold G. Levison, Peter J. Gartland, James S.

Morris, Kevin R. Keating, Charles F. Schirmeister,

Ira M. Millstein, A. Paul Victor, Jeffrey L. Kessler,

Carl W. Schwarz, Michael E. Friedlander, William

H. Barrett, Donald F. Turner, and Henry T. Reath.

Charles F. Rule argued the cause pro hac vice for

the United States as amicus curiae urging reversal.

With him on the brief were Acting Solicitor General Wallace, Charles S. Stark, Robert B. Nicholson,

Edward T. Hand, Richard P. Larm, Abraham D.

Sofaer, and Elizabeth M. Teel.

Edwin P. Rome argued the cause for respondents.

With him on the brief were William H. Roberts,

106 S.Ct. 1348 Page 3

475 U.S. 574, 106 S.Ct. 1348, 7 ITRD 2057, 89 L.Ed.2d 538, 54 USLW 4319, 1986-1 Trade Cases P 67,004, 4

Fed.R.Serv.3d 368

(Cite as: 475 U.S. 574, 106 S.Ct. 1348)

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Arnold I. Kalman, Philip J. Curtis, and John Borst,

Jr.*

* Briefs of amici curiae urging reversal were filed

for the Government of Japan by Stephen M. Shapiro; and for the American Association of Exporters and Importers et al. by Robert Herzstein and

Hadrian R. Katz.

Briefs of amici curiae were filed for the Government of Australia et al. by Mark R. Joelson and

Joseph P. Griffin; and for the Semiconductor Industry Association by Joseph R. Creighton.

Justice POWELL delivered the opinion of the

Court.

This case requires that we again consider the standard district courts must apply **1351 when deciding whether to grant summary judgment in an antitrust conspiracy case.

I

Stating the facts of this case is a daunting task. The

opinion of the Court of Appeals for the Third Circuit runs to 69 pages; the primary opinion of the

District Court is more than three times as long. In

re Japanese Electronic Products *577 Antitrust Litigation, 723 F.2d 238 (CA3 1983); 513 F.Supp.

1100 (ED Pa.1981). Two respected District Judges

each have authored a number of opinions in this

case; the published ones alone would fill an entire

volume of the Federal Supplement. In addition, the

parties have filed a 40-volume appendix in this

Court that is said to contain the essence of the evidence on which the District Court and the Court of

Appeals based their respective decisions.

We will not repeat what these many opinions have

stated and restated, or summarize the mass of documents that constitute the record on appeal. Since we

review only the standard applied by the Court of

Appeals in deciding this case, and not the weight

assigned to particular pieces of evidence, we find it

unnecessary to state the facts in great detail. What

follows is a summary of this case's long history.

A

Petitioners, defendants below, are 21 corporations

that manufacture or sell “consumer electronic

products” (CEPs)-for the most part, television sets.

Petitioners include both Japanese manufacturers of

CEPs and American firms, controlled by Japanese

parents, that sell the Japanese-manufactured

products. Respondents, plaintiffs below, are Zenith

Radio Corporation (Zenith) and National Union

Electric Corporation (NUE). Zenith is an American

firm that manufactures and sells television sets.

NUE is the corporate successor to Emerson Radio

Company, an American firm that manufactured and

sold television sets until 1970, when it withdrew

from the market after sustaining substantial losses.

Zenith and NUE began this lawsuit in 1974,FN1

claiming that petitioners had illegally conspired to

drive *578 American firms from the American CEP

market. According to respondents, the gist of this

conspiracy was a “ ‘scheme to raise, fix and maintain artificially high prices for television receivers

sold by [petitioners] in Japan and, at the same time,

to fix and maintain low prices for television receivers exported to and sold in the United States.’ ” 723

F.2d, at 251 (quoting respondents' preliminary pretrial memorandum). These “low prices” were allegedly at levels that produced substantial losses for

petitioners. 513 F.Supp., at 1125. The conspiracy

allegedly began as early as 1953, and according to

respondents was in full operation by sometime in

the late 1960's. Respondents claimed that various

portions of this scheme violated §§ 1 and 2 of the

Sherman Act, § 2(a) of the Robinson-Patman Act, §

73 of the Wilson Tariff Act, and the Antidumping

Act of 1916.

FN1. NUE had filed its complaint four

years earlier, in the District Court for the

District of New Jersey. Zenith's complaint

was filed separately in 1974, in the Eastern

District of Pennsylvania. The two cases

were consolidated in the Eastern District of

Pennsylvania in 1974.

After several years of detailed discovery, petitioners filed motions for summary judgment on all

claims against them. The District Court directed the

parties to file, with preclusive effect, “Final Pretrial

Statements” listing all the documentary evidence

that would be offered if the case proceeded to trial.

106 S.Ct. 1348 Page 4

475 U.S. 574, 106 S.Ct. 1348, 7 ITRD 2057, 89 L.Ed.2d 538, 54 USLW 4319, 1986-1 Trade Cases P 67,004, 4

Fed.R.Serv.3d 368

(Cite as: 475 U.S. 574, 106 S.Ct. 1348)

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Respondents filed such a statement, and petitioners

responded with a series of motions challenging the

admissibility of respondents' evidence. In three detailed opinions, the District Court found the bulk of

the evidence on which Zenith and NUE relied inadmissible.FN2

FN2. The inadmissible evidence included

various government records and reports,

Zenith Radio Corp. v. Matsushita Electric

Industrial Co., 505 F.Supp. 1125 (ED

Pa.1980), business documents offered pursuant to various hearsay exceptions, Zenith

Radio Corp. v. Matsushita Electric Industrial Co., 505 F.Supp. 1190 (ED Pa.1980),

and a large portion of the expert testimony

that respondents proposed to introduce.

Zenith Radio Corp. v. Matsushita Electric

Industrial Co., 505 F.Supp. 1313 (ED

Pa.1981).

**1352 The District Court then turned to petitioners' motions for summary judgment. In an opinion

spanning 217 pages, the court found that the admissible evidence did not raise a genuine issue of

material fact as to the existence of the alleged *579

conspiracy. At bottom, the court found, respondents' claims rested on the inferences that could be

drawn from petitioners' parallel conduct in the Japanese and American markets, and from the effects

of that conduct on petitioners' American competitors. 513 F.Supp., at 1125-1127. After reviewing the

evidence both by category and in toto, the court

found that any inference of conspiracy was unreasonable, because (i) some portions of the evidence

suggested that petitioners conspired in ways that

did not injure respondents, and (ii) the evidence

that bore directly on the alleged price-cutting conspiracy did not rebut the more plausible inference

that petitioners were cutting prices to compete in

the American market and not to monopolize it.

Summary judgment therefore was granted on respondents' claims under § 1 of the Sherman Act and

the Wilson Tariff Act. Because the Sherman Act §

2 claims, which alleged that petitioners had combined to monopolize the American CEP market,

were functionally indistinguishable from the § 1

claims, the court dismissed them also. Finally, the

court found that the Robinson-Patman Act claims

depended on the same supposed conspiracy as the

Sherman Act claims. Since the court had found no

genuine issue of fact as to the conspiracy, it entered

judgment in petitioners' favor on those claims as

well.FN3

FN3. The District Court ruled separately

that petitioners were entitled to summary

judgment on respondents' claims under the

Antidumping Act of 1916. Zenith Radio

Corp. v. Matsushita Electric Industrial

Co., 494 F.Supp. 1190 (ED Pa.1980). Respondents appealed this ruling, and the

Court of Appeals reversed in a separate

opinion issued the same day as the opinion

concerning respondents' other claims. In re

Japanese Electronic Products Antitrust

Litigation, 723 F.2d 319 (CA3 1983).

Petitioners ask us to review the Court of

Appeals' Antidumping Act decision along

with its decision on the rest of this mammoth case. The Antidumping Act claims

were not, however, mentioned in the questions presented in the petition for certiorari, and they have not been independently

argued by the parties. See this Court's Rule

21.1(a). We therefore decline the invitation

to review the Court of Appeals' decision on

those claims.

*580 B

The Court of Appeals for the Third Circuit reversed.FN4 The court began by examining the District Court's evidentiary rulings, and determined

that much of the evidence excluded by the District

Court was in fact admissible. 723 F.2d, at 260-303.

These evidentiary rulings are not before us. See 471

U.S. 1002, 105 S.Ct. 1863, 85 L.Ed.2d 157 (1985)

(limiting grant of certiorari).

FN4. As to 3 of the 24 defendants, the

Court of Appeals affirmed the entry of

summary judgment. Petitioners are the 21

defendants who remain in the case.

106 S.Ct. 1348 Page 5

475 U.S. 574, 106 S.Ct. 1348, 7 ITRD 2057, 89 L.Ed.2d 538, 54 USLW 4319, 1986-1 Trade Cases P 67,004, 4

Fed.R.Serv.3d 368

(Cite as: 475 U.S. 574, 106 S.Ct. 1348)

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On the merits, and based on the newly enlarged record, the court found that the District Court's summary judgment decision was improper. The court

acknowledged that “there are legal limitations upon

the inferences which may be drawn from circumstantial evidence,”723 F.2d, at 304, but it found that

“the legal problem ... is different” when “there is

direct evidence of concert of action.” Ibid. Here,

the court concluded, “there is both direct evidence

of certain kinds of concert of action and circumstantial evidence having some tendency to suggest

that other kinds of concert of action may have occurred.” Id., at 304-305. Thus, the court reasoned,

cases concerning the limitations on inferring conspiracy from ambiguous evidence were not dispositive. Id., at 305. Turning to the evidence, the court

determined that a factfinder reasonably could draw

the following conclusions:

1. The Japanese market for CEPs was characterized

by oligopolistic behavior,**1353 with a small number of producers meeting regularly and exchanging

information on price and other matters. Id., at 307.

This created the opportunity for a stable combination to raise both prices and profits in Japan. American firms could not attack such a combination because the Japanese Government imposed significant

barriers to entry. Ibid.

2. Petitioners had relatively higher fixed costs than

their American counterparts, and therefore needed

to *581 operate at something approaching full capacity in order to make a profit. Ibid.

3. Petitioners' plant capacity exceeded the needs of

the Japanese market. Ibid.

4. By formal agreements arranged in cooperation

with Japan's Ministry of International Trade and Industry (MITI), petitioners fixed minimum prices for

CEPs exported to the American market. Id., at 310.

The parties refer to these prices as the “check

prices,” and to the agreements that require them as

the “check price agreements.”

5. Petitioners agreed to distribute their products in

the United States according to a “five company

rule”: each Japanese producer was permitted to sell

only to five American distributors. Ibid.

6. Petitioners undercut their own check prices by a

variety of rebate schemes. Id., at 311. Petitioners

sought to conceal these rebate schemes both from

the United States Customs Service and from MITI,

the former to avoid various customs regulations as

well as action under the antidumping laws, and the

latter to cover up petitioners' violations of the

check-price agreements.

Based on inferences from the foregoing conclusions,FN5 the Court of Appeals concluded that a

reasonable factfinder could find a conspiracy to depress prices in the American market in order to

drive out American competitors, which conspiracy

was funded by excess profits obtained in the Japanese market. The court apparently did not consider

whether it was as plausible to conclude that petitioners' price-cutting behavior was independent and

not conspiratorial.

FN5. In addition to these inferences, the

court noted that there was expert opinion

evidence that petitioners' export sales

“generally were at prices which produced

losses, often as high as twenty-five percent

on sales.” 723 F.2d, at 311. The court did

not identify any direct evidence of belowcost pricing; nor did it place particularly

heavy reliance on this aspect of the expert

evidence. See n. 19, infra.

*582 The court found it unnecessary to address petitioners' claim that they could not be held liable

under the antitrust laws for conduct that was compelled by a foreign sovereign. The claim, in essence, was that because MITI required petitioners

to enter into the check-price agreements, liability

could not be premised on those agreements. The

court concluded that this case did not present any

issue of sovereign compulsion, because the checkprice agreements were being used as “evidence of a

low export price conspiracy” and not as an independent basis for finding antitrust liability. The

court also believed it was unclear that the check

prices in fact were mandated by the Japanese Government, notwithstanding a statement to that effect

by MITI itself. Id., at 315.

We granted certiorari to determine (i) whether the

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Court of Appeals applied the proper standards in

evaluating the District Court's decision to grant petitioners' motion for summary judgment, and (ii)

whether petitioners could be held liable under the

antitrust laws for a conspiracy in part compelled by

a foreign sovereign. 471 U.S. 1002, 105 S.Ct. 1863,

85 L.Ed.2d 157 (1985). We reverse on the first issue, but do not reach the second.

II

[1][2] We begin by emphasizing what respondents'

claim is not. Respondents cannot recover antitrust

damages based solely on an alleged cartelization of

the Japanese market, because American antitrust

laws do not regulate the competitive conditions of

other nations' economies. **1354 United States v.

Aluminum Co. of America, 148 F.2d 416, 443 (CA2

1945) (L. Hand, J.); 1 P. Areeda & D. Turner, Antitrust Law ¶ 236d (1978).FN6 Nor can respondents

recover damages for *583 any conspiracy by petitioners to charge higher than competitive prices in

the American market. Such conduct would indeed

violate the Sherman Act, United States v. Trenton

Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed.

700 (1927); United States v. Socony-Vacuum Oil

Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed.

1129 (1940), but it could not injure respondents: as

petitioners' competitors, respondents stand to gain

from any conspiracy to raise the market price in

CEPs. Cf. Brunswick Corp. v. Pueblo Bowl-O-Mat,

Inc., 429 U.S. 477, 488-489, 97 S.Ct. 690, 697, 50

L.Ed.2d 701 (1977). Finally, for the same reason,

respondents cannot recover for a conspiracy to impose nonprice restraints that have the effect of

either raising market price or limiting output. Such

restrictions, though harmful to competition, actually benefit competitors by making supracompetitive pricing more attractive. Thus, neither petitioners' alleged supracompetitive pricing in Japan, nor

the five-company rule that limited distribution in

this country, nor the check prices insofar as they established minimum prices in this country, can by

themselves give respondents a cognizable claim

against petitioners for antitrust damages. The Court

of Appeals therefore erred to the extent that it

found evidence of these alleged conspiracies to be

“direct evidence” of a conspiracy that injured respondents. See 723 F.2d, at 304-305.

FN6. The Sherman Act does reach conduct

outside our borders, but only when the

conduct has an effect on American commerce. Continental Ore Co. v. Union

Carbide & Carbon Corp., 370 U.S. 690,

704, 82 S.Ct. 1404, 1413, 8 L.Ed.2d 777

(1962) (“A conspiracy to monopolize or

restrain the domestic or foreign commerce

of the United States is not outside the

reach of the Sherman Act just because part

of the conduct complained of occurs in foreign countries”). The effect on which respondents rely is the artificially depressed

level of prices for CEPs in the United

States.

Petitioners' alleged cartelization of the Japanese market could not have caused that

effect over a period of some two decades.

Once petitioners decided, as respondents

allege, to reduce output and raise prices in

the Japanese market, they had the option of

either producing fewer goods or selling

more goods in other markets. The most

plausible conclusion is that petitioners

chose the latter option because it would be

more profitable than the former. That

choice does not flow from the cartelization

of the Japanese market. On the contrary,

were the Japanese market perfectly competitive petitioners would still have to

choose whether to sell goods overseas, and

would still presumably make that choice

based on their profit expectations. For this

reason, respondents' theory of recovery depends on proof of the asserted price-cutting conspiracy in this country.

*584 Respondents nevertheless argue that these

supposed conspiracies, if not themselves grounds

for recovery of antitrust damages, are circumstantial evidence of another conspiracy that is cognizable: a conspiracy to monopolize the American

market by means of pricing below the market

level.FN7 The thrust of respondents' argument is

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that petitioners used their monopoly profits from

the Japanese market to fund a concerted campaign

to price predatorily and thereby drive respondents

and other American manufacturers of CEPs out of

business. Once successful, according to respondents, petitioners would cartelize the American CEP

market, restricting output and raising prices above

the level that fair competition would produce. The

resulting **1355 monopoly profits, respondents

contend, would more than compensate petitioners

for the losses they incurred through years of pricing

below market level.

FN7. Respondents also argue that the

check prices, the five company rule, and

the price fixing in Japan are all part of one

large conspiracy that includes monopolization of the American market through predatory pricing. The argument is mistaken.

However one decides to describe the contours of the asserted conspiracy-whether

there is one conspiracy or several-respondents must show that the conspiracy

caused them an injury for which the antitrust laws provide relief. Associated General Contractors of California, Inc. v. Carpenters, 459 U.S. 519, 538-540, 103 S.Ct.

897, 908-909, 74 L.Ed.2d 723 (1983);

Brunswick Corp. v. Pueblo Bowl-O-Mat,

Inc., 429 U.S. 477, 488-489, 97 S.Ct. 690,

697, 50 L.Ed.2d 701 (1977); see also Note,

Antitrust Standing, Antitrust Injury, and

the Per Se Standard, 93 Yale L.J. 1309

(1984). That showing depends in turn on

proof that petitioners conspired to price

predatorily in the American market, since

the other conduct involved in the alleged

conspiracy cannot have caused such an injury.

The Court of Appeals found that respondents' allegation of a horizontal conspiracy to engage in predatory pricing,FN8 *585 if proved,FN9 would be a

per se violation of § 1 of the Sherman Act. 723

F.2d, at 306. Petitioners did not appeal from that

conclusion. The issue in this case thus becomes

whether respondents adduced sufficient evidence in

support of their theory to survive summary judgment. We therefore examine the principles that

govern the summary judgment determination.

FN8. Throughout this opinion, we refer to

the asserted conspiracy as one to price

“predatorily.” This term has been used

chiefly in cases in which a single firm,

having a dominant share of the relevant

market, cuts its prices in order to force

competitors out of the market, or perhaps

to deter potential entrants from coming in.

E.g., Southern Pacific Communications

Co. v. American Telephone & Telegraph

Co., 238 U.S.App.D.C. 309, 331-336, 740

F.2d 980, 1002-1007 (1984), cert. denied,

470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d

380 (1985). In such cases, “predatory pricing” means pricing below some appropriate measure of cost. E.g., Barry Wright

Corp. v. ITT Grinnell Corp., 724 F.2d 227,

232-235 (CA1 1983); see Utah Pie Co. v.

Continental Baking Co., 386 U.S. 685,

698, 701, 702, n. 14, 87 S.Ct. 1326, 1333,

1335, 1336, n. 14, 18 L.Ed.2d 406 (1967).

There is a good deal of debate, both in the

cases and in the law reviews, about what

“cost” is relevant in such cases. We need

not resolve this debate here, because unlike

the cases cited above, this is a Sherman

Act § 1 case. For purposes of this case, it is

enough to note that respondents have not

suffered an antitrust injury unless petitioners conspired to drive respondents out of

the relevant markets by (i) pricing below

the level necessary to sell their products, or

(ii) pricing below some appropriate measure of cost. An agreement without these

features would either leave respondents in

the same position as would market forces

or would actually benefit respondents by

raising market prices. Respondents therefore may not complain of conspiracies that,

for example, set maximum prices above

market levels, or that set minimum prices

at any level.

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FN9. We do not consider whether recovery

should ever be available on a theory such

as respondents' when the pricing in question is above some measure of incremental

cost. See generally Areeda & Turner, Predatory Pricing and Related Practices Under

Section 2 of the Sherman Act, 88

Harv.L.Rev. 697, 709-718 (1975)

(discussing cost-based test for use in § 2

cases). As a practical matter, it may be that

only direct evidence of below-cost pricing

is sufficient to overcome the strong inference that rational businesses would not

enter into conspiracies such as this one.

See Part IV-A, infra.

III

[3] To survive petitioners' motion for summary

judgment,FN10 respondents must establish that

there is a genuine issue of materialfact *586 as to

whether petitioners entered into an illegal conspiracy that caused respondents to suffer a cognizable

injury. Fed.Rule Civ.Proc. 56(e); FN11 First National Bank of Arizona v. Cities Service Co., 391

U.S. 253, 288-289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d

569 (1968). This showing has two components.

First, respondents must show more than a conspiracy in violation of the antitrust laws; they must

show an injury to them resulting from the illegal

conduct. Respondents charge petitioners with a

whole host of conspiracies in restraint of trade.

Supra, at 1354. Except for the alleged conspiracy to

monopolize the American market through predatory

pricing, these alleged conspiracies could not have

caused respondents to suffer an “antitrust injury,”

**1356 Brunswick Corp. v. Pueblo Bowl-O-Mat,

Inc., 429 U.S., at 489, 97 S.Ct., at 697, because

they actually tended to benefit respondents. Supra,

at 1354. Therefore, unless, in context, evidence of

these “other” conspiracies raises a genuine issue

concerning the existence of a predatory pricing conspiracy, that evidence cannot defeat petitioners'

summary judgment motion.

FN10. Respondents argued before the District Court that petitioners had failed to

carry their initial burden under Federal

Rule of Civil Procedure 56(c) of demonstrating the absence of a genuine issue of

material fact. See Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157, 90 S.Ct. 1598,

1608, 26 L.Ed.2d 142 (1970). Cf. Catrett

v. Johns-Manville Sales Corp., 244

U.S.App.D.C. 160, 756 F.2d 181,cert.

granted, 474 U.S. 944, 106 S.Ct. 342, 88

L.Ed.2d 285 (1985). That issue was resolved in petitioners' favor, and is not before us.

FN11. Rule 56(e) provides, in relevant

part:

“When a motion for summary judgment is

made and supported as provided in this

rule, an adverse party may not rest upon

the mere allegations or denials of his

pleading, but his response, by affidavits or

as otherwise provided in this rule, must set

forth specific facts showing that there is a

genuine issue for trial. If he does not so respond, summary judgment, if appropriate,

shall be entered against him.”

Second, the issue of fact must be “genuine.”

Fed.Rules Civ.Proc. 56(c), (e). When the moving

party has carried its burden under Rule 56(c), FN12

its opponent must do more than simply show that

there is some metaphysical doubt as to the material

facts. See DeLuca v. Atlantic Refining Co., 176

F.2d 421, 423 (CA2 1949) (L. Hand, J.), cert.

denied, 338 U.S. 943, 70 S.Ct. 423, 94 L.Ed. 581

(1950); 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2727 (1983); Clark,

Special Problems*587 in Drafting and Interpreting

Procedural Codes and Rules, 3 Vand.L.Rev. 493,

504-505 (1950). Cf. Sartor v. Arkansas Natural

Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728,

88 L.Ed. 967 (1944). In the language of the Rule,

the nonmoving party must come forward with

“specific facts showing that there is a genuine issue

for trial.” Fed.Rule Civ.Proc. 56(e) (emphasis added). See also Advisory Committee Note to 1963

Amendment of Fed.Rule Civ.Proc. 56(e), 28

U.S.C.App., p. 626 (purpose of summary judgment

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is to “pierce the pleadings and to assess the proof in

order to see whether there is a genuine need for trial”). Where the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party, there is no “genuine issue for trial.”

Cities Service, supra, 391 U.S., at 289, 88 S.Ct., at

1592.

FN12. See n. 10, supra.

It follows from these settled principles that if the

factual context renders respondents' claim implausible-if the claim is one that simply makes no economic sense-respondents must come forward with

more persuasive evidence to support their claim

than would otherwise be necessary. Cities Service

is instructive. The issue in that case was whether

proof of the defendant's refusal to deal with the

plaintiff supported an inference that the defendant

willingly had joined an illegal boycott. Economic

factors strongly suggested that the defendant had no

motive to join the alleged conspiracy. 391 U.S., at

278-279, 88 S.Ct., at 1587. The Court acknowledged that, in isolation, the defendant's refusal to

deal might well have sufficed to create a triable issue. Id., at 277, 88 S.Ct., at 1586. But the refusal to

deal had to be evaluated in its factual context. Since

the defendant lacked any rational motive to join the

alleged boycott, and since its refusal to deal was

consistent with the defendant's independent interest,

the refusal to deal could not by itself support a finding of antitrust liability. Id., at 280, 88 S.Ct., at

1588.

[4] Respondents correctly note that “[o]n summary

judgment the inferences to be drawn from the underlying facts ... must be viewed in the light most

favorable to the party opposing the motion.” United

States v. Diebold, Inc., 369 *588 U.S. 654, 655, 82

S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). But antitrust

law limits the range of permissible inferences from

ambiguous evidence in a § 1 case. Thus, in

Monsanto Co. v. Spray-Rite Service Corp., 465

U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984),

we held that conduct as consistent with permissible

competition as with illegal conspiracy does not,

standing alone, support an inference of antitrust

conspiracy. Id., at 764, 104 S.Ct., at 1470. See also

Cities Service, supra, 391 U.S., at 280, 88 S.Ct., at

1588. To survive a motion for summary judgment

or for a directed verdict, a plaintiff seeking damages for a violation of § 1 must present evidence

“that tends to exclude the possibility” that the alleged conspirators acted independently. 465 U.S., at

764, 104 S.Ct., at 1471. Respondents in this case, in

other words, must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action

that **1357 could not have harmed respondents.

See Cities Service, supra, 391 U.S., at 280, 88

S.Ct., at 1588.

Petitioners argue that these principles apply fully to

this case. According to petitioners, the alleged conspiracy is one that is economically irrational and

practically infeasible. Consequently, petitioners

contend, they had no motive to engage in the alleged predatory pricing conspiracy; indeed, they

had a strong motive not to conspire in the manner

respondents allege. Petitioners argue that, in light

of the absence of any apparent motive and the ambiguous nature of the evidence of conspiracy, no

trier of fact reasonably could find that the conspiracy with which petitioners are charged actually existed. This argument requires us to consider the

nature of the alleged conspiracy and the practical

obstacles to its implementation.

IV

A

A predatory pricing conspiracy is by nature speculative. Any agreement to price below the competitive level requires the conspirators to forgo profits

that free competition would offer them. The forgone profits may be considered an investment in

the future. For the investment to be rational, *589

the conspirators must have a reasonable expectation

of recovering, in the form of later monopoly profits,

more than the losses suffered. As then-Professor

Bork, discussing predatory pricing by a single firm,

explained:

“Any realistic theory of predation recognizes that

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the predator as well as his victims will incur losses

during the fighting, but such a theory supposes it

may be a rational calculation for the predator to

view the losses as an investment in future monopoly profits (where rivals are to be killed) or in future undisturbed profits (where rivals are to be disciplined). The future flow of profits, appropriately

discounted, must then exceed the present size of the

losses.” R. Bork, The Antitrust Paradox 145 (1978).

See also McGee, Predatory Pricing Revisited, 23

J.Law & Econ. 289, 295-297 (1980). As this explanation shows, the success of such schemes is inherently uncertain: the short-run loss is definite, but

the long-run gain depends on successfully neutralizing the competition. Moreover, it is not enough

simply to achieve monopoly power, as monopoly

pricing may breed quick entry by new competitors

eager to share in the excess profits. The success of

any predatory scheme depends on maintaining

monopoly power for long enough both to recoup

the predator's losses and to harvest some additional

gain. Absent some assurance that the hoped-for

monopoly will materialize, and that it can be sustained for a significant period of time, “[t]he predator must make a substantial investment with no assurance that it will pay off.” Easterbrook, Predatory

Strategies and Counterstrategies, 48 U.Chi.L.Rev.

263, 268 (1981). For this reason, there is a consensus among commentators that predatory pricing

schemes are rarely tried, and even more rarely successful. See, e.g., Bork, supra, at 149-155; Areeda

& Turner, Predatory Pricing and Related Practices

Under Section 2 of the Sherman Act, 88

Harv.L.Rev. 697, 699 (1975); Easterbrook, supra;

Koller, The Myth of Predatory Pricing-An Empirical Study, *590 4 Antitrust Law & Econ.Rev. 105

(1971); McGee, Predatory Price Cutting: The

Standard Oil (N.J.) Case, 1 J.Law & Econ. 137

(1958); McGee, Predatory Pricing Revisited, 23

J.Law & Econ., at 292-294. See also Northeastern

Telephone Co. v. American Telephone & Telegraph

Co., 651 F.2d 76, 88 (CA2 1981) (“[N]owhere in

the recent outpouring of literature on the subject do

commentators suggest that [predatory] pricing is

either common or likely to increase”), cert. denied,

455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 654

(1982).

These observations apply even to predatory pricing

by a single firm seeking monopoly power. In this

case, respondents allege that a large number of

firms have conspired over a period of many years to

**1358 charge below-market prices in order to

stifle competition. Such a conspiracy is incalculably more difficult to execute than an analogous

plan undertaken by a single predator. The conspirators must allocate the losses to be sustained during

the conspiracy's operation, and must also allocate

any gains to be realized from its success. Precisely

because success is speculative and depends on a

willingness to endure losses for an indefinite period, each conspirator has a strong incentive to cheat,

letting its partners suffer the losses necessary to

destroy the competition while sharing in any gains

if the conspiracy succeeds. The necessary allocation

is therefore difficult to accomplish. Yet if conspirators cheat to any substantial extent, the conspiracy

must fail, because its success depends on depressing the market price for all buyers of CEPs. If there

are too few goods at the artificially low price to satisfy demand, the would-be victims of the conspiracy can continue to sell at the “real” market price,

and the conspirators suffer losses to little purpose.

Finally, if predatory pricing conspiracies are generally unlikely to occur, they are especially so where,

as here, the prospects of attaining monopoly power

seem slight. In order to recoup their losses, petitioners must obtain enough market power to set

higher than competitive prices, and then must sustain those prices long enough to earn in excess

profits*591 what they earlier gave up in below-cost

prices. See Northeastern Telephone Co. v. American Telephone & Telegraph Co., supra, at 89;

Areeda & Turner, 88 Harv.L.Rev., at 698. Two decades after their conspiracy is alleged to have commenced,FN13 petitioners appear to be far from

achieving this goal: the two largest shares of the retail market in television sets are held by RCA and

respondent Zenith, not by any of petitioners. 6 App.

to Brief for Appellant in No. 81-2331 (CA3), pp.

2575a-2576a. Moreover, those shares, which together approximate 40% of sales, did not decline

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appreciably during the 1970's. Ibid. Petitioners' collective share rose rapidly during this period, from

one-fifth or less of the relevant markets to close to

50%. 723 F.2d, at 316.FN14 Neither the District

Court nor the Court of Appeals found, however,

that petitioners' share presently allows them to

charge monopoly prices; to the contrary, respondents contend that the conspiracy is ongoing-that petitioners are still artificially depressing the market

price in order to drive Zenith out of the market. The

data in the record strongly suggest that that goal is

yet far distant.FN15

FN13. NUE's complaint alleges that petitioners' conspiracy began as early as 1960;

the starting date used in Zenith's complaint

is 1953. NUE Complaint ¶ 52; Zenith

Complaint ¶ 39.

FN14. During the same period, the number

of American firms manufacturing television sets declined from 19 to 13. 5 App. to

Brief for Appellant in No. 81-2331 (CA3),

p. 1961a. This decline continued a trend

that began at least by 1960, when petitioners' sales in the United States market were

negligible. Ibid. See Zenith Complaint ¶¶

35, 37.

FN15. Respondents offer no reason to suppose that entry into the relevant market is

especially difficult, yet without barriers to

entry it would presumably be impossible to

maintain supracompetitive prices for an

extended time. Judge Easterbrook, commenting on this case in a law review article, offers the following sensible assessment:

“The plaintiffs [in this case] maintain that

for the last fifteen years or more at least

ten Japanese manufacturers have sold TV

sets at less than cost in order to drive

United States firms out of business. Such

conduct cannot possibly produce profits by

harming competition, however. If the Japanese firms drive some United States

firms out of business, they could not recoup. Fifteen years of losses could be

made up only by very high prices for the

indefinite future. (The losses are like investments, which must be recovered with

compound interest.) If the defendants

should try to raise prices to such a level,

they would attract new competition. There

are no barriers to entry into electronics, as

the proliferation of computer and audio

firms shows. The competition would come

from resurgent United States firms, from

other foreign firms (Korea and many other

nations make TV sets), and from defendants themselves. In order to recoup, the Japanese firms would need to suppress competition among themselves. On plaintiffs'

theory, the cartel would need to last at

least thirty years, far longer than any in

history, even when cartels were not illegal.

None should be sanguine about the prospects of such a cartel, given each firm's

incentive to shave price and expand its

share of sales. The predation-recoupment

story therefore does not make sense, and

we are left with the more plausible inference that the Japanese firms did not sell

below cost in the first place. They were

just engaged in hard competition.” Easterbrook, The Limits of Antitrust, 63 Texas

L.Rev. 1, 26-27 (1984) (footnotes omitted).

*592 **1359 The alleged conspiracy's failure to

achieve its ends in the two decades of its asserted

operation is strong evidence that the conspiracy

does not in fact exist. Since the losses in such a

conspiracy accrue before the gains, they must be

“repaid” with interest. And because the alleged

losses have accrued over the course of two decades,

the conspirators could well require a correspondingly long time to recoup. Maintaining supracompetitive prices in turn depends on the continued cooperation of the conspirators, on the inability of

other would-be competitors to enter the market, and

(not incidentally) on the conspirators' ability to escape antitrust liability for their minimum price-fixing cartel.FN16 Each of these factors weighs more

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heavily as the time needed to recoup losses grows.

If the losses have been substantial-as would likely

be necessary*593 in order to drive out the competition FN17 -petitioners would most likely have to

sustain their cartel for years simply to break even.

FN16. The alleged predatory scheme

makes sense only if petitioners can recoup

their losses. In light of the large number of

firms involved here, petitioners can

achieve this only by engaging in some

form of price fixing after they have succeeded in driving competitors from the

market. Such price fixing would, of course,

be an independent violation of § 1 of the

Sherman Act. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811,

84 L.Ed. 1129 (1940).

FN17. The predators' losses must actually

increase as the conspiracy nears its objective: the greater the predators' market share,

the more products the predators sell; but

since every sale brings with it a loss, an increase in market share also means an increase in predatory losses.

Nor does the possibility that petitioners have obtained supracompetitive profits in the Japanese

market change this calculation. Whether or not petitioners have the means to sustain substantial losses

in this country over a long period of time, they have

no motive to sustain such losses absent some strong

likelihood that the alleged conspiracy in this country will eventually pay off. The courts below found

no evidence of any such success, and-as indicated

above-the facts actually are to the contrary: RCA

and Zenith, not any of the petitioners, continue to

hold the largest share of the American retail market

in color television sets. More important, there is

nothing to suggest any relationship between petitioners' profits in Japan and the amount petitioners

could expect to gain from a conspiracy to monopolize the American market. In the absence of any

such evidence, the possible existence of supracompetitive profits in Japan simply cannot overcome

the economic obstacles to the ultimate success of

this alleged predatory conspiracy.FN18

FN18. The same is true of any supposed

excess production capacity that petitioners

may have possessed. The existence of

plant capacity that exceeds domestic demand does tend to establish the ability to

sell products abroad. It does not, however,

provide a motive for selling at prices lower

than necessary to obtain sales; nor does it

explain why petitioners would be willing

to lose money in the United States market

without some reasonable prospect of recouping their investment.

B

In Monsanto, we emphasized that courts should not

permit factfinders to infer conspiracies when such

inferences are implausible, because the effect of

such practices is often to deter procompetitive conduct. Monsanto, 465 U.S., at 762-764, 104 S.Ct., at

1470. *594 Respondents, petitioners' competitors,

seek to hold petitioners liable for **1360 damages

caused by the alleged conspiracy to cut prices.

Moreover, they seek to establish this conspiracy indirectly, through evidence of other combinations

(such as the check-price agreements and the five

company rule) whose natural tendency is to raise

prices, and through evidence of rebates and other

price-cutting activities that respondents argue tend

to prove a combination to suppress prices.FN19 But

cutting prices in order to increase business often is

the very essence of competition. Thus, mistaken inferences in cases such as this one are especially

costly, because they chill the very conduct the antitrust laws are designed to protect. See Monsanto,

supra, at 763-764, 104 S.Ct., at 1470. “[W]e must

be concerned lest a rule or precedent that authorizes

a search for a particular type of undesirable pricing

behavior end up by discouraging legitimate price

competition.” Barry Wright Corp. v. ITT Grinnell

Corp., 724 F.2d 227, 234 (CA1 1983).

FN19. Respondents also rely on an expert

study suggesting that petitioners have sold

their products in the American market at

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substantial losses. The relevant study is not

based on actual cost data; rather, it consists

of expert opinion based on a mathematical

construction that in turn rests on assumptions about petitioners' costs. The District

Court analyzed those assumptions in some

detail and found them both implausible and

inconsistent with record evidence. Zenith

Radio Corp. v. Matsushita Electric Industrial Co., 505 F.Supp., at 1356-1363. Although the Court of Appeals reversed the

District Court's finding that the expert report was inadmissible, the court did not

disturb the District Court's analysis of the

factors that substantially undermine the

probative value of that evidence. See 723

F.2d, at 277-282. We find the District

Court's analysis persuasive. Accordingly,

in our view the expert opinion evidence of

below-cost pricing has little probative

value in comparison with the economic

factors, discussed in Part IV-A, supra, that

suggest that such conduct is irrational.

In most cases, this concern must be balanced

against the desire that illegal conspiracies be identified and punished. That balance is, however, unusually one-sided in cases such as this one. As we

earlier explained, supra, at 1357-1359, predatory

pricing schemes require conspirators to suffer

losses in order eventually to realize their illegal

gains; moreover, the *595 gains depend on a host

of uncertainties, making such schemes more likely

to fail than to succeed. These economic realities

tend to make predatory pricing conspiracies selfdeterring: unlike most other conduct that violates

the antitrust laws, failed predatory pricing schemes

are costly to the conspirators. See Easterbrook, The

Limits of Antitrust, 63 Texas L.Rev. 1, 26 (1984).

Finally, unlike predatory pricing by a single firm,

successful predatory pricing conspiracies involving

a large number of firms can be identified and punished once they succeed, since some form of minimum price-fixing agreement would be necessary in

order to reap the benefits of predation. Thus, there

is little reason to be concerned that by granting

summary judgment in cases where the evidence of

conspiracy is speculative or ambiguous, courts will

encourage such conspiracies.

V

As our discussion in Part IV-A shows, petitioners

had no motive to enter into the alleged conspiracy.

To the contrary, as presumably rational businesses,

petitioners had every incentive not to engage in the

conduct with which they are charged, for its likely

effect would be to generate losses for petitioners

with no corresponding gains. Cf. Cities Service,

391 U.S., at 279, 88 S.Ct., at 1587. The Court of

Appeals did not take account of the absence of a

plausible motive to enter into the alleged predatory

pricing conspiracy. It focused instead on whether

there was “direct evidence of concert of action.”

723 F.2d, at 304. The Court of Appeals erred in two

respects: (i) the “direct evidence” on which the

court relied had little, if any, relevance to the alleged predatory pricing conspiracy; and (ii) the

court failed to consider the absence of a plausible

motive to engage in predatory pricing.

**1361 The “direct evidence” on which the court

relied was evidence of other combinations, not of a

predatory pricing conspiracy. Evidence that petitioners conspired to raise prices in Japan provides

little, if any, support for respondents' *596 claims:

a conspiracy to increase profits in one market does

not tend to show a conspiracy to sustain losses in

another. Evidence that petitioners agreed to fix minimum prices (through the check-price agreements)

for the American market actually works in petitioners' favor, because it suggests that petitioners were

seeking to place a floor under prices rather than to

lower them. The same is true of evidence that petitioners agreed to limit the number of distributors of

their products in the American market-the so-called

five company rule. That practice may have facilitated a horizontal territorial allocation, see United

States v. Topco Associates, Inc., 405 U.S. 596, 92

S.Ct. 1126, 31 L.Ed.2d 515 (1972), but its natural

effect would be to raise market prices rather than

reduce them.FN20 Evidence that tends to support

any of these collateral conspiracies thus says little,

if anything, about the existence of a conspiracy to

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charge below-market prices in the American market

over a period of two decades.

FN20. The Court of Appeals correctly

reasoned that the five company rule might

tend to insulate petitioners from competition with each other. 723 F.2d, at 306. But

this effect is irrelevant to a conspiracy to

price predatorily. Petitioners have no incentive to underprice each other if they

already are pricing below the level at

which they could sell their goods. The far

more plausible inference from a customer

allocation agreement such as the five company rule is that petitioners were conspiring to raise prices, by limiting their ability

to take sales away from each other. Respondents-petitioners' competitors-suffer

no harm from a conspiracy to raise prices.

Supra, at 1354. Moreover, it seems very

unlikely that the five company rule had

any significant effect of any kind, since the

“rule” permitted petitioners to sell to their

American subsidiaries, and did not limit

the number of distributors to which the

subsidiaries could resell. 513 F.Supp., at

1190.

That being the case, the absence of any plausible

motive to engage in the conduct charged is highly

relevant to whether a “genuine issue for trial” exists

within the meaning of Rule 56(e). Lack of motive

bears on the range of permissible conclusions that

might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct is consistent with other,

equally plausible explanations,*597 the conduct

does not give rise to an inference of conspiracy. See

Cities Service, supra, 391 U.S., at 278-280, 88

S.Ct., at 1587-1588. Here, the conduct in question

consists largely of (i) pricing at levels that succeeded in taking business away from respondents,

and (ii) arrangements that may have limited petitioners' ability to compete with each other (and thus

kept prices from going even lower). This conduct

suggests either that petitioners behaved competitively, or that petitioners conspired to raise prices.

Neither possibility is consistent with an agreement

among 21 companies to price below-market levels.

Moreover, the predatory pricing scheme that this

conduct is said to prove is one that makes no practical sense: it calls for petitioners to destroy companies larger and better established than themselves, a goal that remains far distant more than two

decades after the conspiracy's birth. Even had they

succeeded in obtaining their monopoly, there is

nothing in the record to suggest that they could recover the losses they would need to sustain along

the way. In sum, in light of the absence of any rational motive to conspire, neither petitioners' pricing practices, nor their conduct in the Japanese

market, nor their agreements respecting prices and

distribution in the American market, suffice to create a “genuine issue for trial.” Fed.Rule Civ.Proc.

56(e).FN21

FN21. We do not imply that, if petitioners

had had a plausible reason to conspire, ambiguous conduct could suffice to create a

triable issue of conspiracy. Our decision in

Monsanto Co. v. Spray-Rite Service Corp.,

465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d

775 (1984), establishes that conduct that is

as consistent with permissible competition

as with illegal conspiracy does not, without

more, support even an inference of conspiracy. Id., at 763-764, 104 S.Ct., at 1470.

See supra, at 1356.

**1362 On remand, the Court of Appeals is free to

consider whether there is other evidence that is sufficiently unambiguous to permit a trier of fact to

find that petitioners conspired to price predatorily

for two decades despite the absence of any apparent

motive to do so. The evidence must “ten[d] to exclude the possibility” that petitioners underpriced

respondents to compete for business rather than to

implement an economically*598 senseless conspiracy. Monsanto, 465 U.S., at 764, 104 S.Ct., at 1471.

In the absence of such evidence, there is no

“genuine issue for trial” under Rule 56(e), and petitioners are entitled to have summary judgment reinstated.

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VI

Our decision makes it unnecessary to reach the sovereign compulsion issue. The heart of petitioners'

argument on that issue is that MITI, an agency of

the Government of Japan, required petitioners to fix

minimum prices for export to the United States, and

that petitioners are therefore immune from antitrust

liability for any scheme of which those minimum

prices were an integral part. As we discussed in

Part II, supra, respondents could not have suffered

a cognizable injury from any action that raised

prices in the American CEP market. If liable at all,

petitioners are liable for conduct that is distinct

from the check-price agreements. The sovereign

compulsion question that both petitioners and the

Solicitor General urge us to decide thus is not

presented here.

The decision of the Court of Appeals is reversed,

and the case is remanded for further proceedings

consistent with this opinion.

It is so ordered.

Justice WHITE, with whom Justice BRENNAN,

Justice BLACKMUN, and Justice STEVENS join,

dissenting.

It is indeed remarkable that the Court, in the face of

the long and careful opinion of the Court of Appeals, reaches the result it does. The Court of Appeals faithfully followed the relevant precedents,

including First National Bank of Arizona v. Cities

Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20

L.Ed.2d 569 (1968), and Monsanto Co. v. SprayRite Service Corp., 465 U.S. 752, 104 S.Ct. 1464,

79 L.Ed.2d 775 (1984), and it kept firmly in mind

the principle that proof of a conspiracy should not

be fragmented, see Continental Ore Co. v. Union

Carbide & Carbon Corp., 370 U.S. 690, 699, 82

S.Ct. 1404, 1410, 8 L.Ed.2d 777 (1962). After surveying the massive record, including very *599 significant evidence that the District Court erroneously

had excluded, the Court of Appeals concluded that

the evidence taken as a whole creates a genuine issue of fact whether petitioners engaged in a conspiracy in violation of §§ 1 and 2 of the Sherman

Act and § 2(a) of the Robinson-Patman Act. In my

view, the Court of Appeals' opinion more than adequately supports this judgment.

The Court's opinion today, far from identifying reversible error, only muddies the waters. In the first

place, the Court makes confusing and inconsistent

statements about the appropriate standard for granting summary judgment. Second, the Court makes a

number of assumptions that invade the factfinder's

province. Third, the Court faults the Third Circuit

for nonexistent errors and remands the case although it is plain that respondents' evidence raises

genuine issues of material fact.

I

The Court's initial discussion of summary judgment

standards appears consistent with settled doctrine. I

agree that **1363 “[w]here the record taken as a

whole could not lead a rational trier of fact to find

for the nonmoving party, there is no ‘genuine issue

for trial.’ ” Ante, at 1356 (quoting Cities Service,

supra, 391 U.S., at 289, 88 S.Ct., at 1592). I also

agree that “ ‘[o]n summary judgment the inferences

to be drawn from the underlying facts ... must be

viewed in the light most favorable to the party opposing the motion.’ ” Ante, at 1356 (quoting United

States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct.

993, 994, 8 L.Ed.2d 176 (1962)). But other language in the Court's opinion suggests a departure

from traditional summary judgment doctrine. Thus,

the Court gives the following critique of the Third

Circuit's opinion:

“[T]he Court of Appeals concluded that a reasonable factfinder could find a conspiracy to depress

prices in the American market in order to drive out

American competitors, which conspiracy was funded by excess profits obtained in the Japanese market. The court apparently did not consider whether

it was as plausible to conclude *600 that petitioners' price-cutting behavior was independent and not

conspiratorial.” Ante, at 1353.

In a similar vein, the Court summarizes Monsanto

Co. v. Spray-Rite Service Corp., supra, as holding

that “courts should not permit factfinders to infer

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conspiracies when such inferences are implausible....” Ante, at 1360. Such language suggests that

a judge hearing a defendant's motion for summary

judgment in an antitrust case should go beyond the

traditional summary judgment inquiry and decide

for himself whether the weight of the evidence favors the plaintiff. Cities Service and Monsanto do

not stand for any such proposition. Each of those

cases simply held that a particular piece of evidence

standing alone was insufficiently probative to justify sending a case to the jury.FN1 These holdings in

no way undermine*601 the doctrine that all evidence must be construed in the light most favorable

to the party opposing summary judgment.

FN1. The Court adequately summarizes

the quite fact-specific holding in Cities

Service. Ante, at 1356.

In Monsanto, the Court held that a manufacturer's termination of a price-cutting

distributor after receiving a complaint from

another distributor is not, standing alone,

sufficient to create a jury question. 465

U.S., at 763-764, 104 S.Ct., at 1470. To

understand this holding, it is important to

realize that under United States v. Colgate

& Co., 250 U.S. 300, 39 S.Ct. 465, 63

L.Ed. 992 (1919), it is permissible for a

manufacturer to announce retail prices in

advance and terminate those who fail to

comply, but that under Dr. Miles Medical

Co. v. John D. Park & Sons Co., 220 U.S.

373, 31 S.Ct. 376, 55 L.Ed. 502 (1911), it

is impermissible for the manufacturer and

its distributors to agree on the price at

which the distributors will sell the goods.

Thus, a manufacturer's termination of a

price-cutting distributor after receiving a

complaint from another distributor is lawful under Colgate, unless the termination is

pursuant to a shared understanding

between the manufacturer and its distributors respecting enforcement of a resale

price maintenance scheme. Monsanto

holds that to establish liability under Dr.

Miles, more is needed than evidence of behavior that is consistent with a distributor's

exercise of its prerogatives under Colgate.

Thus, “[t]here must be evidence that tends

to exclude the possibility that the manufacturer and nonterminated distributors were

acting independently.” 465 U.S., at 764,

104 S.Ct., at 1471. Monsanto does not hold

that if a terminated dealer produces some

further evidence of conspiracy beyond the

bare fact of postcomplaint termination, the

judge hearing a motion for summary judgment should balance all the evidence pointing toward conspiracy against all the evidence pointing toward independent action.

If the Court intends to give every judge hearing a

motion for summary judgment in an antitrust case

the job of determining if the evidence makes the inference of conspiracy more probable than not, it is

overturning settled law. If the Court does not intend

such a pronouncement, it should refrain from using

unnecessarily broad and confusing language.

II

In defining what respondents must show in order to

recover, the Court makes assumptions**1364 that

invade the factfinder's province. The Court states

with very little discussion that respondents can recover under § 1 of the Sherman Act only if they

prove that “petitioners conspired to drive respondents out of the relevant markets by (i) pricing below

the level necessary to sell their products, or (ii) pricing below some appropriate measure of cost.”

Ante, at 1355, n. 8. This statement is premised on

the assumption that “[a]n agreement without these

features would either leave respondents in the same

position as would market forces or would actually

benefit respondents by raising market prices.” Ibid.

In making this assumption, the Court ignores the

contrary conclusions of respondents' expert DePodwin, whose report in very relevant part was erroneously excluded by the District Court.

The DePodwin Report, on which the Court of Appeals relied along with other material, indicates that

respondents were harmed in two ways that are independent of whether petitioners priced their products

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below “the level necessary to sell their products or

... some appropriate measure of cost.” Ibid. First,

the Report explains that the price-raising scheme in

Japan resulted in lower consumption of petitioners'

goods in that country and the exporting of more of

petitioners' goods to this country than would have

occurred had prices in Japan been at the competitive level. Increasingexports *602 to this country

resulted in depressed prices here, which harmed respondents.FN2 Second, the DePodwin Report indicates that petitioners exchanged confidential proprietary information and entered into agreements

such as the five company rule with the goal of

avoiding intragroup competition in the United

States market. The Report explains that petitioners'

restrictions on intragroup competition caused respondents to lose business that they would not have

lost had petitioners competed with one another.FN3

FN2. Dr. DePodwin summarizes his view

of the harm caused by Japanese cartelization as follows:

“When we consider the injuries inflicted

on United States producers, we must again

look at the Japanese television manufacturers' export agreement as part of a generally

collusive scheme embracing the Japanese

domestic market as well. This scheme increased the supply of television receivers

to the United States market while restricting supply in the Japanese market. If Japanese manufacturers had competed in

both domestic and export markets, they

would have sold more in the domestic market and less in the United States. A greater

proportion of Japanese production capacity

would have been devoted to domestic

sales. Domestic prices would have been

lower and export prices would have been

higher. The size of the price differential

between domestic and export markets

would have diminished practically to the

vanishing point. Consequently, competition among Japanese producers in both

markets would have resulted in reducing

exports to the United States and United

States prices would have risen. In addition,

investment by the United States industry

would have increased. As it was, however,

the influx of sets at depressed prices cut

the rates of return on television receiver

production facilities in the United States to

so low a level as to make such investment

uneconomic.

“We can therefore conclude that the American manufacturers of television receivers

would have made larger sales at higher

prices in the absence of the Japanese cartel

agreements. Thus, the collusive behavior

of Japanese television manufacturers resulted in a very severe injury to those American television manufacturers, particularly

to National Union Electric Corporation,

which produced a preponderance of television sets with screen sizes of nineteen

inches and lower, especially those in the

lower range of prices.” 5 App. to Brief for

Appellants in No. 81-2331 (CA3), pp.

1629a-1630a.

FN3. The DePodwin Report has this,

among other things, to say in summarizing

the harm to respondents caused by the five

company rule, exchange of production

data, price coordination, and other allegedly anti-competitive practices of petitioners:

“The impact of Japanese anti-competitive

practices on United States manufacturers is

evident when one considers the nature of

competition. When a market is fully competitive, firms pit their resources against

one another in an attempt to secure the

business of individual customers.

However, when firms collude, they violate

a basic tenet of competitive behavior, i.e.,

that they act independently. United States

firms were confronted with Japanese competitors who collusively were seeking to

destroy their established customer relationships. Each Japanese company had targeted customers which it could service

with reasonable assurance that its fellow

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come involved. But just as importantly,

each Japanese firm would be assured that

what was already a low price level for Japanese television receivers in the United

States market would not be further depressed by the actions of its Japanese associates.

“The result was a phenomenal growth in

exports, particularly to the United States.

Concurrently, Japanese manufacturers, and

the defendants in particular, made large investments in new plant and equipment and

expanded production capacity. It is obvious, therefore, that the effect of the Japanese cartel's concerted actions was to generate a larger volume of investment in the Japanese television industry than would otherwise have been the case. This added capacity both enabled and encouraged the Japanese to penetrate the United States market more deeply than they would have had

they competed lawfully.” Id., at

1628a-1629a.

For a more complete statement of DePodwin's explanation of how the alleged cartel

operated, and the harms it caused respondents, see id., at 1609a-1642a. This material

is summarized in a chart found id., at

1633a.

*603 **1365 The DePodwin Report alone creates a

genuine factual issue regarding the harm to respondents caused by Japanese cartelization and by

agreements restricting competition among petitioners in this country. No doubt the Court prefers its

own economic theorizing to Dr. DePodwin's, but

that is not a reason to deny the factfinder an opportunity to consider Dr. DePodwin's views on how

petitioners' alleged collusion harmed

respondents.FN4

FN4. In holding that Parts IV and V of the

Report had been improperly excluded, the

Court of Appeals said:

“The trial court found that DePodwin did

not use economic expertise in reaching the

opinion that the defendants participated in

a Japanese television cartel. 505 F.Supp. at

1342-46. We have examined the excluded

portions of Parts IV and V in light of the

admitted portions, and we conclude that

this finding is clearly erroneous. As a result, the court also held the opinions to be

unhelpful to the factfinder. What the court

in effect did was to eliminate all parts of

the report in which the expert economist,

after describing the conditions in the respective markets, the opportunities for collusion, the evidence pointing to collusion,

the terms of certain undisputed agreements, and the market behavior, expressed

the opinion that there was concert of action

consistent with plaintiffs' conspiracy theory. Considering the complexity of the

economic issues involved, it simply cannot

be said that such an opinion would not help

the trier of fact to understand the evidence

or determine that fact in issue.” In re Japanese Electronics Products Antitrust Litigation, 723 F.2d 238, 280 (CA3 1983).

The Court of Appeals had similar views

about Parts VI and VII.

*604 The Court, in discussing the unlikelihood of a

predatory conspiracy, also consistently assumes

that petitioners valued profit-maximization over

growth. See, e.g., ante, at 1360. In light of the evidence that petitioners sold their goods in this country

at substantial losses over a long period of time, see

Part III-B, infra, I believe that this is an assumption

that should be argued to the factfinder, not decided

by the Court.

III

In reversing the Third Circuit's judgment, the Court

identifies two alleged errors: “(i) [T]he ‘direct evidence’ on which the [Court of Appeals] relied had

little, if any, relevance to the alleged predatory pricing conspiracy; and (ii) the court failed to consider

the absence of a plausible motive to engage in predatory pricing.” Ante, at 1361. The Court's position

is without substance.

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A

The first claim of error is that the Third Circuit

treated evidence regarding price fixing in Japan and

the so-called five company rule and check prices as

“ ‘direct evidence’ of a conspiracy that injured respondents.” Ante, at 1354 (citing In re Japanese

Electronics Products Antitrust Litigation, 723 F.2d

238, 304-305 (CA3 1983)). The passage from the

Third *605 Circuit's opinion in which the Court

locates this alleged error makes what I consider to

be a quite simple and correct observation, namely,

that this case is distinguishable from traditional

“conscious parallelism” cases, in that there is direct

evidence of concert of action among petitioners.

Ibid. The Third Circuit did not, as the Court implies, jump unthinkingly from this observation to

the conclusion that evidence regarding the five

company rule could support a finding of antitrust

injury to respondents.FN5 The Third **1366 Circuit twice specifically noted that horizontal agreements allocating customers, though illegal, do not

ordinarily injure competitors of the agreeing

parties. Id., at 306, 310-311. However, after reviewing evidence of cartel activity in Japan, collusive establishment of dumping prices in this country,

and long-term, below-cost sales, the Third Circuit

held that a factfinder could reasonably conclude

that the five company rule was not a simple priceraising device:

FN5. I use the Third Circuit's analysis of

the five company rule by way of example;

the court did an equally careful analysis of

the parts the cartel activity in Japan and the

check prices could have played in an actionable conspiracy. See generally id., at

303-311.

In discussing the five-company rule, I do

not mean to imply any conclusion on the

validity of petitioners' sovereign compulsion defense. Since the Court does not

reach this issue, I see no need of my addressing it.

“[A] factfinder might reasonably infer that the allocation of customers in the United States, combined with price-fixing in Japan, was intended to

permit concentration of the effects of dumping

upon American competitors while eliminating competition among the Japanese manufacturers in either

market.” Id., at 311.

I see nothing erroneous in this reasoning.

B

The Court's second charge of error is that the Third

Circuit was not sufficiently skeptical of respondents' allegation that petitioners engaged in predatory pricing conspiracy. But *606 the Third Circuit

is not required to engage in academic discussions

about predation; it is required to decide whether respondents' evidence creates a genuine issue of material fact. The Third Circuit did its job, and remanding the case so that it can do the same job

again is simply pointless.

The Third Circuit indicated that it considers respondents' evidence sufficient to create a genuine

factual issue regarding long-term, below-cost sales

by petitioners. Ibid. The Court tries to whittle away

at this conclusion by suggesting that the “expert

opinion evidence of below-cost pricing has little

probative value in comparison with the economic

factors ... that suggest that such conduct is irrational.” Ante, at 1360, n. 19. But the question is not

whether the Court finds respondents' experts persuasive, or prefers the District Court's analysis; it is

whether, viewing the evidence in the light most favorable to respondents, a jury or other factfinder

could reasonably conclude that petitioners engaged

in long-term, below-cost sales. I agree with the

Third Circuit that the answer to this question is

“yes.”

It is misleading for the Court to state that the Court

of Appeals “did not disturb the District Court's analysis of the factors that substantially undermine the

probative value of [evidence in the DePodwin Report respecting below-cost sales].” Ibid. The Third

Circuit held that the exclusion of the portion of the

DePodwin Report regarding below-cost pricing was

erroneous because “the trial court ignored DePodwin's uncontradicted affidavit that all data relied on

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in his report were of the type on which experts in

his field would reasonably rely.” 723 F.2d, at 282.

In short, the Third Circuit found DePodwin's affidavit sufficient to create a genuine factual issue regarding the correctness of his conclusion that petitioners sold below cost over a long period of time.

Having made this determination, the court saw no

need-nor do I-to address the District Court's analysis point by point. The District Court's criticisms of

DePodwin's*607 methods are arguments that a factfinder should consider.

IV

Because I believe that the Third Circuit was correct

in holding that respondents have demonstrated the

existence of genuine issues of material fact, I would

affirm **1367 the judgment below and remand this

case for trial.

U.S.Pa.,1986.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp.

475 U.S. 574, 106 S.Ct. 1348, 7 ITRD 2057, 89

L.Ed.2d 538, 54 USLW 4319, 1986-1 Trade Cases

P 67,004, 4 Fed.R.Serv.3d 368

END OF DOCUMENT

106 S.Ct. 1348 Page 21

475 U.S. 574, 106 S.Ct. 1348, 7 ITRD 2057, 89 L.Ed.2d 538, 54 USLW 4319, 1986-1 Trade Cases P 67,004, 4

Fed.R.Serv.3d 368

(Cite as: 475 U.S. 574, 106 S.Ct. 1348)

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Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 42 of 273
Fitzpatrick v. City of Atlanta

C.A.11 (Ga.),1993.

United States Court of Appeals, Eleventh Circuit.

Walter FITZPATRICK, Wayne E. Hall, William J.

Hutchinson, Thomas Jones, Darryl J. Levette,

Miguelito Marcelli, Andre D. Mitchell, Dennis

Bernard Thomas, Melvin Whitehead, Gregory

Wilkinson, Alfonzo L. Williams, and Elton M.

Worthy, Plaintiffs-Appellants,

v.

CITY OF ATLANTA, Defendant-Appellee.

No. 92-8306.

Sept. 27, 1993.

African-American fire fighters who suffered from

bacterial disorder precluding their shaving their

faces brought suit challenging fire department regulation requiring all fire fighters be clean shaven.

Plaintiffs alleged that “no-beard” rule had a discriminatory disparate impact on African-Americans

who suffer disproportionately from the disorder,

and that rule was adopted for racially discriminatory reasons. Plaintiffs also asserted that rule discriminated against the handicapped in violation of

the Rehabilitation Act. The United States District

Court for the Northern District of Georgia, No.

1:89-cv-2917-RLV, Robert L. Vining, Jr., J.,

entered summary judgment in favor of city, and

plaintiffs appealed. The Court of Appeals, Anderson, Circuit Judge, held that: (1) city's evidence

concerning safe use of respirators established business necessity defense to claim that no-beard rule

had disparate impact; (2) with respect to disparate

treatment claim, plaintiffs failed to establish that

safety justification for no-beard rule was a pretext

for racial discrimination; and (3) city could not be

held liable under the Rehabilitation Act in absence

of evidence that an adequate reasonable accommodation was available.

Affirmed.

West Headnotes

[1] Civil Rights 78 1140

78 Civil Rights

78II Employment Practices

78k1140 k. Disparate Impact. Most Cited

Cases

(Formerly 78k153)

In order to establish Title VII liability for employer's nondiscriminatory actions or practices that have

discriminatory effects, plaintiff must first demonstrate that challenged employment action or practice has a disproportionate adverse impact on category of persons protected by statute; once prima

facie case has been made out, employer must show

that challenged action was demonstrably necessary

to meeting goal of the sort that, as a matter of law,

qualifies as an important business goal for Title VII

purposes. Civil Rights Act of 1964, § 703, as

amended, 42 U.S.C.A. § 2000e-2.

[2] Civil Rights 78 1140

78 Civil Rights

78II Employment Practices

78k1140 k. Disparate Impact. Most Cited

Cases

(Formerly 78k153)

Upon a showing of “business necessity” by employer in a Title VII action based on discriminatory

effects of nondiscriminatory actions or practices,

challenged action or practice is deemed justifiable,

its regrettable discriminatory effects notwithstanding; however, even after such a showing, plaintiff

may still overcome proffered business necessity defense by demonstrating that there exist alternative

policies with lesser discriminatory effects that

would be comparably as effective at serving employer's identified business needs. Civil Rights Act

of 1964, § 703, as amended, 42 U.S.C.A. §

2000e-2.

[3] Civil Rights 78 1544

78 Civil Rights

78IV Remedies Under Federal Employment Discrimination Statutes

2 F.3d 1112 Page 1

2 F.3d 1112, 62 Fair Empl.Prac.Cas. (BNA) 1484, 62 Empl. Prac. Dec. P 42,554, 2 A.D. Cases 1270, 3 A.D.D. 320,

4 NDLR P 187

(Cite as: 2 F.3d 1112)

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78k1543 Weight and Sufficiency of Evidence

78k1544 k. In General. Most Cited Cases

(Formerly 78k382.1)

Evidence presented by city established “business

necessity” defense to claim by African-American

fire fighters that regulation requiring that all male

fire fighters be clean-shaven had discriminatory impact; city's allegation that safe use of respirators

precluded facial hair that could interfere with forming a proper seal was supported by Occupational

Safety and Health Administration (OSHA) regulation and by recommendations of three national organizations that set occupational safety and health

standards. Civil Rights Act of 1964, § 703, as

amended, 42 U.S.C.A. § 2000e-2.

[4] Civil Rights 78 1140

78 Civil Rights

78II Employment Practices

78k1140 k. Disparate Impact. Most Cited

Cases

(Formerly 78k153)

African-American fire fighters who brought suit alleging that fire department rule requiring fire fighters to be clean-shaven had discriminatory disparate

impact on African-Americans in violation of Title

VII failed to show availability of less discriminatory alternative that would satisfy safety concerns in

connection with use of respirators; although

plaintiffs, who suffered from bacterial disorder that

precluded shaving, proposed allowing very short

“shadow” beards, plaintiffs failed to establish that

shadow beards were safe; plaintiffs also failed to

show that partial shaving would be a viable and

safe alternative. Civil Rights Act of 1964, § 703, as

amended, 42 U.S.C.A. § 2000e-2.

[5] Civil Rights 78 1140

78 Civil Rights

78II Employment Practices

78k1140 k. Disparate Impact. Most Cited

Cases

(Formerly 78k153)

African-American fire fighters who brought Title

VII disparate impact claim against city alleging that

fire department regulation requiring all fire fighters

be clean-shaven was adopted for purpose of removing from fire department group of African-American men who suffered from bacterial disorder

which precluded their shaving failed to establish

that city's proffered safety justification was a pretext for racial discrimination, based on fact that

“no-beard” rule required for safe wearing of respirators was underinclusive in not banning wearing of

respirators by persons with other hazardous facial

conditions. Civil Rights Act of 1964, § 703, as

amended, 42 U.S.C.A. § 2000e-2.

[6] Civil Rights 78 1218(4)

78 Civil Rights

78II Employment Practices

78k1215 Discrimination by Reason of Handicap, Disability, or Illness

78k1218 Who Is Disabled; What Is Disability

78k1218(4) k. Employment Qualifications, Requirements, or Tests. Most Cited Cases

(Formerly 78k173.1)

Civil Rights 78 1225(3)

78 Civil Rights

78II Employment Practices

78k1215 Discrimination by Reason of Handicap, Disability, or Illness

78k1225 Accommodations

78k1225(3) k. Particular Cases. Most

Cited Cases

(Formerly 78k173.1)

Fire fighters who suffered from bacterial disorder

which precluded their shaving failed to establish

that fire department regulation requiring all fire

fighters be clean shaven for safe use of respirators

violated the Rehabilitation Act; fire fighters did not

present evidence that allowing short “shadow”

beards or shaving only portions of their faces that

would come into contact with respirator seals constituted reasonable accommodations. Rehabilitation

Act of 1973, § 504, 29 U.S.C.A. § 794.

*1113 Michael Weinstock,Weinstock & Scavo, Atlanta, GA, for plaintiffs-appellants.

2 F.3d 1112 Page 2

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4 NDLR P 187

(Cite as: 2 F.3d 1112)

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Miguelito Marcelli, pro se.

Overtis Hicks Brantley, City of Atlanta Law Dept.,

Atlanta, GA, for defendant-appellee.

Paul Bogas, EEOC, Washington, DC, Rosalind A.

Rubens, Willie Jake Lovett, Jr., Atlanta, GA, for

amicus EEOC.

Appeal from the United States District Court for the

Northern District of Georgia.

Before FAY and ANDERSON, Circuit Judges, and

RONEY, Senior Circuit Judge.

ANDERSON, Circuit Judge:

This suit was brought against the City of Atlanta

(“the City”) by several African-American firefighters employed by the Atlanta Department of Public

Safety, Bureau of Fire Services (“the Fire Department”) who suffer from a medical condition on account of which they cannot shave their faces.

Plaintiffs challenge a fire department regulation

that requires all firefighters to be clean-shaven.

They allege (1) that this “no-beard” rule has a discriminatory disparate impact on African-Americans

in violation of Title VII of the 1964 Civil Rights

Act, 42 U.S.C. § 2000e et seq.; (2) that the nobeard rule was adopted for racially discriminatory

reasons in violation of Title VII; (3) that the rule

discriminates against the handicapped in violation

of § 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794(a); and (4) that the rule infringes the

firefighters' constitutional right to substantive due

process of law.FN1 The City defends the policy,

contending that the *1114 respirator masks used by

firefighters cannot safely be worn by bearded men.

The district court granted summary judgment for

the City and the firefighters have appealed. For the

reasons set forth below, we affirm the judgment of

the district court.

FN1. In their summary judgment papers

the firefighters also stated that they were

asserting a cause of action for illegal retaliation under Title VII, § 704(a), 42 U.S.C. §

2000e-3(a). They alleged that the Fire Department had retaliated against the plaintiff

firefighters for their having filed this EEO

action. See Firefighters' Memo Opposing

Summary Judgment (R-33-27-31). Although the magistrate judge and district

court neglected to address this claim, we

need not consider it as the firefighters have

abandoned the issue, having failed to raise

it in their brief on appeal.

I. FACTS AND PROCEDURAL HISTORY

In order to breathe in smoke-filled environments,

firefighters must wear respirators, otherwise known

as positive pressure self-contained breathing apparatuses (“SCBA's”). For the SCBA mask to operate

properly and safely, its edges must be able to seal

securely to the wearer's face. The parties do not dispute that a wearer's long facial hair can interfere

with the forming of a proper seal. In an attempt to

address the hazard posed by such hair, the City Fire

Department until 1982 enforced a policy requiring

all male firefighters to be completely clean-shaven.

See Bureau of Fire Services Standard Operating

Procedure 88.9.

The twelve plaintiff-appellant firefighters in this

case are all African-American men who suffer from

pseudofolliculitis barbae (“PFB”), a bacterial disorder which causes men's faces to become infected

if they shave them. It is generally recognized that

PFB disproportionately afflicts African-American

men. At least one of the appellants, firefighter

Darryl Levette, has been fighting with the City over

its no-beard policy for more than ten years. Levette

first challenged the requirement in 1982. In response to his complaints, the City modified its

policy in order to accommodate firefighters with

PFB. See Bureau of Fire Services Standard Operating Procedure 82.5 (R-31-Exhib. 1, Attach. B).

Under the modified policy, firefighters with PFB

were permitted to participate in a program known

as the “shaving clinic.” Shaving clinic participants

were allowed to wear very short “shadow” beards,

which were not to exceed length limits specified by

a dermatologist employed by the City. To enforce

these limits, the Fire Department subjected the participating firefighters to a series of periodic beard

inspections. It was believed that so long as the

2 F.3d 1112 Page 3

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4 NDLR P 187

(Cite as: 2 F.3d 1112)

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shadow beards were kept very short, the SCBA

masks would still be able to seal sufficiently well to

enable the firefighters to use them safely.

In 1988, after one of the appellant firefighters, William Hutchinson, complained that he had been

wrongly refused permission to participate in the

shaving clinic, the City decided to reconsider the

shadow beard policy. On the recommendation of

Del Corbin, the City's then-Assistant Commissioner

of Public Safety, the Fire Department decided that

shadow beards would no longer be permitted, on

the grounds that even shadow beards may interfere

with the safe use of SCBA's.

On November 4, 1988, the Department of Public

Safety issued Special Order 3.9, directing the Fire

Department to resume enforcement of Bureau of

Fire Services Standard Operating Procedure 88.9,

the no-beard rule. Under the new policy, firefighters who cannot be clean-shaven must be removed

from firefighting duty. Such persons may be transferred to non-firefighting positions within the Department, if suitable openings are available. They

may also apply for other available positions with

the City but are accorded no special priority and

must compete on an equal basis with other eligible

candidates. Under the new policy such persons are

granted the right to be temporarily reassigned from

firefighting duties for a one-time period of ninety

days. Dep't of Pub. Safety, Special Order 3.9

(R-33-Exhib. A). Male firefighters who cannot

shave and for whom non-firefighting positions are

not available within the Department are terminated,

once they have exhausted their ninety days of temporary reassignment.

Firefighter Hutchinson challenged the new policy

by filing a charge with the U.S. Equal Employment

Opportunity Commission (“EEOC”) on December

14, 1988. In March 1989, the EEOC certified the

charge as a “class” charge on behalf of all city firefighters adversely affected by the policy change.

Magistrate's Report (R-43-2-3). The appellant firefighters initiated this suit on December 29, 1989.

The district court issued and then extended a restraining order prohibiting the City from changing

the terms or conditions*1115 of the plaintiff firefighters' employment during the pendency of the

litigation before the district court. (R-3; R-42). The

City has kept the appellant firefighters on the

payroll and has permitted them to continue reporting for work at their regular fire stations, but it has

required them to perform various janitorial duties

instead of their regular jobs. Magistrate's Report

(R-43-2-5).

The City answered the complaint and moved for

summary judgment. The district court referred that

motion to a magistrate judge and on November 18,

1991, adopted the magistrate's recommendation that

the motion be granted. District Court Order (R-53),

adopting Magistrate's Report (R-43). This appeal

followed.

II. SUMMARY JUDGMENT STANDARD

A. Introduction

Under Fed.R.Civ.P. 56(c), a moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” The substantive law

applicable to the case determines which facts are

material. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202

(1986). “The district court should resolve all reasonable doubts about the facts in favor of the nonmovant, and draw all justifiable inferences in his

[or her] favor.” U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) (en banc)

(internal quotation marks and citations omitted).

In Adickes v. Kress, 398 U.S. 144, 90 S.Ct. 1598,

26 L.Ed.2d 142 (1970), the Supreme Court instructed the federal courts to employ a two-part framework of shifting burdens to determine whether, as

regards a given material fact, there exists a genuine

issue precluding summary judgment. The operation

of this framework was modified significantly in

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986). The current frame2 F.3d 1112 Page 4

2 F.3d 1112, 62 Fair Empl.Prac.Cas. (BNA) 1484, 62 Empl. Prac. Dec. P 42,554, 2 A.D. Cases 1270, 3 A.D.D. 320,

4 NDLR P 187

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work is set out below.

B. Movant's Initial Burden

The movant's initial burden consists of a

“responsibility [to] inform [ ] the ... court of the

basis for its motion and [to] identify[ ] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any,’ which it believes demonstrate

the absence of a genuine issue of material fact.” Id.

at 323, 106 S.Ct. at 2553. The nature of this responsibility varies, however, depending on whether

the legal issues, as to which the facts in question

pertain, are ones on which the movant or the nonmovant would bear the burden of proof at trial.

1. For Issues on Which Movant Would Bear Burden

of Proof at Trial

As interpreted by this court sitting en banc, Celotex

requires that for issues on which the movant would

bear the burden of proof at trial,

that party must show affirmatively the absence of a

genuine issue of material fact: it must support its

motion with credible evidence ... that would entitle

it to a directed verdict if not controverted at trial. In

other words, the moving party must show that, on

all the essential elements of its case on which it

bears the burden of proof at trial, no reasonable jury

could find for the non-moving party. If the moving

party makes such an affirmative showing, it is entitled to summary judgment unless the non-moving

party, in response, come [s] forward with significant, probative evidence demonstrating the existence

of a triable issue of fact.

Four Parcels, 941 F.2d at 1438 (citations and internal quotation marks omitted; emphasis in original).

2. For Issues on Which Non-Movant Would Bear

Burden of Proof at Trial

For issues, however, on which the non-movant

would bear the burden of proof at trial,

the moving party is not required to support its motion with affidavits or other similar material negating the opponent's claim in order to discharge this

initial responsibility.*1116 Instead, the moving

party simply may show [ ]-that is, point[ ] out to the

district court-that there is an absence of evidence to

support the non-moving party's case. Alternatively,

the moving party may support its motion for summary judgment with affirmative evidence demonstrating that the non-moving party will be unable to

prove its case at trial.

Four Parcels, 941 F.2d at 1437-38 (citations, footnote, and internal quotation marks omitted; emphasis in original).FN2

FN2. In applying this rule, there has been

some confusion among courts as to the

nature of the showing required when the

movant seeks to discharge the initial responsibility in the first of the two permitted manners-by demonstrating that there is

an absence of evidence to prove a fact necessary to the non-movant's case. See

Clark v. Coats & Clark, Inc., 929 F.2d

604, 608-09 n. 8 (11th Cir.1991) (noting

confusion). Although this confusion has

largely been resolved in this circuit by prior decisions of this court, see Four Parcels, 941 F.2d at 1438 & n. 19; Coats &

Clark, 929 F.2d at 608; see also Celotex,

477 U.S. at 332, 106 S.Ct. at 2555 (White,

J., concurring); Melissa L. Nelkin, One

Step Forward, Two Steps Back: Summary

Judgment After Celotex, 40 Hastings L.J.

53, 68-69 (1988), it is not necessary for us

to rehearse this body of law in this opinion,

for on none of the grounds on which we

decide this case does the City attempt to

carry its movant's initial summary judgment burden by showing that the firefighters would lack evidence to prove at trial a

necessary element of their case.

C. Non-Movant's Responsibility Once Movant Satisfies Initial Burden

If the party moving for summary judgment fails to

discharge the initial burden, then the motion must

2 F.3d 1112 Page 5

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4 NDLR P 187

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be denied and the court need not consider what, if

any, showing the non-movant has made. Coats &

Clark, 929 F.2d at 608. If, however, the movant

carries the initial summary judgment burden in one

of the ways discussed above, responsibility then devolves upon the non-movant to show the existence

of a genuine issue as to the material fact.FN3

FN3. When a motion for summary judgment is made and supported as provided in

this rule, an adverse party may not rest

upon the mere allegations or denials of the

adverse party's pleading, but the adverse

party's response, by affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial. If the adverse party does

not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Fed.R.Civ.P. 56(e). Where a non-moving

party could with further discovery acquire

evidence sufficient to carry his or her burden and avoid summary judgment, the

party may move pursuant to Fed.R.Civ.P.

56(f) for a continuance to obtain further

evidence.

1. For Issues on Which Movant Would Bear Burden

of Proof at Trial

For issues on which the movant would bear the burden of proof at trial, the non-movant, in order to

avoid summary judgment, must come forward with

evidence sufficient to call into question the inference created by the movant's evidence on the particular material fact. Only if after introduction of

the non-movant's evidence, the combined body of

evidence presented by the two parties relevant to

the material fact is still such that the movant would

be entitled to a directed verdict at trial-that is, such

that no reasonable jury could find for the nonmovant-should the movant be permitted to prevail

without a full trial on the issues. Anderson, 477

U.S. at 249-50, 106 S.Ct. at 2511.

2. For Issues on Which Non-Movant Would Bear

Burden of Proof at Trial

For issues on which the non-movant would bear the

burden of proof at trial, the means of rebuttal available to the non-movant vary depending on whether

the movant put on evidence affirmatively negating

the material fact or instead demonstrated an absence of evidence on the issue. Where the movant

did the former, then the non-movant must respond

with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be

negated. Where the movant did the latter, the nonmovant must respond in one of two ways. First, he

or she may show that the record in fact contains

supporting evidence, sufficient to withstand a directed verdict motion, which was “overlooked or ignored” by the moving party, who has thus failed to

meet the initial burden of showing an absence of

evidence. Celotex, 477 U.S. at 332, 106 S.Ct. at

2557 (Brennan, J., dissenting). Second, he or she

*1117 may come forward with additional evidence

sufficient to withstand a directed verdict motion at

trial based on the alleged evidentiary deficiency.

See Melissa L. Nelkin, One Step Forward, Two

Steps Back: Summary Judgment After Celotex, 40

Hastings L.J. 53, 82-83 (1988).

III. STANDARD OF APPELLATE REVIEW

The court of appeals reviews grants of summary

judgment de novo, applying the same legal standard

employed by the district court in the first instance.

Browning v. Peyton, 918 F.2d 1516, 1520 (11th

Cir.1990). When reviewing a grant of summary

judgment, the court of appeals may affirm if there

exists any adequate ground for doing so, regardless

of whether it is the one on which the district court

relied. Davis v. Liberty Mutual Ins. Co., 525 F.2d

1204, 1207 (5th Cir.1976) FN4; 10 C. Wright, A.

Miller & M. Kane, Federal Practice & Procedure:

Civil § 2716, at 658 (1983).

FN4. In Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir.1981) (en banc),

this court adopted as binding precedent all

decisions of the former Fifth Circuit

handed down prior to October 1, 1981.

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IV. DISCUSSION OF ISSUES ON APPEAL

The district court granted summary judgment for

the City on each of the firefighters' four claims. On

appeal the firefighters challenge those rulings. As

explained below, we affirm the judgment of the district court on all four claims.

A. Title VII Disparate Impact Claim

1. Elements of Claim

[1] Title VII of the Civil Rights Act of 1964 prohibits employers covered by the statute from taking actions or engaging in practices that discriminate

against workers or job applicants on the basis of

their race, color, religion, sex, or national origin. 42

U.S.C. § 2000e-2. This ban on employment discrimination extends, not just to actions taken or

practices instituted for discriminatory reasons, but

also to otherwise nondiscriminatory actions or practices that have discriminatory effects. Griggs v.

Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849,

854, 28 L.Ed.2d 158 (1971). In order to establish

Title VII liability under this effects-based definition

of discrimination, a plaintiff must first demonstrate

that a challenged employment action or practice has

a disproportionate adverse impact on a category of

persons protected by the statute. Connecticut v.

Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73

L.Ed.2d 130 (1982); Dothard v. Rawlinson, 433

U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d

786 (1977). Once such a prima facie case has been

made out, the defendant must show that the challenged action is demonstrably necessary to meeting

a goal of a sort that, as a matter of law, qualifies as

an important business goal for Title VII purposes.

The Supreme Court held in Wards Cove Packing

Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104

L.Ed.2d 733 (1989), that the defendant's burden on

the “business necessity” defense is only one of production; under Wards Cove the burden of persuasion remains at all times with the plaintiff. Id. at

659, 109 S.Ct. at 2126. Congress, however, statutorily reversed this ruling in the Civil Rights Act

of 1991, Pub.L. No. 102-166, 105 Stat. 1071, which

amended Title VII to provide that, once a plaintiff

makes out a prima facie case, the full burden of

proof shifts to the defendant who must demonstrate

business necessity in order to avoid liability. Id. §

105(a), 105 Stat. at 1074-75 (codified at 42 U.S.C.

§§ 2000e-2(k)(1)(A)).FN5 In this case *1118 the

district court entered summary judgment on

November 21, 1991, one day before the President

signed the 1991 Civil Rights Act into law. We shall

assume arguendo that the burden allocation set out

in the new statute applies retroactively to this case,

for we conclude that defendant is entitled to summary judgment even under the 1991 Civil Rights

Act standard-that is, the standard most favorable for

plaintiffs. See infra Part IV.A.3.

FN5. Prior to 1989, the “business necessity” showing was an affirmative defense

for which the defendant bore the burden of

proof and risk of nonpersuasion. Dothard

v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct.

2720, 2727, 53 L.Ed.2d 786 (1977);

Griggs v. Duke Power Co., 401 U.S. 424,

432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158

(1971); Larkin v. Pullman-Standard Div.,

Pullman, Inc., 854 F.2d 1549, 1580 (11th

Cir.1988), vacated sub nom., PullmanStandard, Inc. v. Swint, 493 U.S. 929, 110

S.Ct. 316, 107 L.Ed.2d 307 (1989). In

1989, the Supreme Court in Wards Cove

changed the law, holding that the defendant bore only the burden of coming forward with an alleged business-related justification for the challenged practice which

the plaintiff would then have to disprove in

order to prevail. Wards Cove, 490 U.S. at

659, 109 S.Ct. at 2126. The Court also

broadened the scope of the necessity defense by holding that practices causing a

disparate impact were permissible, even if

they could not be shown to be absolutely

necessary, so long as they “served, in a

significant way, the legitimate employment

goals of the employer.” Id. at 659, 109

S.Ct. at 2125-26. These changes were statutorily reversed by the Civil Rights Act of

1991, Pub.L. No. 102-166, § 105(a), 105

Stat. 1071, 1074-75 (codified at 42 U.S.C.

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§§ 2000e-2(k)(1)(A)).

[2] Upon a showing of “business necessity,” the

challenged action or practice is deemed justifiable,

its regrettable discriminatory effects notwithstanding. However, even after such a showing, the

plaintiff may still overcome a proffered business

necessity defense by demonstrating that there exist

alternative policies with lesser discriminatory effects that would be comparably as effective at

serving the employer's identified business needs.

Upon such a showing, Title VII liability is established. Dothard, 433 U.S. at 329, 97 S.Ct. at 2727.

2. Grounds for Summary Judgment Urged by the

City

The City moved for summary judgment on the Title

VII disparate impact claim, contending that it was

entitled to prevail for two separate reasons. First,

the City argued that the firefighters had failed to

adduce statistics of the sort required under Title VII

doctrine to show that PFB indeed afflicts AfricanAmericans disproportionately and that, consequently, the firefighters had failed to show that

the no-beard rule disproportionately excludes African-American men from firefighting jobs. Thus, the

City claimed that the firefighters had failed even to

create a genuine issue as to whether-let alone to

prove as a fact that-the rule has a disparate racial

impact. If it were in fact true that the firefighters

lacked the evidence necessary to prove at trial that

there is a disproportionate incidence of PFB among

blacks, then the City would indeed be entitled to

summary judgment, for where a Title VII disparate

impact plaintiff fails to make out a prima facie case,

the defendant is entitled to prevail. Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514, 1525 (5th

Cir.1993).

Second, the City proffered an affirmative “business

necessity” defense, asserting that the ban on shadow beards is necessary to meeting the goal of ensuring worker safety. Contending that ensuring

worker safety constitutes an important business

goal for Title VII purposes, and that there was no

genuine issue that the no-beard rule was necessary

to meeting that goal, the City maintained that it was

therefore entitled to summary judgment. See City's

Memo in Support of Summary Judgment Motion

(R-31-6-8); City's Reply Memo in Support of Summary Judgment Motion (R-39-2-3).

3. Propriety of Summary Judgment

The district court granted summary judgment in favor of the City on the ground that there was an absence of evidence showing that the no-beard rule

has a disparate impact. See Magistrates's Report

(R-43-7-13). We, however, find it unnecessary to

address that issue on appeal. Exercising our discretion to affirm grants of summary judgment on any

adequate alternative ground fairly presented in the

record, we uphold the court's order regarding the

firefighters' Title VII disparate impact claim on the

ground that appellants have failed to create a genuine issue as to the City's contention that the ban on

shadow beards is necessitated by safety concerns.

In ruling on this ground, we assume arguendo that

the firefighters have adequately alleged a prima

facie case of disparate impact. Where a Title VII

disparate impact challenge is mounted against a

practice or action which admittedly causes a disparate impact, the defendant is entitled to prevail if (1)

the defendant shows that the practice or action is

necessary to meeting a goal that, as a matter of law,

qualifies as an important business goal for Title VII

purposes, and (2) *1119 the plaintiff fails to show

the availability of less discriminatory alternative

practice or action that would provide a comparably

effective means of meeting that goal. Thus, in order

for such a defendant to be entitled to summary

judgment, the following must be true: (1) there

must be no genuine issue that the practice or action

is required to meet a goal that, as a matter of law,

qualifies as an important business goal under Title

VII; and (2) there must be no genuine issue with respect to the existence of a comparably effective less

discriminatory alternative.

a. Business Necessity Defense

[3] The City defends its decision to ban shadow

beards on the ground that the prohibition is required

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to protect the firefighters from health and safety

risks. If true, these safety claims would afford the

City an affirmative defense, for protecting employees from workplace hazards is a goal that, as a matter of law, has been found to qualify as an important business goal for Title VII purposes. Hayes v.

Shelby Memorial Hosp., 726 F.2d 1543, 1552 n. 14

(11th Cir.1984); New York City Transit Auth. v.

Beazer, 440 U.S. 568, 587 & n. 31, 99 S.Ct. 1355,

1366 & n. 31, 59 L.Ed.2d 587 (1979); Dothard, 433

U.S. at 331 n. 14, 97 S.Ct. at 2728 n. 14.FN6 But

cf. International Union, U.A.W. v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d

158 (1991) (employer desire to guard against birth

defects in employees' potential offspring does not

constitute bona fide occupational qualification justifying facially discriminatory employment policy).

Measures demonstrably necessary to meeting the

goal of ensuring worker safety are therefore

deemed to be “required by business necessity” under Title VII.

FN6. Though recognizing that measures

necessary to protect employees or third

parties from documented health or safety

hazards are “required by business necessity,” courts have stressed that merely asserting a safety rationale does not suffice

to prove the defense. See Maclennan v.

American Airlines, Inc., 440 F.Supp. 466,

472 (E.D.Va.1977) (“[T]he incantation of a

safety rationale is not an abracadabra to

which [a] [c]ourt must defer judgment.”).

An employer's subjective belief that a

practice is necessary, without any supporting evidence, is plainly insufficient to justify a discriminatory practice. See Craig v.

County of Los Angeles, 626 F.2d 659, 667

n. 8 (9th Cir.1980), cert. denied,450 U.S.

919, 101 S.Ct. 1364, 67 L.Ed.2d 345

(1981); United States v. Lee Way Motor

Freight, Inc., 625 F.2d 918, 941-43 (10th

Cir.1979). In order to establish a safetybased business necessity defense, employers have been required to present convincing expert testimony demonstrating that a

challenged practice is in fact required to

protect employees or third parties from

documented hazards. See Burwell v. Eastern Air Lines, Inc., 633 F.2d 361, 365-66

(4th Cir.1980) (plurality opinion), cert.

denied,450 U.S. 965, 101 S.Ct. 1480, 67

L.Ed.2d 613 (1981); see also Harriss v.

Pan Am. World Airways, Inc., 649 F.2d

670, 675 (9th Cir.1980); Levin v. Delta Air

Lines, Inc., 730 F.2d 994, 997 (5th

Cir.1984). The sources of proof invoked by

the City in this case to prove its safety defense meet this evidentiary standard. See

infra.

Whether the no-beard rule is demonstrably necessary to meeting the acknowledged business goal of

worker safety is a factual issue on which, for the

purposes of this case, we have assumed that the

City, the movant, would bear the burden of proof at

trial. See supra Part IV.A.1. Thus, our analysis of

whether there exists a genuine issue as to this material fact begins with an examination of whether

the City has carried the initial burden imposed on

parties moving for judgment on issues on which

they would bear the burden of proof at trial. See

discussion supra Part II.B.1. The City has supported its safety allegations with evidence in the form

of an affidavit from an expert in the field of occupational safety and health and with a citation to a

U.S. Occupational Safety and Health Administration (“OSHA”) regulation concerning use of respirators by persons with facial hair. See City's Memo

in Support of Summary Judgment Motion (R-31-6,

8) (citing R-31-Exhib. 2, and 29 C.F.R. §

1910.134(e)(5)(i)).

The City's expert, Kevin Downes, swore that,

“Based upon my research and experience in training on the proper use of SCBA's, it is my opinion

that the SCBA should not be worn with any amount

of facial hair that contacts the sealing surface of the

face piece.” Affidavit of Kevin Downes

(R-31-Exhib. 2-¶ 5). In the affidavit Downes detailed particular safety risks that he maintained

were posed by use of SCBA's by men with facial

hair. Such use would be dangerous, asserted

Downes, because facial hair is likely to interfere

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with the forming of a *1120 proper seal between

the SCBA mask and the wearer's face. An imperfect

seal may permit air from the outside environment to

leak into the mask-when this occurs the wearer is

said to have “overbreathed”-thereby risking exposing the wearer to contaminants. Id. at ¶ 7.FN7

FN7. Downes also described three other

hazards that might be posed by use of an

SCBA by a man with facial hair. However,

none of these appear to be as important as

the risk of overbreathing. First, Downes

stated that an imperfect seal is likely to

permit air from the wearer's tank supply to

leak out around the sides of the mask,

thereby causing the wearer to deplete his

air supply more quickly than he otherwise

would. Id. at ¶ 6. Second, Downes warned

that “significant facial hair” might clog the

exhalation valve of the SCBA, perhaps

permitting contaminants to enter through

it. Id. at ¶ 8. From Downes' description it

does not appear that the very short shadow

beards would necessarily pose this risk.

Third, Downes stated that air leaking out

of a mask due to an imperfect seal might

create air turbulence which might then in

turn force contaminated air back into the

mask. Id. at ¶ 9. Downes conceded,

however, that this concern “is theoretical at

this point in time.” Id.

As support for his opinion, Downes noted that three

national organizations that set occupational safety

and health standards-the American National Standards Institute (“ANSI”), the National Institute for

Occupational Safety and Health (“NIOSH”), and

OSHA-all recommend that SCBA's should not be

worn with facial hair which contacts the sealing

surface of the face piece. Id. at ¶ 10. In addition to

submitting the Downes affidavit, the City in its

summary judgment memorandum also referred to

the OSHA, NIOSH, and ANSI recommendations,

and cited directly to the OSHA respirator standard.

The OSHA regulation provides: “Respirators shall

not be worn when conditions prevent a good face

seal. Such conditions may be a growth of beard....”

OSHA Occupational Safety and Health Standards,

Respiratory Protection, 29 C.F.R. §

1910.134(e)(5)(i).FN8

FN8. Although the City did not put into the

record the recommendations of ANSI and

NIOSH referred to in its memorandum and

in the Downes affidavit, the firefighters attached documents detailing these organizations' respirator standards to their memorandum opposing summary judgment. The

ANSI and NIOSH standards set out in

those documents are as follows:

A respirator equipped with a facepiece

shall not be worn if facial hair comes

between the sealing periphery of the facepiece and the face....

ANSI Practices for Respirator Protection,

Z88.2-1980, § 3.5.8 (R-33-Exhib. E).

Facial hair that lies along the sealing area

of the respirator, such as beards, sideburns,

moustaches, or even a few days growth of

stubble should not be permitted on employees who are required to wear respirators that rely on a tight facepiece fit to

achieve maximum protection. Facial hair

between the wearer's skin and the sealing

surfaces of the respirator will prevent a

good seal.

NIOSH Guide to Industrial Respiratory

Protection at 119 (Sept. 1, 1987)

(R-33-Exhib. F).

We hold that this evidence that safety concerns necessitate the ban on shadow beards is “credible

evidence ... that would entitle [the City] to a directed verdict if not controverted at trial.” Four Parcels, 941 F.2d at 1438 (quoting Celotex, 477 U.S. at

325, 106 S.Ct. at 2553 (Brennan, J., dissenting)).

The City has thus carried its movant's initial summary judgment burden on the business necessity issue.

At this point, responsibility devolves upon the firefighters to come forward with evidence that, when

considered together with the City's evidence, is sufficient to create a genuine issue as to the reality of

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the City's safety claims. The only real evidence invoked by the firefighters to counter the City's

claims is the fact that for the six years between

1982 and 1988 the City permitted firefighters with

PFB to wear their SCBA's over shadow beards. The

firefighters argue that the fact that the shadow

beard program was tested over this period, apparently without mishap or reported problems obtaining adequate seals, creates at least a genuine issue

that shadow beards may in fact be safe. Firefighters'

Brief on Appeal at 26; Firefighters' Memo Opposing Summary Judgment (R-33-26-27). We disagree.

The firefighters have not adduced evidence showing how carefully the firefighters' seals were monitored over this period, or whether examinations

were made that would have uncovered any resulting

safety or health problems. The mere absence of unfortunate incidents is not sufficient to establish the

safety of shadow beards; otherwise, safety measures could be instituted only once accidents had occurred*1121 rather than in order to avert accidents.

Although the six-year history is not irrelevant to the

question of whether it is unsafe to wear SCBA's

over shadow beards, we hold that when considered

in the context of the totality of the evidence, it

would not be sufficient to prevent the City from obtaining a directed verdict at trial.

In reaching this conclusion we are swayed particularly by the recommendations of the occupational

safety and health standards organizations. Although

public employers such as the City are not required

by law to comply with OSHA standards, see29

U.S.C. § 652(5) (excluding states and their political

subdivisions from definition of OSHA “employer”),

such standards certainly provide a trustworthy

bench mark for assessing safety-based business necessity claims. It is true that the OSHA and ANSI

standards speak in somewhat general terms about

“facial hair” and “growths of beard” and do not

specifically address the case of very short shadow

beards; however, the NIOSH standard provides that

“even a few days growth of stubble should not be

permitted.” See supra note 8. At least in the absence of any evidence showing that safety experts

view shadow beards as a special case, we hold that

the only reasonable inference supported by the

OSHA, ANSI, and NIOSH standards is that shadow

beards are encompassed by the prohibitions.

This is not to say that allegations that a challenged

practice is required for safety are by any means unassailable. Expert testimony or results from adequately conducted field tests tending to show that

shadow beards do not prevent SCBA's from sealing

to the face would be sufficient to create a genuine

issue as to the reality of the City's safety claims.

However, the firefighters have come forward with

no such evidence.FN9 We thus hold that the firefighters have failed to carry their non-movant's

summary judgment rebuttal burden and that, therefore, there was in the record before the district

court at the time of the summary judgment motion

no evidence creating a genuine issue as to whether

safety requires the ban on shadow beards.

FN9. It is true that on appeal the firefighters referred to evidence that two of the

plaintiff firefighters took and passed a firefighting skills examination, one component

of which apparently tested use of a

SCBA's. See Firefighters' Brief on Appeal

at 30 & Exhib. A. However, appellate review of summary judgment rulings is conducted on the basis of the record presented

to the district court and we ordinarily decline to take into account evidence referred

to for the first time on appeal. Moreover,

even if we were to consider it, we would

deem this evidence insufficient to create a

genuine issue as to the City's contention

that shadow beards are unsafe.

The evidence adduced by the firefighters

describing this test failed to specify the

nature of the SCBA test, to note whether it

focused on the adequacy of the seal, or to

separate the results of the segment of the

test that rated SCBA use from those of the

segments testing other skills. In light of

these critical lapses and the fact that the

examination was a one-time test of just

two firefighters, this evidence, even if it

had been presented to the district court,

would not have been sufficient to call the

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City's safety claims into question.

The firefighters also call to our attention a

factual finding made by the District of

Columbia Superior Court in a case involving a similar challenge to a fire department no-beard rule by African-American

firefighters suffering from PFB. The court

in that case found that SCBA's can safely

seal over shadow beards. See Kennedy v.

Dixon, No. 2264-83, 1991 WL 489548

(D.C.Superior Court)(R-55),quoted in Firefighters' Brief on Appeal at 28. Appellants

argue that this court should take judicial

notice of this finding, and treat it as creating a genuine issue as to validity of the

City's safety allegations.

It is true that where in civil rights cases the

racially discriminatory nature of a particular policy or practice has been consistently

recognized in other decisions, courts have

absolved plaintiffs of responsibility for adducing evidence of their own to prove that

such is indeed the case. Rather than force

such plaintiffs to “reinvent the wheel,”

courts have taken judicial notice of the

findings made by other courts in similar

cases. See United Steelworkers v. Weber,

443 U.S. 193, 198 n. 1, 99 S.Ct. 2721,

2725 n. 1, 61 L.Ed.2d 480 (1979).

However, appellants failed to call the

Kennedy case to the attention of the district

court during the summary judgment proceeding, and we believe that judicial notice

of its findings is not appropriate in this appeal.

b. Less Discriminatory Alternative Issue

[4] As stated above, in order for the City to be entitled to summary judgment on the disparate impact

claim, there must also be no genuine issue of fact

with respect to whether a less discriminatory comparably effective alternative to the no-beard rule is

available. The existence of a less discriminatory alternative*1122 is an issue on which the firefighters,

the non-movants, would bear the burden of proof at

trial. Thus, our analysis of whether there exists a

genuine issue as to this material fact begins with an

examination of whether the City has carried the

movant's initial burden applicable for issues on

which the movant would not bear the burden of

proof at trial.

In such circumstances, the movant may carry the

initial burden by adducing evidence affirmatively

negating the material fact at issue, or else by showing an absence of evidence on the part of the nonmovant to prove the fact at trial. See discussion

supra Part II.B.2. As discussed above, the City has

cited the OSHA, ANSI, and NIOSH safety standards which advise that safety requires that SCBAwearers be clean-shaven. See supra Part IV.A.3.a.

We believe that this evidence affirmatively demonstrates, not only that being clean-shaven is a business necessity for firefighters, but also that any proposed less discriminatory alternatives to the nobeard rule that would not require firefighters to be

clean-shaven would not be adequately safe. Thus

the evidence is sufficient to satisfy the City's initial

burden as the summary judgment movant on the

less discriminatory alternative issue.

Responsibility then devolves upon the firefighters

to adduce evidence creating a genuine issue as to

the availability of a comparably safe, less discriminatory alternative. The firefighters have proposed

two possible alternatives to the City's rule requiring

firefighters to be clean-shaven. The first is simply

reinstitution of the shadow beard shaving clinic.

However, in order for the shadow beard program to

constitute a legitimate less discriminatory alternative, shadow beards must adequately serve the Fire

Department's acknowledged business need, namely,

safety. As we have explained above in addressing

the City's business necessity defense, the firefighters have failed to create a genuine issue that shadow beards are safe. Thus, for the same reason, they

have also failed to create a genuine issue that the

shaving clinic would be a comparably effective alternative to the shadow beard ban.

The second possible alternative suggested by the

firefighters is shaving only the portion of the face

where the SCBA seal would come into contact with

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the skin. However, in the two sentences of their

summary judgment papers in which they propose

this alternative, the firefighters cite no evidence to

show that partial shaving would be a viable and

safe alternative.FN10 Moreover, as a matter of

common knowledge, it is apparent that partial shaving would pose the same PFB problems as full-face

shaving, and thus it is doubtful that the firefighters

could have adduced evidence that partial shaving

constitutes a viable less discriminatory alternative.

Thus, the firefighters have failed to carry their summary judgment rebuttal burden of creating a genuine issue as to the viability of either of the two less

discriminatory alternatives they propose.FN11 Having concluded (1) that the City has carried its initial

summary judgment burdens on the business necessity and less discriminatory alternative issues, and

(2) that the firefighters have failed to carry their

summary judgment rebuttal burdens on either of

these two points, we affirm *1123 the grant of summary judgment on the Title VII disparate impact

claim.

FN10. The following is their discussion of

the partial shaving option in its entirety:

Another reasonable accommodation might

be shaving only the portion of the face

where the seal would come into contact

with the skin. However, this method has

never been attempted or tested by the Defendant. (See Dep. of Chamberlain, p. 28).

Firefighters' Memo Opposing Summary

Judgment (R-31-26). Thus, the firefighters

allege no more than that partial shaving

“might” be a viable alternative and that the

City has failed to explore the possibility.

Indeed, the firefighters themselves do not

appear particularly interested in pursuing

the partial shaving alternative. Not only

was the option proposed only in passing in

a couple of lines of their summary judgment memorandum, but appellants' counsel, when questioned about possible alternative practices at oral argument before this

court, made no mention of partial shaving.

FN11. On appeal, appellants attempted to

proffer for the first time evidence concerning the availability of a third less discriminatory alternative practice: use of a different style of SCBA incorporating a larger

mask that covers the whole of the front of

the wearer's head. This alternative was not

part of the record before the district court,

and so cannot properly be considered by

this court as we evaluate the propriety of

the summary judgment grant.

B. Title VII Disparate Treatment Claim

1. Elements of Claim

[5] The firefighters also challenge the no-beard rule

on the ground that it was allegedly adopted for racially discriminatory reasons in violation of Title

VII. Where, as here, Title VII plaintiffs alleging intentional discrimination-commonly known as disparate treatment-lack direct evidence that an employment-related action was taken for discriminatory reasons, courts usually use the special evidentiary framework set out by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas

Dep't of Commun. Affairs v. Burdine, 450 U.S. 248,

101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), to determine whether the available circumstantial evidence is

sufficient to prove that discrimination has occurred.

See Bell v. Birmingham Linen Service, 715 F.2d

1552, 1556 (11th Cir.1983), cert. denied,467 U.S.

1204, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984).

Like the analytic framework used for disparate impact claims, the McDonnell Douglas-Burdine disparate treatment framework is composed of three

stages. A prima facie case of discrimination is made

out when a plaintiff adduces evidence tending to

show that the challenged adverse employment action is not readily explainable by considerations of

merit. McDonnell Douglas, 411 U.S. at 802, 93

S.Ct. at 1824. Upon such a showing, the burden of

production then shifts to the employer to articulate

some legitimate, nondiscriminatory reason for the

adverse employment decision. Burdine, 450 U.S. at

253, 101 S.Ct. at 1093. If the employer succeeds in

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discharging this light burden, the plaintiff may prevail only by “demonstrat[ing] that the proffered

reason was not the true reason for the employment

decision. [The plaintiff] may succeed in this either

directly by persuading the court that a discriminatory reason more likely motivated the employer or

indirectly by showing that the employer's proffered

explanation is unworthy of credence.” Id. at 256,

101 S.Ct. at 1095. See also B. Schlei & P. Grossman, Employment Discrimination Law 1314 (2d ed.

1983).

The McDonnell Douglas-Burdine framework has

been used to analyze suits alleging a wide variety

of different types of intentional discrimination. See

Nix v. WLCY Radio/Rahall Communications, 738

F.2d 1181, 1185 (11th Cir.1984) (discussing different variants of framework used to analyze cases alleging discrimination in hiring, firing, and application of disciplinary rules). As the leading treatise on

the law of employment discrimination explains,

[T]he elements of a prima facie case are flexible

and should be tailored, on a case-by-case basis, to

differing factual circumstances. The central inquiry

in evaluating whether the plaintiff has met his initial burden is whether the circumstantial evidence

presented is sufficient to create an inference (i.e., a

rebuttable presumption) that the basis for an employment-related decision was an illegal criterion.

B. Schlei & P. Grossman, Employment Discrimination Law 476 (2d ed. 5-Year Cum.Supp.1989)

(footnote omitted).

Because the firefighters allege disparate treatment

but do not possess any direct evidence showing that

the no-beard rule was instituted for discriminatory

reasons, they are permitted to proceed under the

McDonnell Douglas-Burdine framework using circumstantial evidence. However, the particular employment practice targeted by the firefighters is not

of the sort typically challenged under disparate

treatment theory. In most disparate treatment cases,

a plaintiff alleges that an otherwise legitimate rule

or policy is being invoked pretextually as an excuse

for what is really discrimination. In this case,

however, it is the employment policy itself-the nobeard rule-with which plaintiffs take issue. They

charge that the rule was adopted for the purpose of

removing from the Fire Department a group of

African-American men: the plaintiff firefighters

suffering from PFB. Such challenges are more typically brought as disparate impact claims and, of

course, appellants have also chosen to proceed under that theory.

In light of this difference between the firefighters'

challenge and the typical disparate*1124 treatment

claim, it is not obvious what would constitute the

elements of a prima facie case in this

circumstance.FN12 As it turns out, however, it is

not necessary for us to resolve this question. The

district court assumed arguendo that the firefighters

had made out a prima facie case of disparate treatment under the McDonnell Douglas-Burdine framework and went on to grant summary judgment on

other grounds. Magistrates's Report (R-43-15-19).

We affirm for the same reasons.

FN12. The nature of the showing required

to make out a prima facie case of disparate

treatment varies depending on the nature of

the employment action at issue. As a general matter, a Title VII plaintiff need only

show that he or she belongs to a protected

group and that it appears from the circumstances that the adverse employment action

is not readily explained by legitimate reasons. For example, in a suit charging that a

job applicant has been denied a job for discriminatory reasons, a prima facie case is

established once the plaintiff shows that:

(i) that he belongs to a [protected group];

(ii) that he applied and was qualified for a

job for which the employer was seeking

applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after

the rejection, the position remained open

and the employer continued to seek applica[tions] from persons of complainant's

qualifications.

McDonnell Douglas, 411 U.S. at 802, 93

S.Ct. at 1824. For a description of the elements of the prima facie case in suits chal2 F.3d 1112 Page 14

2 F.3d 1112, 62 Fair Empl.Prac.Cas. (BNA) 1484, 62 Empl. Prac. Dec. P 42,554, 2 A.D. Cases 1270, 3 A.D.D. 320,

4 NDLR P 187

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lenging other types of discriminatory actions, see Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th

Cir.1984).

2. Propriety of Summary Judgment

Where a plaintiff, lacking direct evidence of discrimination, proceeds under the McDonnell

Douglas-Burdine framework, the defendant is entitled to prevail where (1) it has come forward with

a legitimate, nondiscriminatory explanation for the

challenged employment action, and (2) the plaintiff

has failed to discredit the proffered justification or

to show that a discriminatory reason more likely

motivated the challenged action. Assuming arguendo that the firefighters have succeeded in making out a prima facie case of disparate treatment,

the City has adduced evidence showing that at trial

it would readily be able to carry its light burden of

coming forward with a legitimate, nondiscriminatory reason-namely, safety-for its reinstitution of the

shadow beard ban. See City's Memo in Support of

Summary Judgment Motion (R-31-10-11) (citing

Deposition of George Napper, Jr., former Commissioner, Atlanta Dep't of Public Safety). The City is

therefore entitled to summary judgment on the disparate treatment claim if there is no genuine issue

that its proffered safety justification is not a pretext

for discrimination. Sparks v. Pilot Freight Carriers,

Inc., 830 F.2d 1554, 1564 (11th Cir.1987) (genuine

issue regarding pretext bars summary judgment).

As discussed above, the City has adduced evidence

that safety considerations require firefighters to be

clean-shaven, and plaintiffs have not adduced evidence sufficient to call that contention into question.

See supra Part IV.A.3.a. We hold that this same

evidence suffices to carry the City's movant's initial

summary judgment burden with respect to the issue

of absence of pretext. Thus, in order to avoid summary judgment, the firefighters must have adduced

evidence that, when considered along with the

City's evidence, creates a genuine issue that the

proffered safety justification is, in fact, a pretext for

discrimination.

The firefighters invoke only one piece of evidence

in their attempt to undermine the credibility of the

proffered safety justification: the fact that the same

occupational safety standards organizations that recommend against the wearing of SCBA's over facial hair also warn that facial conditions such as

acne, dentures, glasses, scars, deformities, and deep

skin folds can interfere with the safe use of

SCBA's. See Firefighters' Memo Opposing Summary Judgment (R-31-11-13).FN13 Appellants contend that, because when the City reinstituted the

no-*1125 beard rule it issued no regulations concerning these other conditions, this underinclusiveness shows that the City's claim that it was motivated by safety concerns is in fact pretextual. Id.;

Firefighters' Brief on Appeal at 21.

FN13. See NIOSH Guide to Industrial Respiratory Protection at 119-20 (Sept. 1,

1987) (R-33-Exhib. F) (noting that eye

glasses, facial deformities such as scars,

deep skin creases, prominent cheekbones,

severe acne, and the lack of teeth or dentures can prevent SCBA from sealing properly); OSHA Occupational Safety and

Health Standards, Respiratory Protection,

29 C.F.R. § 1910.134(e)(5)(i) (noting same

about sideburns, skull caps that project under the face piece, temple pieces on

glasses, and absence of one or both dentures).

We find this fact insufficient to create a genuine issue as to the sincerity of the City's claims that it reinstituted the no-beard rule out of concern for

safety. Although the Fire Department did not ban

the wearing of SCBA's by persons with other hazardous facial conditions when it first adopted the

no-beard rule, the Department did not immediately

begin enforcing the new prohibition. By the time

the Department began actually enforcing the nobeard rule, it had also amended its policies to address problems caused by one of the other abovenoted facial conditions: eyeglasses. See City's

Reply Memo in Support of Summary Judgment

Motion (R-39-5), citing Dep't of Pub. Safety Special Order 3.23 (R-31-Attach. 1, Exhib. E, ¶

2 F.3d 1112 Page 15

2 F.3d 1112, 62 Fair Empl.Prac.Cas. (BNA) 1484, 62 Empl. Prac. Dec. P 42,554, 2 A.D. Cases 1270, 3 A.D.D. 320,

4 NDLR P 187

(Cite as: 2 F.3d 1112)

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FN14 In light of the substantial evidence adduced

by the City in support of its safety justification, we

hold that no reasonable finder of fact could find the

justification pretextual solely on the basis of the underinclusiveness of the City's SCBA safety rule.

Accordingly, the City is entitled to summary judgment on the Title VII disparate treatment claim.

FN14. Thus, when they actually took effect, the City's SCBA safety rules were not

as underinclusive as the firefighters

charge. Moreover, the record supports the

inference that the City is addressing safety

problems pursuant to a reasonable priority,

and does not indicate that the City is using

safety as a pretext for discrimination.

C. Claim Under § 504 of the Rehabilitation Act of

1973

1. Elements of Claim

[6] Section 504 of the Rehabilitation Act of 1973,

29 U.S.C. § 794(a), provides that:

No otherwise qualified handicapped individual ...

shall, solely by reason of his handicap, be excluded

from the participation in, be denied the benefits of,

or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The appellant firefighters allege that, because they

suffer from PFB, they qualify as handicapped individuals. They contend that the City's preventing

them from working as firefighters on account of

that condition constitutes illegal “exclu[sion] from

... [and/or] discrimination under a [ ] program ... receiving Federal financial assistance” in violation of

§ 504.FN15

FN15. In their complaint the firefighters

allege that the City Fire Department receives financial assistance from the federal

government and therefore is subject to the

non-discrimination duty that § 504 imposes on federal funds recipients. Complaint (R-1-8, ¶ 29). In its answer the City

admits this fact. Answer (R-2-¶ 29).

The statute defines the term “handicapped individual” as including, inter alia,

any person who ... has a physical or mental impairment which substantially limits one or more of such

person's major life activities....

29 U.S.C. § 706(8)(B)(i). U.S. Department of

Health and Human Services (“HHS”) regulations

implementing § 504 FN16 define “major *1126 life

activities” as including “working.” 45 C.F.R. §

84.3(j)(2)(ii). The regulations define “physical or

mental impairment” as including “any physiological disorder or condition, [or] cosmetic disfigurement, ... affecting ... [the] skin.” 45 C.F.R. §

84.3(j)(2)(ii). PFB qualifies as a “physical ...

impairment” as it is a “physiological disorder or

condition ... affecting ... [the] skin.” That impairment, and the firefighters' inability to shave that

results from it, “substantially limit” the firefighters'

ability to engage in the “major life activity” of

work on account of the no-beard rule. Thus, under

the HHS § 504 regulations and the 29 U.S.C. §

706(8)(B)(i) statutory definition, the appellant firefighters would seem to qualify as “handicapped individual[s].”

FN16. The amended Rehabilitation Act instructs each federal agency distributing

federal financial assistance to “promulgate

such regulations as may be necessary to

carry out” the purposes of § 504. 29 U.S.C.

§ 794(a). The firefighters cited to the district court, and the court accepted as controlling, regulations implementing § 504

that were promulgated by HHS. See Magistrates's Report (R-43-20) (citing 45

C.F.R. § 84.3(j)(2)). However, the § 504

duties of a recipient of federal financial assistance are defined by the implementing

regulations issued by the particular agency

from which the recipient secures its federal

aid. Nowhere in the record do the parties

specify from which federal agency or pursuant to what program the Fire Department

receives federal funds. We thus have no

way of knowing which agency's § 504 regulations ought properly to govern this case.

2 F.3d 1112 Page 16

2 F.3d 1112, 62 Fair Empl.Prac.Cas. (BNA) 1484, 62 Empl. Prac. Dec. P 42,554, 2 A.D. Cases 1270, 3 A.D.D. 320,

4 NDLR P 187

(Cite as: 2 F.3d 1112)

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However, it happens to be the case that for

all of the definitional issues on which we

consult agency regulations below, the regulations of all federal agencies are identical. See, e.g.,7 C.F.R. § 15b.3(i), (j)(1), (k)

(Agriculture); 10 C.F.R. § 1040.62(c),

(d)(1)(i), (d)(2) (Energy); 15 C.F.R. §

8b.3(g)(1)(i), (3)(i)(A), (3)(ii)

(Commerce); 22 C.F.R. § 142.3(j)(1)(i),

(2)(i)(A), (2)(ii) (State); 24 C.F.R. § 8.3

(HUD); 28 C.F.R. § 42.540(k)(1)(i),

(2)(i)(A), (2)(ii) (Justice); 29 C.F.R. § 32.3

(Labor); 34 C.F.R. § 104.3(j)(1)(i),

(2)(i)(A), (2)(ii) (Education); 38 C.F.R. §

18.403(j)(1)(i), (2)(i)(A), (2)(ii) (Veterans

Affairs); 40 C.F.R. § 7.25 (EPA); 45

C.F.R. § 84.3(j)(1)(i), (2)(i)(A), (2)(ii)

(HHS); 49 C.F.R. § 27.5 (Transportation).

In view of this fact, there is no harm in

treating as controlling the HHS regulations

relied upon by the district court.

Section 504 has been construed as requiring federal

funds recipients to refrain from engaging in several

different sorts of discrimination against the handicapped. See Prewitt v. U.S. Postal Service, 662

F.2d 292, 305 n. 19 (5th Cir. Unit A Nov. 1981).

One such non-discrimination duty is the affirmative

obligation to provide “reasonable accommodations”

where such accommodations would permit

“otherwise qualified handicapped individual[s]” to

participate in activities in which they would otherwise be unable to take part. School Bd. of Nassau

County v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct.

1123, 1131 n. 17, 94 L.Ed.2d 307 (1987) (citing 45

C.F.R. § 84.12(c)); Southeastern Community College v. Davis, 442 U.S. 397, 412-13, 99 S.Ct. 2361,

2370, 60 L.Ed.2d 980 (1979); B. Tucker & B.

Goldstein, Legal Rights of Persons with Disabilities

5:1 (1991). The firefighters allege that the City has

violated this duty.

Section 504 requires covered institutions to provide

reasonable accommodations to handicapped persons only where such persons are “otherwise qualified” to participate in the activity at issue. 29

U.S.C. § 794(a). In the employment context, a handicapped person is deemed “otherwise qualified”

for a position if he or she “can perform ‘the essential functions' of the job in question.” Arline, 480

U.S. at 287 n. 17, 107 S.Ct. at 1131 n. 17 (quoting

45 C.F.R. § 84(3)(k) (HHS)). Performing the essential functions of a job means, among other things,

being able to perform those functions without risk

of serious physical harm to oneself or others. See B.

Tucker & B. Goldstein, supra, at 5:16-19.

2. Propriety of Summary Judgment

With respect to the § 504 claim, the district court

appeared to rest its grant of summary judgment on

two separate grounds. First, while conceding that

work constitutes a “major life activity” for the purposes of 29 U.S.C. § 706(8)(B)(i), the court appeared to express some doubt whether PFB qualifies as a “physical impairment” or whether PFB indeed precludes shaving, thereby “substantially limit[ing] ... [the] major life activit[y]” of working, on

account of the no-beard rule. See Magistrates's Report (R-43-20-21). Second, the court found that the

firefighters had failed to show the availability of a

reasonable accommodation through which they

might safely perform the essential functions of their

job without having to be clean-shaven. Id. at 21.

Although it appears probable to us that the district

court erred insofar as it indicated that the firefighters do not qualify as “handicapped individual[s]”

under 29 U.S.C. § 706(8)(B)(i), it is not necessary

for us to rule on that issue. We find that the second

ground for summary judgment relied on by the district court was correct and we therefore affirm the

grant on that basis.

A § 504 employer defendant is entitled to prevail

on a reasonable accommodation claim where there

exists no reasonable accommodation by which the

employee plaintiff would be able to perform the essential functions of the job. A defendant is thus entitled to summary judgment on a § 504 reasonable

accommodation claim where there exists no genuine issue with respect to the availability of reasonable accommodation. As we have explained above

in the course of our discussion of the less discriminatory alternative inquiry under the Title VII dis2 F.3d 1112 Page 17

2 F.3d 1112, 62 Fair Empl.Prac.Cas. (BNA) 1484, 62 Empl. Prac. Dec. P 42,554, 2 A.D. Cases 1270, 3 A.D.D. 320,

4 NDLR P 187

(Cite as: 2 F.3d 1112)

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Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 59 of 273
parate impact claim, the City has adduced evidence

affirmatively showing that the no-beard rule is required for safety and that there exists no *1127

comparably safe, less discriminatory alternative to

the ban. See supra Part IV.A.3.b. Because of the

conceptual similarity between the Title VII less discriminatory alternative and the § 504 reasonable accommodation showings, this same evidence suffices to carry the City's initial burden of showing

that there exists no reasonable accommodation that

would permit the firefighters to perform the essential function of obtaining a safe seal on their

SCBA's without being clean-shaven. In other

words, we find, as we did with respect to the Title

VII less discriminatory alternative issue, that the

City's evidence showing that the no-beard rule is required by safety also constitutes an affirmative

showing that there exists no reasonable accommodation by which the firefighters with PFB would be

able to perform their jobs safely without being

clean-shaven. See supra Part II.B.1.FN17 See also

City's Memo in Support of Summary Judgment Motion (R-31-17-18); City's Reply Memo in Support

of Summary Judgment Motion (R-39-6-8).

FN17. One distinction between the two

showings is that while the plaintiff bears

the burden of proof on the Title VII less

discriminatory alternative, it is the defendant who does so on § 504 reasonable accommodation. Treadwell v. Alexander, 707

F.2d 473, 475 (11th Cir.1983); Simon v. St.

Louis County, 735 F.2d 1082, 1084 (8th

Cir.1984). However, this difference is not

significant for present purposes. It is true

that for issues on which the summary judgment movant would not bear the burden of

proof at trial, the movant may take advantage of an additional means of carrying the

initial burden-showing an absence of evidence on the part of the non-movant to

prove the fact at trial-not available where

the movant bears the burden of proof on

the issue. Compare supra Part II.B.1 with

Part II.B.2. However, in this case the City

carried its initial burden on the Title VII

less discriminatory alternative by coming

forward with affirmative evidence showing

that the no-beard rule is necessary. See

supra Part IV.A.3.a & b. Such an affirmative showing is also sufficient to carry a

movant's initial burden on an issue, like §

504 reasonable accommodation, on which

the movant would bear the burden of proof

at trial. See supra Part II.B.1. Thus, in this

case the fact that the City carried its

movant's initial summary judgment burden

on the Title VII less discriminatory alternative issue means that it has also done so

on that of reasonable accommodation under § 504.

As also discussed above, the firefighters have proposed as reasonable accommodations two possible

alternatives to the no-beard rule: reinstituting the

shadow beard program, or requiring the firefighters

to shave just the portions of their faces that come

into contact with the SCBA seal. See Firefighters'

Memo Opposing Summary Judgment (R-31-26).

However, the firefighters have failed to come forward with any evidence showing that through either

of these two means firefighters with PFB would be

able to perform the essential function of obtaining

adequate seals on their SCBA's. See discussion

supra Part IV.A.3.b. In light of the City's substantial evidence that SCBA's cannot adequately seal

over shadow beards and the unrebutted reasonable

inference that partial shaving would not be viable

and safe for men with PFB, the firefighters' evidence is insufficient to create a genuine issue as to

the availability of an adequate reasonable accommodation. The City is thus entitled to summary

judgment on the § 504 reasonable accommodation

claim as well.

V. CONCLUSION

For the foregoing reasons,FN18 we affirm the ruling of the district court granting summary judgment

for the City on each of the firefighters' claims.

FN18. The firefighters also challenge the

no-beard rule relying on a constitutional

substantive due process theory. However,

2 F.3d 1112 Page 18

2 F.3d 1112, 62 Fair Empl.Prac.Cas. (BNA) 1484, 62 Empl. Prac. Dec. P 42,554, 2 A.D. Cases 1270, 3 A.D.D. 320,

4 NDLR P 187

(Cite as: 2 F.3d 1112)

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even assuming arguendo that a substantive

due process right would be implicated if

the government were to reach out and require male citizens to shave, there would

still be no constitutional violation on the

facts of this case under the analyses prescribed by any of the cases cited by the

firefighters, see Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20

L.Ed.2d 811 (1968); Kelley v. Johnson,

425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d

708 (1976), or by any remotely analogous

case. Accordingly, we reject the firefighters' substantive due process argument

without further discussion.

AFFIRMED.

C.A.11 (Ga.),1993.

Fitzpatrick v. City of Atlanta

2 F.3d 1112, 62 Fair Empl.Prac.Cas. (BNA) 1484,

62 Empl. Prac. Dec. P 42,554, 2 A.D. Cases 1270, 3

A.D.D. 320, 4 NDLR P 187

END OF DOCUMENT

2 F.3d 1112 Page 19

2 F.3d 1112, 62 Fair Empl.Prac.Cas. (BNA) 1484, 62 Empl. Prac. Dec. P 42,554, 2 A.D. Cases 1270, 3 A.D.D. 320,

4 NDLR P 187

(Cite as: 2 F.3d 1112)

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Richardson v. Leeds Police Dept.

C.A.11 (Ala.),1995.

United States Court of Appeals,Eleventh Circuit.

Jerroll RICHARDSON, Plaintiff-Appellant,

v.

LEEDS POLICE DEPARTMENT; Leeds, City of,

Defendants-Appellees.

No. 94-6316.

Dec. 15, 1995.

Police officer brought civil rights action against police department and city alleging racial discrimination in violation of Title VII, § 1981 and § 1983.

After the close of all evidence, defendants moved

for judgment as a matter of law on reinstatement

claim, which the United States District Court for

the Northern District of Alabama, No. CV92-AR-1588-S,William M. Acker, Jr., J., granted.

Officer appealed. The Court of Appeals held that issue of whether mayor's decision not to rehire police

officer was racially motivated was question for

jury.

Judgment vacated and remanded.

West Headnotes

[1] Civil Rights 78 1106

78 Civil Rights

78II Employment Practices

78k1102 Constitutional and Statutory Provisions

78k1106 k. Retrospective Application.

Most Cited Cases

(Formerly 78k102.1)

Jury 230 10

230 Jury

230II Right to Trial by Jury

230k10 k. Constitutional and Statutory Provisions. Most Cited Cases

Civil Rights Act of 1991 did not apply to former

employee's allegations that employer refused to rehire him because of his race and that he was forced

to resign because of disparate treatment in job assignments in violation of Title VII, § 1983 and §

1981 as all events occurred prior to Act's effective

date; thus, employee was not entitled to jury trial on

his Title VII claims nor was he permitted to Title

VII compensatory or punitive damages. Civil

Rights Act of 1964, § 701 et seq., 42 U.S.C.A. §

2000e et seq.; 42 U.S.C.A. §§ 1981, 1983.

[2] Federal Courts 170B 776

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk776 k. Trial De Novo. Most

Cited Cases

Court of Appeals reviews decision to grant judgment as a matter of law de novo, applying same

standards utilized by district court. Fed.Rules

Civ.Proc.Rule 50(a)(1), 28 U.S.C.A.

[3] Federal Civil Procedure 170A 2152

170A Federal Civil Procedure

170AXV Trial

170AXV(F) Taking Case or Question from

Jury

170AXV(F)2 Questions for Jury

170Ak2152 k. Conclusions or Inferences from Evidence. Most Cited Cases

When evaluating motion for judgment as matter of

law, court must consider all of evidence and reasonable inferences arising therefrom in light most favorable to nonmoving party. Fed.Rules

Civ.Proc.Rule 50(a)(1), 28 U.S.C.A.

[4] Federal Courts 170B 764

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk763 Extent of Review Dependent on Nature of Decision Appealed from

71 F.3d 801 Page 1

71 F.3d 801, 69 Fair Empl.Prac.Cas. (BNA) 795, 67 Empl. Prac. Dec. P 43,793, 64 USLW 2447

(Cite as: 71 F.3d 801)

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170Bk764 k. Taking Case from

Jury. Most Cited Cases

Judgment as a matter of law may be affirmed only

when facts and inferences points so overwhelmingly in favor of movant that reasonable people

could not arrive at a contrary verdict. Fed.Rules

Civ.Proc.Rule 50(a)(1), 28 U.S.C.A.

[5] Civil Rights 78 1138

78 Civil Rights

78II Employment Practices

78k1138 k. Disparate Treatment. Most Cited

Cases

(Formerly 78k153)

In cases alleging disparate treatment in which §

1983 is employed as remedy for the same conduct

attacked under Title VII, elements of the two causes

of action are the same. Civil Rights Act of 1964, §

701 et seq., 42 U.S.C.A. § 2000e et seq.; 42

U.S.C.A. § 1983.

[6] Civil Rights 78 1138

78 Civil Rights

78II Employment Practices

78k1138 k. Disparate Treatment. Most Cited

Cases

(Formerly 78k153)

In alleging disparate treatment under both Title VII

and § 1983, plaintiff must prove that defendant acted with discriminatory intent. Civil Rights Act of

1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; 42

U.S.C.A. § 1983.

[7] Civil Rights 78 1405

78 Civil Rights

78III Federal Remedies in General

78k1400 Presumptions, Inferences, and Burdens of Proof

78k1405 k. Employment Practices. Most

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(Formerly 78k240(2))

Civil Rights 78 1536

78 Civil Rights

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78k1534 Presumptions, Inferences, and Burden of Proof

78k1536 k. Effect of Prima Facie Case;

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In proving disparate treatment under § 1983 and

Title VII, plaintiff must establish prima facie case,

which raises presumption that employee's decision

was more likely than not based upon impermissible

factor, defendant may rebut this presumption by articulating legitimate, nondiscriminatory reason for

its decision, and if defendant meets this burden,

plaintiff must then have opportunity to persuade trier of fact, through presentation of his own case and

by cross-examining defendant's witnesses, that

reason proffered was not sole basis for decision, but

pretext for discrimination. Civil Rights Act of

1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; 42

U.S.C.A. § 1983.

[8] Federal Civil Procedure 170A 1962

170A Federal Civil Procedure

170AXV Trial

170AXV(A) In General

170Ak1959 Separate Trial of Particular

Issues

170Ak1962 k. Equitable Issues. Most

Cited Cases

When legal and equitable causes are joined in one

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To extent that elements of two types of claims mirror one another, jury's findings on legal conclusions

are binding in resolving equitable issues.

[10] Civil Rights 78 1430

78 Civil Rights

71 F.3d 801 Page 2

71 F.3d 801, 69 Fair Empl.Prac.Cas. (BNA) 795, 67 Empl. Prac. Dec. P 43,793, 64 USLW 2447

(Cite as: 71 F.3d 801)

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78III Federal Remedies in General

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(Formerly 78k244)

Civil Rights 78 1555

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78k1555 k. Questions of Law or Fact. Most

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Question of whether mayor's decision not to rehire

police officer after he resigned was racially motivated under Title VII and § 1983 was for jury. Civil

Rights Act of 1964, § 701 et seq., 42 U.S.C.A. §

2000e et seq.; 42 U.S.C.A. § 1983; Fed.Rules

Civ.Proc.Rule 50(a)(1), 28 U.S.C.A.

[11] Civil Rights 78 1405

78 Civil Rights

78III Federal Remedies in General

78k1400 Presumptions, Inferences, and Burdens of Proof

78k1405 k. Employment Practices. Most

Cited Cases

(Formerly 78k240(2))

Civil Rights 78 1536

78 Civil Rights

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78k1534 Presumptions, Inferences, and Burden of Proof

78k1536 k. Effect of Prima Facie Case;

Shifting Burden. Most Cited Cases

(Formerly 78k378)

When trier of fact has before it all evidence needed

to decide ultimate issue of whether defendant intentionally discriminated against plaintiff under Title

VII and § 1983, question of whether plaintiff properly made prima facie case of disparate impact is no

longer relevant. Civil Rights Act of 1964, § 701 et

seq., 42 U.S.C.A. § 2000e et seq.; 42 U.S.C.A. §

1983.

*802 Gregory O. Wiggins,Robert L. Wiggins, Jr.,

Gordon, Silberman, Wiggins and Childs, Birmingham, AL, for Appellant.

James W. Porter, II, Birmingham, AL, for Leeds

Police Dept. & City of Leeds.

Appeal from the United States District Court for the

Northern District of Alabama.

Before EDMONDSON and BIRCH, Circuit Judges,

and HENDERSON, Senior Circuit Judge.

PER CURIAM:

Jerroll Richardson, a former police officer for the

City of Leeds, Alabama (“City”), appeals from the

judgment of the United States District Court for the

Northern District of Alabama dismissing this action

alleging racial discrimination in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000eet *803 seq.,42 U.S.C. § 1981 and 42 U.S.C.

§ 1983. We reverse and remand for further proceedings.

I. STATEMENT OF THE CASE

[1] Richardson, an African American, was an officer of the Leeds Police Department

(“Department”) from January 1989 until he

resigned in May 1991. A short time after leaving

the Department he changed his mind and sought reinstatement. His efforts were unsuccessful. On July

29, 1991, he filed an administrative complaint with

the Equal Employment Opportunity Commission

(“EEOC”) alleging that he resigned because of disparate treatment in job assignments during his period of employment. He also accused the Department

of refusing to rehire him because of his race. After

receiving a right to sue letter from the EEOC,

Richardson commenced this action in the district

court against the City and the Chief of Police,

Thomas W. McDonald. He alleged in deposition

testimony that his resignation amounted to a constructive discharge because it stemmed from the

denial of opportunities for advancement while employed by the City, as well as racial slurs directed

at him by a fellow officer and general hostility

within the Department toward black citizens. He

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also claimed that he was not restored to his former

position with the Department on account of his race

and because he complained that black citizens were

treated more severely by the City's police officers

than were white citizens. The complaint as

amended included causes of action for alleged violations of Title VII of the Civil Rights Act of 1964

(“1964 Act”), § 1981 and § 1983.FN1 He sought

declaratory and injunctive relief, backpay, compensatory and punitive damages and reinstatement

to the position he would have held absent the purported discrimination.FN2

FN1. The petition did not specify the provision or provisions of Title VII relied

upon by Richardson. Section 2000e-2(a)(1)

of the 1964 Act, however, clearly applies

to the allegations. It states:

It shall be an unlawful employment practice for an employer-

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex, or

national origin....

Section 1981 bars racial discrimination in

the making and enforcement of contracts.

Richardson's cause of action under § 1983,

which prohibits the deprivation of federal

rights, privileges or immunities under color of state law, was based upon charges

that the defendants violated his equal protection rights protected by the United

States Constitution.

FN2. The complaint also invoked the Civil

Rights Act of 1991 (“1991 Act” or “Act”),

which expanded the scope of § 1981 and

provided for the recovery of compensatory

and punitive damages for certain violations

of Title VII, as well as the right to a jury

trial when such damages are sought. The

1991 Act did not apply to the defendants'

conduct alleged here, however, because it

occurred prior to the Act's November 21,

1991 effective date. Landgraf v. USI Film

Prods., 511 U.S. 244, 114 S.Ct. 1483, 128

L.Ed.2d 229 (1994); Rivers v. Roadway

Express, Inc., 511 U.S. 298, 114 S.Ct.

1510, 128 L.Ed.2d 274 (1994); Goldsmith

v. City of Atmore, 996 F.2d 1155, 1159

(11th Cir.1993). Consequently, under this

court's precedent, which construed Title

VII claims as equitable in nature, Richardson was not entitled to a jury trial on his

Title VII cause of action. Lincoln v. Board

of Regents of the Univ. Sys. of Ga., 697

F.2d 928, 934 (11th Cir.), cert. denied,464

U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102

(1983). Nor was he permitted to seek Title

VII compensatory or punitive damages.

Walker v. Ford Motor Co., 684 F.2d 1355,

1364 (11th Cir.1982). Moreover, Richardson's § 1981 allegations were governed by

the pre-1991 Act rule of law announced in

Patterson v. McLean Credit Union, 491

U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132

(1989), in which the Court held that the

reach of § 1981 was limited to discriminatory actions taken during the initial formation of a contract and conduct designed to

impair the enforcement of contracts

through the legal process. Id. at

179-80,109 S.Ct. at 2374, 105 L.Ed.2d at

152. Accordingly, Richardson's complaints

of constructive discharge and disparate

treatment during the course of his employment were not actionable under that statute, but only under Title VII and § 1983.

We need not decide whether Richardson's

claim for failure to rehire was cognizable

under § 1981 as interpreted by Patterson,

see Wall v. Trust Co. of Ga., 946 F.2d 805,

808 (11th Cir.1991) (test is whether a “new

and distinct” relationship would be

formed), because the procedures and relief

available under that law, including the

right to have a jury determine compensatory and punitive damages, are duplicative

of those afforded by § 1983 when, as here,

state actors are sued as defendants. See

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Johnson v. Railway Express Agency, Inc.,

421 U.S. 454, 460, 95 S.Ct. 1716, 1720, 44

L.Ed.2d 295, 301 (1975) (§ 1981 plaintiffs

may seek both equitable and legal relief,

including compensatory damages and, in

limited circumstances, punitive damages);

Smith v. Wade, 461 U.S. 30, 103 S.Ct.

1625, 75 L.Ed.2d 632 (1983) (both compensatory and punitive damages are available under § 1983); but see City of Newport v. Fact Concerts, Inc., 453 U.S. 247,

271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d

616, 634-35 (1981) (punitive damages may

not be assessed against municipalities). We

therefore treat the complaint as alleging infractions of Title VII and § 1983.

*804 The City subsequently filed a motion for summary judgment on all charges against it. The district court granted the motion with respect to the

claim for constructive discharge, finding that

Richardson's reapplication for his old position foreclosed a conclusion that he resigned because of unbearable working conditions. See Morgan v. Ford,

6 F.3d 750, 755-56 (11th Cir.1993) (employee who

involuntarily resigns to escape illegal discrimination must prove that his employment situation was

so intolerable that a reasonable person his position

would have felt compelled to leave), cert.

denied,512 U.S. 1221, 114 S.Ct. 2708, 129 L.Ed.2d

836 (1994). The court denied summary judgment

on all other claims. The court then, on July 23,

1993, entered final judgment for the City on the

constructive discharge issue pursuant to

Fed.R.Civ.P. 54(b).FN3 Richardson did not appeal.

FN3. When more than one claim for relief

is presented in an action, Rule 54(b) permits the entry of final judgment on a single

count “upon an express determination that

there is no just reason for delay and upon

an express direction for the entry of judgment.”

A jury trial on the § 1983 cause of action stemming

from the alleged disparate treatment during the

course of employment and in rehiring was held in

1994. At the conclusion of Richardson's casein-chief, the defendants moved for judgment as a

matter of law in compliance with Fed.R.Civ.P. 50.

The district court denied the motions and continued

with the trial. After the close of all the evidence,

the defendants renewed their Rule 50 motions. The

court took the motions under advisement and submitted the case to the jury, which was instructed to

respond to a set of interrogatories as part of its deliberations. By its answers the jury exonerated McDonald of all alleged wrongdoing. It also found that

the City did not discriminate against Richardson

during his tenure with the Department. It could not

reach a verdict, however, on the question of whether Richardson's race played a part in the City's refusal to rehire him. The district court announced

that it would enter orders on the partial verdict and

released the jury.

Thereafter, in a memorandum opinion, the court

granted the City's motion for judgment as a matter

of law on the reinstatement claim. In arriving at this

decision, the court found that Richardson failed to

prove a prima facie case of discrimination in the rehiring context because, unlike other white officers

who were reemployed after they resigned, Richardson indicated when he left the Department that he

was “burned out.” The court consequently determined that Richardson was not similarly situated to

the nonminority officers who were restored to their

former positions. The court found further that, even

assuming Richardson carried his initial burden of

proof, he did not actually want the job for which he

made application. In support of this finding the

court relied on the jury's negative response to interrogatory number five, which inquired whether

Richardson “presently” desired a position with the

City as a police patrolman.FN4 The court *805

concluded that Richardson could not prevail on the

claim for reinstatement under any theory of recovery given this circumstance. The court found additionally that, to the extent that the evidence presented an issue of credibility, Richardson's admission

that he resigned because he was “burned out” was a

legitimate reason for declining to rehire him which

was not pretextual.

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FN4. Richardson testified as follows:

Q. Do you wish to go back to work for the

City of Leeds as a police officer if you win

this case?

A. I'm afraid.

Q. Afraid of what?

A. I have put so many people in prison for

drugs that it would be too easy for a while

on the night shift or patrolling or an abandoned car stop for someone to shoot me.

I'm not necessarily saying that it would be

an individual that I had arrested. But when

the investigation took place, then that, that

is what would probably come out.

....

Q. ... you said you didn't think you wanted

your job back, that you were afraid to go

back?

A. No, sir, that's not what I said. I did not

say that I didn't want my job back. I still

want my job back. I'm just afraid, and that

fear is a fear that I did not have at the time

that I went and asked to be rehired.

Q. You say that whatever that fear is, you

still want your job back now?

A. After taking certain precautions, yes,

sir.

Q. So that fear, whatever it is, was not so

great that you don't want your job back

now?

A. Sir?

Q. You want it back? You want to go back

to work with the City of Leeds doing what

you were doing?

A. I want to go back to work for the City

of Leeds, yes, sir.

(R4 at 196-97, 325-26).

Pursuant to the jury's partial verdict and the ruling

on the motion for judgment as a matter of law, the

district court dismissed the action in its entirety

against both defendants. Richardson subsequently

filed this appeal in which he challenges only the

judgment rendered as a matter of law in favor of the

City on the § 1983 and Title VII causes of action

arising from the failure to restore him to his former

position.

II. DISCUSSION

[2][3][4] We review a decision to grant a judgment

as a matter of law de novo, applying the same

standards utilized by the district court. Daniel v.

City of Tampa, Fla., 38 F.3d 546, 549 (11th

Cir.1994), cert. denied,515 U.S. 1132, 115 S.Ct.

2557, 132 L.Ed.2d 811 (1995). A judgment as a

matter of law is warranted “[i]f during a trial by

jury a party has been fully heard on an issue and

there is no legally sufficient evidentiary basis for a

reasonable jury to find for that party on that issue.”

Fed.R.Civ.P. 50(a)(1). When evaluating a Rule 50

motion, the court must consider all of the evidence

and reasonable inferences arising therefrom in the

light most favorable to the nonmoving party. Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d

1554, 1560 (11th Cir.1995). A judgment as a matter

of law may be affirmed only when “ ‘the facts and

inferences point so overwhelmingly in favor of the

movant ... that reasonable people could not arrive at

a contrary verdict.’ ” Pulte Home Corp. v. Osmose

Wood Preserving, Inc., 60 F.3d 734, 739 (11th

Cir.1995) (quoting Roboserve, Ltd. v. Tom's Foods,

Inc., 940 F.2d 1441, 1448 (11th Cir.1991)).

[5][6] In a case such as this alleging disparate treatment, in which § 1983 is employed as a remedy for

the same conduct attacked under Title VII, “ ‘the

elements of the two causes of action are the same.’

” Cross v. State of Ala., 49 F.3d 1490, 1508 (11th

Cir.1995) (quoting Hardin v. Stynchcomb, 691 F.2d

1364, 1369 n. 16 (11th Cir.1982)). In both instances, the plaintiff must prove that the defendant

acted with discriminatory intent. Hardin, 691 F.2d

at 1369 n. 16.

[7] Identical methods of proof, as described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973), are also employed. See St. Mary's Honor Center v. Hicks, 509

U.S. 502, ---- n. 1, 113 S.Ct. 2742, 2746 n. 1, 125

L.Ed.2d 407, 415 n. 1 (1993) (assuming that the

McDonnell Douglas analysis applies equally to §

1983 and Title VII claims of discrimination). First,

the plaintiff must establish a prima facie case,

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cision was more likely than not based upon an impermissible factor.FN5 McDonnell Douglas Corp.,

411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at

677; Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67

L.Ed.2d 207, 216 (1981). The defendant may rebut

this presumption by articulating a legitimate,

nondiscriminatory reason for its decision. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at

1824, 36 L.Ed.2d at 678; Texas Dep't of Community

Affairs, 450 U.S. at 254-55, 101 S.Ct. at 1094, 67

*806 L.Ed.2d at 216. If the defendant meets this

burden, the plaintiff must then have the opportunity

to persuade the trier of fact, through the presentation of his own case and by cross-examining the defendant's witnesses, that the reason proffered was

not the real basis for the decision, but a pretext for

discrimination. McDonnell Douglas Corp., 411

U.S. at 804, 93 S.Ct. at 1825, 36 L.Ed.2d at 679; St.

Mary's Honor Center, 509 U.S. at ----, 113 S.Ct. at

2747, 125 L.Ed.2d at 416.

FN5. The proof required to establish a

prima facie case will vary depending on

the circumstances. McDonnell Douglas

Corp., 411 U.S. at 802 n. 13, 93 S.Ct. at

1824 n. 13, 36 L.Ed.2d at 677 n. 13. In McDonnell Douglas Corp., in which the

plaintiff likewise alleged that his former

employer refused to rehire him on account

of his race, the Court stated that this initial

burden may be satisfied with evidence that

(1) the applicant belonged to a racial

minority; (2) he applied and was qualified

for the job; (3) he was rejected; and (4)

after his rejection, the position remained

open and the employer continued to seek

qualified applicants. Id. at 802, 93 S.Ct. at

1824, 36 L.Ed.2d at 677.

[8][9] The distinction between the Title VII and §

1983 causes in the present case was in the availability of a jury trial and compensatory damages under

§ 1983, but not with respect to the Title VII equitable claims, which were tried to the court. See

supra note 2. When legal and equitable causes are

joined in one action, the legal issues must be decided first. Dairy Queen, Inc. v. Wood, 369 U.S.

469, 479, 82 S.Ct. 894, 900-01, 8 L.Ed.2d 44, 52

(1962). To the extent that the elements of the two

types of claims mirror one another, the jury's findings on the legal questions are binding in resolving

the equitable issues. Lincoln v. Board of Regents of

the Univ. Sys. of Ga., 697 F.2d 928, 934 (11th Cir.),

cert. denied,464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d

102 (1983).

[10][11] Richardson argues on appeal that the district court erred by visiting whether he had established a prima facie case of discrimination after the

action was fully tried on the merits, in violation of

United States Postal Serv. Bd. of Governors v.

Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d

403 (1983). We agree that it was wrong for the

court to follow this procedure. In Aikens, the Supreme Court held that

when the defendant fails to persuade the district

court to dismiss the action for lack of a prima facie

case, and responds to the plaintiff's proof by offering evidence of the reason for the plaintiff's rejection, the factfinder must then decide whether the rejection was discriminatory within the meaning of

Title VII.

Id. at 714-15, 103 S.Ct. at 1481, 75 L.Ed.2d at 410

(footnote omitted). When the trier of fact has before

it all the evidence needed to decide the ultimate issue of whether the defendant intentionally discriminated against the plaintiff, the question of whether

the plaintiff properly made out a prima facie case

“is no longer relevant.” Id. at 715, 103 S.Ct. at

1482, 75 L.Ed.2d at 410; see also Wall v. Trust Co.

of Georgia, 946 F.2d 805, 809-10 (11th Cir.1991).

The district court's reliance on Richardson's statement that he was “burned out” to find that he failed

to establish a prima facie case was substantively

flawed as well. “The burden of establishing a prima

facie case of disparate treatment is not onerous.”

Texas Dep't of Community Affairs, 450 U.S. at 253,

101 S.Ct. at 1094, 67 L.Ed.2d at 215; see also

Howard v. BP Oil Co., Inc., 32 F.3d 520, 524 (11th

Cir.1994) (characterizing the requirements of

demonstrating a prima facie case as “minimal”). To

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raise an inference of discrimination, it was not necessary for Richardson to show that he and the nonminority applicants who were rehired gave the

same reason or reasons for resigning. Rather, it was

sufficient for him to show that he belonged to a racial minority, that he applied for and was qualified

for the job and that after his rejection, the position

remained open and the Department continued to

seek qualified applicants. See supra note 5.

The district court also decided that Richardson's admission of “burn out” was a legally acceptable

ground for the City's decision, which was not pretextual. Richardson urges us to hold that the evidence relating to pretext was sufficient to create a

jury issue.FN6 *807 After reviewing the trial transcript, we agree that the district court could have

reached its conclusion only by improperly resolving

conflicting inferences arising from the evidence in

the light most favorable to the City.

FN6. Richardson argues on appeal that

Lynn Maxey, the City's mayor with whom

the decision ultimately rested, never

proffered Richardson's “burnout” as a reason for not rehiring him. Maxey testified,

however, that he was aware that Richardson complained of being “burned out”

when he resigned. (R6 at 674-75). Although Maxey did not directly state that

this influenced his decision, the jury could

have inferred that it did. Maxey cited additional reasons for not rehiring Richardson,

chief among them that he already had

someone else in mind for the position

when Richardson expressed an interest.

Richardson maintains that the evidence reveals the existence of an issue of fact as to

whether the other grounds given by the

mayor were also pretextual. The district

court specifically declined to consider

these various explanations, however

(R2-96 at 4), and rested its judgment solely

on its finding that Richardson was “burned

out” (id. at 9). We confine our review,

therefore, to whether this particular motive

cited by the district court must lead inexorably to a finding of no discrimination. We

also note that the City's contention on appeal that Richardson failed to demonstrate

that the mayor was the final decisionmaker

for purposes of municipal liability under §

1983 is without merit.

The proof at the trial established that Richardson

worked initially in the detective division as an undercover narcotics officer, which he understood

would be a temporary assignment. In April 1989,

after the undercover detail ended, he was reassigned to patrol duty. While working the 11:00 p.m.

to 7:00 a.m. shift, he was required to testify during

the day in court proceedings resulting from his prior undercover work. During this time he was also

“loaned” to several other police departments to assist in narcotics work conducted in nearby counties.

After certain conversations with McDonald,

Richardson expected to be considered for the next

available permanent position in the detective division, which McDonald indicated would be filled by

someone from within the Department. Instead, the

next opening went to a white applicant from outside

the Department. Richardson remained in a patrol

slot until his resignation.

Richardson testified that he left “basically due to

the adverse treatment, the type of double standards.

I was, I was burnt out.” (R4 at 168). He explained

that

between working narcotics, patrol, narcotics on

loan, court time, and all of this running together,

trying to perform my job the best that I could in

patrol, that culminated with, at the time that the position was filled in the detective division, it was

from outside and not from within. Also when the

DARE program came around, it was filled from the

outside, not from within.

When the subject that had went to the DARE program left, leaving a slot open again, and two hires

were made and then the slot was filled by one of the

hires coming in, it was just all culminating. And at

the time I felt that I was fighting a losing battle.

(Id. at 170).FN7 He stated further that he informed

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mitted his letter of resignation. (Id. at 183). Later,

after time for reflection, he decided that he wished

to continue in his old job. (Id. at 184-85). After he

was turned down by the mayor, he sought out and

obtained other police work. (Id. at 191-93).

FN7. Richardson had expressed an interest

in participating in DARE, which was a Department-sponsored drug awareness program for teenagers.

There was also evidence that the mayor reinstated

three white patrolmen after they had resigned. McDonald testified that one of the officers left the Department because he was unhappy over the denial

of a promotion. (R5 at 403). Another was dissatisfied with his pay and felt he had been treated unfairly with respect to a request for military leave.

(Id. at 406-07, 416-17). The third was rehired despite a poor work record and an evident lack of interest in performing cooperatively with other members of the force. (Id. at 424-25).

The district court apparently believed that the evidence failed to create an issue of fact as to the decisionmaker's intent with respect to Richardson because it was undisputed that Richardson complained he was “burned out” when he left the Department. Although the evidence would have permitted a reasonable jury to infer an innocent motive

on the City's part-that the mayor viewed Richardson

as a poor candidate for reemployment because he

was “burned out” by police work and no longer inspired to perform to the best of his ability-a reasonable jury could also have concluded that Richardson's professed “burn out” was not the true reason

he was not rehired. Like Richardson, two of the

white officers who were rehired voiced dissatisfaction with their treatment within the Department.

Richardson was arguably more qualified*808 than

the third reinstated patrolman.FN8 Apart from

Richardson's race, the evidence did not demonstrate

any circumstances peculiar to his situation which

set him apart from the white officers who were restored to their jobs.FN9 In short, the evidence

presented a question of fact as to whether the mayor's decision not to rehire Richardson was racially

motivated.

FN8. Although Richardson's record was

not unblemished, he received commendations for his undercover work. In addition,

McDonald recommended against rehiring

the poorly qualified white officer, but did

not oppose Richardson's reapplication.

FN9. In each case, the applicant sought to

return to the same position he had vacated,

a similar length of time elapsed between

the officer's departure and his request to be

rehired and the mayor made the final decision.

As additional support for the judgment, the district

court cited the jury's finding that Richardson did

not “presently” desire to be reinstated.FN10 This

factor, of course, could not have served as a rationale for the mayor's decision to reject Richardson's application in 1991, because it came to light

for the first time during the trial in 1994. The district court construed this circumstance, however, as

interposing a complete obstacle to granting any

type of relief. In doing so the court confused the issue of liability with the type of warranted relief.

FN10. We reject without discussion

Richardson's assertion that the jury's finding was inconsistent with its deadlock on

the issue of whether the City's refusal to

rehire him was motivated by a discriminatory purpose.

According to an “Amended Damage List” which

was filed in support of the action, Richardson asked

for backpay, reinstatement, declaratory and injunctive relief, costs and attorney's fees under Title VII.

In his § 1983 suit he sought compensation for

“financial hardship, pain, suffering and mental anguish.” (R2-49). The jury's finding that, at the time

of trial, Richardson no longer wanted his old job,

may well have been relevant to fashioning a remedy

in the event of the City's liability. See Goldstein v.

Manhattan Indus., Inc., 758 F.2d 1435, 1448 (11th

Cir.) (the decision of whether reinstatement should

be ordered is within the sound discretion of the dis71 F.3d 801 Page 9

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trict court), cert. denied,474 U.S. 1005, 106 S.Ct.

525, 88 L.Ed.2d 457 (1985); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1136 (11th

Cir.1984) (injunction ordering employer to refrain

from discriminatory practices not justified where

the plaintiff is not reinstated). But it would not have

foreclosed a declaratory judgment that the City acted with bad intent, making it liable for backpay

and compensatory damages. The district court's alternative reasoning for ordering judgment as a matter of law was therefore erroneous.

III. CONCLUSION

The judgment rendered as a matter of law in favor

of the City on Richardson's § 1983 and Title VII

causes of action alleging he was not rehired on account of his race is hereby VACATED. The case is

REMANDED to the district court for further proceedings consistent with this opinion.

C.A.11 (Ala.),1995.

Richardson v. Leeds Police Dept.

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Empl. Prac. Dec. P 43,793, 64 USLW 2447

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Harlow v. Fitzgerald

U.S.Dist.Col.,1982.

Supreme Court of the United States

Bryce N. HARLOW and Alexander P. Butterfield,

Petitioners

v.

A. Ernest FITZGERALD.

No. 80-945.

Argued Nov. 30, 1981.

Decided June 24, 1982.

Plaintiff brought suit for damages based on his allegedly unlawful discharge from employment in

Department of Air Force. The United States District

Court for the District of Columbia denied defendants' motions for summary judgment, holding, inter

alia, that presidential aides were not entitled to absolute immunity, and such aides appealed. The

Court of Appeals for the District of Columbia Circuit dismissed appeal, and certiorari was granted.

The Supreme Court, Justice Powell, held that: (1)

presidential aides generally are entitled only to

qualified immunity; (2) aides failed to establish that

their official functions required absolute immunity;

(3) presidential aides are entitled to application of

qualified immunity standard that permits defeat of

insubstantial claims without resort to trial; and (4)

government officials performing discretionary

functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which reasonable person would not have

known.

Vacated and remanded.

Justice Brennan filed a concurring opinion in which

Justices Marshall and Blackmun joined.

Justices Brennan, White, Marshall and Blackmun

filed a separate concurring statement.

Justice Rehnquist filed a concurring opinion.

Chief Justice Burger filed a dissenting opinion.

West Headnotes

[1] Officers and Public Employees 283 114

283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities

283k114 k. Liabilities for Official Acts. Most

Cited Cases

United States 393 50.5(4)

393 United States

393I Government in General

393k50 Liabilities of Officers or Agents for

Negligence or Misconduct

393k50.5 Immunity or Privilege in General

393k50.5(4) k. Good Faith or Notice;

Motive or Purpose. Most Cited Cases

(Formerly 393k50)

Government officials whose special functions or

constitutional status requires complete protection

from suits for damages, including certain officials

of executive branch, such as prosecutors, similar

officials and the president are entitled to defense of

absolute immunity; however, executive officials in

general are usually entitled to only qualified or

good-faith immunity.

[2] United States 393 50.5(2)

393 United States

393I Government in General

393k50 Liabilities of Officers or Agents for

Negligence or Misconduct

393k50.5 Immunity or Privilege in General

393k50.5(2) k. Absolute or Qualified

Immunity. Most Cited Cases

(Formerly 393k50)

Federal officers seeking absolute immunity from

personal liability for unconstitutional conduct must

bear burden of showing that public policy requires

exemption of that scope.

[3] United States 393 50.5(5)

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393 United States

393I Government in General

393k50 Liabilities of Officers or Agents for

Negligence or Misconduct

393k50.5 Immunity or Privilege in General

393k50.5(5) k. Rank or Office, Employment or Agency Relation. Most Cited Cases

(Formerly 393k50)

Presidential aides generally are entitled only to

qualified immunity.

[4] Officers and Public Employees 283 114

283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities

283k114 k. Liabilities for Official Acts. Most

Cited Cases

Under “functional” approach to immunity law, immunity of government officials extends no further

than its justification warrants.

[5] United States 393 50.5(5)

393 United States

393I Government in General

393k50 Liabilities of Officers or Agents for

Negligence or Misconduct

393k50.5 Immunity or Privilege in General

393k50.5(5) k. Rank or Office, Employment or Agency Relation. Most Cited Cases

(Formerly 393k50)

In order to establish entitlement to absolute immunity, presidential aide must first show that responsibilities of his office embraced function so

sensitive as to require total shield from liability; he

then must demonstrate that he was discharging protected function when performing act for which liability is asserted.

[6] United States 393 50.10(5)

393 United States

393I Government in General

393k50 Liabilities of Officers or Agents for

Negligence or Misconduct

393k50.10 Particular Acts or Claims

393k50.10(5) k. Armed Services Members, Claims By. Most Cited Cases

(Formerly 393k50)

In action based on alleged unlawful discharge from

employment in Department of Air Force, presidential aides, claimed to have participated in alleged

conspiracy to violate plaintiff's constitutional and

statutory rights, failed to show that public policy required absolute immunity, and even assuming that

they had function for which absolute immunity

would be warranted, it could not be concluded that

acts charged, if taken at all, would lie within protected area.

[7] United States 393 50.5(5)

393 United States

393I Government in General

393k50 Liabilities of Officers or Agents for

Negligence or Misconduct

393k50.5 Immunity or Privilege in General

393k50.5(5) k. Rank or Office, Employment or Agency Relation. Most Cited Cases

(Formerly 393k50)

Presidential aides are entitled to application of

qualified immunity standard that permits defeat of

insubstantial claims without resort to trial.

[8] Federal Civil Procedure 170A 751

170A Federal Civil Procedure

170AVII Pleadings and Motions

170AVII(C) Answer

170AVII(C)2 Affirmative Defense or

Avoidance

170Ak751 k. In General. Most Cited

Cases

Qualified or “good faith” immunity is affirmative

defense that must be pleaded by defendant official.

[9] Officers and Public Employees 283 114

283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities

283k114 k. Liabilities for Official Acts. Most

Cited Cases

Government officials performing discretionary

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functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which reasonable person would have

known.

[10] Federal Civil Procedure 170A 2547.1

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2547 Hearing and Determination

170Ak2547.1 k. In General. Most

Cited Cases

(Formerly 170Ak2547)

Officers and Public Employees 283 114

283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities

283k114 k. Liabilities for Official Acts. Most

Cited Cases

In determining whether government officials performing discretionary functions are shielded from

liability, judge, on summary judgment, appropriately may determine, not only currently applicable

law, but whether that law was clearly established at

time action occurred; if this threshold immunity

question is resolved, discovery should not be allowed, and if law was clearly established, immunity

defense ordinarily should fail; nevertheless, if official pleading defense claims extraordinary circumstances and can prove that he neither knew nor

should have known of relevant legal standard, defense should be sustained.

**2728 Syllabus FN*

FN* The syllabus constitutes no part of the

opinion of the Court but has been prepared

by the Reporter of Decisions for the convenience of the reader. See United States v.

Detroit Lumber Co., 200 U.S. 321, 337, 26

S.Ct. 282, 287, 50 L.Ed. 499.

*800 In respondent's civil damages action in Federal District Court based on his alleged unlawful discharge from employment in the Department of the

Air Force, petitioners, White House aides to former

President Nixon, were codefendants with him and

were claimed to have participated in the same alleged conspiracy to violate respondent's constitutional and statutory rights as was involved in Nixon

v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73

L.Ed.2d 349. After extensive pretrial discovery, the

District Court denied the motions of petitioners and

the former President for summary judgment, holding, inter alia, that petitioners were not entitled to

absolute immunity from suit. Independently of the

former President, petitioners appealed the denial of

their immunity defense, but the Court of Appeals

dismissed the appeal.

Held:

1. Government officials whose special functions or

constitutional status requires complete protection

from suits for damages-including certain officials

of the Executive Branch, such as prosecutors and

similar officials, see Butz v. Economou, 438 U.S.

478, 98 S.Ct. 2894, 57 L.Ed.2d 895, and the President, Nixon v. Fitzgerald, 457 **2729 U.S. 731, 102

S.Ct. 2690, 73 L.Ed.2d 349 are entitled to the defense of absolute immunity. However, executive officials in general are usually entitled to only qualified or good-faith immunity. The recognition of a

qualified immunity defense for high executives reflects an attempt to balance competing values: not

only the importance of a damages remedy to protect

the rights of citizens, but also the need to protect

officials who are required to exercise discretion and

the related public interest in encouraging the vigorous exercise of official authority. Scheuer v.

Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d

90. Federal officials seeking absolute immunity

from personal liability for unconstitutional conduct

must bear the burden of showing that public policy

requires an exemption of that scope. Pp.

2732-2733.

2. Public policy does not require a blanket recognition of absolute immunity for Presidential aides. Cf.

Butz, supra. Pp. 2733-2736.

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(a) The rationale of Gravel v. United States, 408

U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583-which

held the Speech and Debate Clause derivately applicable to the “legislative acts” of a Senator's aide

that would have been privileged if performed by the

Senator himself-does not mandate “derivative” absolute *801 immunity for the President's chief

aides. Under the “functional” approach to immunity

law, immunity protection extends no further than its

justification warrants. Pp. 2734-2735.

(b) While absolute immunity might be justified for

aides entrusted with discretionary authority in such

sensitive areas as national security or foreign

policy, a “special functions” rationale does not warrant a blanket recognition of absolute immunity for

all Presidential aides in the performance of all their

duties. To establish entitlement to absolute immunity, a Presidential aide first must show that the

responsibilities of his office embraced a function so

sensitive as to require a total shield from liability.

He then must demonstrate that he was discharging

the protected function when performing the act for

which liability is asserted. Under the record in this

case, neither petitioner has made the requisite

showing for absolute immunity. However, the possibility that petitioners, on remand, can satisfy the

proper standards is not foreclosed. Pp. 2735-2736.

3. Petitioners are entitled to application of the qualified immunity standard that permits the defeat of

insubstantial claims without resort to trial. Pp.

2736-2740.

(a) The previously recognized “subjective” aspect

of qualified or “good faith” immunity-whereby

such immunity is not available if the official asserting the defense “took the action with the malicious

intention to cause a deprivation of constitutional

rights or other injury,”Wood v. Strickland, 420 U.S.

308, 322, 95 S.Ct. 992, 1000, 43 L.Ed.2d

214-frequently has proved incompatible with the

principle that insubstantial claims should not proceed to trial. Henceforth, government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate “clearly established” statutory or constitutional rights of which a reasonable

person would have known. Pp. 2736-2740.

(b) The case is remanded for the District Court's reconsideration of the question whether respondent's

pretrial showings were insufficient to withstand petitioners' motion for summary judgment. Pp.

2739-2740.

Vacated and remanded.

Herbert J. Miller, Jr., Washington, D. C., for petitioner Nixon.

*802 Elliot L. Richardson, Washington, D. C., for

petitioners Harlow and Butterfield.

John E. Nolan, Jr., Washington, D. C., for respondent.

Justice POWELL delivered the opinion of the

Court.

The issue in this case is the scope of the immunity

available to the senior aides and advisers of the

President of the United **2730 States in a suit for

damages based upon their official acts.

I

In this suit for civil damages petitioners Bryce Harlow and Alexander Butterfield are alleged to have

participated in a conspiracy to violate the constitutional and statutory rights of the respondent A. Ernest Fitzgerald. Respondent avers that petitioners

entered the conspiracy in their capacities as senior

White House aides to former President Richard M.

Nixon. As the alleged conspiracy is the same as that

involved in Nixon v. Fitzgerald, 457 U.S. 731, 102

S.Ct. 2690, 73 L.Ed.2d 349, the facts need not be

repeated in detail.

Respondent claims that Harlow joined the conspiracy in his role as the Presidential aide principally

responsible for congressional relations.FN1 At the

conclusion of discovery the *803 supporting evidence remained inferential. As evidence of Harlow's

conspiratorial activity respondent relies heavily on

a series of conversations in which Harlow discussed

Fitzgerald's dismissal with Air Force Secretary

Robert Seamans.FN2 The other evidence most supportive of Fitzgerald's claims consists of a recorded

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conversation in which the President later voiced a

tentative recollection that Harlow was “all for canning” Fitzgerald.FN3

FN1. Harlow held this position from the

beginning of the Nixon administration on

January 20, 1969, through November 4,

1969. On the latter date he was designated

as Counselor to the President, a position

accorded Cabinet status. He served in that

capacity until December 9, 1970, when he

returned to private life. Harlow later resumed the duties of Counselor for the period from July 1, 1973, through April 14,

1974. Respondent appears to allege that

Harlow continued in a conspiracy against

him throughout the various changes of official assignment.

FN2. The record reveals that Secretary

Seamans called Harlow in May 1969 to inquire about likely congressional reaction to

a draft reorganization plan that would

cause Fitzgerald's dismissal. According to

Seamans' testimony, “[W]e [the Air Force]

didn't ask [Harlow] to pass judgment on

the action itself. We just asked him what

the impact would be in the relationship

with the Congress.” App. 153a, 164a-165a

(deposition of Robert Seamans). Through

an aide Harlow responded that “this was a

very sensitive item on the Hill and that it

would be [his] recommendation that [the

Air Force] not proceed to make such a

change at that time.” Id., at 152a. But the

Air Force persisted. Seamans spoke to

Harlow on at least one subsequent occasion during the spring of 1969. The record

also establishes that Secretary Seamans

called Harlow on November 4, 1969,

shortly after the public announcement of

Fitzgerald's impending dismissal, and

again in December 1969. See id., at 186a.

FN3. See id., at 284a. (transcript of a recorded conversation between Richard Nixon and Ronald Ziegler, February 26,

1973). In a conversation with the President

on January 31, 1973, John Ehrlichman also

recalled that Harlow had discussed the

Fitzgerald case with the President. See id.,

at 218a-221a. (transcript of recorded conversation between Richard Nixon and John

Ehrlichman, January 31, 1973). In the

same conversation the President himself

asserted that he had spoken to Harlow

about the Fitzgerald matter, see id., at

218a, but the parties continue to dispute

whether Mr. Nixon-at the most relevant

moments in the discussion-was confusing

Fitzgerald's case with that of another dismissed employee. The President explicitly

stated at one point that he previously had

been confused. See id., at 220a.

Disputing Fitzgerald's contentions, Harlow argues

that exhaustive discovery has adduced no direct

evidence of his involvement*804 in any wrongful

activity.FN4 He avers that Secretary Seamans advised him that considerations of efficiency required

Fitzgerald's removal by a reduction in force, despite

anticipated adverse congressional reaction. Harlow

asserts he had no reason to believe that a conspiracy existed. He contends that he took all his actions

in good faith.FN5

FN4. See Defendants Memorandum of

Points and Authorities in Support of Their

Motion for Summary Judgment in Civ. No.

74-178 (DC), p. 7 (Feb. 12, 1980).

FN5. In support of his version of events

Harlow relies particularly on the deposition testimony of Air Force Secretary

Seamans, who stated that he regarded abolition of Fitzgerald's position as necessary

“to improve the efficiency” of the Financial Management Office of the Air Force

and that he never received any White

House instruction regarding the Fitzgerald

case. App. 159a-160a. Harlow also disputes the probative value of Richard Nixon's recorded remark that Harlow had supported Fitzgerald's firing. Harlow emphas102 S.Ct. 2727 Page 5

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izes the tentativeness of the President's

statement. To the President's query whether Harlow was “all for canning

[Fitzgerald], wasn't he?”, White House

Press Secretary Ronald Ziegler in fact gave

a negative reply: “No, I think Bryce may

have been the other way.” Id., at 284a. The

President did not respond to Ziegler's comment.

**2731 Petitioner Butterfield also is alleged to have

entered the conspiracy not later than May 1969.

Employed as Deputy Assistant to the President and

Deputy Chief of Staff to H. R. Haldeman,FN6 Butterfield circulated a White House memorandum in

that month in which he claimed to have learned that

Fitzgerald planned to “blow the whistle” on some

“shoddy purchasing practices” by exposing these

practices to public view.FN7 Fitzgerald characterizes this memorandum as evidence*805 that Butterfield had commenced efforts to secure Fitzgerald's

retaliatory dismissal. As evidence that Butterfield

participated in the conspiracy to conceal his unlawful discharge and prevent his reemployment,

Fitzgerald cites communications between Butterfield and Haldeman in December 1969 and January

1970. After the President had promised at a press

conference to inquire into Fitzgerald's dismissal,

Haldeman solicited Butterfield's recommendations.

In a subsequent memorandum emphasizing the importance of “loyalty,” Butterfield counseled against

offering Fitzgerald another job in the administration

at that time.FN8

FN6. The record establishes that Butterfield worked from an office immediately

adjacent to the oval office. He had almost

daily contact with the President until

March 1973, when he left the White House

to become Administrator of the Federal

Aviation Administration.

FN7. Id., at 274a. Butterfield reported that

this information had been referred to the

Federal Bureau of Investigation. In the

memorandum Butterfield reported that he

had received the information “by word of

several mouths, but allegedly from a senior

AFL-CIO official originally .... Evidently,

Fitzgerald attended a recent meeting of the

National Democratic Coalition and, while

there, revealed his intentions to a labor

representative who, fortunately for us, was

unsympathetic.” Ibid.

FN8. Id., 99a-100a, 180a-181a. This

memorandum, quoted in Nixon v. Fitzgerald, 457 U.S., at 735-736, 102 S.Ct., at

2694-2695, was not sent to the Defense

Department.

For his part, Butterfield denies that he was involved

in any decision concerning Fitzgerald's employment

status until Haldeman sought his advice in December 1969-more than a month after Fitzgerald's termination had been scheduled and announced publicly by the Air Force. Butterfield states that he

never communicated his views about Fitzgerald to

any official of the Defense Department. He argues

generally that nearly eight years of discovery have

failed to turn up any evidence that he caused injury

to Fitzgerald.FN9

FN9. See Memorandum in Support of

Summary Judgment, supra, at 26. The history of Fitzgerald's litigation is recounted

in Nixon v. Fitzgerald, 457 U.S. 731, 102

S.Ct. 2690, 73 L.Ed.2d 349. Butterfield

was named as a defendant in the initial

civil action filed by Fitzgerald in 1974.

Harlow was named for the first time in respondent's second amended complaint of

July 5, 1978.

Together with their codefendant Richard Nixon, petitioners Harlow and Butterfield moved for summary judgment on February 12, 1980. In denying

the motion the District Court upheld the legal sufficiency of Fitzgerald's Bivens (Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91

S.Ct. 1999, 29 L.Ed.2d 619 (1971)) claim under the

First Amendment and his “inferred” statutory

causes of action under 5 U.S.C. § 7211 (1976 ed.,

Supp.IV) and 18 U.S.C. § 1505.FN10 The court

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*806 found that **2732 genuine issues of disputed

fact remained for resolution at trial. It also ruled

that petitioners were not entitled to absolute immunity. App. to Pet. for Cert. 1a-3a.

FN10. The first of these statutes, 5 U.S.C.

§ 7211 (1976 ed., Supp.IV), provides generally that “[t]he right of employees ... to

... furnish information to either House of

Congress, or to a committee or Member

thereof, may not be interfered with or

denied.” The second, 18 U.S.C. § 1505, is

a criminal statute making it a crime to obstruct congressional testimony. Neither expressly creates a private right to sue for

damages. Petitioners argue that the District

Court erred in finding that a private cause

of action could be inferred under either

statute, and that “special factors” present

in the context of the federal employer-employee relationship preclude the recognition of respondent's Bivens action under

the First Amendment. The legal sufficiency of respondent's asserted causes of

action is not, however, a question that we

view as properly presented for our decision

in the present posture of this case. See n.

36, infra.

Independently of former President Nixon, petitioners invoked the collateral order doctrine and appealed the denial of their immunity defense to the

Court of Appeals for the District of Columbia Circuit. The Court of Appeals dismissed the appeal

without opinion. Id., at 11a-12a. Never having determined the immunity available to the senior aides

and advisers of the President of the United States,

we granted certiorari. 452 U.S. 959, 101 S.Ct. 3106,

69 L.Ed.2d 969 (1981).FN11

FN11. As in Nixon v. Fitzgerald, 457 U.S.

731, 102 S.Ct. 2690, 73 L.Ed.2d 349, our

jurisdiction has been challenged on the

basis that the District Court's order denying petitioners' claim of absolute immunity

was not an appealable final order and that

the Court of Appeals' dismissal of petitioners' appeal establishes that this case was

never “in” the Court of Appeals within the

meaning of 28 U.S.C. § 1254. As the discussion in Nixon establishes our jurisdiction in this case as well, we need not consider those challenges in this opinion.

II

As we reiterated today in Nixon v. Fitzgerald, 457

U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349, our decisions consistently have held that government officials are entitled to some form of immunity from

suits for damages. As recognized at common law,

public officers require this protection to shield them

from undue interference with their duties and from

potentially disabling threats of liability.

[1] *807 Our decisions have recognized immunity

defenses of two kinds. For officials whose special

functions or constitutional status requires complete

protection from suit, we have recognized the defense of “absolute immunity.” The absolute immunity of legislators, in their legislative functions,

see, e.g., Eastland v. United States Servicemen's

Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324

(1975), and of judges, in their judicial functions,

see, e.g., Stump v. Sparkman, 435 U.S. 349, 98

S.Ct. 1099, 55 L.Ed.2d 331 (1978), now is well

settled. Our decisions also have extended absolute

immunity to certain officials of the Executive

Branch. These include prosecutors and similar officials, see Butz v. Economou, 438 U.S. 478,

508-512, 98 S.Ct. 2894, 2911-2916, 57 L.Ed.2d 895

(1978), executive officers engaged in adjudicative

functions, id., at 513-517, 98 S.Ct., at 2914-2916,

and the President of the United States, see Nixon v.

Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73

L.Ed.2d 349.

For executive officials in general, however, our

cases make plain that qualified immunity represents

the norm. In Scheuer v. Rhodes, 416 U.S. 232, 94

S.Ct. 1683, 40 L.Ed.2d 90 (1974), we acknowledged that high officials require greater protection

than those with less complex discretionary responsibilities. Nonetheless, we held that a governor and

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his aides could receive the requisite protection from

qualified or good-faith immunity. Id., at 247-248,

94 S.Ct. at 1691-1692. In Butz v. Economou, supra,

we extended the approach of Scheuer to high federal officials of the Executive Branch. Discussing in

detail the considerations that also had underlain our

decision in Scheuer, we explained that the recognition of a qualified immunity defense for high executives reflected an attempt to balance competing

values: not only the importance of a damages remedy to protect the rights of citizens, 438 U.S., at

504-505, 98 S.Ct., at 2909-2910, but also “the need

to protect officials who are required to exercise

their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Id., at 506, 98 S.Ct., at 2910. Without discounting the adverse consequences of denying high

officials an absolute immunity from private lawsuits alleging constitutional violations-consequences found sufficient in Spalding v. Vilas, 161

U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), and

Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3

L.Ed.2d 1434 *808 1959), to warrant extension to

such officials of absolute immunity from suits at

common **2733 law-we emphasized our expectation that insubstantial suits need not proceed to trial:

“Insubstantial lawsuits can be quickly terminated

by federal courts alert to the possibilities of artful

pleading. Unless the complaint states a compensable claim for relief ..., it should not survive a motion to dismiss. Moreover, the Court recognized in

Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be

terminated on a properly supported motion for summary judgment based on the defense of immunity....

In responding to such a motion, plaintiffs may not

play dog in the manger; and firm application of the

Federal Rules of Civil Procedure will ensure that

federal officials are not harassed by frivolous lawsuits.” 438 U.S., at 507-508, 98 S.Ct., at 2911-2912

(citations omitted).

[2] Butz continued to acknowledge that the special

functions of some officials might require absolute

immunity. But the Court held that “federal officials

who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.” Id., at 506, 98 S.Ct. at

2910. This we reaffirmed today in Nixon v. Fitzgerald, 457 U.S., at 747, 102 S.Ct., at 2700.

III

A

Petitioners argue that they are entitled to a blanket

protection of absolute immunity as an incident of

their offices as Presidential aides. In deciding this

claim we do not write on an empty page. In Butz v.

Economou, supra, the Secretary of Agriculture-a

Cabinet official directly accountable to the President-asserted a defense of absolute official immunity

from suit for civil damages. We rejected his claim.

In so doing we did not question the power or the

importance of the Secretary's office. Nor did we

doubt the importance to the *809 President of loyal

and efficient subordinates in executing his duties of

office. Yet we found these factors, alone, to be insufficient to justify absolute immunity. “[T]he

greater power of [high] officials,” we reasoned,

“affords a greater potential for a regime of lawless

conduct.” 438 U.S., at 506, 98 S.Ct., at 2910. Damages actions against high officials were therefore

“an important means of vindicating constitutional

guarantees.” Ibid. Moreover, we concluded that it

would be “untenable to draw a distinction for purposes of immunity law between suits brought

against state officials under [42 U.S.C.] § 1983 and

suits brought directly under the Constitution against

federal officials.” Id., at 504, 98 S.Ct., at 2909.

[3] Having decided in Butz that Members of the

Cabinet ordinarily enjoy only qualified immunity

from suit, we conclude today that it would be

equally untenable to hold absolute immunity an incident of the office of every Presidential subordinate based in the White House. Members of the Cabinet are direct subordinates of the President, frequently with greater responsibilities, both to the

President and to the Nation, than White House

staff. The considerations that supported our decision in Butz apply with equal force to this case. It

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is no disparagement of the offices held by petitioners to hold that Presidential aides, like Members of

the Cabinet, generally are entitled only to a qualified immunity.

B

In disputing the controlling authority of Butz, petitioners rely on the principles developed in Gravel v.

United States, 408 U.S. 606, 92 S.Ct. 2614, 33

L.Ed.2d 583 (1972).FN12 In Gravel we endorsed

the view **2734 that “it is literally impossible ...

for Members of Congress to perform*810 their legislative tasks without the help of aides and assistants” and that “the day-to-day work of such aides is

so critical to the Members' performance that they

must be treated as the latter's alter egos....” Id., at

616-617, 92 S.Ct., at 2622-2623. Having done so,

we held the Speech and Debate Clause derivatively

applicable to the “legislative acts” of a Senator's

aide that would have been privileged if performed

by the Senator himself. Id., at 621-622, 92 S.Ct., at

2625-2626.

FN12. Petitioners also claim support from

other cases that have followed Gravel in

holding that congressional employees are

derivatively entitled to the legislative immunity provided to United States Senators

and Representatives under the Speech and

Debate Clause. See Eastland v. United

States Servicemen's Fund, 421 U.S. 491,

95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Doe

v. McMillan, 412 U.S. 306, 93 S.Ct. 2018,

36 L.Ed.2d 912 (1973).

Petitioners contend that the rationale of Gravel

mandates a similar “derivative” immunity for the

chief aides of the President of the United States.

Emphasizing that the President must delegate a

large measure of authority to execute the duties of

his office, they argue that recognition of derivative

absolute immunity is made essential by all the considerations that support absolute immunity for the

President himself.

[4] Petitioners' argument is not without force. Ultimately, however, it sweeps too far. If the President's aides are derivatively immune because they

are essential to the functioning of the Presidency,

so should the Members of the Cabinet-Presidential

subordinates some of whose essential roles are acknowledged by the Constitution itself FN13-be absolutely immune. Yet we implicitly rejected such

derivative immunity in Butz.FN14 Moreover, in

general our cases have followed a “functional” approach to immunity law. We have recognized*811

that the judicial, prosecutorial, and legislative functions require absolute immunity. But this protection

has extended no further than its justification would

warrant. In Gravel, for example, we emphasized

that Senators and their aides were absolutely immune only when performing “acts legislative in

nature,” and not when taking other acts even “in

their official capacity.” 408 U.S., at 625, 92 S.Ct.,

at 2627. See Hutchinson v. Proxmire, 443 U.S. 111,

125-133, 99 S.Ct. 2675, 2683-2687, 61 L.Ed.2d 411

(1979). Our cases involving judges FN15 and prosecutors FN16 have followed a similar line. The undifferentiated extension of absolute “derivative”

immunity to the President's aides therefore could

not be reconciled with the “functional” approach

that has characterized the immunity decisions of

this Court, indeed including Gravel itself.FN17

FN13. See U.S.Const., Art. II, § 2 (“The

President ... may require the Opinion, in

writing, of the principal Officer in each of

the executive Departments, upon any Subject relating to the Duties of their respective Offices....”).

FN14. The Chief Justice, post, at 2744, argues that senior Presidential aides work

“more intimately with the President on a

daily basis than does a Cabinet officer,”

and that Butz therefore is not controlling.

In recent years, however, such men as

Henry Kissinger and James Schlesinger

have served in both Presidential advisory

and Cabinet positions. Kissinger held both

posts simultaneously. In our view it is impossible to generalize about the role of

“offices” in an individual President's administration without reference to the func102 S.Ct. 2727 Page 9

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tions that particular officeholders are assigned by the President. Butz v. Economou

cannot be distinguished on this basis.

FN15. See, e.g., Supreme Court of Virginia

v. Consumers Union of the United States,

446 U.S. 719, 731-737, 100 S.Ct. 1967,

1974-1977, 64 L.Ed.2d 641 (1980); Stump

v. Sparkman, 435 U.S. 349, 362, 98 S.Ct.

1099, 1107, 55 L.Ed.2d 331 (1978). 438

U.S., at 362,98 S.Ct., at 1107.

FN16. In Imbler v. Pachtman, 424 U.S.

409, 430-431, 96 S.Ct. 984, 994-995, 47

L.Ed.2d 128 (1973), this Court reserved

the question whether absolute immunity

would extend to “those aspects of the prosecutor's responsibility that cast him in the

role of an administrator or investigative officer.” Since that time the Courts of Appeals generally have ruled that prosecutors

do not enjoy absolute immunity for acts

taken in those capacities. See, e.g., Mancini v. Lester, 630 F.2d 990, 992 (CA3

1980); Forsyth v. Kleindienst, 599 F.2d

1203, 1213-1214 (CA3 1979). This Court

at least implicitly has drawn the same distinction in extending absolute immunity to

executive officials when they are engaged

in quasi-prosecutorial functions. See Butz

v. Economou, 438 U.S., at 515-517, 98

S.Ct., at 2915-2916.

FN17. Our decision today in Nixon v.

Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690,

73 L.Ed.2d 349, in no way abrogates this

general rule. As we explained in that opinion, the recognition of absolute immunity

for all of a President's acts in office derives

in principal part from factors unique to his

constitutional responsibilities and station.

Suits against other officials-including Presidential aides-generally do not invoke separation-of-powers considerations to the

same extent as suits against the President

himself.

**2735 C

Petitioners also assert an entitlement to immunity

based on the “special functions” of White House

aides. This form *812 of argument accords with the

analytical approach of our cases. For aides entrusted with discretionary authority in such sensitive

areas as national security or foreign policy, absolute

immunity might well be justified to protect the unhesitating performance of functions vital to the national interest.FN18 But a “special functions” rationale does not warrant a blanket recognition of

absolute immunity for all Presidential aides in the

performance of all their duties. This conclusion too

follows from our decision in Butz, which establishes that an executive official's claim to absolute

immunity must be justified by reference to the public interest in the special functions of his office, not

the mere fact of high station.FN19

FN18. Cf. United States v. Nixon, 418 U.S.

683, 710-711, 94 S.Ct. 3090, 3108-3109,

41 L.Ed.2d 1039 (1974) (“[C]ourts have

traditionally shown the utmost deference to

Presidential responsibilities” for foreign

policy and military affairs, and claims of

privilege in this area would receive a higher degree of deference than invocations of

“a President's generalized interest in confidentiality”); Katz v. United States, 389

U.S. 347, 364, 88 S.Ct. 507, 518, 19

L.Ed.2d 576 (1967) (WHITE, J., concurring) (“We should not require the warrant

procedure and the magistrate's judgment if

the President of the United States or his

chief legal officer, the Attorney General,

has considered the requirements of national security and authorized electronic surveillance as reasonable”) (emphasis added).

FN19. Gravel v. United States, 408 U.S.

606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972),

points to a similar conclusion. We fairly

may assume that some aides are assigned

to act as Presidential “alter egos,” id., at

616-617, 92 S.Ct., at 2622-2623, in the ex102 S.Ct. 2727 Page 10

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ercise of functions for which absolute immunity is “essential for the conduct of the

public business,”Butz, supra, at 507, 98

S.Ct., at 2911. Cf. Gravel, supra, at 620,

92 S.Ct., at 2624 (derivative immunity extends only to acts within the “central role”

of the Speech and Debate Clause in permitting free legislative speech and debate).

By analogy to Gravel, a derivative claim to

Presidential immunity would be strongest

in such “central” Presidential domains as

foreign policy and national security, in

which the President could not discharge his

singularly vital mandate without delegating

functions nearly as sensitive as his own.

[5] Butz also identifies the location of the burden of

proof. The burden of justifying absolute immunity

rests on the official asserting the claim. 438 U.S., at

506, 98 S.Ct., at 2910. We have not of course had

occasion to identify how a Presidential aide might

carry this burden. But the general requisites are familiar in our cases. In order to establish entitlement

to absolute immunity*813 a Presidential aide first

must show that the responsibilities of his office embraced a function so sensitive as to require a total

shield from liability.FN20 He then must demonstrate that he was discharging the protected function when performing the act for which liability is

asserted.FN21

FN20. Here as elsewhere the relevant judicial inquiries would encompass considerations of public policy, the importance of

which should be confirmed either by reference to the common law or, more likely,

our constitutional heritage and structure.

See Nixon v. Fitzgerald, 457 U.S., at

747-748, 102 S.Ct., at 2700-2701.

FN21. The need for such an inquiry is implicit in Butz v. Economou, supra, at

508-517,98 S.Ct., at 2911-2916; see Imbler

v. Pachtman, supra, at 430-431, 96 S.Ct.,

at 994-995. Cases involving immunity under the Speech and Debate Clause have inquired explicitly into whether particular

acts and activities qualified for the protection of the Clause. See, e.g., Hutchinson v.

Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61

L.Ed.2d 411 (1979); Doe v. McMillan, 412

U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912

(1973); Gravel v. United States, supra.

[6] Applying these standards to the claims advanced by petitioners Harlow and Butterfield, we

cannot conclude on the record before us that either

has shown that “public policy requires [for any of

the functions of his office] an exemption of

[absolute] scope.” Butz, 438 U.S., at 506, 98 S.Ct.,

at 2910. Nor, assuming that petitioners did have

functions for which absolute immunity would be

warranted, could **2736 we now conclude that the

acts charged in this lawsuit-if taken at all-would lie

within the protected area. We do not, however,

foreclose the possibility that petitioners, on remand,

could satisfy the standards properly applicable to

their claims.

IV

[7] Even if they cannot establish that their official

functions require absolute immunity, petitioners assert that public policy at least mandates an application of the qualified immunity standard that would

permit the defeat of insubstantial claims without resort to trial. We agree.

A

The resolution of immunity questions inherently requires a balance between the evils inevitable in any

available alternative.*814 In situations of abuse of

office, an action for damages may offer the only

realistic avenue for vindication of constitutional

guarantees. Butz v. Economou, supra, at 506, 98

S.Ct., at 2910; see Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S., at 410, 91 S.Ct., at

2011 (“For people in Bivens' shoes, it is damages or

nothing”). It is this recognition that has required the

denial of absolute immunity to most public officers.

At the same time, however, it cannot be disputed

seriously that claims frequently run against the innocent as well as the guilty-at a cost not only to the

defendant officials, but to society as a whole.FN22

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These social costs include the expenses of litigation, the diversion of official energy from pressing

public issues, and the deterrence of able citizens

from acceptance of public office. Finally, there is

the danger that fear of being sued will “dampen the

ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.” Gregoire v. Biddle, 177

F.2d 579, 581 (CA2 1949), cert. denied, 339 U.S.

949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).

FN22. See generally Schuck, Suing Our

Servants: The Court, Congress, and the Liability of Public Officials for Damages,

1980 S.Ct.Rev. 281, 324-327.

In identifying qualified immunity as the best attainable accommodation of competing values, in Butz,

supra, 438 U.S., at 507-508, 98 S.Ct., 2911-2912,

as in Scheuer, 416 U.S., at 245-248, 94 S.Ct., at

1691-1692, we relied on the assumption that this

standard would permit “[i]nsubstantial lawsuits [to]

be quickly terminated.” 438 U.S., at 507-508, 98

S.Ct., at 2911-2912; see Hanrahan v. Hampton, 446

U.S. 754, 765, 100 S.Ct. 1987, 1993, 64 L.Ed.2d

670 (1980) (POWELL, J., concurring in part and

dissenting in part).FN23 Yet petitioners advance

persuasive arguments that the dismissal of insubstantial lawsuits without trial-a factor presupposed

in the balance of competing interests struck by

*815 our prior cases-requires an adjustment of the

“good faith” standard established by our decisions.

FN23. The importance of this consideration hardly needs emphasis. This Court has

noted the risk imposed upon political officials who must defend their actions and

motives before a jury. See Lake Country

Estates, Inc. v. Tahoe Regional Planning

Agency, 440 U.S. 391, 405, 99 S.Ct. 1171,

1179, 59 L.Ed.2d 401 (1979); Tenney v.

Brandhove, 341 U.S. 367, 377-378, 71

S.Ct. 783, 788-789,95 L.Ed.2d 1019

(1951). As the Court observed in Tenney:

“In times of political passion, dishonest or

vindictive motives are readily attributed ...

and as readily believed.” Id., at 378, 71

S.Ct., at 789.

B

[8] Qualified or “good faith” immunity is an affirmative defense that must be pleaded by a defendant

official. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct.

1920, 64 L.Ed.2d 572 (1980).FN24 Decisions of

this Court have established that the “good faith” defense has both an “objective” and a “subjective” aspect. The objective element**2737 involves a presumptive knowledge of and respect for “basic, unquestioned constitutional rights.” Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43

L.Ed.2d 214 (1975). The subjective component

refers to “permissible intentions.” Ibid. Characteristically the Court has defined these elements by

identifying the circumstances in which qualified

immunity would not be available. Referring both to

the objective and subjective elements, we have held

that qualified immunity would be defeated if an official “knew or reasonably should have known that

the action he took within his sphere of official responsibility would violate the constitutional rights

of the [plaintiff], or if he took the action with the

malicious intention to cause a deprivation of constitutional rights or other injury....” Ibid.(emphasis added).FN25

FN24. Although Gomez presented the

question in the context of an action under

42 U.S.C. § 1983, the Court's analysis indicates that “immunity” must also be

pleaded as a defense in actions under the

Constitution and laws of the United States.

See 446 U.S., at 640, 100 S.Ct., at 1924.

Gomez did not decide which party bore the

burden of proof on the issue of good faith.

Id., at 642, 100 S.Ct., 1924 (Rehnquist, J.,

concurring).

FN25. In Wood the Court explicitly limited

its holding to the circumstances in which a

school board member, “in the specific context of school discipline,”420 U.S., at 322,

95 S.Ct., 1001, would be stripped of

claimed immunity in an action under §

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1983. Subsequent cases, however, have

quoted the Wood formulation as a general

statement of the qualified immunity standard. See, e.g., Procunier v. Navarette, 434

U.S. 555, 562-563, 566, 98 S.Ct. 855,

859-860, 862, 55 L.Ed.2d 24 (1978),

quoted in Baker v. McCollan, 443 U.S.

137, 139, 99 S.Ct. 2689, 2692, 61 L.Ed.2d

433 (1979).

The subjective element of the good-faith defense

frequently has proved incompatible with our admonition in Butz *816 that insubstantial claims

should not proceed to trial. Rule 56 of the Federal

Rules of Civil Procedure provides that disputed

questions of fact ordinarily may not be decided on

motions for summary judgment.FN26 And an official's subjective good faith has been considered to

be a question of fact that some courts have regarded

as inherently requiring resolution by a jury.FN27

FN26. Rule 56(c) states that summary

judgment “shall be rendered forthwith if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material

fact and that the moving party is entitled to

a judgment as a matter of law.” In determining whether summary judgment is proper, a court ordinarily must look at the record in the light most favorable to the

party opposing the motion, drawing all inferences most favorable to that party. E.g.,

Poller v. Columbia Broadcasting System,

Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491,

7 L.Ed.2d 458 (1962).

FN27. E.g., Landrum v. Moats, 576 F.2d

1320, 1329 (CA8 1978); Duchesne v. Sugarman, 566 F.2d 817, 832-833 (CA2

1977); cf. Hutchinson v. Proxmire, 443

U.S., at 120 n.9, 99 S.Ct., at 2680, n.9

(questioning whether the existence of

“actual malice,” as an issue of fact, may

properly be decided on summary judgment

in a suit alleging libel of a public figure).

In the context of Butz' attempted balancing of competing values, it now is clear that substantial costs

attend the litigation of the subjective good faith of

government officials. Not only are there the general

costs of subjecting officials to the risks of trialdistraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service. There

are special costs to “subjective” inquiries of this

kind. Immunity generally is available only to officials performing discretionary functions. In contrast

with the thought processes accompanying

“ministerial” tasks, the judgments surrounding discretionary action almost inevitably are influenced

by the decisionmaker's experiences, values, and

emotions. These variables explain in part why questions of subjective intent so rarely can be decided

by summary judgment. Yet they also frame a background*817 in which there often is no clear end to

the relevant evidence. Judicial inquiry into subjective motivation therefore may entail broad-ranging

discovery and the deposing of numerous persons,

including an official's professional colleagues.FN28

Inquiries of this **2738 kind can be peculiarly disruptive of effective government.FN29

FN28. In suits against a President's closest

aides, discovery of this kind frequently

could implicate separation-of-powers concerns. As the Court recognized in United

States v. Nixon, 418 U.S., at 708, 94 S.Ct.,

at 3107:

“A President and those who assist him

must be free to explore alternatives in the

process of shaping policies and making decisions and to do so in a way many would

be unwilling to express except privately.

These are the considerations justifying a

presumptive privilege for Presidential

communications. The privilege is fundamental to the operation of Government and

inextricably rooted in the separation of

powers under the Constitution.”

FN29. As Judge Gesell observed in his

concurring opinion in Halperin v. Kissinger, 196 U.S.App.D.C. 285, 307, 606 F.2d

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1192, 1214 (1979), aff'd in pertinent part

by an equally divided Court, 452 U.S. 713,

101 S.Ct. 3132, 69 L.Ed.2d 367 (1981):

“We should not close our eyes to the fact

that with increasing frequency in this jurisdiction and throughout the country

plaintiffs are filing suits seeking damage

awards against high government officials

in their personal capacities based on alleged constitutional torts. Each such suit

almost invariably results in these officials

and their colleagues being subjected to extensive discovery into traditionally protected areas, such as their deliberations preparatory to the formulation of government

policy and their intimate thought processes

and communications at the presidential and

cabinet levels. Such discover [sic ] is wideranging, time-consuming, and not without

considerable cost to the officials involved.

It is not difficult for ingenious plaintiff's

counsel to create a material issue of fact on

some element of the immunity defense

where subtle questions of constitutional

law and a decisionmaker's mental processes are involved. A sentence from a casual document or a difference in recollection with regard to a particular policy conversation held long ago would usually, under the normal summary judgment standards, be sufficient [to force a trial].... The

effect of this development upon the willingness of individuals to serve their country is obvious.”

[9] Consistently with the balance at which we

aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of *818 trial or to

the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known. See Procunier v. Navarette,

434 U.S. 555, 565, 98 S.Ct. 855, 861, 55 L.Ed.2d

24 (1978); Wood v. Strickland, 420 U.S., at 322, 95

S.Ct., at 1001.FN30

FN30. This case involves no issue concerning the elements of the immunity

available to state officials sued for constitutional violations under 42 U.S.C. § 1983.

We have found previously, however, that it

would be “untenable to draw a distinction

for purposes of immunity law between

suits brought against state officials under §

1983 and suits brought directly under the

Constitution against federal officials.” Butz

v. Economou, 438 U.S., at 504, 98 S.Ct., at

2909.

Our decision in no way diminishes the absolute immunity currently available to officials whose functions have been held to require a protection of this scope.

[10] Reliance on the objective reasonableness of an

official's conduct, as measured by reference to

clearly established law,FN31 should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.FN32 If the

law at that time was not clearly established, an official could not reasonably be expected to anticipate

subsequent legal developments, nor could he fairly

be said to “know” that the law forbade conduct not

previously identified as unlawful. Until this

threshold immunity question is resolved, discovery

should not be allowed. If the law was clearly established, the immunity defense ordinarily *819

should fail, since a reasonably competent public official should know the law governing his conduct.

Nevertheless, if the official pleading the defense

claims extraordinary circumstances and can prove

that he neither knew nor should have known of the

relevant legal standard, the defense should be sustained. But again, the defense would turn primarily

on objective factors.

FN31. This case involves no claim that

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Congress has expressed its intent to impose

“no fault” tort liability on high federal officials for violations of particular statutes or

the Constitution.

FN32. As in Procunier v. Navarette, 434

U.S., at 565, 98 S.Ct., at 861, we need not

define here the circumstances under which

“the state of the law” should be “evaluated

by reference to the opinions of this Court,

of the Courts of Appeals, or of the local

District Court.”

By defining the limits of qualified immunity essentially in objective terms, we provide**2739 no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation

of victims remains protected by a test that focuses

on the objective legal reasonableness of an official's

acts. Where an official could be expected to know

that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and

a person who suffers injury caused by such conduct

may have a cause of action.FN33 But where an official's duties legitimately require action in which

clearly established rights are not implicated, the

public interest may be better served by action taken

“with independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554, 87

S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967).FN34

FN33. Cf. Procunier v. Navarette, supra,

434 U.S., at 565, 98 S.Ct., at 861, quoting

Wood v. Strickland, 420 U.S., at 322, 95

S.Ct., at 1001 (“Because they could not

reasonably have been expected to be aware

of a constitutional right that had not yet

been declared, petitioners did not act with

such disregard for the established law that

their conduct ‘cannot reasonably be characterized as being in good faith’ ”).

FN34. We emphasize that our decision applies only to suits for civil damages arising

from actions within the scope of an official's duties and in “objective” good faith.

We express no view as to the conditions in

which injunctive or declaratory relief

might be available.

C

In this case petitioners have asked us to hold that

the respondent's pretrial showings were insufficient

to survive their motion for summary

judgment.FN35 We think it appropriate,*820

however, to remand the case to the District Court

for its reconsideration of this issue in light of this

opinion.FN36 The trial court is more familiar with

the record so far developed and also is better situated to make any such further findings as may be

necessary.

FN35. In Butz, we admonished that

“insubstantial” suits against high public officials should not be allowed to proceed to

trial. 438 U.S., at 507, 98 S.Ct., at 2911.

See Schuck, supra n.22, at 324-327. We

reiterate this admonition. Insubstantial

lawsuits undermine the effectiveness of

government as contemplated by our constitutional structure, and “firm application of

the Federal Rules of Civil Procedure” is

fully warranted in such cases. 438 U.S., at

508, 98 S.Ct., at 2911.

FN36. Petitioners also have urged us, prior

to the remand, to rule on the legal sufficiency of respondent's “implied” causes of

action under 5 U.S.C. § 7211 (1976 ed.,

Supp.IV) and 18 U.S.C. § 1505 and his Bivens claim under the First Amendment. We

do not view petitioners' argument on the

statutory question as insubstantial. Cf.

Merrill Lynch, Pierce, Fenner & Smith,

Inc. v. Curran, 4 U.S. 353, 377-378,102

S.Ct. 1825, 1838-1839, 72 L.Ed.2d 182

(1982) (controlling question in implication

of statutory causes of action is whether

Congress affirmatively intended to create a

damages remedy); Middlesex County Sewerage Auth. v. National Sea Clammers

Assn., 453 U.S. 1, 101 S.Ct. 2615, 69

L.Ed.2d 435 (1981) (same); Texas Indus102 S.Ct. 2727 Page 15

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tries, Inc. v. Radcliff Materials, Inc., 451

U.S. 630, 638-639, 101 S.Ct. 2061,

2065-2066, 68 L.Ed.2d 500 (1981) (same).

Nor is the Bivens question. Cf. Bush v. Lucas, 647 F.2d 573, 576 (CA5 1981)

(holding that the “unique relationship

between the Federal Government and its

civil service employees is a special consideration which counsels hesitation in inferring a Bivens remedy”). As in Nixon v.

Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690,

73 L.Ed.2d 349, however, we took jurisdiction of the case only to resolve the immunity question under the collateral order

doctrine. We therefore think it appropriate

to leave these questions for fuller consideration by the District Court and, if necessary, by the Court of Appeals.

V

The judgment of the Court of Appeals is vacated,

and the case is remanded for further action consistent with this opinion.

So ordered.

Justice BRENNAN, with whom Justice MARSHALL, and Justice BLACKMUN join, concurring.

I agree with the substantive standard announced by

the Court today, imposing liability when a publicofficial defendant*821 “knew or should have

known” of the constitutionally violative effect of

his actions. Ante, at 2737, 2739. This standard

would not allow the official who actually knows

that he was violating the law to escape liability for

his actions, even if he could not “reasonably have

been expected” to know what he actually did know.

Ante, at 2739, **2740 n.33. Thus the clever and unusually well-informed violator of constitutional

rights will not evade just punishment for his crimes.

I also agree that this standard applies “across the

board,” to all “government officials performing discretionary functions.” Ante, at 2738. I write separately only to note that given this standard, it seems

inescapable to me that some measure of discovery

may sometimes be required to determine exactly

what a public-official defendant did “know” at the

time of his actions. In this respect the issue before

us is very similar to that addressed in Herbert v.

Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d

115 (1979), in which the Court observed that “[t]o

erect an impenetrable barrier to the plaintiff's use of

such evidence on his side of the case is a matter of

some substance, particularly when defendants

themselves are prone to assert their goo[d f]aith....”

Id., at 170, 99 S.Ct., at 1645. Of course, as the

Court has already noted, ante, at 2739, summary

judgment will be readily available to public-official

defendants whenever the state of the law was so

ambiguous at the time of the alleged violation that

it could not have been “known” then, and thus liability could not ensue. In my view, summary judgment will also be readily available whenever the

plaintiff cannot prove, as a threshold matter, that a

violation of his constitutional rights actually occurred. I see no reason why discovery of defendants' “knowledge” should not be deferred by the trial judge pending decision of any motion of defendants for summary judgment on grounds such as

these. Cf. Herbert v. Lando, supra, at 180, n.4, 99

S.Ct., at 1650, n.4 (POWELL, J., concurring).

Justice BRENNAN, Justice WHITE, Justice MARSHALL and Justice BLACKMUN, concurring.

We join the Court's opinion but, having dissented in

Nixon *822 v. Fitzgerald, 457 U.S. 731, 102 S.Ct.

2690, 73 L.Ed.2d 349, we disassociate ourselves

from any implication in the Court's opinion in the

present case that Nixon v. Fitzgerald was correctly

decided.

Justice REHNQUIST, concurring.

At such time as a majority of the Court is willing to

re-examine our holding in Butz v. Economou, 438

U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), I

shall join in that undertaking with alacrity. But until

that time comes, I agree that the Court's opinion in

this case properly disposes of the issues presented,

and I therefore join it.

Chief Justice BURGER, dissenting.

The Court today decides in Nixon v. Fitzgerald, 457

U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349, what has

been taken for granted for 190 years, that it is implicit in the Constitution that a President of the

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United States has absolute immunity from civil

suits arising out of official acts as Chief Executive.

I agree fully that absolute immunity for official acts

of the President is, like executive privilege,

“fundamental to the operation of Government and

inextricably rooted in the separation of powers under the Constitution.” United States v. Nixon, 418

U.S. 683, 708, 94 S.Ct. 3090, 3107, 41 L.Ed.2d

1039 (1974).FN1

FN1. As I noted in Nixon v. Fitzgerald,

Presidential immunity for official acts

while in office has never been seriously

questioned until very recently. At 758, n.1,

102 S.Ct., at 2706, n.1. (BURGER, C.J.,

concurring).

In this case the Court decides that senior aides of

the President do not have derivative immunity from

the President. I am at a loss, however, to reconcile

this conclusion with our holding in Gravel v.

United States, 408 U.S. 606, 92 S.Ct. 2614, 33

L.Ed.2d 583 (1972). The Court reads Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d

895 (1978), as resolving that question; I do not.

Butz is clearly distinguishable.FN2

FN2. If indeed there is an irreconcilable

conflict between Gravel, and Butz, the

Court has an obligation to try to harmonize

its holdings-or at least tender a reasonable

explanation. The Court has done neither.

*823 **2741 In Gravel we held that it is implicit in

the Constitution that aides of Members of Congress

have absolute immunity for acts performed for

Members in relation to their legislative function.

We viewed the aides' immunity as deriving from

the Speech or Debate Clause, which provides that

“for any Speech or Debate in either House,

[Senators and Representatives] shall not be questioned in any other Place.” Art. I, § 6, cl. 1

(emphasis added). Read literally, the Clause would,

of course, limit absolute immunity only to the

Member and only to speech and debate within the

Chamber. But we have read much more into this

plain language. The Clause says nothing about

“legislative acts” outside the Chambers, but we

concluded that the Constitution grants absolute immunity for legislative acts not only “in either

House” but in committees and conferences and in

reports on legislative activities.

Nor does the Clause mention immunity for congressional aides. Yet, going far beyond any words

found in the Constitution itself, we held that a

Member's aides who implement policies and decisions of the Member are entitled to the same absolute immunity as a Member. It is hardly an overstatement to say that we thus avoided a “literalistic

approach,” Gravel, supra, at 617, 92 S.Ct. at 2623,

and instead looked to the structure of the Constitution and the evolution of the function of the Legislative Branch. In short, we drew this immunity for

legislative aides from a functional analysis of the

legislative process in the context of the Constitution

taken as a whole and in light of 20th-century realities. Neither Presidents nor Members of Congress

can, as they once did, perform all their constitutional duties personally.FN3

FN3. A Senator's allotment for staff varies

significantly, but can range from as few as

17 to over 70 persons, in addition to committee staff aides who perform important

legislative functions for Members.

S.Doc.No. 97-19, pp. 27-106 (1981).

House Members have roughly 18 to 26 assistants at any one time, in addition to

committee staff aides. H.R.Doc.No.

97-113, pp. 28-174 (1981).

*824 We very properly recognized in Gravel that

the central purpose of a Member's absolute immunity would be “diminished and frustrated” if the

legislative aides were not also protected by the

same broad immunity. Speaking for the Court in

Gravel, Justice WHITE agreed with the Court of

Appeals that

“it is literally impossible, in view of the complexities of the modern legislative process, with Congress

almost constantly in session and matters of legislative concern constantly proliferating, for Members

of Congress to perform their legislative tasks

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without the help of aides and assistants; that the

day-to-day work of such aides is so critical to the

Members' performance that they must be treated as

the latter's alter egos; and that if they are not so recognized, the central role of the Speech or Debate

Clause-to prevent intimidation of legislators by the

Executive and accountability before a possibly hostile judiciary ...-will inevitably be diminished and

frustrated.” 408 U.S., at 616-617, 92 S.Ct., at

2622-2623 (emphasis added).

I joined in that analysis and continue to agree with

it, for without absolute immunity for these “elbow

aides,” who are indeed “alter egos,” a Member

could not effectively discharge all of the assigned

constitutional functions of a modern legislator.

The Court has made this reality a matter of our constitutional jurisprudence. How can we conceivably

hold that a President of the United States, who represents a vastly larger constituency than does any

Member of Congress, should not have “alter egos”

with comparable immunity? To perform the constitutional duties assigned to the Executive would be

“literally impossible, in view of the complexities of

the modern [Executive] process, ... without the help

of *825 aides and assistants.” FN4 Id., at 616, 92

**2742 S.Ct., at 2623. These words reflect the precise analysis of Gravel, and this analysis applies

with at least as much force to a President. The

primary layer of senior aides of a President-like a

Senator's “alter egos”-are literally at a President's

elbow, with offices a few feet or at most a few hundred feet from his own desk. The President, like a

Member of Congress, may see those personal aides

many times in one day. They are indeed the President's “arms” and “fingers” to aid in performing his

constitutional duty to see “that the laws [are] faithfully executed.” Like a Member of Congress, but on

a vastly greater scale, the President cannot personally implement a fraction of his own policies and

day-to-day decisions.FN5

FN4. In the early years of the Republic,

Members of Congress and Presidents performed their duties without staffs of aides

and assistants. Washington and Jefferson

spent much of their time on their plantations. Congress did not even appropriate

funds for a Presidential clerk until 1857.

Lincoln opened his own mail, Cleveland

answered the phone at the White House,

and Wilson regularly typed his own

speeches. S. Wayne, The Legislative Presidency 30 (1978). Whatever may have

been the situation beginning under Washington, Adams, and Jefferson, we know

today that the Presidency functions with a

staff that exercises a wide spectrum of authority and discretion and directly assists

the President in carrying out constitutional

duties.

FN5. Justice WHITE's dissent in Nixon v.

Fitzgerald today expresses great concern

that a President may “cause serious injury

to any number of citizens even though he

knows his conduct violates a statute ....” At

764, 102 S.Ct., at 2709. What the dissent

wholly overlooks, however, is the plain

fact that the absolute immunity does not

protect a President for acts outside the constitutional function of a President.

For some inexplicable reason the Court declines to

recognize the realities in the workings of the Office

of a President, despite the Court's cogent recognition in Gravel concerning the realities of the workings of 20th-century Members of Congress. Absent

equal protection for a President's aides, how will

Presidents be free from the risks of “intimidation ...

by [Congress] and accountability before a possibly

hostile *826 judiciary?” Gravel, 408 U.S., at 617,

92 S.Ct., at 2623. Under today's holding in this case

the functioning of the Presidency will inevitably be

“diminished and frustrated.” Ibid.

Precisely the same public policy considerations on

which the Court now relies in Nixon v. Fitzgerald,

and that we relied on only recently in Gravel, are

fully applicable to senior Presidential aides. The

Court's opinion in Nixon v. Fitzgerald correctly

points out that if a President were subject to suit,

awareness of personal vulnerability to suit

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“frequently could distract a President from his public duties, to the detriment of not only the President

and his office but also the Nation that the Presidency was designed to serve.” At 753, 102 S.Ct., at

2703. This same negative incentive will permeate

the inner workings of the Office of the President if

the Chief Executive's “alter egos” are not protected

derivatively from the immunity of the President. In

addition, exposure to civil liability for official acts

will result in constant judicial questioning, through

judicial proceedings and pretrial discovery, into the

inner workings of the Presidential Office beyond

that necessary to maintain the traditional checks

and balances of our constitutional structure.FN6

FN6. The same remedies for checks on

Presidential abuse also will check abuses

by the comparatively small group of senior

aides who act as “alter egos” of the President. The aides serve at the pleasure of the

President and thus may be removed by the

President. Congressional and public scrutiny maintain a constant and pervasive

check on abuses, and such aides may be

prosecuted criminally. See Nixon, 457

U.S., at 757, 102 S.Ct., at 2705-2706.

However, a criminal prosecution cannot be

commenced absent careful consideration

by a grand jury at the request of a prosecutor; the same check is not present with respect to the commencement of civil suits in

which advocates are subject to no realistic

accountability.

I challenge the Court and the dissenters in Nixon v.

Fitzgerald who join in the instant holding to say

that the effectiveness of Presidential aides will not

“inevitably be diminished and frustrated,” Gravel,

supra, 408 U.S., at 617, 92 S.Ct., at 2623, if they

must weigh every act and decision in relation to the

risks of future *827 lawsuits. The Gravel Court

took note of the burdens on congressional aides: the

stress of long **2743 hours, heavy responsibilities,

constant exposure to harassment of the political

arena. Is the Court suggesting the stresses are less

for Presidential aides? By construing the Constitution to give only qualified immunity to senior Presidential aides we give those key “alter egos” only

lawsuits, winable lawsuits perhaps, but lawsuits

nonetheless, with stress and effort that will disperse

and drain their energies and their purses.FN7

FN7. The Executive Branch may as a matter of grace supply some legal assistance.

The Department of Justice has a longstanding policy of representing federal officers

in civil suits involving conduct performed

within the scope of their employment. In

addition, the Department provides for retention of private legal counsel when necessary. See Senate Subcommittee on Administrative Practice and Procedure of the

Committee on the Judiciary, Justice Department Retention of Private Legal Counsel to Represent Federal Employees in

Civil Lawsuits, 95th Cong., 2d Sess.

(Comm.Print 1978). The Congress frequently pays the expenses of defending its

Members even as to acts wholly outside

the legislative function.

In this Court we witness the new filing of as many

as 100 cases a week, many utterly frivolous and

even bizarre. Yet the defending party in many of

these cases may have spent or become liable for

thousands of dollars in litigation expense. Hundreds

of thousands of other cases are disposed of without

reaching this Court. When we see the myriad irresponsible and frivolous cases regularly filed in

American courts, the magnitude of the potential

risks attending acceptance of public office emerges.

Those potential risks inevitably will be a factor in

discouraging able men and women from entering

public service.

We-judges collectively-have held that the common

law provides us with absolute immunity for

ourselves with respect to judicial acts, however erroneous or ill-advised. See, e.g., Stump v.

Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d

331 (1978). Are the lowest ranking of 27,000 or

more judges, thousands of prosecutors, and thousands of congressional aides-an aggregate *828 of

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tion than two senior aides of a President?

Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57

L.Ed.2d 895 (1978), does not dictate that senior

Presidential aides be given only qualified immunity. Butz held only that a Cabinet officer exercising discretion was not entitled to absolute immunity; we need not abandon that holding. A senior

Presidential aide works more intimately with the

President on a daily basis than does a Cabinet officer, directly implementing Presidential decisions

literally from hour to hour.

In his dissent today in Nixon v. Fitzgerald, Justice

WHITE states that the “Court now applies the dissenting view in Butz to the Office of the President.”

457 U.S., at 764, 102 S.Ct., at 2709. However, this

suggests that a President and his Cabinet officers,

who serve only “during the pleasure of the President,” are on the same plane constitutionally. It

wholly fails to distinguish the role of a President or

his “elbow aides” from the role of Cabinet officers,

who are department heads rather than “alter egos.”

It would be in no sense inconsistent to hold that a

President's personal aides have greater immunity

than Cabinet officers.

The Court's analysis in Gravel demonstrates that

the question of derivative immunity does not and

should not depend on a person's rank or position in

the hierarchy, but on the function performed by the

person and the relationship of that person to the superior. Cabinet officers clearly outrank United

States Attorneys, yet qualified immunity is accorded the former and absolute immunity the latter;

rank is important only to the extent that the rank determines the function to be performed. The function

of senior Presidential aides, as the “alter egos” of

the President, is an integral, inseparable part of the

function of the President.FN8 Justice WHITE *829

was clearly **2744 correct in Gravel, stating that

Members of Congress could not “perform their legislative tasks without the help of aides and assistants; [and] that the day-to-day work of such aides is

so critical to the Members' performance that they

must be treated as the latter's alter egos ....” 408

U.S., at 616-617, 92 S.Ct., at 2623.

FN8. This Court had no trouble reconciling

Gravel with Kilbourn v. Thompson, 103

U.S. 168, 26 L.Ed. 377 (1881). In Kilbourn

the Sergeant-at-Arms of the House of Representatives was held not to share the absolute immunity enjoyed by the Members of

Congress who ordered that officer to act.

By ignoring Gravel and engaging in a wooden application of Butz, the Court significantly undermines the functioning of the Office of the President. Under the Court's opinion in Nixon today it is

clear that Presidential immunity derives from the

Constitution as much as congressional immunity

comes from that source. Can there rationally be one

rule for congressional aides and another for Presidential aides simply because the initial absolute immunity of each derives from different aspects of the

Constitution? I find it inexplicable why the Court

makes no effort to demonstrate why the Chief Executive of the Nation should not be assured that

senior staff aides will have the same protection as

the aides of Members of the House and Senate.

U.S.Dist.Col.,1982.

Harlow v. Fitzgerald

457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396

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Gray ex rel. Alexander v. Bostic

C.A.11 (Ala.),2006.

United States Court of Appeals,Eleventh Circuit.

Laquarius GRAY, a minor, by and through her

mother and next friend, Toniko L. ALEXANDER,

Plaintiff-Appellee,

v.

Antonio BOSTIC, individually and in his official

capacity as Deputy Sheriff for Tuscaloosa County,

AL, Edmund Sexton, individually and in his official

capacity as Principal of Holt Elementary School,

Tuscaloosa, AL, Defendants-Appellants,

Joyce Sellers, individually and in her official capacity as Superintendent of Tuscaloosa County, AL,

School System and/or Tuscaloosa County, AL,

Board of Education, et al., Defendants.

No. 06-10216

Non-Argument Calendar.

Aug. 7, 2006.

Background: Elementary school student brought §

1983 action, by and through her mother, against

deputy sheriff who served as a school resource officer (SRO), county sheriff, and others, arising from

detention and handcuffing of student during a physical education class. The United States District

Court for the Northern District of Alabama dismissed action for failure to state a claim, but the

Court of Appeals reversed. On remand, the District

Court, No. 03-02989-CV-UWC-W,U.W. Clemon,

Chief Judge, denied defendants' motion for summary judgment based on qualified immunity, and

defendants took interlocutory appeal.

Holdings: The Court of Appeals, Hull, Circuit

Judge, held that:

(1) deputy sheriff, acting as SRO, was acting within

scope of his discretionary authority when he detained and handcuffed student;

(2) deputy acted reasonably in stopping student to

question her about her allegedly threatening conduct toward teacher;

(3) deputy's handcuffing of student violated her

Fourth Amendment rights;

(4) right violated by deputy was clearly established,

so he was not entitled to qualified immunity; and

(5) sheriff could not be held personally liable for

deputy's violation of student's Fourth Amendment

rights.

Affirmed in part, reversed in part, and remanded.

West Headnotes

[1] Federal Courts 170B 574

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(C) Decisions Reviewable

170BVIII(C)2 Finality of Determination

170Bk572 Interlocutory Orders Appealable

170Bk574 k. Other Particular Orders. Most Cited Cases

Although the denial of summary judgment generally is not a final appealable order subject to immediate appeal, an interlocutory appeal may be taken

where the district court denies the defense of qualified immunity and the appeal involves a question of

law.

[2] Federal Courts 170B 776

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk776 k. Trial De Novo. Most

Cited Cases

Federal Courts 170B 802

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)3 Presumptions

458 F.3d 1295 Page 1

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Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 92 of 273
170Bk802 k. Summary Judgment.

Most Cited Cases

Court of Appeals reviews de novo a district court's

denial of summary judgment based on qualified immunity, viewing the evidence in a light most favorable to the opposing party.

[3] Civil Rights 78 1376(2)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(2) k. Good Faith and Reasonableness; Knowledge and Clarity of Law; Motive

and Intent, in General. Most Cited Cases

“Qualified immunity” offers a complete protection

for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.

[4] Civil Rights 78 1376(1)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(1) k. In General. Most Cited

Cases

Civil Rights 78 1407

78 Civil Rights

78III Federal Remedies in General

78k1400 Presumptions, Inferences, and Burdens of Proof

78k1407 k. Defenses; Immunity and Good

Faith. Most Cited Cases

To be entitled to qualified immunity, a government

official must prove that he was acting within the

scope of his discretionary authority; once the defendants establish that they were acting within their

discretionary authority, the burden shifts to the

plaintiff to demonstrate that qualified immunity is

not appropriate.

[5] Civil Rights 78 1376(1)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(1) k. In General. Most Cited

Cases

Civil Rights 78 1376(2)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(2) k. Good Faith and Reasonableness; Knowledge and Clarity of Law; Motive

and Intent, in General. Most Cited Cases

Under two-part test to evaluate whether an official

is entitled to qualified immunity, Court of Appeals

first addresses, as a threshold inquiry, whether the

facts presented, taken in a light most favorable to

the non-moving party, establish a constitutional violation; if Court answers this question in the affirmative, it then asks whether the right was clearly established.

[6] Civil Rights 78 1376(1)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(1) k. In General. Most Cited

Cases

To establish that a government official's challenged

actions were within the scope of his discretionary

authority, so as to support claim of qualified immunity, the official must show that those actions

458 F.3d 1295 Page 2

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were (1) undertaken pursuant to the performance of

his duties, and (2) within the scope of his authority;

to that end, a court must ask whether the act complained of, if done for a proper purpose, would be

within, or reasonably related to, the outer perimeter

of an official's discretionary duties.

[7] Civil Rights 78 1376(6)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(6) k. Sheriffs, Police, and

Other Peace Officers. Most Cited Cases

Deputy sheriff who served as a school resource officer (SRO) at elementary school was acting within

scope of his discretionary authority when he detained and handcuffed student who allegedly acted

in disrespectful manner and threatened teacher during physical education class, thus supporting

deputy's claim of qualified immunity in student's

resulting § 1983 action alleging violation of her

Fourth Amendment rights; deputy was charged with

responsibility to investigate criminal activity that

might be taking place at school and allegedly believed that student had committed a misdemeanor.

U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.

[8] Civil Rights 78 1088(4)

78 Civil Rights

78I Rights Protected and Discrimination Prohibited in General

78k1088 Police, Investigative, or Law Enforcement Activities

78k1088(4) k. Arrest and Detention. Most

Cited Cases

Elementary school student's excessive force claim

against deputy sheriff who, while serving as school

resource officer (SRO), detained and handcuffed

student after she allegedly acted in disrespectful

manner and threatened teacher during physical education class was not an independent claim, but was

subsumed within student's illegal seizure claim, in

student's resulting § 1983 action, where student argued that deputy used excessive force in detaining

her because he lacked a right to detain her at all.

U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.

[9] Schools 345 169.5

345 Schools

345II Public Schools

345II(L) Pupils

345k169.5 k. Searches and Seizures. Most

Cited Cases

The legality of a search of a student by a law enforcement officer should depend simply on the

reasonableness, under all the circumstances, of the

search. U.S.C.A. Const.Amend. 4.

[10] Schools 345 169.5

345 Schools

345II Public Schools

345II(L) Pupils

345k169.5 k. Searches and Seizures. Most

Cited Cases

Under the reasonableness standard applicable to

school seizures by law enforcement officers, the

reasonableness of a search is evaluated using a twostep inquiry: first, one must consider whether the

action was justified at its inception; second, one

must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified interference in the first

place. U.S.C.A. Const.Amend. 4.

[11] Schools 345 169

345 Schools

345II Public Schools

345II(L) Pupils

345k169 k. Control of Pupils and Discipline in General. Most Cited Cases

Deputy sheriff who served as a school resource officer (SRO) acted reasonably in stopping student to

question her about her conduct, after witnessing

student threaten to do something physically to

teacher in her physical education class, even if

neither of two teachers that was present feared for

their safety, in view of state statute providing that

458 F.3d 1295 Page 3

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certain verbal threats would constitute misdemeanor of harassment. U.S.C.A. Const.Amend. 4;

Ala.Code 1975, § 13A-11-8(a)(1-3).

[12] Schools 345 169

345 Schools

345II Public Schools

345II(L) Pupils

345k169 k. Control of Pupils and Discipline in General. Most Cited Cases

Conduct of deputy sheriff who, while serving as

school resource officer (SRO), detained and handcuffed nine-year-old elementary school student

after she allegedly acted in disrespectful manner

and threatened teacher during physical education

class was not reasonably related to scope of circumstances that justified deputy's initial investigatory

stop of student, and thus deputy's conduct violated

student's Fourth Amendment rights; handcuffing

student was excessively intrusive given student's

young age and fact that deputy acted not to protect

anyone's safety, but to persuade student to get rid of

her disrespectful attitude and to impress upon her

the serious nature of committing crimes. U.S.C.A.

Const.Amend. 4.

[13] Schools 345 169

345 Schools

345II Public Schools

345II(L) Pupils

345k169 k. Control of Pupils and Discipline in General. Most Cited Cases

Schools 345 169.5

345 Schools

345II Public Schools

345II(L) Pupils

345k169.5 k. Searches and Seizures. Most

Cited Cases

A seizure by a law enforcement officer in a school

setting will be permissible in its scope when the

measures adopted are reasonably related to the objectives of the seizure and not excessively intrusive

in light of the age and sex of the student and the

nature of the infraction. U.S.C.A. Const.Amend. 4.

[14] Arrest 35 63.5(9)

35 Arrest

35II On Criminal Charges

35k63.5 Investigatory Stop or StopAnd-Frisk

35k63.5(9) k. Duration of Detention and

Extent or Conduct of Investigation or Frisk. Most

Cited Cases

An officer can handcuff a detainee during an investigatory stop when the officer reasonably believes that the detainee presents a potential threat to

safety. U.S.C.A. Const.Amend. 4.

[15] Civil Rights 78 1376(6)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(6) k. Sheriffs, Police, and

Other Peace Officers. Most Cited Cases

Fourth Amendment right of elementary school student that was violated by deputy sheriff who, while

serving as school resource officer (SRO), detained

and handcuffed student after she allegedly acted in

disrespectful manner and threatened teacher during

physical education class was clearly established,

and thus deputy was not entitled to qualified immunity in student's resulting § 1983 action; even if

there was no factually similar pre-existing caselaw

to put deputy on notice this his conduct was objectively unreasonable, handcuffing of compliant nineyear-old girl, who posed no safety concerns, for

sole purpose of punishing her was obvious violation

of her Fourth Amendment rights. U.S.C.A.

Const.Amend. 4; 42 U.S.C.A. § 1983.

[16] Civil Rights 78 1376(2)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

458 F.3d 1295 Page 4

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Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 95 of 273
78k1376(2) k. Good Faith and Reasonableness; Knowledge and Clarity of Law; Motive

and Intent, in General. Most Cited Cases

Whether a constitutional right was clearly established at the time of a violation of that right, for

purpose of qualified immunity analysis, turns on

whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he

confronted.

[17] Arrest 35 63.5(9)

35 Arrest

35II On Criminal Charges

35k63.5 Investigatory Stop or StopAnd-Frisk

35k63.5(9) k. Duration of Detention and

Extent or Conduct of Investigation or Frisk. Most

Cited Cases

Under the Fourth Amendment, the scope of an investigative detention must be carefully tailored to

its underlying justification, and the investigatory

methods employed during a detention should be the

least intrusive means reasonably available to verify

or dispel the officer's suspicion in a short period of

time. U.S.C.A. Const.Amend. 4.

[18] Civil Rights 78 1376(2)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(2) k. Good Faith and Reasonableness; Knowledge and Clarity of Law; Motive

and Intent, in General. Most Cited Cases

Even in the absence of factually similar case law,

an official can have fair warning that his conduct is

unconstitutional, for purpose of qualified immunity

analysis, when the constitutional violation is obvious.

[19] Civil Rights 78 1376(6)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(6) k. Sheriffs, Police, and

Other Peace Officers. Most Cited Cases

The Fourth Amendment's general proscription

against unreasonable seizures seldom puts officers

on notice that certain conduct is unlawful under

precise circumstances, for purpose of determining

whether right is clearly established under qualified

immunity analysis. U.S.C.A. Const.Amend. 4.

[20] Civil Rights 78 1355

78 Civil Rights

78III Federal Remedies in General

78k1353 Liability of Public Officials

78k1355 k. Vicarious Liability and Respondeat Superior in General; Supervisory Liability

in General. Most Cited Cases

Supervisory officials cannot be held liable under §

1983 for the unconstitutional actions of their subordinates based on respondeat superior liability. 42

U.S.C.A. § 1983.

[21] Civil Rights 78 1358

78 Civil Rights

78III Federal Remedies in General

78k1353 Liability of Public Officials

78k1358 k. Criminal Law Enforcement;

Prisons. Most Cited Cases

Sheriff could not be held liable for deputy sheriff's

violation of elementary school student's Fourth

Amendment rights on ground that, under Alabama

law, a deputy sheriff was the agent and alter ego of

the sheriff, since such alter ego theory was equivalent of respondeat superior liability, which was not a

permissible basis to support supervisory liability

under § 1983. U.S.C.A. Const.Amend. 4; 42

U.S.C.A. § 1983.

[22] Civil Rights 78 1355

78 Civil Rights

78III Federal Remedies in General

78k1353 Liability of Public Officials

458 F.3d 1295 Page 5

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Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 96 of 273
78k1355 k. Vicarious Liability and Respondeat Superior in General; Supervisory Liability

in General. Most Cited Cases

Supervisors can be held personally liable under §

1983 for unconstitutional actions of their subordinates when either (1) the supervisor personally participates in the alleged constitutional violation, or (2)

there is a causal connection between the actions of

the supervisor and the alleged constitutional violation. 42 U.S.C.A. § 1983.

[23] Civil Rights 78 1355

78 Civil Rights

78III Federal Remedies in General

78k1353 Liability of Public Officials

78k1355 k. Vicarious Liability and Respondeat Superior in General; Supervisory Liability

in General. Most Cited Cases

To hold supervisor personally liable under § 1983

for unconstitutional actions of their subordinates

due to causal connection between the actions of the

supervisor and the alleged constitutional violation,

the causal connection can be established when a

history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged

deprivation, and he fails to do so. 42 U.S.C.A. §

1983.

[24] Civil Rights 78 1355

78 Civil Rights

78III Federal Remedies in General

78k1353 Liability of Public Officials

78k1355 k. Vicarious Liability and Respondeat Superior in General; Supervisory Liability

in General. Most Cited Cases

To be sufficient to notify a supervisor of a need to

correct an alleged deprivation, as would support

holding supervisor personally liable under § 1983

for unconstitutional actions of their subordinates

due to causal connection between actions of supervisor and alleged constitutional violation, the

deprivations must not only be widespread, they also

must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences. 42

U.S.C.A. § 1983.

[25] Civil Rights 78 1358

78 Civil Rights

78III Federal Remedies in General

78k1353 Liability of Public Officials

78k1358 k. Criminal Law Enforcement;

Prisons. Most Cited Cases

Sheriff did not have sufficient notice of possible

constitutional deprivations, as would support holding sheriff personally liable, under § 1983, for

deputy sheriff's violation of elementary school student's Fourth Amendment rights by handcuffing

student following student's alleged making of physical threat toward teacher, absent evidence of widespread and obvious handcuffed detentions of students by the deputy involved or other deputy sheriffs. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. §

1983.

[26] Civil Rights 78 1358

78 Civil Rights

78III Federal Remedies in General

78k1353 Liability of Public Officials

78k1358 k. Criminal Law Enforcement;

Prisons. Most Cited Cases

Need for training deputy sheriffs as to detention of

students was not so obvious that failure to do so

constituted deliberate indifference to students'

Fourth Amendment rights, as would warrant holding sheriff personally liable, under § 1983, for

deputy sheriff's violation of elementary school student's Fourth Amendment rights by handcuffing

student following student's alleged making of physical threat toward teacher. U.S.C.A. Const.Amend.

4; 42 U.S.C.A. § 1983.

[27] Civil Rights 78 1376(6)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(6) k. Sheriffs, Police, and

Other Peace Officers. Most Cited Cases

Any law that would require training of deputy sher458 F.3d 1295 Page 6

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iffs on how to detain students was not clearly established, such that reasonable person in sheriff's

shoes would have known that failure to provide

such training constituted deliberate indifference, for

purpose of qualified immunity analysis in student's

§ 1983 action seeking to hold sheriff liable for

deputy sheriff's deprivation of student's Fourth

Amendment rights by handcuffing student following student's alleged making of physical threat toward teacher. U.S.C.A. Const.Amend. 4; 42

U.S.C.A. § 1983.

[28] Federal Courts 170B 768.1

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk768 Interlocutory, Collateral and

Supplementary Proceedings and Questions

170Bk768.1 k. In General. Most

Cited Cases

Generally, the denial of summary judgment on a

claim for injunctive relief is not a final appealable

decision although, under the pendant appellate jurisdiction doctrine, Court of Appeals may address

otherwise nonappealable orders if they are inextricably intertwined with an appealable decision.

[29] Federal Courts 170B 770

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk768 Interlocutory, Collateral and

Supplementary Proceedings and Questions

170Bk770 k. On Separate Appeal

from Interlocutory Judgment or Order. Most Cited

Cases

Student's claim for injunctive relief against sheriff

was inextricably intertwined with sheriff's argument that he was entitled to qualified immunity, in

student's § 1983 action alleging violation of her

Fourth Amendment rights by deputy sheriff who,

while acting as school resource officer (SRO),

handcuffed student following student's alleged

making of physical threat toward teacher, and thus

Court of Appeals reviewing denial of sheriff's motion for summary judgment based on qualified immunity, via interlocutory appeal, could also address

district court's failure to grant summary judgment

on student's claim for injunctive relief. U.S.C.A.

Const.Amend. 4; 42 U.S.C.A. § 1983.

*1300 Travis Russell Wisdom, Robert McCollough

Spence, Hubbard, Smith, McIlwain, Brakefield &

Browder, P.C., Tuscaloosa, AL, for Defendants-Appellants.

Thomas Blake Liveoak, Collins, Liveoak & Boyles,

P.C., Birmingham, AL, for Gray.

Appeal from the United States District Court for the

Northern District of Alabama.

Before CARNES, HULL and PRYOR, Circuit

Judges.

HULL, Circuit Judge:

This is the second appeal involving the detention

and handcuffing of a nine-year-old student, Laquarius Gray, during her physical education class. The

first time, we reversed the district court's Rule

12(b)(6) dismissal of this § 1983 action. Gray v.

Bostic, 127 Fed.Appx. 472, 2004 WL 3112657

(11th Cir.2004). This time, the defendants appeal

the district court's denial of their motions for summary judgment based on qualified immunity. After

review, we affirm in part and reverse in part.

I. BACKGROUND

A. The Incident

Coach Lattuce Greer Williams believed that Gray

was not doing “jumping jacks” along with the rest

of the physical education class. Coach Williams

told Gray she needed to do her exercises. When

Gray failed to comply, Coach Williams told Gray to

“[c]ome to the wall” of the gym. Williams testified

that as Gray walked to the wall, “[s]he told me that

she would punch me or hit me, hit me in the face.”

A nearby teacher, Coach Tara Horton, witnessed

the disagreement with Coach Williams. Coach Horton testified that Gray said, “I bust you in the

head,” which Coach Horton explained meant that

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“she was going to hit him in the head.” Although

Coach Williams and Coach Horton attribute slightly

different language to Gray, the gist of their testimony is that Gray threatened to hit Coach Williams.

In contrast, Gray testified that she did not threaten

to “bust” Coach Williams in the head. Although

Gray could not remember what she said, she agreed

that she threatened to “do something” to Coach

Williams and that what she said was disrespectful,

as follows:

Q: Then, [Coach Williams] told me that, at that

point, you told him that you were going to bust him

in his head; is that right?

A: No, sir.

Q: You didn't say that?

A: No, sir.

Q: Is Coach Williams lying to me?

MR. LIVEOAK: Objection

Q: (By Mr. Wisdom) You can answer. Is Coach

Williams telling me a lie?

A: I guess he did. I don't remember what I said, but

I didn't say that.

Q: You don't remember what you said?

A: (Witness shakes head.)

Q: You don't have any idea what you said?

MR. LIVEOAK: Is that no?

*1301 A: No.

Q: (By Mr. Wisdom) So, you don't know if you said

that you might punch him; is that right: Did you say

something to him that was disrespectful?

A: Yes, sir.

Q: What was that?

A: I don't remember.

Q: Did you tell him that you might do something to

him?

A: Yes, sir.

....

Q: What did you tell him that you were going to do

to him?

A: I don't remember.FN1

FN1. In the first appeal of the Rule

12(b)(6) dismissal, we reviewed the allegations in the complaint, which stated only

that Gray made a “disrespectful comment”

to Coach Williams. We noted that at the

Rule 12(b)(6) juncture, there was no allegation of profanity or fighting words or that

Gray was a danger to any teacher or student. Gray, No. 04-12240, slip op. at 14,

17, 2004 WL 3112657. Now, at the summary judgment juncture, we have deposition testimony as to what was said and the

context in which it was said.

Because of the summary judgment posture of the

case, we construe Gray's testimony as denying the

coaches' version of what she said. However, Gray

does not dispute that she threatened to “do

something” physically to Coach Williams. Thus the

precise nature of her physical threat-whether it was

to hit him in the face, poke him in the eye or kick

him in the shins-does not change our analysis.

After hearing Gray's threat to Coach Williams,

Coach Horton instructed Gray to come over to her.

Coach Williams then turned his attention back to

his class.

Deputy Antonio Bostic also witnessed the exchange

between Gray and Coach Williams. Deputy Bostic

was employed as a Tuscaloosa County Sheriff's

Deputy and served as a school resource officer

(“SRO”) for several schools, including Holt Elementary. Before Gray reached Coach Horton,

Deputy Bostic intervened and told Coach Horton

that he would talk to Gray. Coach Horton insisted

that she would handle the matter. However, Deputy

Bostic insisted that he would handle Gray and escorted Gray out the gym door into a lobby area.

Deputy Bostic told Gray to turn around, pulled her

hands behind her back and put Gray in handcuffs.

Deputy Bostic tightened the handcuffs to the point

that they caused Gray pain. Deputy Bostic told

Gray, “[T]his is how it feels when you break the

law,” and “[T]his is how it feels to be in jail.” Gray

began to cry. Gray stood with the handcuffs on for

not less than five minutes, with Deputy Bostic

standing behind her.FN2

FN2. There is a factual dispute about how

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long Gray was in handcuffs. As to time,

Gray testified that she did not know how

long she stood in handcuffs. However,

Gray was asked whether it was “less than

five minutes,” and replied “No, sir.” When

Coach Horton was asked how long Gray

was in handcuffs, she responded, “I'm going to guestimate two minutes maybe.”

Deputy Bostic averred that he “detained

[Gray] for less than 30 seconds ....” At the

summary judgment stage, however, we

must review the evidence in a light most

favorable to Gray and assume that Gray

was handcuffed for not less than five

minutes.

In discovery responses, Deputy Bostic averred that

he detained and handcuffed Gray “to impress upon

her the serious nature of committing crimes that can

lead to arrest, detention or incarceration” and “to

help persuade her to rid herself of her disrespectful

attitude.” Deputy Bostic's discovery responses also

stated that he *1302 “did not feel the need to apologize to LaQuarius Gray for telling her that she committed a misdemeanor in my presence and showing

her what would happen if a less generous officer

than I were to arrest her for her actions.”FN3 After

Deputy Bostic took the handcuffs off, Gray went to

the Coaches' Office until her next class.

FN3. Deputy Bostic was never deposed

and did not file a declaration in support of

his motion for summary judgment. Therefore, the only sworn statement from

Deputy Bostic relating to the events is contained in his interrogatory responses.

Neither Coach Horton nor Coach Williams was

afraid of Gray or believed that Gray would actually

carry out her threat. When asked whether he was

“ever afraid that [Gray] would commit an act of violence towards [him] or Ms. Horton,” Coach Williams replied, “No, sir.” Similarly, Coach Horton

replied “No,” when asked if she was “ever afraid

that Ms. Gray would physically assault you or another student?” When asked, “[W]hen Ms. Gray

told Coach Williams that she was going to bust him

in the head she's not actually physically capable of

doing that, is she,” Coach Horton agreed. Coach

Horton planned to talk with Gray about the incident

and give her a warning. Coach Horton testified that

she would not have been required to write Gray up,

give Gray detention, or send her to the principal's

office “because it wasn't that major.”

B. Court Proceedings

On November 4, 2003, by and through her mother,

Gray filed suit against Deputy Bostic and Tuscaloosa County Sheriff, Edmund Sexton in their official and individual capacities.FN4 Gray's complaint

contained eight counts, including claims: (1) under

42 U.S.C. § 1983 for violations of Gray's First,

Fourth, Fifth, Eighth and Fourteenth Amendment

rights (Count 1); (2) under 42 U.S.C. § 1981 for

race discrimination (Count 2); and (3) under state

law for invasion of privacy, assault and battery,

false imprisonment, defamation and intentional infliction of emotional distress (Counts 4 through 8).

Gray also sought declaratory and injunctive relief

(Count 3). The defendants filed a motion to dismiss, which the district court granted.

FN4. Gray's original complaint also alleged claims against Joyce Harris, Holt

Elementary School's principal; Joyce

Sellers, the Tuscaloosa County School Superintendent; and members of the Tuscaloosa County Board of Education. Gray

subsequently dismissed these claims.

Gray appealed to this Court, challenging only the

district court's dismissal of her Fourth Amendment

claims against Deputy Bostic and Sheriff Sexton individually and the denial of her motion for leave to

amend her complaint.FN5 We reversed, stating that

on remand Gray was entitled to pursue her Fourth

Amendment claims against defendants Deputy

Bostic and Sheriff Sexton individually and to file

an amended complaint. Gray, 127 Fed.Appx. 472.

The district court ordered Gray to file an amended

complaint asserting only the Fourth Amendment

claims that remained following her appeal. Gray

then amended her complaint, asserting claims of

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excessive use of force and unreasonable seizure

against defendants Bostic and Sexton individually.

FN5. In the prior appeal, Gray did not

challenge the dismissal of her First, Fifth,

Eighth and Fourteenth Amendment claims,

her state law claims or her official capacity

claims against Deputy Bostic and Sheriff

Sexton.

Following discovery, the defendants moved for

summary judgment based on *1303 qualified immunity. The district court denied the motion,

prompting this interlocutory appeal.

II. STANDARD OF REVIEW

[1][2] Although the denial of summary judgment

generally is not a final appealable order subject to

immediate appeal, an interlocutory appeal may be

taken where the district court denies the defense of

qualified immunity and the appeal involves a question of law. McMillian v. Johnson, 88 F.3d 1554,

1563,amended on other grounds,101 F.3d 1363

(11th Cir.1996). We review de novo a district

court's denial of summary judgment based on qualified immunity, viewing the evidence in a light most

favorable to the opposing party. Williams v. Consol.

City of Jacksonville, 341 F.3d 1261, 1266-67 (11th

Cir.2003).

III. DISCUSSION

A. Qualified Immunity Principles

[3][4] “Qualified immunity offers a complete protection for government officials sued in their individual capacities if their conduct ‘does not violate

clearly established statutory or constitutional rights

of which a reasonable person would have known.’ ”

Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th

Cir.2002) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396

(1982)). To be entitled to qualified immunity, the

defendant must prove that he was acting within the

scope of his discretionary authority. Id. “Once the

defendants establish that they were acting within

their discretionary authority, the burden shifts to

the plaintiff to demonstrate that qualified immunity

is not appropriate.” Lumley v. City of Dade City,

327 F.3d 1186, 1194 (11th Cir.2003).

[5] The Supreme Court has established a two-part

test to evaluate whether an official is entitled to

qualified immunity. First, as a threshold inquiry, we

address whether the facts presented, taken in a light

most favorable to the non-moving party, establish a

constitutional violation. Saucier v. Katz, 533 U.S.

194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272

(2001). If we answer this question in the affirmative, then we “ask whether the right was clearly established.” Id.

B. Deputy Bostic's Discretionary Authority

[6] Gray argues that Deputy Bostic was not acting

within the scope of his discretionary authority when

he detained and handcuffed Gray. “To establish that

the challenged actions were within the scope of his

discretionary authority, a defendant must show that

those actions were (1) undertaken pursuant to the

performance of his duties, and (2) within the scope

of his authority.” Harbert Int'l v. James, 157 F.3d

1271, 1282 (11th Cir.1998). To that end, “a court

must ask whether the act complained of, if done for

a proper purpose, would be within, or reasonably

related to, the outer perimeter of an official's discretionary duties.” Id. (quotation marks omitted).

[7] Although our prior opinion concluding that

Deputy Bostic was acting within his discretionary

authority was at the Rule 12(b)(6) stage and was

based on merely the allegations in the complaint,

there is no evidence at the summary judgment stage

that changes our conclusion. Deputy Bostic as an

SRO, was charged with the responsibility to investigate criminal activity that might be taking place at

Holt Elementary School. As part of that responsibility, Deputy Bostic's duties included, under the

right circumstances, detaining and questioning students and possibly arresting*1304 and handcuffing

them. The fact that the right circumstances (for detention or handcuffing) may not have been present

in this case is irrelevant to our inquiry. See

id.(explaining that the “inquiry is not whether it

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was within the defendant's authority to commit the

allegedly illegal act” because “[f]ramed that way,

the inquiry is no more than an ‘untenable’ tautology”).

Gray stresses that SROs were not supposed to discipline students and that Deputy Bostic admitted in

his interrogatory responses that his reasons for detaining and handcuffing Gray were to “impress

upon her the serious nature of committing crimes

that can lead to arrest, detention or incarceration”

and “to help persuade her to rid herself of her disrespectful attitude.” We note, however, that it is

also clear from Deputy Bostic's interrogatory responses that he believed Gray had committed a misdemeanor when she threatened her teacher and that

Deputy Bostic detained her to discuss the incident

with her. Therefore, we conclude that Deputy Bostic's actions were within his discretionary duties and

turn to whether his actions were unconstitutional.

C. Constitutional Violations

[8] Gray argues that Deputy Bostic used excessive

force in detaining her because he lacked a right to

detain her at all. Therefore, her excessive force

claim is not an independent claim, but rather is subsumed in her illegal seizure claim. See Bashir v.

Rockdale County, 445 F.3d 1323, 1331 (11th

Cir.2006) (stating that “[u]nder this Circuit's law ...

a claim that any force in an illegal stop or arrest is

excessive is subsumed in the illegal stop or arrest

claim and is not a discrete excessive force claim”

(quotation marks omitted)).FN6 Thus, our inquiry

focuses on Deputy Bostic's seizure of Gray.

FN6. Although Gray alleges that Deputy

Bostic tightened the handcuffs enough to

cause her pain, she has not argued that the

handcuffing constituted excessive force

even if Deputy Bostic's stop was supported

by reasonable suspicion.

[9][10] As stated in Gray's earlier appeal, we apply

the reasonableness standard articulated in New Jersey v. T.L.O., 469 U.S. 325, 341-42, 105 S.Ct. 733,

742-43, 83 L.Ed.2d 720 (1985), to school seizures

by law enforcement officers. See Gray, No.

04-12240, slip op. at 14, 2004 WL 3112657. In

T.L.O., the Supreme Court recognized that the substantial need to maintain discipline in the classroom

and foster a positive learning environment “requires

some modification of the level of suspicion of illicit

activity needed to justify a search” in the public

school setting. T.L.O. 469 U.S. at 340, 105 S.Ct. at

742. To that end, the Supreme Court concluded that

“the accommodation of the privacy interests of

schoolchildren with the substantial need of teachers

and administrators for freedom to maintain order in

the schools does not require strict adherence to the

requirement that searches be based on probable

cause.” Id. at 341, 105 S.Ct. at 742. Instead, under

T.L.O.'s reasonableness standard, “the legality of a

search of a student should depend simply on the

reasonableness, under all the circumstances, of the

search.” Id. Under the T.L.O. standard, the reasonableness of the search is evaluated using a two-step

inquiry: “first, one must consider ‘whether the ...

action was justified at its inception’; second, one

must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified interference in the first

place.’ ” Id. at 341, 105 S.Ct. at 742-43*1305

(citations omitted). The T.L.O. standard mirrors the

standard announced in Terry v. Ohio governing the

reasonableness of investigatory stops. See Terry v.

Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20

L.Ed.2d 889 (1968).

[11] Under T.L.O.'s first prong, we examine whether Deputy Bostic has a reasonable basis for calling

Gray over to him, i.e., stopping her, and asking her

questions. It is undisputed that Deputy Bostic witnessed Gray threaten to do something physically to

her teacher. Under Alabama Code § 13A-11-8, a

verbal threat, “made with the intent to carry out the

threat, that would cause a reasonable person who is

the target of the threat to fear for his or her safety,”

constitutes the crime of harassment, which is a

Class C misdemeanor. SeeAla.Code §

13A-11-8(a)(1)-(3). Gray stresses neither Coach

Williams nor Coach Horton feared for their safety

and that Deputy Bostic had no probable cause or arguable probable cause to arrest her. However, under

T.L.O., the level of suspicion in a school setting

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needed to justify a search or an investigatory stop is

only reasonableness under the circumstances. Given

his having witnessed Gray's threat in a school setting, Deputy Bostic's stopping Gray to question her

about her conduct was reasonable. FN7

FN7. Although defendants claim Deputy

Bostic had probable cause, the conduct in §

13A-11-8 cases has been generally more

egregious and has involved a credible

threat. See, e.g., B.B. v. State, 863 So.2d

132, 135-36 (Ala.Crim.App.2003) (holding

that a disruptive seventh grade student who

threatened to kill his teacher violated §

13A-11-8 where the student was very

angry during the incident, uttered the threat

through clenched teeth and threw a desk

across the room while stating, “I hate that

teacher, I hate that teacher,” and the teacher and another witness both testified that

they feared the student would harm the

teacher); Fallin v. City of Huntsville, 865

So.2d 473, 477 (Ala.Crim.App.2003)

(concluding that defendant violated §

13A-11-8 where defendant, a large man,

was yelling threats to his daughter's cheerleading coach while approaching her with

waving arms and pointing fingers and the

coach and other witnesses testified that

they were afraid for their safety).

However, because T.L.O. does not require

probable cause in a school setting, we need

not reach the issue of whether Deputy

Bostic had probable cause or arguable

probable cause. See Durruthy v. Pastor,

351 F.3d 1080, 1089 (11th Cir.2003)

(explaining that a showing of only arguable probable cause is required to establish

that an officer is entitled to qualified immunity).

[12][13] Turning to T.L.O.'s second prong, we must

consider whether Deputy Bostic's subsequent handcuffing of Gray “was reasonably related to the

scope of the circumstances which justified the interference in the first place.” T.L.O. 469 U.S. at

341, 105 S.Ct. at 743 (quotation marks omitted and

emphasis supplied). “[A seizure] will be permissible in its scope when the measures adopted are

reasonably related to the objectives of the [seizure]

and not excessively intrusive in light of the age and

sex of the student and the nature of the infraction.”

Id. at 342, 105 S.Ct. at 743. After stopping Gray,

Deputy Bostic not only questioned her, but also

handcuffed her for not less than five minutes. Thus,

the question under the second prong is whether the

handcuffing of nine-year-old Gray was reasonably

related to the scope of the circumstances which justified Deputy Bostic's initial interference and was

not excessively intrusive.

[14] By his own admission, Deputy Bostic did not

handcuff Gray to effect an arrest of Gray. Rather,

his handcuffing of Gray was during an investigatory stop. Nonetheless, during an investigatory stop,

an officer can still handcuff a detainee when the officer reasonably believes that the detainee presents

a potential threat to *1306 safety. See United States

v. Hastamorir, 881 F.2d 1551, 1557 (11th

Cir.1989); United States v. Blackman, 66 F.3d

1572, 1576-77 (11th Cir.1995); United States v.

Kapperman, 764 F.2d 786, 790-91 & n. 4 (11th

Cir.1985).

The problem in this case for Deputy Bostic is that,

at the time Deputy Bostic handcuffed Gray, there

was no indication of a potential threat to anyone's

safety. The incident was over, and Gray, after making the comment, had promptly complied with her

teachers' instructions, coming to the gym wall and

then to Coach Horton when told to do so. There is

no evidence that Gray was gesturing or engaging in

any further disruptive behavior. Rather, Gray had

cooperated with her teachers and did not pose a

threat to anyone's safety. In fact, Coach Horton had

insisted that she would handle the matter, but

Deputy Bostic still intervened. Deputy Bostic does

not even claim that he handcuffed Gray to protect

his or anyone's safety. Rather, Deputy Bostic candidly admitted that he handcuffed Gray to persuade

her to get rid of her disrespectful attitude and to impress upon her the serious nature of committing

crimes. In effect, Deputy Bostic's handcuffing of

Gray was his attempt to punish Gray in order to

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change her behavior in the future.

Thus, Deputy Bostic's handcuffing Gray was not

reasonably related to the scope of the circumstances

that justified the initial investigatory stop. Rather,

the handcuffing was excessively intrusive given

Gray's young age and the fact that it was not done

to protect anyone's safety. Therefore, the handcuffing of Gray violated Gray's Fourth Amendment

rights.

D. Clearly Established Law

[15][16] Whether a constitutional right was “clearly

established” at the time of the violation turns on “

‘whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he

confronted.’ ” Bashir, 445 F.3d at 1330 (quoting

Saucier, 533 U.S. at 202, 121 S.Ct. at 2156). We

focus on the status of the law in March 2003 when

Deputy Bostic detained and handcuffed Gray.

[17] It is well settled that, under the Fourth Amendment, “[t]he scope of a detention must be carefully

tailored to its underlying justification” and that the

“investigatory methods employed [during a detention] should be the least intrusive means reasonably

available to verify or dispel the officer's suspicion

in a short period of time.” Florida v. Royer, 460

U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d

229 (1983). As we have already discussed, this

Court has long concluded that it is reasonable for

officers to use handcuffs to protect themselves during an investigative detention. See Hastamorir, 881

F.2d at 1556-57; Kapperman, 764 F.2d at 790 n. 4.

However, Gray does not cite and we cannot locate a

case addressing before today when it may be reasonable to use handcuffs in an investigatory stop absent a safety rationale. Thus, no factually similar

pre-existing case law put Deputy Bostic on notice

that his use of handcuffs to discipline Gray was objectively unreasonable for Fourth Amendment purposes.

[18] However, our inquiry does not end here. Even

in the absence of factually similar case law, an official can have fair warning that his conduct is unconstitutional when the constitutional violation is

obvious, sometimes referred to as “obvious clarity”

cases. See United States v. Lanier, 520 U.S. 259,

271, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997)

(“[A] general constitutional*1307 rule already identified in the decisional law may apply with obvious

clarity to the specific conduct in question, even

though the very action in question has [not] been

previously held unlawful.”(quotation marks omitted)); Vinyard v. Wilson, 311 F.3d 1340, 1350-51

(11th Cir.2002).

[19] The Fourth Amendment's general proscription

against “unreasonable” seizures seldom puts officers on notice that certain conduct is unlawful under precise circumstances. Evans v. Stephens, 407

F.3d 1272, 1283 (11th Cir.2005) (en banc). Nonetheless, on rare occasion we have concluded that

general Fourth Amendment principles make the

constitutional violation obvious. See, e.g., Id. at

1283 (concluding that the constitutional violation

was obvious where an officer conducted body cavity searches in a degrading and forceful manner and

when there was no need for immediate action); Vinyard, 311 F.3d at 1355 (concluding that the constitutional violation was obvious where the officer

grabbed the arrestee by the hair and arm and applied pepper spray after she had been handcuffed

and secured in the back of the patrol car); Lee v.

Ferraro, 284 F.3d 1188, 1198-99 (11th Cir.2002)

(concluding that the constitutional violation was

readily apparent where an officer slammed the arrestee's head against the trunk after she was handcuffed, secured and any risk of danger or flight had

passed); Priester v. City of Riviera Beach, 208 F.3d

919, 927 (11th Cir.2000) (concluding that the constitutional violation was obvious where an officer

permitted his dog to attack a handcuffed, compliant

arrestee for two minutes and then threatened to kill

the arrestee when he kicked the dog in an effort to

resist the attack). In these cases, the officer's conduct at issue lay “so obviously at the very core of

what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to

[him] notwithstanding the lack of [fact-specific]

case law.” Lee, 284 F.3d at 1199 (internal quotation

marks omitted). Put another way, the officer's conduct in these cases was “well beyond the ‘hazy bor458 F.3d 1295 Page 13

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der’ that sometimes separates lawful conduct from

unlawful conduct,” such that every objectively reasonable officer would have known that the conduct

was unlawful. Evans, 407 F.3d at 1283.

We likewise conclude that Deputy Bostic's conduct

in handcuffing Gray, a compliant, nine-year-old girl

for the sole purpose of punishing her was an obvious violation of Gray's Fourth Amendment rights.

After making the comment, Gray had complied

with her teachers' and Deputy Bostic's instructions.

Indeed, one of the teachers had informed Deputy

Bostic that she would handle the matter. In addition, Deputy Bostic's purpose in handcuffing Gray

was not to pursue an investigation to confirm or

dispel his suspicions that Gray had committed a

misdemeanor. Rather, Deputy Bostic's purpose in

handcuffing Gray was simply to punish her and

teach her a lesson. Every reasonable officer would

have known that handcuffing a compliant nineyear-old child for purely punitive purposes is unreasonable. We emphasize that the Court is not saying that the use of handcuffs during an investigatory stop of a nine-year-old child is always unreasonable, but just unreasonable under the particular

facts of this case.

Therefore, Deputy Bostic is not entitled to qualified

immunity, and the district court properly denied

summary judgment in his favor.

E. Sheriff Sexton

Gray alleges that Sheriff Sexton failed to train and

supervise adequately Deputy *1308 Bostic on the

proper use of force in this elementary school setting. The district court dismissed Gray's official capacity claim against Sheriff Sexton without challenge. Thus, all that remains is her individual capacity claim against Sheriff Sexton as Deputy Bostic's

supervisor.

[20][21][22] Supervisory officials cannot be held liable under § 1983 for the unconstitutional actions

of their subordinates based on respondeat superior

liability. Hartley v. Parnell, 193 F.3d 1263, 1269

(11th Cir.1999).FN8 Instead, supervisors can be

held personally liable when either (1) the supervisor personally participates in the alleged constitutional violation, or (2) there is a causal connection

between the actions of the supervisor and the alleged constitutional violation. Id. Gray does not allege that Sheriff Sexton personally participated in

her handcuffed detention. Thus, Gray attempts to

use the second method.

FN8. For this reason, we reject Gray's argument that Sheriff Sexton can be held liable because, under Alabama law, a deputy

sheriff is the agent and alter ego of the

sheriff. To hold Sheriff Sexton liable for

Deputy Bostic's alleged constitutional violation under an alter ego theory would

amount to respondeat superior liability.

[23][24] Under the second method, “[t]he causal

connection can be established when a history of

widespread abuse puts the responsible supervisor

on notice of the need to correct the alleged deprivation, and he fails to do so.” Id. (quoting Brown v.

Crawford, 906 F.2d 667, 671 (11th Cir.1990)). Furthermore, to be sufficient to notify the supervisor,

the deprivations must not only be widespread, they

also “must be obvious, flagrant, rampant and of

continued duration, rather than isolated occurrences.” Id. (quoting Brown, 906 F.2d at 671).

[25] There is no evidence in the record of widespread and obvious handcuffed detentions of students by Deputy Bostic or other deputy sheriffs.

There was some vague, arguably hearsay testimony

by Coach Horton that she had heard that Deputy

Bostic once placed another Holt Elementary student

in handcuffs. However, there is no evidence that

Sheriff Sexton was aware of this alleged incident.

Furthermore, this one isolated incident, of which

there are no details, is not sufficient to put Sheriff

Sexton on notice that Deputy Bostic needed additional training or supervision on the use of force

when detaining minors.

We also recognize that Gray alleges that Sheriff

Sexton instituted a policy instructing deputies to

detain, handcuff, arrest and incarcerate individuals

who were not suspected of committing a crime.

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There is no evidence in the record, however, that

Sheriff Sexton instituted such a policy or any other

policy that would have led Deputy Bostic to believe

that he could detain a student in handcuffs absent

safety concerns.

Finally, Gray emphasizes that Deputy Bostic received no training specifically addressing the detention of students. She contends that Sheriff Sexton

should have foreseen that unwarranted handcuffed

detentions of students were “bound to happen”

without such training. Thus, Gray is arguing that

the need to train was “so obvious” that the failure to

do so constituted deliberate indifference without

prior notice. See Gold v. City of Miami, 151 F.3d

1346, 1352 (11th Cir.1998) (addressing municipal

liability for failure to train).

The Supreme Court has “hypothesized that, in a

narrow range of circumstances, a *1309 violation

of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations.” Id. (quoting Bd. of County Comm'rs v.

Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 1391,

137 L.Ed.2d 626 (1997)). However, the Supreme

Court's only example of an obvious training need

was the use of deadly force when police officers are

given firearms. We have already determined that

the need for training regarding the proper use of

handcuffs is “ ‘[u]nlike the risk from a particular

glaring omission in a training regimen,’ ” and is instead a risk from a “possible imperfection[ ], ... in

... training and supervision” that is “ ‘not obvious in

the abstract.’ ” Id. at 1352 (quoting in partBrown,

520 U.S. at 409, 117 S.Ct. at 1391).

[26][27] We similarly conclude that the need for

training regarding the detention of students specifically is not obvious in the abstract and that a

lack of such training is a “possible imperfection,”

but not a “glaring omission” from a training regimen. Deputy Bostic received training, at both the

police academy and the Tuscaloosa County Sheriff's Department, on the proper use of force and the

principles of probable cause. The failure to provide

specific training regarding the detention of students,

in addition to general training regarding use of

force during detention and arrest, was not “so

likely” to result in the violation of students' Fourth

Amendment rights that Sheriff Sexton reasonably

can be said to have been deliberately indifferent to

the need for this particularized training without any

prior notice. See City of Canton v. Harris, 489 U.S.

378, 390-92, 109 S.Ct. 1197, 1205-07, 103 L.Ed.2d

412 (1989) (finding no obvious need to train jail supervisors regarding when to provide medical treatment beyond first aid); Gold, 151 F.3d at 1352;

Young v. City of Augusta, 59 F.3d 1160, 1172 (11th

Cir.1995) (finding no obvious need to train jailers

regarding medical treatment for mental illnesses

and dispensing of prescribed medication).FN9 Accordingly, Sheriff Sexton was entitled to summary

judgment in his individual capacity.

FN9. Gray cites no case law or statute that

required Sheriff Sexton to train SROs,

such as Deputy Bostic, on how to detain

students. Therefore, the law was not

“clearly established” for purposes of qualified immunity such that a reasonable official in Sheriff Sexton's shoes would have

known that the failure to provide such

training constituted deliberate indifference.

See Riley v. Newton, 94 F.3d 632, 637

(11th Cir.1996) (concluding that sheriff

was entitled to qualified immunity on failure-to-train claim where plaintiffs failed to

cite case law or constitutional provision requiring sheriff to provide training on how

to use Army personnel and rejecting

plaintiffs' argument that City of Canton's

general standard of liability in failure to

train cases clearly established the right).

F. Injunctive Relief

[28][29] Defendants also argue that the district

court erred in failing to grant summary judgment on

Gray's claim for injunctive relief against Sheriff

Sexton.FN10 Specifically, Gray's injunctive relief

claim seeks a declaration that Sheriff Sexton's custom or policy of failing to train deputies on the detention of students is unconstitutional *1310 and

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seeks to enjoin Sheriff Sexton from continuing to

implement that custom or policy. However, there is

no evidence of an unconstitutional policy or custom

implemented by Sheriff Sexton. Therefore, Gray's

claim for injunctive relief against Sheriff Sexton

also necessarily fails. Accordingly, Sheriff Sexton

is entitled to summary judgment on Gray's claim

for injunctive relief.

FN10. Generally, the denial of summary

judgment on a claim for injunctive relief is

not a final appealable decision. Switzerland Cheese Ass'n, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193,

195, 17 L.Ed.2d 23 (1966). However,

“[u]nder the pendant appellate jurisdiction

doctrine, we may address [otherwise]

nonappealable orders if they are

‘inextricably intertwined’ with an appealable decision.” Hudson v. Hall, 231 F.3d

1289, 1294 (11th Cir.2000) (quotation

marks omitted). Here, Gray's claim for injunctive relief and Sheriff Sexton's argument that he is entitled to qualified immunity are inextricably intertwined because both turn on whether Sheriff Sexton

has implemented an unconstitutional

policy or custom. See Moniz v. City of Fort

Lauderdale, 145 F.3d 1278, 1281 n. 3

(11th Cir.1998) (concluding that the issues

are inextricably intertwined when the

court, in resolving the qualified immunity

issue, also reaches the merits of the

pendant claim).

IV. CONCLUSION

For the forgoing reasons, we affirm the district

court's denial of summary judgment on Gray's illegal seizure claim against Deputy Bostic in his individual capacity, reverse the district court's denial of

summary judgment on Gray's claims against Sheriff

Sexton and on her separate excessive force claim

against Deputy Bostic, and remand for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART

AND REMANDED.

C.A.11 (Ala.),2006.

Gray ex rel. Alexander v. Bostic

458 F.3d 1295, 211 Ed. Law Rep. 701, 19 Fla. L.

Weekly Fed. C 894

END OF DOCUMENT

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Holloman ex rel. Holloman v. Harland

C.A.11 (Ala.),2004.

United States Court of Appeals,Eleventh Circuit.

Michael HOLLOMAN, on behalf of and as Next

Friend of his son, Michael HOLLOMAN, PlaintiffAppellant,

v.

George HARLAND, Fawn Allred, Defendants-Appellees.

Michael Holloman, Jr., Plaintiff-Appellant,

v.

Walker County Board of Education, Defendant-Appellee.

Nos. 01-13864, 01-15094.

May 28, 2004.

Background: Former Alabama public high school

student filed § 1983 action against economics and

government teacher, school principal, and county

board of education, claiming that his rights under

First Amendment's Speech Clause were violated

when teacher and principal punished him, with paddling in lieu of detention that would have delayed

his graduation, for silently raising his fist during

daily flag salute instead of reciting Pledge of Allegiance with rest of class, and that his Establishment

Clause rights were violated by teacher's daily

“ritual” of conducting silent moment of prayer. The

United States District Court for the Northern District of Alabama, No. 00-01855-CV-AR-J,William

M. Acker, Jr., J., granted summary judgment on

both claims to teacher and principal on qualified

immunity grounds, and in separate opinion granted

summary judgment to school board. Student appealed both rulings.

Holdings: The Court of Appeals, Tjoflat, Circuit

Judge, held that:

(1) for purposes of determining their entitlement to

qualified immunity, both teacher and principal were

engaged in discretionary function at time they disciplined student in connection with flag salute incident;

(2) genuine issue of material fact existed as to

whether teacher and principal punished student for

failing to say Pledge of Allegiance, in violation of

his clearly established right to be free from compelled speech;

(3) genuine issue of material fact existed as to

whether teacher and principal punished student for

raising his fist in the air in violation of his clearly

established right to engage in affirmative expression;

(4) even if student's expression was not protected,

genuine issue of material fact existed as to whether

teacher and principal were motivated by unlawful

desire to suppress student's viewpoint;

(5) teacher was not engaged in discretionary function when she led class in moment of silent prayer;

(6) teacher's practice of soliciting prayer requests

from her students and enforcing moment of silence

violated Establishment Clause;

(7) student had successfully articulated Speech

Clause claims against school board, under either

“official policy” or delegation to final policymaker

theories; and

(8) student had successfully articulated Establishment Clause claim against school board under

either “official policy” or “official custom” theory.

Reversed and remanded.

Wilson, Circuit Judge, filed opinion concurring in

part and dissenting in part.

West Headnotes

[1] Civil Rights 78 1335

78 Civil Rights

78III Federal Remedies in General

78k1334 Persons Liable in General

370 F.3d 1252 Page 1

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

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78k1335 k. In General. Most Cited Cases

Civil Rights 78 1355

78 Civil Rights

78III Federal Remedies in General

78k1353 Liability of Public Officials

78k1355 k. Vicarious Liability and Respondeat Superior in General; Supervisory Liability

in General. Most Cited Cases

Under § 1983, individual may be sued for his own

personal actions on theory of “direct liability,” or,

under certain limited circumstances, for actions of

his subordinates on theory of “supervisoral liability.” 42 U.S.C.A. § 1983.

[2] Federal Civil Procedure 170A 1752.1

170A Federal Civil Procedure

170AXI Dismissal

170AXI(B) Involuntary Dismissal

170AXI(B)2 Grounds in General

170Ak1752 Affirmative Defenses,

Raising by Motion to Dismiss

170Ak1752.1 k. In General. Most

Cited Cases

Federal Civil Procedure 170A 2491.5

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)2 Particular Cases

170Ak2491.5 k. Civil Rights Cases in

General. Most Cited Cases

When government official is sued under § 1983 under theory of direct liability, he may seek summary

judgment on qualified immunity grounds; government official may also seek to have complaint dismissed on qualified immunity grounds prior to discovery, based solely on allegations in pleadings.

Fed.Rules Civ.Proc.Rules 12(b)(6), 56, 28

U.S.C.A.; 42 U.S.C.A. § 1983.

[3] Federal Civil Procedure 170A 2491.5

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)2 Particular Cases

170Ak2491.5 k. Civil Rights Cases in

General. Most Cited Cases

To even be potentially eligible for summary judgment due to qualified immunity, government official must have been engaged in discretionary function when he performed acts of which plaintiff

complains; it is governmental official's burden to

make this showing, and official who is able to do so

may not receive summary judgment on qualified

immunity grounds. Fed.Rules Civ.Proc.Rule 56, 28

U.S.C.A.; 42 U.S.C.A. § 1983.

[4] Civil Rights 78 1407

78 Civil Rights

78III Federal Remedies in General

78k1400 Presumptions, Inferences, and Burdens of Proof

78k1407 k. Defenses; Immunity and Good

Faith. Most Cited Cases

If, interpreting evidence in light most favorable to §

1983 plaintiff, court concludes that government official was engaged in discretionary function, then

burden shifts to plaintiff to show that official is not

entitled to qualified immunity. 42 U.S.C.A. § 1983.

[5] Civil Rights 78 1376(1)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(1) k. In General. Most Cited

Cases

Civil Rights 78 1376(2)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(2) k. Good Faith and Reason370 F.3d 1252 Page 2

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

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ableness; Knowledge and Clarity of Law; Motive

and Intent, in General. Most Cited Cases

To overcome qualified immunity, § 1983 plaintiff

must satisfy two prong test; he must show that (1)

government official violated constitutional right,

and (2) this right was clearly established at time of

alleged violation. 42 U.S.C.A. § 1983.

[6] Constitutional Law 92 1490

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(A) In General

92XVIII(A)1 In General

92k1490 k. In General. Most Cited

Cases

(Formerly 92k90(1))

Constitutional Law 92 1564

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(A) In General

92XVIII(A)3 Particular Issues and Applications in General

92k1564 k. Compelled or Forced

Speech, Support, or Participation. Most Cited Cases

(Formerly 92k90(1))

Speech Clause of First Amendment protects at least

two separate, yet related, rights, the right to engage

in affirmative expression and the right to be free

from compelled expression. U.S.C.A.

Const.Amend. 1.

[7] Officers and Public Employees 283 114

283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities

283k114 k. Liabilities for Official Acts. Most

Cited Cases

(Formerly 78k1376(1))

In many areas other than qualified immunity,

“discretionary function” is defined as activity requiring exercise of independent judgment, and is

opposite of ministerial task; this dichotomy has

been abandoned in qualified immunity context. 42

U.S.C.A. § 1983.

[8] Officers and Public Employees 283 114

283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities

283k114 k. Liabilities for Official Acts. Most

Cited Cases

(Formerly 78k1376(1))

Instead of focusing on whether challenged acts of

government employee seeking qualified immunity

involved exercise of actual discretion, court assesses whether they were of type that fell within the

employee's job responsibilities, and inquiry is twofold; court asks whether government employee was

(a) performing legitimate job-related function, i.e.,

pursuing job-related goal, (b) through means that

were within his power to utilize. 42 U.S.C.A. §

1983.

[9] Civil Rights 78 1376(1)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(1) k. In General. Most Cited

Cases

To pass first step of discretionary function test for

qualified immunity, government official must have

been performing function that, but for the alleged

constitutional infirmity, would have fallen with his

legitimate job description. 42 U.S.C.A. § 1983.

[10] Officers and Public Employees 283 114

283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities

283k114 k. Liabilities for Official Acts. Most

Cited Cases

(Formerly 78k1376(1))

After determining that government official is engaged in legitimate job-related function, it is then

necessary to turn to second prong of discretionary

function test for qualified immunity and determine

whether official is executing that job-related func370 F.3d 1252 Page 3

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 110 of 273
tion, i.e., pursuing his job-related goals, in authorized manner. 42 U.S.C.A. § 1983.

[11] Civil Rights 78 1376(5)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(5) k. Schools. Most Cited

Cases

Alabama public high school economics and government teacher's acts in relation to punishing graduating student for silently raising his fist during daily

flag salute instead of reciting Pledge of Allegiance

with rest of class were discretionary acts for which

she could seek qualified immunity under § 1983. 42

U.S.C.A. § 1983.

[12] Civil Rights 78 1376(5)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(5) k. Schools. Most Cited

Cases

Alabama public high school principal who

“paddled” student for silently raising his fist during

daily flag salute instead of reciting Pledge of Allegiance with rest of class, in lieu of three-day detention that would have delayed student's graduation,

was engaged in legitimate discretionary function

for purposes of determining his entitlement to qualified immunity against student's Speech Clause

claims; disciplining students was such a function,

and in state of Alabama spanking students was legitimate part of principal's arsenal for enforcing

such discipline. U.S.C.A. Const.Amend. 1; 42

U.S.C.A. § 1983.

[13] Federal Civil Procedure 170A 2491.5

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)2 Particular Cases

170Ak2491.5 k. Civil Rights Cases in

General. Most Cited Cases

To show that government official is not entitled to

summary judgment on qualified immunity grounds,

§ 1983 plaintiff must demonstrate that reasonable

jury could interpret evidence in record as showing

that official violated constitutional right that was

clearly established at time of acts in question.

Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.; 42

U.S.C.A. § 1983.

[14] Constitutional Law 92 1151

92 Constitutional Law

92X First Amendment in General

92X(A) In General

92k1151 k. Applicability to Governmental

or Private Action; State Action. Most Cited Cases

(Formerly 92k82(5))

Constitutional Law 92 3935

92 Constitutional Law

92XXVII Due Process

92XXVII(D) Applicability to Governmental

or Private Conduct; State Action

92k3935 k. In General. Most Cited Cases

(Formerly 92k254(1))

Constitutional Law 92 3937

92 Constitutional Law

92XXVII Due Process

92XXVII(D) Applicability to Governmental

or Private Conduct; State Action

92k3937 k. State Government. Most Cited

Cases

(Formerly 92k254(2))

First Amendment, as incorporated through Due

Process Clause of Fourteenth Amendment, applies

to state and municipal governments, state-created

entities, and state and municipal employees.

U.S.C.A. Const.Amends. 1, 14.

[15] Federal Civil Procedure 170A 2491.5

370 F.3d 1252 Page 4

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 111 of 273
170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)2 Particular Cases

170Ak2491.5 k. Civil Rights Cases in

General. Most Cited Cases

Genuine issue of material fact, as to whether

Alabama public high school student who silently

raised his fist during daily flag salute instead of reciting Pledge of Allegiance was disciplined for failing to recite Pledge, in violation of his constitutional right to be free from compelled speech, precluded summary judgment for teacher and school

principal on that § 1983 claim on qualified immunity grounds. U.S.C.A. Const.Amend. 1;

Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.; 42

U.S.C.A. § 1983.

[16] Civil Rights 78 1376(5)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(5) k. Schools. Most Cited

Cases

For purposes of determining whether Alabama public high school teacher and principal were entitled

to qualified immunity in student's § 1983 action,

student's constitutional right to be free from compelled speech was clearly established in May 2000,

when student was disciplined for silently raising his

fist during daily flag salute instead of reciting

Pledge of Allegiance with rest of class; any reasonable person would have known that disciplining

student for refusing to recite pledge impermissibly

chilled his First Amendment rights. U.S.C.A.

Const.Amend. 1; 42 U.S.C.A. § 1983.

[17] Federal Civil Procedure 170A 2491.5

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)2 Particular Cases

170Ak2491.5 k. Civil Rights Cases in

General. Most Cited Cases

Genuine issue of material fact, as to whether

Alabama public high school student who silently

raised his fist during daily flag salute to protest another student's discipline for remaining silent with

his hands in his pockets during flag salute the day

before was punished for raising his fist in the air

during recitation rather than for merely refusing to

recite Pledge of Allegiance, precluded summary

judgment on qualified immunity grounds for teacher and principal on § 1983 claim based on violation

of student's First Amendment right to engage in affirmative expression. U.S.C.A. Const.Amend. 1;

Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.; 42

U.S.C.A. § 1983.

[18] Constitutional Law 92 1497

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(A) In General

92XVIII(A)1 In General

92k1497 k. Conduct, Protection Of.

Most Cited Cases

(Formerly 92k90(1))

Constitutional Law 92 1976

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(Q) Education

92XVIII(Q)1 In General

92k1975 Student Speech or Conduct

92k1976 k. In General. Most Cited

Cases

(Formerly 92k90(1), 92k90.1(1.4))

First Amendment guarantees students, and all

people, the right to engage not only in pure speech,

but “expressive conduct” as well; in determining

whether conduct was “expressive conduct,” court

must ask whether reasonable person would interpret

it as some sort of message, not whether observer

would necessarily infer specific message. U.S.C.A.

Const.Amend. 1.

370 F.3d 1252 Page 5

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 112 of 273
[19] Constitutional Law 92 1965

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(Q) Education

92XVIII(Q)1 In General

92k1965 k. In General. Most Cited

Cases

(Formerly 92k90.1(1.4))

Eleventh Circuit applies the same test in assessing

school restrictions on both pure speech and expressive conduct. U.S.C.A. Const.Amend. 1.

[20] Constitutional Law 92 1976

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(Q) Education

92XVIII(Q)1 In General

92k1975 Student Speech or Conduct

92k1976 k. In General. Most Cited

Cases

(Formerly 92k90.1(1.4))

Constitutional Law 92 1979

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(Q) Education

92XVIII(Q)1 In General

92k1975 Student Speech or Conduct

92k1979 k. Threats or Violence.

Most Cited Cases

(Formerly 92k90.1(1.4))

Public educational institutions have right to adopt

and enforce reasonable, nondiscriminatory regulations as to time, place and manner of student expressions and demonstrations. U.S.C.A.

Const.Amend. 1.

[21] Constitutional Law 92 1978

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(Q) Education

92XVIII(Q)1 In General

92k1975 Student Speech or Conduct

92k1978 k. Disruption, Disturbance, or Interference in General. Most Cited Cases

(Formerly 92k90.1(1.4))

Student expression must cause, or be likely to

cause, material and substantial disruption and more

than brief, easily overlooked, de minimum impact,

before it may be curtailed. U.S.C.A. Const.Amend.

1.

[22] Schools 345 169

345 Schools

345II Public Schools

345II(L) Pupils

345k169 k. Control of Pupils and Discipline in General. Most Cited Cases

Conduct that may be constitutionally protected in

one school or under one set of circumstances may

tend to incite disruption or disorder, and so be constitutionally proscribable, in others.

[23] Constitutional Law 92 1978

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(Q) Education

92XVIII(Q)1 In General

92k1975 Student Speech or Conduct

92k1978 k. Disruption, Disturbance, or Interference in General. Most Cited Cases

(Formerly 92k90.1(1.4))

Where students' expressive activity does not materially interfere with school's vital educational mission, and does not raise realistic chance of doing so,

it may not be prohibited simply because it conceivably might have such an effect. U.S.C.A.

Const.Amend. 1.

[24] Constitutional Law 92 1977

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(Q) Education

370 F.3d 1252 Page 6

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 113 of 273
92XVIII(Q)1 In General

92k1975 Student Speech or Conduct

92k1977 k. Discipline in General.

Most Cited Cases

(Formerly 92k90.1(1.4))

Schools 345 169

345 Schools

345II Public Schools

345II(L) Pupils

345k169 k. Control of Pupils and Discipline in General. Most Cited Cases

Fact that other students were disturbed by student's

silent raising of fist during flag salute instead of reciting Pledge of Allegiance with rest of class, as

evidenced by fact number of students came up to

teacher after class and told her that what he did

wasn't “right,” and teacher's concern that student's

behavior would lead to further disruptions by other

students, was irrelevant to analysis of whether discipline of student for that incident violated his First

Amendment right to freedom of expression.

U.S.C.A. Const.Amend. 1.

[25] Constitutional Law 92 1490

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(A) In General

92XVIII(A)1 In General

92k1490 k. In General. Most Cited

Cases

(Formerly 92k90(1))

Protections of the First Amendment do not extend

solely to speech which is well-mannered and attentive to the preferences of others. U.S.C.A.

Const.Amend. 1.

[26] Civil Rights 78 1376(2)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(2) k. Good Faith and Reasonableness; Knowledge and Clarity of Law; Motive

and Intent, in General. Most Cited Cases

While government officials must have fair warning

that their acts are unconstitutional, there need not

be case on all fours, with materially identical facts,

before Court will deny officials qualified immunity

and allow suits against them; principle of constitutional law can be “clearly established” even if there

are notable factual distinctions between precedents

relied on and cases then before Court, so long as

prior decisions gave reasonable warning that conduct at issue violated constitutional rights. 42

U.S.C.A. § 1983.

[27] Civil Rights 78 1376(5)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(5) k. Schools. Most Cited

Cases

For purposes of determining whether Alabama public high school teacher and principal were entitled

to qualified immunity in § 1983 action, student's

First Amendment right to raise his fist during flag

salute instead of reciting Pledge of Allegiance with

rest of class was clearly established as of May 16,

2000. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. §

1983.

[28] Constitutional Law 92 1976

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(Q) Education

92XVIII(Q)1 In General

92k1975 Student Speech or Conduct

92k1976 k. In General. Most Cited

Cases

(Formerly 92k90.1(1.4))

Constitutional Law 92 1978

370 F.3d 1252 Page 7

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 114 of 273
92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(Q) Education

92XVIII(Q)1 In General

92k1975 Student Speech or Conduct

92k1978 k. Disruption, Disturbance, or Interference in General. Most Cited Cases

(Formerly 92k90.1(1.4))

Tinker-Burnside test calls for teachers to assess two

factors: (1) whether student is engaged in expression, either pure speech or expressive conduct, and

(2) whether expression is having non-negligible

disruptive effect, or is likely to have such effect, on

classroom order or educational process. U.S.C.A.

Const.Amend. 1.

[29] Federal Civil Procedure 170A 2491.5

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)2 Particular Cases

170Ak2491.5 k. Civil Rights Cases in

General. Most Cited Cases

Genuine issue of material fact, as to whether

Alabama public high school teacher and principal

who punished student who silently raised his fist

during daily flag salute were motivated by desire to

suppress student's supposedly unpatriotic viewpoint, precluded summary judgment on that Speech

Clause claim against them on qualified immunity

grounds. U.S.C.A. Const.Amend. 1; Fed.Rules

Civ.Proc.Rule 56(c), 28 U.S.C.A.; 42 U.S.C.A. §

1983.

[30] Constitutional Law 92 1507

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(A) In General

92XVIII(A)1 In General

92k1507 k. Viewpoint or Idea Discrimination. Most Cited Cases

(Formerly 92k90(3))

Government actors may not discriminate against

speakers based on viewpoint, even in places or under circumstances where people do not have constitutional right to speak in the first place. U.S.C.A.

Const.Amend. 1.

[31] Civil Rights 78 1376(5)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(5) k. Schools. Most Cited

Cases

Alabama public high school economics and government teacher was not engaged in discretionary

function when she led class in moment of silent

prayer and thus was not entitled to qualified immunity on Establishment Clause-based § 1983

claim; assuming she was attempting to pursue legitimate job-related function of fostering her students'

character education by teaching compassion, she

was not doing so through legitimate means that fell

within her powers. U.S.C.A. Const.Amend. 1; 42

U.S.C.A. § 1983; Ala.Code 1975, § 16-6B-2(h).

[32] Constitutional Law 92 3851

92 Constitutional Law

92XXVII Due Process

92XXVII(A) In General

92k3848 Relationship to Other Constitutional Provisions; Incorporation

92k3851 k. First Amendment. Most

Cited Cases

(Formerly 92k274(3.1))

Establishment Clause has been made applicable to

states, as well as state-created entities and their employees, through Due Process Clause of the Fourteenth Amendment. U.S.C.A. Const.Amends. 1, 14.

[33] Constitutional Law 92 1295

92 Constitutional Law

92XIII Freedom of Religion and Conscience

92XIII(A) In General

92k1294 Establishment of Religion

370 F.3d 1252 Page 8

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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92k1295 k. In General. Most Cited

Cases

(Formerly 92k84.1)

Constitutional Law 92 1342

92 Constitutional Law

92XIII Freedom of Religion and Conscience

92XIII(B) Particular Issues and Applications

92k1341 Public Education

92k1342 k. In General. Most Cited

Cases

(Formerly 92k84.5(3))

Constitutional Law 92 1344

92 Constitutional Law

92XIII Freedom of Religion and Conscience

92XIII(B) Particular Issues and Applications

92k1341 Public Education

92k1344 k. Employees in General.

Most Cited Cases

(Formerly 92k84.5(3), 92k84.1)

Establishment Clause applies not only to state statutes, but acts and decisions of individual governmental actors, such as teachers and school administrators. U.S.C.A. Const.Amend. 1.

[34] Constitutional Law 92 1295

92 Constitutional Law

92XIII Freedom of Religion and Conscience

92XIII(A) In General

92k1294 Establishment of Religion

92k1295 k. In General. Most Cited

Cases

(Formerly 92k84.1)

Under Lemon-Agostini test for assessing permissibility of statutes under Establishment Clause, (1)

statute must have secular legislative purpose, (2)

statute's principal or primary effect must be one

that neither advances nor inhibits religion, and (3)

statute must not foster excessive government entanglement with religion. U.S.C.A. Const.Amend. 1.

[35] Constitutional Law 92 1350

92 Constitutional Law

92XIII Freedom of Religion and Conscience

92XIII(B) Particular Issues and Applications

92k1341 Public Education

92k1350 k. Prayer or Silence in General. Most Cited Cases

(Formerly 92k84.5(3))

Schools 345 165

345 Schools

345II Public Schools

345II(L) Pupils

345k165 k. Religious Instruction and

Reading of Scriptures. Most Cited Cases

Alabama public high school economics and government teacher's practice of soliciting prayer requests

from her students and enforcing moment of silence

violated Establishment Clause; teacher's explanation that ritual was intended to teach students compassion pursuant to character education plan mandated by state legislature did not represent valid

secular legislative purpose because her acts were

motivated at least in part by desire to inculcate religiosity, and effect of teacher's behavior was to promote praying, a religious activity. U.S.C.A.

Const.Amend. 1; Ala.Code 1975, § 16-6B-2.

[36] Constitutional Law 92 1350

92 Constitutional Law

92XIII Freedom of Religion and Conscience

92XIII(B) Particular Issues and Applications

92k1341 Public Education

92k1350 k. Prayer or Silence in General. Most Cited Cases

(Formerly 92k84.5(3))

Public school prayer is not student-initiated, and

hence constitutional under Establishment Clause,

simply because initial idea for prayer was student's;

true test of constitutionality is whether school encouraged, facilitated, or in any way conducted the

prayer. U.S.C.A. Const.Amend. 1.

[37] Constitutional Law 92 1350

92 Constitutional Law

92XIII Freedom of Religion and Conscience

92XIII(B) Particular Issues and Applications

370 F.3d 1252 Page 9

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 116 of 273
92k1341 Public Education

92k1350 k. Prayer or Silence in General. Most Cited Cases

(Formerly 92k84.5(3))

Schools 345 165

345 Schools

345II Public Schools

345II(L) Pupils

345k165 k. Religious Instruction and

Reading of Scriptures. Most Cited Cases

Fact that Alabama public high school students were

not actually forced to pray during moment of silence, and may have been free to leave the room,

did not alleviate constitutional infirmities of economics and government teacher's moment of silence under Establishment Clause, nor did moment's nondenominational nature or brevity.

U.S.C.A. Const.Amend. 1.

[38] Civil Rights 78 1376(5)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(5) k. Schools. Most Cited

Cases

Alabama public high school student's rights under

Establishment Clause, were clearly established in

May, 2000 when economics and government teacher implemented infringing daily “ritual” of conducting silent moment of prayer and soliciting prayer

requests from students. U.S.C.A. Const.Amend. 1;

42 U.S.C.A. § 1983.

[39] Civil Rights 78 1346

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1346 k. Education. Most Cited Cases

Alabama public school board could not be held liable under § 1983 for unconstitutional acts of high

school principal and teacher, its employees, under

respondeat superior theory. 42 U.S.C.A. § 1983.

[40] Civil Rights 78 1351(2)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(2) k. Education. Most Cited

Cases

Alabama public school board could be held liable

for student's compelled speech First Amendment

claim based on official policy directive requiring

each school system to incorporate “Character Education Plan” including Pledge of Allegiance; directive lacked language of state statute making recitation of Pledge voluntary and indicated that each day

included Pledge, rather than opportunity to recite it.

U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983;

Ala.Code 1975, § 16-43-5.

[41] Civil Rights 78 1351(2)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(2) k. Education. Most Cited

Cases

Alabama public school board could be held liable

under Establishment Clause claim for high school

economics and government teacher's daily moment

of silent prayer under “official policy” theory,

based on teacher's uncontroverted deposition testimony that her practice of asking for prayer requests

was actually included in “compassion” requirement

of “Character Education Plan” that board required

each school system to implement and fact each high

school's plan had to be approved by school district

before being forwarded on to State Department of

Education. U.S.C.A. Const.Amend. 1; 42 U.S.C.A.

§ 1983; Ala.Code 1975, § 16-6B-2(h).

370 F.3d 1252 Page 10

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 117 of 273
[42] Civil Rights 78 1351(1)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(1) k. In General. Most Cited

Cases

Municipal governing body may be held liable under

§ 1983 for acts or policies of individuals to whom it

delegated final decisionmaking authority in particular area. 42 U.S.C.A. § 1983.

[43] Civil Rights 78 1351(1)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(1) k. In General. Most Cited

Cases

For purposes of determining governing body's liability under § 1983 for acts or policies of individuals, member or employee of governing body is

“final policy maker” only if his decisions have legal

effect without further action by governing body. 42

U.S.C.A. § 1983.

[44] Civil Rights 78 1351(1)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(1) k. In General. Most Cited

Cases

To determine if someone is final policy maker for §

1983 purposes, Court looks not only to state and

local positive law, but also custom and usage having force of law. 42 U.S.C.A. § 1983.

[45] Federal Courts 170B 776

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk776 k. Trial De Novo. Most

Cited Cases

Court of Appeals reviews de novo district court's

ruling about whether individual is final policy

maker for § 1983 purposes. 42 U.S.C.A. § 1983.

[46] Civil Rights 78 1351(1)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(1) k. In General. Most Cited

Cases

In assessing whether governmental decision maker

is “final policy maker” for § 1983 purposes, Court

looks to whether there is actual opportunity for

meaningful review. 42 U.S.C.A. § 1983.

[47] Civil Rights 78 1351(2)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(2) k. Education. Most Cited

Cases

Alabama high school principal who “paddled” student in lieu of detention that would have delayed

his graduation, as punishment for student's act of silently raising his fist during daily flag salute instead

of reciting Pledge of Allegiance along with rest of

class acted as “final policymaker” in that instance,

for purposes of determining whether school board

could be held liable under § 1983; while student

handbook set out formal multi-step appellate process that was theoretically available, there was no

opportunity for meaningful review by school board,

and “Corporal Punishment” section of student

370 F.3d 1252 Page 11

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L. Weekly Fed. C 593

(Cite as: 370 F.3d 1252)

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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handbook could be interpreted as delegation to

principal of final decisionmaking authority regarding administration of same. 42 U.S.C.A. § 1983.

[48] Civil Rights 78 1351(2)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(2) k. Education. Most Cited

Cases

Alabama public high school principal was not

“final policy maker” for purposes of § 1983 Establishment Clause challenge to teacher's practice of

soliciting prayer requests from her students and enforcing moment of silence; prayers were recited as

part of character education program, which was expressly subject to school board approval. U.S.C.A.

Const.Amend. 1; 42 U.S.C.A. § 1983; Ala.Code

1975, § 16-6B-2(h).

[49] Civil Rights 78 1351(2)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(2) k. Education. Most Cited

Cases

Alabama public high school student who was disciplined for silently raising his fist during daily flag

salute instead of reciting Pledge of Allegiance with

rest of class, in protest of disciplining of another

student for remaining silent with his hands in his

pockets during flag salute the day before, could not

pursue his § 1983 Speech Clause claim against

school board under theory that custom or practice

existed in school district of disciplining students for

failing to recite Pledge, or for engaging in nondisruptive protest during recitation thereof. U.S.C.A.

Const.Amend. 1; 42 U.S.C.A. § 1983.

[50] Civil Rights 78 1351(2)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(2) k. Education. Most Cited

Cases

Alabama public high school teacher's practice or

“ritual” of conducting daily moment for silent prayer was sufficiently systematic to be considered pattern or custom for which school board may be held

accountable in Establishment Clause challenge under § 1983. U.S.C.A. Const.Amend. 1; 42 U.S.C.A.

§ 1983.

[51] Civil Rights 78 1355

78 Civil Rights

78III Federal Remedies in General

78k1353 Liability of Public Officials

78k1355 k. Vicarious Liability and Respondeat Superior in General; Supervisory Liability

in General. Most Cited Cases

When civil rights are systematically violated on

near-daily basis, such abuses are sufficiently egregious to warrant supervisory liability, even if it is

single “bad apple” engaging in repeated pattern of

unconstitutional behavior. 42 U.S.C.A. § 1983.

*1259 Charles Clyde Tatum, Jr., Jasper, AL, for

Holloman.

Phillip A. Laird, Laird & Robertson, P.C., Russell

Brown Robertson, Laird & Wiley, P.C., Jasper, AL,

for Defendants-Appellees.

Appeals from the United States District Court for

the Northern District of Alabama.

Before TJOFLAT, WILSON and COWEN FN*,

Circuit Judges.

FN* Honorable Robert E. Cowen, United

States Circuit Judge for the Third Circuit,

sitting by designation.

TJOFLAT, Circuit Judge:

I.

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Michael Holloman, a former student at Parrish High

School in Walker County, Alabama, filed a § 1983

suit against Fawn Allred, his economics and government teacher; George Harland, the school principal; and the Walker County Board of Education

(“School Board”), which oversaw the school. He

claimed that his rights under the First Amendment's

Speech Clause were violated when Allred and Harland punished him for silently raising his fist during

the daily flag salute instead of reciting the Pledge

of Allegiance with the rest of his class. He further

claims *1260 that his Establishment Clause rights

were violated by Allred's daily “ritual” of conducting a silent moment of prayer. He sought both legal

and equitable relief.

The district court granted summary judgment on

both claims to Allred and Harland on qualified immunity grounds. In a separate opinion, it granted

summary judgment to the School Board, concluding

that Holloman failed to articulate a violation of his

constitutional rights or demonstrate a way in which

the Board (as a municipal governing entity) could

be held liable for the acts at issue here. Holloman

appeals both rulings.

Subpart A of this Part examines the facts supporting Holloman's Speech Clause claim. Subpart B explains his Establishment Clause allegations. Subpart C sets forth the framework of state statutes and

School Board regulations implicated by Holloman's

claims, and Subpart D delves into the procedural

history of this case in greater detail. Throughout

this discussion, because we are reviewing grants of

summary judgment to the defendants, we view the

evidence in the light most favorable to the plaintiff.

See Johnson v. Governor of Florida, 353 F.3d

1287, 1292 (11th Cir.2003).

A.

Holloman contends that Allred and Harland violated his First Amendment right to free speech (as

incorporated against the states through the Fourteenth Amendment's Due Process Clause) by treating him adversely because he silently raised his fist

during the flag salute instead of reciting the Pledge

of Allegiance.FN1 To understand what happened, it

is necessary to consider their treatment of another

student, John Michael Hutto, the day before their

confrontation with Holloman.

FN1. We use the terms “Pledge of Allegiance” and “flag salute” interchangeably.

1.

Allred taught her Economics and Government class

in the first period of each day, during which time

the Pledge of Allegiance was recited over the

school intercom system. It was customary for students to stand by their desks, with their hands over

their hearts, and recite the pledge.

During the flag salute on May 16, 2000, Hutto remained silent with his hands in his pockets, without

causing a disturbance. When Allred asked him why

he was not participating in the flag salute, Hutto responded that he “didn't want to say it, he didn't

have to say it, and he hadn't said it for a month.”

Allred stated, “You don't want to say the pledge

and the United States Air Force Academy has given

you a scholarship?,” then continued class.

At lunch that day, Allred told Harland of Hutto's refusal to say the pledge. Harland became very angry

and met with Allred, Hutto, and Vice Principal

Jason Adkins in his office. Harland told Hutto that

he was disappointed in Hutto's refusal to salute the

flag, and threatened to report the incident to both

Hutto's recruiter at the Air Force Academy as well

as the Congressman who had recommended Hutto

to the Academy. Harland also ordered Hutto to apologize to Allred and her class for refusing to salute

the flag.

Later that day, Harland went to Hutto's physics

class (in which Holloman was a student) and declared that “anyone who joined in [Hutto's] protest

and refused to say the pledge or committed similar

action would be punished.” The following day,

Hutto recited the Pledge of Allegiance with the rest

of the class, and the day after that he apologized to

Allred and her students.

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*1261 2.

During the flag salute on the day after the Hutto incident, Holloman stood with the other students in

Allred's class, but did not recite the Pledge of Allegiance. Instead, he silently raised his fist in the air

while the rest of the class recited the pledge; once

the pledge was over, he sat down like everyone

else. He did not say anything, touch any other students, disrupt the class, or obstruct anyone's view

of the flag. Allred, however, immediately chastised

him in front of the class, saying that he had acted

inappropriately and “disrespectful[ly],” and that she

was “disappointed.” She then started class in her

normal fashion.

Later that day, Allred informed Harland of what

happened, and Harland summoned Allred and Holloman into the principal's office. Holloman explained that he had raised his fist “in protest of

what happened to [Hutto].” Harland told Holloman

“how disappointed he was, and that he felt that he

had failed teaching Michael Holloman responsibility, morals and values.” He also informed Holloman that he would have to serve three days' detention and could not receive his diploma until after he

completed his punishment. In addition, Harland required Holloman to apologize to Allred's class.

When Holloman left Harland's office, Harland

called Holloman's mother, explaining “that he was

too mad and upset to punish Michael at the time because he may hurt Michael.”

Since graduation was that Friday, there was not

enough time left in the school year for Holloman to

serve his detentions while still being able to receive

his diploma on graduation day. Harland consequently offered Holloman the opportunity to receive a paddling instead. Holloman agreed and,

with Allred watching, was paddled by Harland.

B.

Allred began her Economics and Government class

almost every day by asking, “Does anyone have

any prayer requests?” After her students offered

various dedications, Allred would hold a moment of

silence. Allred frequently opened this moment of

silence by saying “Let us pray,” and often ended it

by saying “Amen.” Allred explicitly states that over

the 1999-2000 school year, this practice became a

daily “ritual.” She never told her students that they

were free to leave the room during either her prayer

requests or the subsequent moment of silent prayer.

One day, Vice Principal Adkins sat in on her class

and personally observed this phenomenon. When

Allred attempted to begin her economics lesson,

one of her students raised her hand and reminded

Allred that she had forgotten to elicit her customary

prayer requests. At that point, Allred took prayer

requests from the class, then commenced a moment

of silence by saying, “Let us pray.” On another occasion, at the conclusion of the moment of silence,

Allred permitted one of her students to read aloud a

passage from the Bible.

C.

The events in this case did not occur in a vacuum.

In 1995, the Alabama state legislature enacted a

statute which required the State Board of Education

and all local school boards to

develop and implement ... a comprehensive character education program for all grades to consist of

not less than ten minutes of instruction per day focusing upon the students' development of the following character traits: courage, patriotism, citizenship, honesty, fairness, respect for others, kindness,

cooperation, self-respect, self-control, courtesy,

compassion, tolerance, diligence,*1262 generosity,

punctuality, cleanliness, cheerfulness, school pride,

respect for the environment, patience, creativity,

sportsmanship, loyalty, and perseverance. Each

plan of instruction shall include the Pledge of Allegiance to the American flag.

Ala.Code § 16-6B-2(h). This law made daily recitation of the Pledge of Allegiance a part of the character education program the Legislature required

local school boards to implement. A separate statute, however, emphasized that students should not

be forced to recite the pledge. SeeAla.Code §

16-43-5 (“The State Board of Education shall afford all students attending public kindergarten,

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primary and secondary schools the opportunity each

school day to voluntarily recite the pledge of allegiance to the United States flag.”(emphasis added)).

To implement these requirements, Larry Banks, the

Superintendent of the Walker County School District, sent a letter on behalf of the Walker County

Board of Education to all the principals in the district, stating, “[E]ach school system must incorporate a Character Education Plan which will consist

of 10 minutes of instruction per day in various

areas, such as, the Pledge of Allegiance.... Each day

must include the Pledge of Allegiance and then other areas as mentioned as you determine at your

school.”

Banks also sent each principal a form to complete

to specify how each school intended to incorporate

into its curriculum the character-education requirements set forth above. The memo directed, “Please

begin to make plans and be prepared to submit your

local Character Education Plan [to the county

school board] which must be forwarded to the State

Superintendent's Office.” The County School Board

apparently had to either review or approve each

school's character education plan before it was forwarded to the State. Allred contends that her daily

moment of silent prayer was conducted in partial

fulfillment of these character education requirements-it was intended to teach compassion.

D.

On July 3, 2000, Holloman and Hutto filed a class

action suit under 42 U.S.C. § 1983 in the Northern

District of Alabama against the Walker County

Board of Education, Harland, Adkins, and Allred.

They alleged that their First Amendment rights had

been violated because they had been chastised,

threatened, and punished for refusing to say the

Pledge of Allegiance. They also claimed that

Allred's practice of soliciting prayer requests and

setting aside a moment of silence for prayer violated the Establishment Clause. The complaint

sought compensatory and punitive damages, as well

as declaratory and injunctive relief.

A few months later, an amended complaint was

filed; it was substantially identical to the original

except Hutto was no longer a party. The district

court dismissed Jason Adkins as a defendant (with

Holloman's consent), and declined to certify the

class action. Holloman does not appeal either of

these rulings.

In their answer to Holloman's amended complaint,

Allred and Harland cited qualified immunity as an

affirmative defense. They later moved the court for

summary judgment on qualified immunity grounds.

The court granted their motion and dismissed them

from the case. It concluded that Holloman's Speech

Clause allegations did not constitute a First Amendment violation, and certainly not a violation of a

right that was “clearly established” at the time of

the incidents. The court also rejected Holloman's

Establishment Clause claims, stating there was no

Eleventh Circuit*1263 precedent during the

1999-2000 school year that “clearly established” a

moment of silence for prayer as being unconstitutional. Holloman appealed the court's decision to

grant Allred and Harland summary judgment on

qualified immunity grounds.FN2

FN2. The court's opinion dismissed all of

Holloman's constitutional claims against

both defendants with prejudice. It entered a

final judgment in favor of Allred and Harland pursuant to Fed.R.Civ.P. 54(b), rendering its order immediately appealable.

The appeal was docketed in this court as

No. 01-13864.

Following the district court's dismissal of Holloman's claims against Allred and Harland, the Board

of Education also sought summary judgment. The

court granted the Board's motion, concluding that

Holloman had not alleged facts sufficient to hold

the Board liable under § 1983. Holloman appeals

this ruling as well, arguing that he stated valid

claims against the School Board.FN3

FN3. This appeal was docketed as No.

01-15094.

In these consolidated appeals, we review the district

court orders granting the defendants summary judg370 F.3d 1252 Page 15

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ment. Part II of this opinion explains why the district court erred in granting Allred and Harland

summary judgment on qualified immunity grounds

against Holloman's Speech Clause claims. Part III

shows that Allred is not even potentially entitled to

summary judgment on qualified immunity grounds

against Holloman's Establishment Clause claims

because she has not established as a matter of law

that, in holding her daily moment of silent prayer,

she was engaged in a discretionary function of her

job. Part IV assesses Holloman's underlying Establishment Clause claim, concluding that he has introduced evidence sufficient to support a determination that a clearly established right has been violated.FN4 Part V discusses how Holloman has successfully articulated several theories under which

the School Board may be held liable for the Speech

and Establishment Clause violations, while Part VI

briefly concludes.

FN4. We include this discussion because a

legal determination that his constitutional

rights were violated is a necessary predicate to allowing his suit against the School

Board to proceed.

II.

[1] Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State

... subjects, or causes to be subjected, any citizen of

the United States ... to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in

an action at law [or] suit in equity....

42 U.S.C. § 1983. There are two ways in which an

individual may be held liable under § 1983-he may

be sued for his own personal actions (“direct liability”), or, under certain limited circumstances, for

the actions of his subordinates (“supervisoral liability”), see, e.g., Lewis v. Smith, 855 F.2d 736, 738

(11th Cir.1988).FN5

FN5. A supervisor, of course, may be held

responsible under either or both theories.

See Brown v. Crawford, 906 F.2d 667, 671

(11th Cir.1990) (“Supervisory liability occurs either when the supervisor personally

participates in the alleged constitutional violation [direct liability] or when there is a

causal connection between actions of the

supervising official and the alleged constitutional deprivation [supervisoral liability].”).

[2][3] When a government official is sued under a

theory of direct liability, he may seek summary

judgment on qualified immunity grounds.FN6 To

even be potentially*1264 eligible for summary

judgment due to qualified immunity, the official

must have been engaged in a “discretionary function” when he performed the acts of which the

plaintiff complains. Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396

(1982) (holding that qualified immunity extends to

“government officials performing discretionary

functions”). It is the burden of the governmental official to make this showing. Storck v. City of Coral

Springs, 354 F.3d 1307, 1314 (2003) (“Under qualified immunity analysis, the public official must first

prove that he was acting within the scope of his discretionary authority when the allegedly unconstitutional acts took place.”(emphasis added)). A defendant unable to meet this burden may not receive

summary judgment on qualified immunity grounds.

Lumley v. City of Dade City, 327 F.3d 1186, 1194

(11th Cir.2003) (“If the defendants were not acting

within their discretionary authority, they are ineligible for the benefit of qualified immunity.”); see

also Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir.2002). While a number of our cases omit this

step of the analysis, see, e.g., Denno v. Sch. Bd.,

218 F.3d 1267 (11th Cir.2000); Hall v. Talladega

City Bd. of Educ., 115 F.3d 821 (11th Cir.1997),

binding Supreme Court and Eleventh Circuit precedents require us to consider expressly this critical

threshold matter. We explain this “discretionary

function” test in greater detail in Subpart II.A.

FN6. The government official may also

seek to have the complaint dismissed on

qualified immunity grounds prior to discovery, based solely on the allegations in

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the pleadings.

[4][5] If, interpreting the evidence in the light most

favorable to the plaintiff, the court concludes that

the defendant was engaged in a discretionary function, then the burden shifts to the plaintiff to show

that the defendant is not entitled to qualified immunity. Cottone v. Jenne, 326 F.3d 1352, 1358

(11th Cir.2003) (“Once a defendant establishes that

he was acting within his discretionary authority, the

burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.”). To

overcome qualified immunity, the plaintiff must

satisfy a two prong test; he must show that: (1) the

defendant violated a constitutional right, and (2)

this right was clearly established at the time of the

alleged violation.FN7 Wilson v. Layne, 526 U.S.

603, 609, 119 S.Ct. 1692, 1697, 143 L.Ed.2d 818

(1999) (“A court evaluating a claim of qualified immunity must first determine whether the plaintiff

has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine

whether that right was clearly established at the

time of the alleged violation.”) (quotations and citations omitted). If the plaintiff prevails on both

prongs of this test, then the defendant is unable to

obtain summary judgment on qualified immunity

grounds.

FN7. Our rulings on these two questions

are legal conclusions that are binding law

of the case and may not be revisited in

later proceedings. Consequently, once we

deny defendants summary judgment on

qualified immunity grounds because the

plaintiff has alleged violations of clearly

established rights, the defendants may not

later attempt to re-assert qualified immunity against those claims on purely legal

bases (e.g. by arguing that the rights do not

exist or are not clearly established). The

only remaining issues are questions of

fact-i.e., whether the plaintiff can actually

prove at trial that the alleged violations occurred.

[6] Applying this test, the district court awarded

Allred and Harland summary judgment against Holloman's Speech Clause claims. The Speech Clause

of the First Amendment protects at least two separate, yet related, rights: (1) the right to freedom of

expression, and (2) the right to be free from compelled expression. United States v. United Foods,

Inc., 533 U.S. 405, 410, 121 S.Ct. 2334, 2338, 150

L.Ed.2d 438 (2001). These rights unquestionably

exist in public schools. See Tinker*1265 v. Des

Moines Indep. Comm. Sch. Dist., 393 U.S. 503,

506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).

Holloman argues that Allred and Harland are directly liable for violating both constitutional rights

guaranteed by the Speech Clause. First, he maintains, they violated his right to be free from compelled expression by chastising, threatening, and ultimately punishing him for failing to recite the

Pledge of Allegiance. Second, to the extent that he

was punished for silently raising his fist in the air

during the Pledge of Allegiance (rather than for

simply failing to recite the pledge), Holloman contends that Allred and Harland violated his right to

engage in affirmative expression. Finally, regardless of whether Holloman's expression was constitutionally protected in itself, he has the First

Amendment right to be free of viewpoint-based discrimination and punishment.

We conclude that neither Allred nor Harland are

not entitled to summary judgment on qualified immunity grounds against any of these First Amendment claims. In Subpart II.A, we conclude that both

Allred and Harland were engaged in a discretionary

function at the time they disciplined Holloman in

connection with the flag salute incident, and so are

potentially entitled to summary judgment on qualified immunity grounds. In Subpart II.B, we discuss

how the evidence-interpreted in the light most favorable to Holloman-supports the conclusion that

his clearly-established right to be free from compelled speech was violated. Subpart II.C makes a

similar finding regarding his right to engage in affirmative expression. Subpart II.D concludes that,

even if-as the dissent contends-Holloman's expression was not itself constitutionally protected,

Allred's behavior nevertheless violated the First

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Amendment because she punished him for expressing a viewpoint she found repugnant, rather than for

any disruption he purportedly caused (which, interpreting the evidence in his favor, was entirely negligible). Consequently, Holloman has made the necessary showings with regard to his three Speech

Clause claims to overcome Allred's and Harland's

assertions of qualified immunity at this stage.

A.

[7] In many areas other than qualified immunity, a

“discretionary function” is defined as an activity requiring the exercise of independent judgment, and

is the opposite of a “ministerial task.” See, e.g.,

Williams v. Wood, 612 F.2d 982, 985 (5th

Cir.1980).FN8 In the qualified immunity context,

however, we appear to have abandoned this

“discretionary function/ministerial task” dichotomy. In McCoy v. Webster, 47 F.3d 404, 407 (11th

Cir.1995), we interpreted “the term ‘discretionary

authority’ to include actions that do not necessarily

involve an element of choice,” and emphasized

that, for purposes of qualified immunity, a governmental actor engaged in purely ministerial activities

can nevertheless be performing a discretionary

function.

FN8. In Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir.1981) (en banc),

this court adopted as binding precedent all

decisions of the former Fifth Circuit

handed down prior to October 1, 1981.

[8] Instead of focusing on whether the acts in question involved the exercise of actual discretion, we

assess whether they are of a type that fell within the

employee's job responsibilities. Our inquiry is twofold. We ask whether the government employee

was (a) performing a legitimate job-related function

(that is, pursuing a job-related goal), (b) through

means that were within his power to utilize. See

*1266 Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d

1176, 1185 n. 17 (11th Cir.1994) (“A government

official acts within his or her discretionary authority if objective circumstances compel the conclusion that challenged actions occurred in the performance of the official's duties and within the

scope of this authority.”(emphasis added)).

One might reasonably believe that violating

someone's constitutional rights is never a legitimate

job-related function or within the scope of a government official's authority or power. As we explained in Harbert Int'l, Inc. v. James, 157 F.3d

1271, 1282 (11th Cir.1998) (quotation marks and

citation omitted), however, “the inquiry is not

whether it was within the defendant's authority to

commit the allegedly illegal act. Framed that way,

the inquiry is no more than an untenable tautology.”

In applying each prong of this test, we look to the

general nature of the defendant's action, temporarily putting aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or

under constitutionally inappropriate circumstances.

[9] Consider the first prong of the test-whether the

official is engaged in a legitimate job-related function. In Sims v. Metropolitan Dade County, 972

F.2d 1230 (11th Cir.1992), “we did not ask whether

it was within the defendant's authority to suspend

an employee for an improper reason; instead, we

asked whether [the defendant's] discretionary duties

included the administration of discipline.” Harbert,

157 F.3d at 1282. Similarly, in assessing whether a

police officer may assert qualified immunity

against a Fourth Amendment claim, we do not ask

whether he has the right to engage in unconstitutional searches and seizures, but whether engaging

in searches and seizures in general is a part of his

job-related powers and responsibilities. See, e.g.,

Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th

Cir.1997). Put another way, to pass the first step of

the discretionary function test for qualified immunity, the defendant must have been performing a

function that, but for the alleged constitutional infirmity, would have fallen with his legitimate job

description.

Of course, we must be sure not to characterize and

assess the defendant's act at too high a level of generality. Nearly every act performed by a government employee can be described, in general terms,

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as ostensibly “furthering the public interest.” If we

jump to such a high level of abstraction, it becomes

impossible to determine whether the employee was

truly acting within the proper scope of his jobrelated activities. Consequently, we consider a government official's actions at the minimum level of

generality necessary to remove the constitutional

taint. In considering whether an act of allegedly excessive force fell within a police officer's duties, for

example, we do not ask whether police have the

right to use excessive force. We also do not immediately jump to a high level of generality and ask

whether police are responsible for enforcing the law

or promoting the public interest. We instead ask

whether they have the power to attempt to effectuate arrests. See, e.g., Ferraro, 284 F.3d at 1194

(holding, in an excessive force suit, “there can be

no doubt that [the police officer defendant] was acting in his discretionary capacity when he arrested

[plaintiff]”).

[10] After determining that an official is engaged in

a legitimate job-related function, it is then necessary to turn to the second prong of the test and determine whether he is executing that job-related

function-that is, pursuing his job-related goals-in an

authorized manner. The primary purpose of the

qualified immunity *1267 doctrine is to allow government employees to enjoy a degree of protection

only when exercising powers that legitimately form

a part of their jobs. See, e.g., Harlow, 457 U.S. at

819 & n. 34, 102 S.Ct. at 2739 & n. 34 (limiting the

availability of qualified immunity to situations

where “an official's duties legitimately require action” and to “actions within the scope of an official's duties”). Each government employee is given

only a certain “arsenal” of powers with which to accomplish her goals. For example, it is not within a

teacher's official powers to sign her students up for

the Army to promote patriotism or civic virtue, or

to compel them to bring their property to school to

redistribute their wealth to the poor so that they can

have firsthand experience with altruism.

Employment by a local, county, state, or federal

government is not a carte blanche invitation to

push the envelope and tackle matters far beyond

one's job description or achieve one's official goals

through unauthorized means. Pursuing a job-related

goal through means that fall outside the range of

discretion that comes with an employee's job is not

protected by qualified immunity.

[11] Under this standard, Allred-as a matter of lawwas undoubtedly engaged in a discretionary function in chastising Holloman for raising his fist during the Pledge of Allegiance and later referring him

to Harland for punishment. Though Allred is not

empowered to violate constitutional rights as part

of her official duties, she did have the responsibility

of maintaining decorum in the classroom. The fact

that she may have attempted to keep order in the

classroom in an unconstitutional manner does not

change the fact that she was fulfilling a legitimate

job-related function. Moreover, the ways in which

she attempted to pursue this job-related goal

(chastising Holloman and reporting him to the principal)-examined on a general level rather than in

this specific application-were legitimate prerogatives of her job. From an alternate perspective, putting aside Holloman's First Amendment claim,

Allred's actions would undoubtedly be considered

part of her duties and legitimate exercises of her authority. Consequently, under the two-prong test articulated above, her activities in relation to the flag

salute incident were discretionary acts for which

she may seek qualified immunity.

[12] For similar reasons, Harland is also potentially

entitled to qualified immunity against Holloman's

Speech Clause claims. Disciplining students is a legitimate discretionary function performed by principals. See Kirkland v. Greene County Bd. of Educ.,

347 F.3d 903, 903 n. 1 (11th Cir.2003), and in the

State of Alabama, spanking students is a legitimate

part of a principal's “arsenal” for enforcing such

discipline. Consequently, the burden shifts to Holloman to demonstrate that Allred and Harland are

not entitled to summary judgment on qualified immunity grounds.

B.

[13] As discussed earlier, once a defendant estab370 F.3d 1252 Page 19

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lishes that he was engaged in a discretionary function at the time of the acts in question, the burden

shifts to the plaintiff to show that the defendant is

not entitled to summary judgment on qualified immunity grounds. To do so, the plaintiff must

demonstrate that a reasonable jury could interpret

the evidence in the record as showing that the defendant violated a constitutional right that was

clearly established at the time of the acts in question.

We begin by examining Holloman's claim that

Allred and Harland violated his First Amendment

right to be free from compelled speech. Section 1

considers *1268 whether Holloman has successfully articulated a violation of a constitutional right,

while Section 2 analyzes whether such a right was

clearly established at the time of the incidents.

Based on these discussions, we conclude that, interpreting the evidence in the light most favorable to

Holloman, both Allred and Harland engaged in acts

amounting to violations of Holloman's right to be

free from compelled speech. Consequently, neither

defendant is entitled to summary judgment on qualified immunity grounds against this Speech Clause

claim.

1.

[14] The Speech Clause of the First Amendment

states, “Congress shall make no law ... abridging

the freedom of speech....” U.S. Const. amend. I.

The First Amendment, as incorporated through the

Due Process Clause of the Fourteenth Amendment,

Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct.

625, 628, 75 L.Ed. 1357 (1931), applies to state and

municipal governments, state-created entities, and

state and municipal employees, West Virginia State

Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63

S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943).

[15] In Barnette, the Court held that the right to be

free from compelled speech protects public school

students from being forced to participate in the flag

salute. It stated, “[T]he action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and

invades the sphere of intellect and spirit which it is

the purpose of the First Amendment to our Constitution to reserve from all official control.” Id. at

642, 63 S.Ct. at 1187.

Several pieces of evidence in the record support

Holloman's contention that he was disciplined for

failing to recite the Pledge of Allegiance. First, the

day before the Holloman incident, John Michael

Hutto was chastised in front of the class, sent to the

Principal's office, threatened that his recommendation to the Air Force Academy would be revoked,

and forced to apologize to his teacher and classmates, simply because he remained silent during

the Pledge of Allegiance (without engaging in any

affirmatively expressive activity). Second, Allred's

deposition is replete with references to her

“patriotism” and desire to see the American flag saluted in the “proper” or “normal” way; she was

deeply offended by the notion of Americans not

wanting to salute the flag.

Third, according to Holloman's affidavit, Harland

interrupted Holloman's physics class to explicitly

threaten that any students who refused to say the

Pledge of Allegiance would be punished. Fourth,

the affidavits of both Holloman and his mother

state that he was told he was being punished for

failing to salute the flag. Indeed, Harland told Holloman's mother during their phone conversation

that he had to wait before disciplining Holloman

because he was afraid that he (Harland) would hurt

him. Consequently, there is more than enough evidence in the record to allow a reasonable jury to adopt this interpretation of events.

Allred's acts (if proven at trial), as a matter of law,

violated Holloman's constitutional rights. First, according to Allred's own testimony, she instructed

him that there were only two “permissible” ways of

saying the pledge, and that any other way of doing

so was prohibited. Second, she verbally chastised

him in front of the class for his constitutionally protected actions (either failing to salute the flag or expressing his opinion in a non-disruptive fashion).

Verbal censure is a form of punishment, albeit a

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mild one. The intent behind this act was to dissuade

him from exercising a *1269 constitutional right.

She singled out Holloman in front of his entire

class, subjecting him to embarrassment and humiliation. Given the gross disparity in power between a

teacher and a student, such comments-particularly

in front of the student's peers-coming from an authority figure with tremendous discretionary authority, whose words carry a presumption of legitimacy,

cannot help but have a tremendous chilling effect

on the exercise of First Amendment rights. See Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781, 794,

108 S.Ct. 2667, 2676, 101 L.Ed.2d 669 (1988)

(invaliding a “scheme” that “must necessarily chill

speech in direct contravention of the First Amendment's dictates”); Dickerson v. United States, 530

U.S. 428, 459, 120 S.Ct. 2326, 2344, 147 L.Ed.2d

405 (2000) (Scalia, J., dissenting) (“[T]he Court has

viewed the importation of ‘chill’ as itself a violation of the First Amendment.”) (emphasis in original). As in the Establishment Clause context, such

“public pressure ... can be as real as any overt compulsion,” particularly in a “classroom setting, where

... the risk of compulsion is especially high”; such

measures may not be used to deter, even if “subtl[y]

or indirect[ly],” the exercise of constitutional

rights. Lee v. Weisman, 505 U.S. 577, 593, 596, 112

S.Ct. 2649, 2658, 2660, 120 L.Ed.2d 467 (1992).

Finally, Allred played a major role in the administration of Holloman's more formal punishment, his

paddling. She reported the incident to the principal

with the intent and hope that Holloman be disciplined, was present during Holloman's questioning

by Harland, did not object or attempt to dissuade

Harland in any way, was present for the paddling,

and manifested her approval of it throughout the

entire process. For similar reasons, Holloman has

also adduced sufficient evidence to support his

claim against Harland, the one who actually

spanked him.

Having demonstrated that the record amply supports Holloman's contention that the defendants violated his constitutional right to be free from compelled speech, we now consider whether this right

was clearly established at the time of the events in

question.

2.

[16] Barnette, 319 U.S. at 642, 63 S.Ct. at 1187,

clearly and specifically established that schoolchildren have the right to refuse to say the Pledge of

Allegiance. Under Barnette, any “reasonable person

would have known” that disciplining Holloman for

refusing to recite the pledge impermissibly chills

his First Amendment rights. Thomas v. Roberts,

261 F.3d 1160, 1170 (11th Cir.2001) (citation omitted). Consequently, on these alleged facts, Allred

and Harland are not entitled to qualified immunity

against Holloman's claims related to compelled

speech. We reverse the district court's holding to

the contrary.

Having assessed the viability of Holloman's First

Amendment claim to be free from compelled

speech, we now turn to Holloman's First Amendment claim to engage in affirmative expression.

C.

[17] One of Holloman's alternate bases for recovery

under the First Amendment is that the defendants

punished him for engaging in constitutionally protected speech. He maintains, in other words, that

even if the defendants punished him for silently

raising his fist during the Pledge of Allegiancerather than for merely remaining silent during the

pledge-his rights under the Speech Clause were still

violated. The district court dedicated the overwhelming majority of its opinion regarding Allred

and Harland to this argument, concluding that

*1270 “[n]o jury could reasonably conclude that

‘every like-situated, reasonable’ teacher or principal would necessarily know that punishing Holloman

for his unorthodox and deliberately provocative and

disruptive gesture violated federal law....” (Mem.

Op., June 4, 2001, at 10).

We are again forced to reverse. Section 1 shows

that the evidence (interpreted in Holloman's favor)

demonstrates the existence of a limited constitutional right to engage in non-disruptive expression

in a classroom environment, while Section 2

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demonstrates that this right was clearly established

when the defendants chastised and punished him.

Consequently, Allred and Harland are not entitled

to summary judgment on qualified immunity

grounds against Holloman's Speech Clause claim

regarding his right to express himself.

1.

[18] The Constitution guarantees students (and all

people) the right to engage not only in “pure

speech,” but “expressive conduct,” as well. See

United States v. O'Brien, 391 U.S. 367, 376-77, 88

S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). In

Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727,

41 L.Ed.2d 842 (1974), the Supreme Court held

that, to determine whether a particular act counts as

expressive conduct, a court must determine whether

“[a]n intent to convey a particularized message was

present, and in the surrounding circumstances the

likelihood was great that the message would be understood by those who viewed it.” Id. at 410-11, 94

S.Ct. at 2730. The Court later liberalized this test,

however, emphasizing that “a narrow, succinctly

articulable message is not a condition of constitutional protection, which if confined to expressions

conveying a ‘particularized message,’ would never

reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll.” Hurley v. Irish-Am.,

Gay, Lesbian & Bisexual Group of Boston, etc., 515

U.S. 557, 569, 115 S.Ct. 2338, 2345, 132 L.Ed.2d

487 (1995). Thus, in determining whether conduct

is expressive, we ask whether the reasonable person

would interpret it as some sort of message, not

whether an observer would necessarily infer a specific message.

At the very least, Holloman's gesture was expressive conduct. It is quite reasonable to infer that at

least some students would have recognized his act

for what it was-a protest over Allred's treatment of

Hutto. Even if students were not aware of the specific message Holloman was attempting to convey,

his fist clearly expressed a generalized message of

disagreement or protest directed toward Allred, the

school, or the country in general.

It is quite possible, however, that Holloman's act

constituted “pure speech.” As the Court suggested

in O'Brien, 391 U.S. at 376, 88 S.Ct. at 1678, expressive conduct is an act with significant “

‘non-speech’ elements,” that is being used in a particular situation to convey a message. Holloman's

act does not contain any of the substantive

“non-speech” elements that are necessary to remove

something from the realm of “pure speech” into the

realm of expressive conduct. It seems as purely

communicative as a sign-language gesture or the

act of holding up a sign, and in this respect is similar to the wearing of a black armband, which the

Tinker Court found to be a “primary First Amendment right[ ] akin to ‘pure speech.’ ” 393 U.S. at

508, 89 S.Ct. at 737.

[19] It does not ultimately matter whether Holloman's act is characterized as “pure speech” or

“expressive conduct” because this circuit appears to

apply the same test in assessing school restrictions

on either kind of expression. This Section *1271

summarizes these principles and applies them to the

instant case.

a.

[20] As with all rights, the scope of the First

Amendment has boundaries. On many occasions,

we have affirmed the right of public educational institutions “to adopt and enforce reasonable, nondiscriminatory regulations as to the time, place and

manner of student expressions and demonstrations.”

Bayless v. Martine, 430 F.2d 873, 878 (5th

Cir.1970). This “reasonableness” test is not the anemic simulacrum of a constraint on governmental

power found in the Due Process Clause's “rational

basis” test, see, e.g., Williamson v. Lee Optical, 348

U.S. 483, 487-88, 75 S.Ct. 461, 464, 99 L.Ed. 563

(1955), but rather a more robust notion of

“reasonableness” such as that applied in the Fourth

Amendment context, see U.S. Const. amend. IV

(prohibiting “unreasonable searches and seizures”).

In Burnside v. Byars, we articulated the way to determine whether a public school regulation that curtailed expression was reasonable:

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[S]chool officials cannot ignore expressions of feelings with which they do not wish to contend. They

cannot infringe on their students' right to free and

unrestricted expression as guaranteed to them under

the First Amendment to the Constitution, where the

exercise of such rights in the school buildings and

schoolrooms do[es] not materially and substantially

interfere with the requirements of appropriate discipline in the operation of the school.

363 F.2d at 749. Under the Burnside standard, student expression may unquestionably be regulated

when doing so “contributes to the maintenance of

order and decorum within the educational system.”

Id. at 748; accord Tinker, 393 U.S. at 514, 89 S.Ct.

at 740 (holding that a school may not prohibit expressive activity unless there are “facts which

might reasonably have led school authorities to

forecast substantial disruption of or material interference with school activities”); Shanley, 462 F.2d

at 969 (“The test for curtailing in-school exercise of

expression is whether or not the expression or its

method of exercise ‘materially and substantially’

interferes with the activities or discipline of the

school.”). This doctrine allows school authorities to

prohibit, among other things, “lewd, indecent, or

offensive speech.... The First Amendment does not

prevent the school officials from determining that

to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission.” Bethel Sch. Dist. v. Fraser, 478

U.S. 675, 683, 685, 106 S.Ct. 3159, 3164-65, 92

L.Ed.2d 549 (1986); see also Healy v. James, 408

U.S. 169, 189, 92 S.Ct. 2338, 2350, 33 L.Ed.2d 266

(1972) (“[First Amendment] [a]ssociational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.”).

However, in assessing the reasonableness of regulations that tread upon expression, we cannot simply

defer to the specter of disruption or the mere theoretical possibility of discord, or even some de minimis, insubstantial impact on classroom decorum.

Particularly given the fact that young people are required by law to spend a substantial portion of their

lives in classrooms, student expression may not be

suppressed simply because it gives rise to some

slight, easily overlooked disruption, including but

not limited to “a showing of mild curiosity” by other students, see Burnside, 363 F.2d at 748,

“discussion and comment” among students, Reineke

v. Cobb Cty. Sch. Dist., 484 F.Supp. 1252, *1272

1261 (N.D.Ga.1980), or even some “hostile remarks” or “discussion outside of the classrooms”

by other students, Tinker, 393 U.S. at 508, 514, 89

S.Ct. at 737, 740. For example, one district court

correctly found that a teacher was unjustified in

censoring an article in the school newspaper because it was “inconceivable that the use of the word

‘damn’ one time in the newspaper would have

caused material and substantial interference with

school activities.” Reineke, 484 F.Supp. at 1258.

[21] The dissent concludes that Holloman's gesture

was unprotected because “[t]he students' comments

[to Allred after class] demonstrate that they at least

focused their attention during a portion of the recitation of the Pledge on Holloman's fist ... rather than

on the planned curriculum of saying the Pledge.”

This approach appears to ignore the principle discussed above that student expression must cause (or

be likely to cause) a “material[] and substantial[]”

disruption, Burnside, 363 F.2d at 749, and more

than a brief, easily overlooked, de minimis impact,

before it may be curtailed. The dissent argues that

Holloman's act was “meant to compete for students'

attention.” The same can be said of any of the

forms of student expression that have been found to

be protected, including the wearing of armbands or

buttons in class. A student expressing himself in

those ways clearly intends to attract the other students' attention and have them consider, however

briefly, the meaning behind the symbolism. Indeed,

if a student's attention is never focused, if even for

a moment, on the expression, it becomes pointless.

Under the dissent's approach, where schools may

prohibit any speech or acts that do anything to distract a student's mind-however briefly or insubstantially-from the planned curriculum, constitutional

protection for student expression by definition

would be eliminated.

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This point was made quite clearly in Parducci v.

Rutland, 316 F.Supp. 352 (M.D.Ala.1970), where a

teacher was terminated because she assigned a short

story that school administrators found offensive.

The district court recognized that First Amendment

freedoms in public schools, including a teacher's

right to academic freedom, could be constitutionally abridged under Tinker and Burnside only if

there was a realistic threat that the conduct at issue

would “materially and substantially interfere with

the requirements of appropriate discipline in the operation of the school.” Id. at 355. The court, correctly applying our precedents, held:

Rather than there being a threatened or actual substantial disruption to the educational processes of

the school, the evidence reflects that the assigning

of the story was greeted with apathy by most of the

students. Only three of plaintiff's students asked to

be excused from the assignment. On this question

of whether there was a material and substantial

threat of disruption, the Principal testified at the

School Board hearing that there was no indication

that any of plaintiff's other 87 students were planning to disrupt the normal routine of the school.

This Court now specifically finds and concludes

that the conduct for which plaintiff was dismissed

was not such that “would materially and substantially interfere with” reasonable requirements of

discipline in the school.

Id. at 356. There is no evidence in the record to

suggest that Holloman's gesture caused any more

disturbance or unrest than Parducci's assignment.

By focusing entirely on whether students may have

been momentarily “distracted,” rather than on

whether the distraction or disruption*1273 was

“material” or “substantial,” the dissent gives insufficient protection to students' First Amendment

rights and incorrectly applies our precedents.

While certain types of expression unquestionably

cause enough of a threat of disruption to warrant

suppression even before negative consequences occur, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to

freedom of expression,” even in schools. Tinker,

393 U.S. at 508, 89 S.Ct. at 737. “[T]here must be

demonstrable factors that would give rise to any

reasonable forecast by the school administration of

‘substantial and material’ disruption of school

activities before expression may be constitutionally

restrained.” Shanley, 462 F.2d at 974; accord Center for Participant Ed. v. Marshall, 337 F.Supp.

126, 135 (N.D.Fla.1972) (suggesting that a

“speculative fear” is insufficient to justify restrictions on student expression, but a “real and immediate fear of conduct potentially disruptive of the university routine” is enough).

We recognize that this test is more restrictive than

the parsimonious interpretation of students' First

Amendment freedoms offered in Ferrell v. Dallas

Indep. Sch. Dist., 392 F.2d 697 (5th Cir.1968). In

Ferrell, a high school principal suspended students

in a rock-and-roll band for growing their hair too

long. This court upheld the principal's regulation

because the principal felt “that the length and style

of the boys' hair would cause commotion, trouble,

distraction, and a disturbance in the school....” Id.

at 699. To the degree this ruling is based on the

principal's abstract concerns, it is patently inconsistent with the principle articulated in Tinker,

Burnside, and numerous other cases discussed

throughout this Subsection, that there must be a real

or substantial threat of actual disorder, as opposed

to the mere possibility of one. We are bound to follow Burnside rather than Ferrell because it is the

earlier case. See Local Union 48 Sheet Metal Workers v. S.L. Pappas & Co., 106 F.3d 970, 975 (11th

Cir.1997). Similarly, we must follow Tinker rather

than Ferrell because it is an intervening, inconsistent Supreme Court decision. See Lufkin v. McCallum, 956 F.2d 1104, 1107 (11th Cir.1992). Consequently, we apply the Tinker-Burnside doctrine in

this case.

This Tinker-Burnside standard we reaffirm today

was applied in Banks v. Bd. of Public Instr., 314

F.Supp. 285 (S.D.Fla.1970), vacated by401 U.S.

988, 91 S.Ct. 1223, 28 L.Ed.2d 526 (1971), reinstated without published opinion by dist. ct. and

aff'd,450 F.2d 1103 (5th Cir.1971), a case similar to

this one, where a student was suspended for failing

to stand during the Pledge of Allegiance. The dis370 F.3d 1252 Page 24

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trict court held, “The conduct of Andrew Banks in

refusing to stand during the pledge ceremony constituted an expression of his religious beliefs and

political opinions. His refusal to stand was no less a

form of expression than the wearing of the black

armband was to Mary Beth Tinker. He was exercising a right ‘akin to pure speech.’ ” Id. at 295.

While at first glance it might seem like Banks's

right to be free from compelled speech was at issue

in that case, the above quote from the district court

makes clear that its ruling was not based on Banks's

First Amendment right to remain silent, but his

First Amendment right to affirmatively express

himself. Both the school administration and the

court in that case perceived Banks's act of remaining seated while everyone else was standing as an

expressive act, rather than a mere refusal to speak.

In upholding his right to act in such a way, the district court observed, “The unrefuted testimony

clearly reflects that the plaintiff's refusal to stand

has not caused any disruption in the educational

process.” *1274 Id.; cf. Jenkins v. Louisiana State

Bd. of Educ., 506 F.2d 992 (5th Cir.1975)

(upholding restrictions on college students' activities because “[t]he actions of appellants resulted in a

material disruption of the campus and of the rights

of others. They were not protected by the First

Amendment.”). We therefore find Banks to be fully

consistent with the approach mandated by Burnside

and Tinker, and conclude that Holloman's gesture

was sufficiently akin to Banks's refusal to stand (in

that neither had any real impact on class discipline)

as to be entitled to First Amendment protection.

Our cases involving “freedom buttons” are perhaps

even more instructive. In Blackwell v. Issaquena

Cty. Bd. of Educ., 363 F.2d 749 (5th Cir.1966),

black elementary school students wore “freedom

buttons” to class in support of the civil rights movement.

[S]ome of these students were creating a disturbance by noisily talking in the hall when they were

scheduled to be in class.... [Some students] accosted other students by pinning the buttons on them

even though they did not ask for one. One of the

students tried to put a button on a younger child

who began crying. This activity created a state of

confusion, disrupted class instruction, and resulted

in a general breakdown of orderly discipline.

Id. at 750-52 (footnote omitted). We held that the

principal did not violate the students' constitutional

rights by punishing them for their behavior and, under those circumstances, banning the buttons from

the school. Such a restriction on student expression

was justified, notwithstanding the First Amendment, because the “students conducted themselves

in a disorderly manner, disrupted classroom procedure, interfered with the proper decorum and discipline of the school and disturbed other students who

did not wish to participate in the wearing of the buttons.” Id. at 753.

[22][23] In Burnside, however, the same panel of

this court, on the same day, emphasized that the

mere possibility of such consequences did not justify a different school in banning freedom buttons.

363 F.2d at 748 (overturning school's ban on freedom buttons because “affidavits and testimony before the District Court reveal no interference with

educational activity and do not support a conclusion

that there was a commotion or that the buttons tended to distract the minds of the students away from

their teachers”) (emphasis omitted). The

Burnside-Blackwell dyad demonstrates that the permissibility of a restriction on student expression

cannot be determined in the abstract, but must be

assessed with at least one eye toward the actual or

likely (not merely potential) impact of that expression on the learning environment. Conduct that may

be constitutionally protected in one school or under

one set of circumstances may tend to incite disruption or disorder-and so be constitutionally proscribable-in others. Where students' expressive activity

does not materially interfere with a school's vital

educational mission, and does not raise a realistic

chance of doing so, it may not be prohibited simply

because it conceivably might have such an effect.

b.

[24] Allred maintains that it was appropriate for her

to discipline Holloman because the other students

were disturbed by his demonstration. She claims a

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number of them came up to her after class and told

her that what he did wasn't “right.” She also expressed concern that his behavior would lead to further disruptions by other students.

The fact that other students may have disagreed

with either Holloman's act or *1275 the message it

conveyed is irrelevant to our analysis. See Tinker,

393 U.S. at 509, 89 S.Ct. at 738 (“In order for the

State in the person of school officials to justify prohibition of a particular expression of opinion, it

must be able to show that its action was caused by

something more than a mere desire to avoid the discomfort and unpleasantness that always accompany

an unpopular viewpoint.”); Near v. Minnesota, 283

U.S. 697, 722, 51 S.Ct. 625, 633, 75 L.Ed. 1357

(1931) (“If the township may prevent the circulation of a newspaper for no reason other than that

some of its inhabitants may violently disagree with

it, and resent its circulation by resorting to physical

violence, there is no limit to what may be prohibited.”) (quotation and citation omitted).

Nor is Holloman's expression removed from the

realm of constitutional protection simply because

the students cloaked their disagreement in the guise

of offense or disgust. Holloman's behavior was not

directed “toward” anyone or any group and could

not be construed by a reasonable person (including

a high school student) as a personal offense or insult.

Ferrell v. Dallas Indep. Sch. Dist. arguably supports Allred's position. In Ferrell, this court held

that a school could prohibit students from wearing

long hair simply because their choice of hairstyle

“provoked” other students into breaking school

rules and the law by responding violently. The

court justified the hair-length regulation by pointing

to such considerations:

On one occasion a group of boys in his school had

decided that a classmate's hair was too long and

that they were going to take the matter in their own

hands and trim it themselves. Mr. Lanham stated

that boys with long hair were subjected to substantial harassment. Obscene language had been used

by some students in reference to others with long

hair and girls had come to his office complaining

about the language being used. The long hair boys

had also been challenged to a fight by other boys

who did not like long hair. Also, long hair boys had

been told by others that the girl's restroom was right

down the hall.

392 F.2d at 700-01.

Allowing a school to curtail a student's freedom of

expression based on such factors turns reason on its

head. If certain bullies are likely to act violently

when a student wears long hair, it is unquestionably

easy for a principal to preclude the outburst by preventing the student from wearing long hair. To do

so, however, is to sacrifice freedom upon the alter

of order, and allow the scope of our liberty to be

dictated by the inclinations of the unlawful mob. If

bullies disrupted classes and beat up a student who

refused to join the football team, the proper solution would not be to force the student to join the

football team, but to protect the student and punish

the bullies. If bullies disrupted classes and beat up a

student because he wasn't wearing fancy enough

clothes, the proper solution would not be to force

the student to wear Abercrombie & Fitch or J. Crew

attire, but to protect the student and punish the bullies. The same analysis applies to a student with

long hair, who is doing nothing that the reasonable

person would conclude is objectively wrong or directly offensive to anyone. The fact that other students might take such a hairstyle as an incitement

to violence is an indictment of those other students,

not long hair.

Such reasoning is part of the basis for Street v. New

York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365, 22

L.Ed.2d 572 (1969), where the Supreme Court held

that “the possible tendency of appellant's words to

provoke violent retaliation” is not a basis *1276 for

banning those words unless they are “fighting

words.” Street's conviction was reversed because

“[t]hough it is conceivable that some listeners

might have been moved to retaliate upon hearing

appellant's disrespectful words, we cannot say that

appellant's remarks were so inherently inflammatory as to come within that small class of ‘fighting

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words' which are ‘likely to provoke the average

person to retaliation, and thereby cause a breach of

the peace.’ ” Id. (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86

L.Ed. 1031 (1942)); see also Cantwell v. Connecticut, 310 U.S. 296, 308-10, 60 S.Ct. 900, 905-06, 84

L.Ed. 1213 (1940) (reversing conviction for breaching the peace in a case where there was “no assault

or threatening of bodily harm, no truculent bearing,

no intentional discourtesy, no personal abuse”).

While the same constitutional standards do not always apply in public schools as on public streets,

we cannot afford students less constitutional protection simply because their peers might illegally express disagreement through violence instead of

reason. If the people, acting through a legislative

assembly, may not proscribe certain speech, neither

may they do so acting individually as criminals.

Principals have the duty to maintain order in public

schools, but they may not do so while turning a

blind eye to basic notions of right and wrong.

Thus, under the Tinker-Burnside doctrine, we are

required to reject this portion of Ferrell, as well.

Even if Allred were correct in fearing that other

students may react inappropriately or illegally, such

reactions do not justify suppression of Holloman's

expression. Holloman's expression was constitutionally protected because the record reveals no

way in which he “materially and substantially interfere[d] with the requirements of appropriate discipline in the operation of the school.” Burnside, 363

F.2d at 749.

c.

On appeal, Allred repeatedly emphasizes that Holloman was punished not for his act, but for disobeying directions from her and Harland as to the only

permissible ways to salute the flag. By raising his

fist in the air the next day, Holloman contravened

these instructions. Consequently, Allred argues,

Holloman was punished for insubordination for violating these orders, rather than for exercising a

First Amendment right.

[25] Although Holloman failed to salute the flag in

a manner amenable to Allred, “the protections of

the First Amendment do not extend solely to speech

which is well-mannered and attentive to the preferences of others.” Sabel v. Stynchcombe, 746 F.2d

728, 731 (11th Cir.1984). As discussed throughout

this Subsection, Holloman had the constitutional

right to raise his fist during the Pledge of Allegiance so long as he did not disrupt the educational

process or the class in any real way.

Allred could not prevent Holloman from exercising

a constitutional right simply by telling him not to

do so. School officials may not punish indirectly,

through the guise of insubordination, what they

may not punish directly. See Rutland, 316 F.Supp.

at 358 (ordering reinstatement of public high school

teacher who was dismissed in violation of the First

Amendment for assigning a short story administrators found objectionable because “plaintiff's

‘insubordination’ was not insubordination in any

sense and was not, in reality, a reason for the

School Board's action”); Dickey v. Alabama State

Bd. of Educ., 273 F.Supp. 613, 618 (M.D.Ala.1967)

(“The attempt to characterize Dickey's conduct, and

the basis for their action *1277 in expelling him, as

‘insubordination’ requiring rather severe disciplinary action, does not disguise the basic fact that

Dickey was expelled from Troy State College for

exercising his constitutionally guaranteed right of

academic and/or political expression.”), vacated as

moot sub nom. Troy State Univ. v. Dickey, 402 F.2d

515 (5th Cir.1968). Allred lacked the right to proscribe his behavior in the first place; neither she nor

Harland could punish Holloman for violating a directive that was a constitutional nullity.

Consequently, we have no choice but to conclude

as a matter of law that Holloman successfully articulated a violation of his First Amendment right to

freedom of expression by Harland and Allred. We

now must assess whether these rights were “clearly

established” at the time of the incidents.

2.

This circuit was recently chastised by the Supreme

Court for taking an unwarrantedly narrow view of

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the circumstances in which public officials can be

held responsible for their constitutional violations.

See Vaughan v. Cox, 343 F.3d 1323, 1332 (11th

Cir.2003) (“[T]he Supreme Court in Hope cautioned that we should not be unduly rigid in requiring factual similarity between prior cases and the

case under consideration.”). The law of this circuit

used to be that a government actor could be denied

qualified immunity only for acts that are “so obviously wrong, in light of the pre-existing law, that

only a plainly incompetent officer or one who was

knowingly violating the law would have done such

a thing.” Lassiter v. Alabama A. & M. Univ., 28

F.3d 1146, 1149 (11th Cir.1994) (en banc). The Supreme Court, specifically citing Lassiter (along

with a handful of other Eleventh Circuit cases),

held that “[t]his rigid gloss in the qualified immunity standard ... is not consistent with [the Supreme Court's] cases.” Hope v. Pelzer, 536 U.S.

730, 739 & n. 9, 122 S.Ct. 2508, 2515 & n. 9, 153

L.Ed.2d 666 (2002).

[26] While officials must have fair warning that

their acts are unconstitutional, there need not be a

case “on all fours,” with materially identical facts,

before we will allow suits against them. A principle

of constitutional law can be “clearly established”

even if there are “notable factual distinctions

between the precedents relied on and the cases then

before the Court, so long as the prior decisions gave

reasonable warning that the conduct at issue violated constitutional rights.” United States v. Lanier,

520 U.S. 259, 269, 117 S.Ct. 1219, 1227, 137

L.Ed.2d 432 (1997); Hope, 536 U.S. at 741, 122

S.Ct. at 2516 (“[O]fficials can still be on notice that

their conduct violates established law even in novel

factual circumstances. Indeed, in Lanier, we expressly rejected a requirement that previous cases

be ‘fundamentally similar.’ ”).

In our pre-Hope jurisprudence, we held that

[g]eneral rules, propositions, or abstractions ... do

not determine qualified immunity. Instead, the circumstances that confronted the government actor

must have been materially similar to prior precedent to constitute clearly established law because

public officials are not obligated to be creative or

imaginative in drawing analogies from previously

decided cases. For qualified immunity to be surrendered, pre-existing law must dictate, that is,

truly compel (not just suggest or allow or raise a

question about), the conclusion for every likesituated, reasonable government agent that what defendant is doing violates federal law in the circumstances.

Wood v. City of Lakeland, 203 F.3d 1288, 1291-92

(11th Cir.2000) (citations and quotations omitted).

*1278 As discussed above, Hope reminds us that

we need no longer focus on whether the facts of a

case are “materially similar to prior precedent.”

Moreover, Hope emphasized that “general statements of the law are not inherently incapable of

giving fair and clear warning ... [A] constitutional

rule already identified in the decisional law may apply with obvious clarity to the specific conduct in

question, even though the very action in question

has [not] previously been held unlawful.” 536 U.S.

at 741, 122 S.Ct. at 2516 (quotations omitted).

Thus, we do not just compare the facts of an instant

case to prior cases to determine if a right is “clearly

established;” we also assess whether the facts of the

instant case fall within statements of general principle from our precedents. See Vinyard v. Wilson,

311 F.3d 1340, 1351 (11th Cir.2002) (“When looking at case law, some broad statements of principle

in case law are not tied to particularized facts and

can clearly establish law applicable in the future to

different sets of detailed facts.”).

Hope seems to have abrogated many of the other

standards articulated in Wood, as well. For example, Wood 's requirement that a particular conclusion must be “dictate[d], that is, truly compel[led]” intimates a level of absolute crystal-clear

certainty about precedent that forms no part of

Hope 's requirements. To the degree there exists a

conflict between Hope and our earlier cases, we

are, of course, bound to follow the Supreme Court's

intervening ruling. See Lufkin v. McCallum, 956

F.2d 1104, 1107 (11th Cir.1992). Since Hope, many

of our cases have applied its standard to the exclusion of our earlier, more rigorous doctrinal tests.

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See, e.g., Holmes v. Kucynda, 321 F.3d 1069,

1077-78 (11th Cir.2003); Dahl v. Holley, 312 F.3d

1228, 1233 (11th Cir.2002); Weaver v. Bonner, 309

F.3d 1312, 1324 (11th Cir.2002). Hope emphasizes

that, notwithstanding more stringent standards articulated in some of our earlier cases, “the salient

question ... is whether the state of the law [at the

time of the events in question] gave respondents

fair warning that their alleged treatment of [the

plaintiff] was unconstitutional.” 536 U.S. at 741,

122 S.Ct. at 2516.

[27] Turning to Holloman's claims, we find that, as

of May 16, 2000, the Tinker-Burnside standard was

clearly established and sufficiently specific as to

give the defendants “fair warning” that their conduct was constitutionally prohibited. We do not

find it unreasonable to expect the defendants-who

holds themselves out as educators-to be able to apply such a standard, notwithstanding the lack of a

case with material factual similarities. While we

have not traditionally called upon government officials to be “creative or imaginative” in determining

the scope of constitutional rights, see Adams v. St.

Lucie Cty. Sheriff's Dep't, 962 F.2d 1563, 1575

(11th Cir.1992) (Edmondson, J., dissenting),

neither are they free of the responsibility to put

forth at least some mental effort in applying a reasonably well-defined doctrinal test to a particular

situation. Our precedents would be of little value if

government officials were free to disregard fairly

specific statements of principle they contain and focus their attention solely on the particular factual

scenarios in which they arose.

[28] The Tinker-Burnside test calls for teachers to

assess two factors: (1) whether a student is engaged

in expression (either pure speech or expressive conduct) and (2) whether the expression is having a

non-negligible disruptive effect, or is likely to have

such an effect, on classroom order or the educational process. The first factor is quite easy to apply;

the test for determining whether an act constitutes

expressive conduct is whether the “reasonable person” would perceive it as such. See *1279 Spence,

418 U.S. at 410-11, 94 S.Ct. at 2730. Consequently,

a teacher or principal should have no problem determining whether a student is engaged in expression. Indeed, given the myriad forms of expression,

we should be hesitant about requiring that a means

of expression be the subject of a previous case before offering the speaker full § 1983 protection.

The second factor should also be quite effortless for

an educator to apply. A teacher or principal should

be able to instantly recognize whether a student is

disrupting class, and it should not be too hard to determine whether a student's activities are likely to

have such an effect. Consequently, we do not find

the Tinker-Burnside test to be of such an unreasonable level of generality that Allred and Harland

could not have been expected to apply it in this

case. Cf. Thomas v. Roberts, 323 F.3d 950 (11th

Cir.2003) (“[W]here the applicable legal standard is

a highly general one, such as ‘reasonableness,’

preexisting caselaw that has applied general law to

specific circumstances will almost always be necessary to draw a line that is capable of giving fair and

clear notice that an official's conduct will violate

federal law.”). Because this standard is “clearly established,” is not at an unreasonable high level of

generality, and when applied to the facts of Holloman's case yields a fairly determinate result that

should have been clear, Allred and Harland are not

entitled to summary judgment on qualified immunity grounds against Holloman's Speech Clause

claim concerning his right to affirmative expression. The Tinker-Burnside principle gave them

“clear notice” that their conduct violated Holloman's constitutional rights; unlike the dissent, we

believe that teachers are well equipped to “readily

determine what conduct falls within” the

Tinker-Burnside standard.

Indeed, Holloman's right to silently raise his fist

during the Pledge of Allegiance would even be considered “clearly established” under Barnette. As

discussed earlier, he clearly had the right to remain

silent during the Pledge of Allegiance; we would be

very reluctant to conclude that Holloman somehow

shed the protection of the First Amendment simply

by lifting his fist into the air while exercising this

right. Allred and Harland are essentially asking us

to distinguish, on constitutional grounds, between a

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student with his hands in his pockets or at his sides

(like Hutto) and a student with his hand in the air.

This is a hair we will not split; First Amendment

protections are not lost that easily.

D.

[29] The dissent takes issue with the analysis in

Subpart C, contending that Holloman's expression

is unprotected because it “is the sort of activity that

competes with the teacher for the students' attention.” For the reasons discussed in the previous

Subpart, we do not believe that Holloman's activity,

which had virtually no impact on the class, was sufficient under Tinker and Burnside to fall outside the

realm of constitutional protection. However, even if

we (or a jury, based on the facts as they unfold at

trial) were to find that Holloman's expression did

“materially and substantially interfere with the requirements of appropriate discipline,” Holloman

would still be able to articulate a violation of his

First Amendment rights.

[30] One of the most egregious types of First

Amendment violations is viewpoint-based discrimination. See Chandler v. James, 180 F.3d 1254,

1265 (11th Cir.1999) (noting that “viewpoint discrimination[ ][is] the most egregious form of content-based censorship”); Searcey v. Harris, 888

F.2d 1314, 1324 (11th Cir.1989)*1280 (“The prohibition against viewpoint discrimination is firmly

embedded in first amendment analysis.”). Government actors may not discriminate against speakers

based on viewpoint, even in places or under circumstances where people do not have a constitutional right to speak in the first place. See Uptown

Pawn & Jewelry, Inc. v. City of Hollywood, 337

F.3d 1275, 1277 (11th Cir.2003) (“[R]estrictions on

nonpublic forums need only be reasonable and not

viewpoint discriminatory.”); Adler v. Duval County

Sch. Bd., 206 F.3d 1070, 1081 (11th Cir.2000)

(“The Supreme Court has consistently held that in

nonpublic fora the government may not engage in

viewpoint discrimination.”). We have expressly recognized that this fundamental prohibition against

viewpoint-based discrimination extends to public

schoolchildren, as well, stating, “[W]e do not believe [that Supreme Court precedent] offers any justification for allowing educators to discriminate

based on viewpoint.... Without more explicit direction, we will continue to require school officials to

make decisions relating to speech which are viewpoint neutral.” Searcey, 888 F.2d at 1325. Consequently, even if Holloman did not have the right

to express himself in the manner he did, his rights

were still violated if he was punished because

Allred disagreed or was offended by what he said.

This theory was most clearly applied in R.A.V. v. St.

Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d

305 (1992). That case involved an ordinance which

made it a crime to place a “burning cross or Nazi

swastika, which one knows or has reasonable

grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Id. at 380, 112 S.Ct. at 2541. The

Supreme Court accepted the Minnesota Supreme

Court's construction of the statute as prohibiting

only “fighting words,” a constitutionally proscribable category of expression. Id. at 380-81, 112

S.Ct. at 2541. The Court nevertheless invalidated

the statute because, in the course of prohibiting

conduct the state had the right to criminalize, it

made a viewpoint-based distinction.

The Court acknowledged that people do not have

the First Amendment right to use fighting words.

Id. at 382, 112 S.Ct. at 2542-43. The Court emphasized, however, “What [that] means is that these

areas of speech can, consistently with the First

Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)-not ... that they can be made the vehicles

for content discrimination unrelated to their distinctively proscribable content.” Id. at 383, 112

S.Ct. at 2543. Thus,

a particular instance of speech can be proscribable

on the basis of one feature (e.g. obscenity) but not

on the basis of another (e.g. opposition to the city

government).... [Moreover,] the power to proscribe

particular speech on the basis of a noncontent element (e.g. noise) does not entail the power to proscribe the same speech on the basis of a content element....

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Id. at 385-86, 112 S.Ct. at 2544. Applying this

standard, the Court held that the ordinance was unconstitutional because “[d]isplays containing abusive invective, no matter how vicious or severe, are

permissible unless they are addressed to one of the

specified disfavored topics.” Id. at 391, 112 S.Ct. at

2547. Moreover, the ordinance went beyond general content discrimination “to actual viewpoint discrimination.... ‘[F]ighting words' that do not themselves invoke race, color, creed, religion, or gender

... would seemingly be usable ad libitum in the

placards of those arguing in favor of racial, color,

etc., tolerance and equality, but could not be used

by *1281 those speakers' opponents.” Id. at 391,

112 S.Ct. at 2547-48.

Thus, even though Minneapolis had the unquestioned power to prohibit fighting words, it could

not draw viewpoint based distinctions by targeting

certain fighting words because of the repugnant

message they conveyed. Applying this principle to

the instant case, it becomes clear why Allred may

potentially be held liable under the First Amendment even if Holloman was not engaging in constitutionally protected speech. Although Allred has

the authority under the Tinker-Burnside standard to

proscribe student expression that materially and

substantially disrupts the class, she may not punish

such expression based on the fact that she disagrees

with it. Even when engaging in speech that is not

directly constitutionally protected, Holloman still

has the First Amendment right to be free from

viewpoint discrimination.

The record, interpreted in the light most favorable

to Holloman, more than amply supports his argument that he was punished for the substance of his

unpatriotic views rather than an alleged disruption

of class. Allred admitted in her deposition that

when Hutto simply refused to recite the pledge of

allegiance, she was “hurt” and “[v]ery disappointed

in him” because “[h]e was a leader of the class ....

[and] looked up to a great deal.” Moreover, she because of “the freedoms we enjoy in this country,”

she couldn't understand how he wouldn't want to

pledge. She emphasized, “It broke my heart, you

know.” Given that Hutto was chastised and ultimately forced by Harland to apologize simply for

remaining silent during the flag salute, a jury could

reasonably conclude that Allred's punishment of

Holloman was based on similar motivations.

When Holloman allegedly asked Allred about the

ways in which students were permitted to salute the

flag, she told him that he could either do so with his

hand over his heart or in a military-type salute. She

explained, “In our country, the normal way is putting your hand over your heart. That's the way you

see everyone do it, the ball players on TV.” Any

other way is prohibited because it “is not the normal acceptance [sic] of saying the pledge in our

country.” She considered what he did

“disrespectful” because “[i]t's going against the

normal procedure behavior [sic] of pledging to our

American flag.” Holloman's gesture is “not an acceptable behavior in this country.” She emphasized,

“You just salute the way Americans salute and

pledge. That's a given.” Although she maintained

that this disrespect to the flag wasn't the reason she

actually punished Holloman, these statements

would allow a jury to conclude that her actions

were motivated by her disagreement with and offense at the unpatriotic views expressed by Holloman's gesture.

Harland expressed a similar attitude. According to

Vice Principal Jason Adkins, Harland was “angry

and disappointed and upset” that Hutto declined to

salute the American flag. Harland threatened to rescind his recommendation of Hutto to the Air Force

Academy. Again, such views toward the Pledge of

Allegiance support Holloman's claim that he was

punished for the offensive viewpoint he expressed.

Especially when considered in light of the virtually

nonexistent evidence that Holloman disrupted the

class in any way (discussed in the previous Subpart), the record virtually compels the conclusion

(for summary judgment purposes) that both the fact

and extent of his punishment stemmed from the fact

that Allred and Harland found his ostensibly unpatriotic views repugnant and offensive. Indeed, many

of our cases have used evidence such as this to support a finding that a particular governmental act

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was motivated by *1282 unconstitutional viewpoint

discrimination. See, e.g., Chandler v. Georgia Public Telecomm. Comm'n, 917 F.2d 486, 491-92 (11th

Cir.1990) (“The transcript of the evidentiary hearing held by the district court is replete with statements by Dr. Cooper, the executive director of [the

state agency], that [the agency] decided that the

viewpoints of the Libertarians were less valuable

than those of the Democrats and Republicans.”).

As emphasized earlier, the evidence at trial may

prove that Allred did not discipline Holloman because of his viewpoint, but for a legitimate reason.

Interpreting the evidence in Holloman's favor for

summary judgment purposes, however, we must

conclude that her motive was discriminatory. Because Holloman had the right to be free from viewpoint discrimination, and that right was clearly established (both in general as well as in the public

school context) under the precedents discussed

above, we must deny Allred qualified immunity at

this stage. As Justice Blackmun reminds us, “[I]f

educators intentionally may eliminate all diversity

of thought, the school will strangle the free mind at

its source and teach youth to discount important

principles of our government as mere platitudes.”

Bd. of Educ. v. Pico, 457 U.S. 853, 879, 102 S.Ct.

2799, 2814, 73 L.Ed.2d 435 (1982) (Blackmun, J.,

concurring in part). Consequently, even if the dissent's contention (that Holloman's conduct is not

protected under the Tinker-Burnside standard) is

correct, Holloman's punishment would still have violated the First Amendment. Viewpoint discrimination is another First-Amendment avenue for recovery that Holloman is entitled to pursue at trial.

Having concluded that Allred and Harland are not

entitled to summary judgment on qualified immunity grounds against any of the three ways in

which Holloman can articulate Speech Clause

claims against them, we now turn to his Establishment Clause claim against them.

III.

Holloman claims that his rights under the Establishment Clause were violated by Allred's daily moment of silent prayer. The district court granted

both Allred and Harland summary judgment against

this claim. While Holloman's brief on appeal vigorously contests this ruling as it applies to Allred, it

does not even mention whether Harland was entitled to qualified immunity on this claim. Consequently, we are forced to conclude that Holloman

has abandoned his appeal regarding Harland's summary judgment on qualified immunity grounds

against Holloman's Establishment Clause

claim.FN9 We reverse the district court's grant of

summary judgment on this claim to Allred,

however.

FN9. Based on the record before us, it appears as if Holloman would be able to articulate a number of ways in which Harland could be held liable under a supervisoral theory of liability. As discussed

earlier, qualified immunity is not a defense

to a § 1983 suit premised on supervisoral

liability. Because Holloman failed to articulate such a cause of action at any point

before the district court, we need not consider the viability of such claims here.

As noted in Part II, the first step in assessing the viability of a qualified immunity defense is to determine whether the government official defendant

was engaged in a “discretionary function” in performing the acts of which the plaintiff complains.

This entails a two-step analysis: we begin by ascertaining whether the defendant was pursuing a jobrelated goal, and then examine whether the type of

action in which she was engaging to further this

goal was authorized.

*1283 [31] We are willing to assume that Allred

satisfies the first prong of this test because she was

attempting to pursue the legitimate job-related

function of fostering her students' character education by teaching compassion. She nevertheless fails

the second prong of the “discretionary function”

test because she was not pursuing this job-related

goal through legitimate means that fell within her

powers. While fostering character development and

moral education were undoubtedly parts of Allred's

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official responsibilities, this does not automatically

empower her to do anything within her judgment

that furthers those goals; she cannot educate students at all costs.

Praying goes sufficiently beyond the range of activities normally performed by high school teachers

and commonly accepted as part of their job as to

fall outside the scope of Allred's official duties,

even if she were using prayer as a means of achieving a job-related goal. It is not within the range of

tools among which teachers are empowered to select in furtherance of their pedagogical duties.FN10

Prayer is a relatively sui generis activity. Put another way, even ignoring Holloman's Establishment

Clause claims, praying still would not be part of a

public school teacher's responsibilities or duties.

FN10. We emphasize that students were

not studying the Bible as part of a course

on literature, or singing a religious hymn

in a music class, or analyzing a prayer as a

poem, but instead were actually encouraged to pray. Cf. Stone v. Graham, 449

U.S. 39, 42, 101 S.Ct. 192, 194, 66

L.Ed.2d 199 (1980) (“This is not a case in

which the Ten Commandments are integrated into the school curriculum, where the

Bible may constitutionally be used in an

appropriate study of history, civilization,

ethics, comparative religion, or the like.”).

We emphasize that, at this juncture, we are not

denying Allred summary judgment on qualified immunity grounds against this claim because we feel

her acts violated the Establishment Clause. Instead,

we are holding her ineligible for qualified immunity

as a matter of law because she failed to establish

that her act-this type of act-fell within her duties or

powers as a teacher. The fact that Allred is a teacher does not mean that anything she says or does in

front of a classroom necessarily constitutes an exercise of her discretionary powers or is a job-related

function. Prayer is distinct from the type of civil

virtue and secular moralism Alabama sought to promote through its character education program. Consequently, Allred is not even potentially entitled to

summary judgment on qualified immunity grounds

against Holloman's Establishment Clause claim.

The dissent takes issue with this conclusion, concluding that school prayer is a type of act that falls

within the scope of a public school teacher's discretionary authority. It argues, “It was certainly within

the scope of a public high school teacher's authority

to lead students in prayer prior to 1962, when the

Court ruled that teacher led prayer in public schools

is a violation of the Establishment Clause.” This

analysis is beside the point. In determining whether

a public official is authorized to perform a certain

type of act (abstracting away from its unconstitutional aspects), we look to the scope of their authority as it exists today, and do not inquire as to what

the forty-year old root causes of the present-day

situation may have been. Prayer is not a type of act

that falls within a reasonably specific category of

actions that teachers are authorized to perform;

there is no easy way of abstracting away its unconstitutional aspects to arrive at a type of behavior

that falls within teachers' discretionary authority.

*1284 Moreover, we decline to embark on a sociological inquiry-one for which this court is singularly unequipped-in which we weigh Supreme

Court rulings against other important stimuli that

has led to the gradual secularization of this country

over the past half century to determine why prayer

is not a type of act that public school teachers are

empowered to perform. Consequently, Allred acted

outside her discretionary authority and is not even

potentially eligible to invoke qualified immunity

against Holloman's Establishment Clause claims.

IV.

The district court granted Allred summary judgment on qualified immunity grounds against Holloman's Establishment Clause claims because it concluded that her daily moment of silent prayer did

not violate Holloman's constitutional rights, and

that even if it did, those rights were not clearly established at the time of the incident. In Part III, we

reversed the court's grant of qualified immunity because Allred had failed to establish that she had

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been performing a discretionary function in conducting this moment of silent prayer. In this Part,

we conclude that Holloman demonstrated sufficient

evidence to support the conclusion that Allred had

violated clearly established rights under the Establishment Clause. We include this discussion as a

preface to Part V, where we assess the liability of

the School Board. Logically enough, the only way

Holloman can maintain his Establishment Clause

suit against the School Board is if he demonstrates,

as a threshold matter, that his Establishment Clause

rights were violated.FN11

FN11. We also note that, even putting

aside questions of qualified immunity, the

district court's legal conclusion-that Holloman's rights under the Establishment

Clause had not been violated-would have

required that the court dismiss his § 1983

claims under the Establishment Clause for

failure to state a claim. Given that the issue

has been thoroughly briefed and argued by

both sides before us, we need not wait for

a subsequent appeal from this legally inevitable ruling to consider this matter.

A.

[32][33] The Establishment Clause of the First

Amendment states, “Congress shall make no law

respecting an establishment of religion....” U.S.

Const. amend. I. This restriction has been made applicable to states, as well as state-created entities

and their employees, through the Due Process

Clause of the Fourteenth Amendment. Cantwell v.

Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903,

84 L.Ed. 1213 (1940). The Establishment Clause

applies not only to state statutes, but acts and decisions of individual governmental actors, such as

teachers and school administrators. Lee v. Weisman,

505 U.S. 577, 587, 112 S.Ct. 2649, 2655, 120

L.Ed.2d 467 (1992).

[34] In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct.

2105, 29 L.Ed.2d 745 (1971), the Supreme Court

set forth its famous three-prong test for assessing

the permissibility of statutes under the Establishment Clause. “First, the statute must have a secular

legislative purpose; second, its principal or primary

effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an

excessive government entanglement with religion.”

Id. at 612-13, 91 S.Ct. at 2111 (internal citations

and quotations omitted). Agostini v. Felton, 521

U.S. 203, 233, 117 S.Ct. 1997, 2015, 138 L.Ed.2d

391 (1997), however, refined this test, stating,

“[T]he factors we use to assess whether an entanglement is ‘excessive’ are similar to the factors we

use to examine ‘effect.’ ...[I]t *1285 is simplest to

recognize why entanglement is significant and treat

it ... as an aspect of the inquiry into a statute's effect.” Thus, while the Court has folded its traditional “excessive entanglement” inquiry into its

“primary effect” analysis, the substance of its Establishment Clause jurisprudence remains fundamentally unaltered. See, e.g., Zelman v. SimmonsHarris, 536 U.S. 639, 648-49, 122 S.Ct. 2460,

2465, 153 L.Ed.2d 604 (2002). This Section

demonstrates that Allred's practice of soliciting

prayer requests from her students and enforcing a

moment of silence runs afoul of the Lemon-Agostini

standard. Subsection (a) looks to the purpose of her

acts, while Subsection (b) examines their primary

effect.

1.

A government official violates the Establishment

Clause if she lacks a “secular legislative purpose”

for her actions. Comm. for Pub. Educ. & Religious

Liberty v. Regan, 444 U.S. 646, 652, 100 S.Ct. 840,

846, 63 L.Ed.2d 94 (1980). Allred attempts to defend her daily moment of silent prayer by arguing

that it was intended to teach students

compassion,FN12 pursuant to the character education plan mandated by the State Legislature. See

supra Section I.C; see also Ala.Code § 16-6B-2.

FN12. Compassion was not the only character trait Allred attempted to instill in her

students. She testified, “If you are talking

about cleanliness, we talk about litter. You

know, and I have discussed that with students, being fined if you throw out litter.

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Cleanliness as far as personal hygiene, I

have actually mentioned that when I had a

problem in class. You know, ‘Everybody

don't forget to, you know, bathe.’ ”

[35] This explanation does not constitute a valid

secular legislative purpose for Allred's actions.

First, Allred's most basic intent unquestionably was

to offer her students an opportunity to pray in a

public school during the school day, and effectively

encourage them to do so. By collecting prayer requests, and using the phrases “let us pray” and

“amen,” she gave the practice of praying during the

moment of silence her implicit imprimatur.

While she may also have had a higher-order ultimate goal of promoting compassion, we look not

only to the ultimate goal or objective of the behavior, but also the more immediate, tangible, or lowerorder consequences a government actor intends to

bring about. Allred's mere “testimonial avowal of

secular ... purpose is not sufficient to avoid conflict

with the Establishment Clause.” Karen B. v. Treen,

653 F.2d 897, 900 (5th Cir.1981).

This reasoning closely follows that employed by

the Supreme Court in Stone v. Graham, wherein it

held that, notwithstanding supposedly secular justifications offered by the school district, “[t]he preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in

nature. The Ten Commandments are undeniably a

sacred text in the Jewish and Christian faiths, and

no legislative recitation of a supposedly secular

purpose can blind us to that fact.” 449 U.S. 39, 41,

101 S.Ct. 192, 194, 66 L.Ed.2d 199 (1980). Because prayer is “a primary religious activity in itself,”see Treen, 653 F.2d at 901, a teacher or administrator's intent to facilitate or encourage prayer

in a public school is per se an unconstitutional intent to further a religious goal.

Second, even accepting Allred's testimony that she

hoped to use prayer as a way of teaching compassion, our analysis does not end there. While promoting compassion may be a valid secular purpose,

teaching students that praying is necessary or *1286

helpful to promoting compassion is not.FN13 As

we held in Treen,

FN13. It is instructive, though by no means

necessary to our holding, that Allred also

considered readings from the Bible to be

part of her students' character education.

Even if the avowed objective of the legislature and

school board is not itself strictly religious, it is

sought to be achieved through the observance of an

intrinsically religious practice. The unmistakable

message of the Supreme Court's teachings is that

the state cannot employ a religious means to serve

otherwise legitimate secular interests.

Id. at 901.

The Supreme Court was faced with similar facts in

School District v. Schempp, 374 U.S. 203, 83 S.Ct.

1560, 10 L.Ed.2d 844 (1963), wherein it refused to

conclude that daily readings from the Bible in public schools had a valid secular purpose. The State

argued that the purposes of the statute requiring the

Bible readings were “the promotion of moral values, the contradiction to the materialistic trends of

our times, the perpetuation of our institutions and

the teaching of literature.” Id. at 223, 83 S.Ct. at

1572. The Court struck down the statute, asserting

that “even if its purpose is not strictly religious, [its

purpose] is sought to be accomplished through

readings, without comment, from the Bible. Surely

the place of the Bible as an instrument of religion

cannot be gainsaid....” Id. at 224, 83 S.Ct. at 1572.

Elsewhere, this court has emphasized,

“Recognizing that prayer is the quintessential religious practice implies that no secular purpose can

be satisfied....” Jaffree v. Wallace, 705 F.2d 1526,

1534-35 (11th Cir.1983) [Jaffree I ], aff'd sub nom.

Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86

L.Ed.2d 29 (1985) [Jaffree II ].

Under these precedents, a person attempting to further an ostensibly secular purpose through

avowedly religious means is considered to have a

constitutionally impermissible purpose. See Jager

v. Douglas Cty. Sch. Dist., 862 F.2d 824, 830 (11th

Cir.1989) (“[A]n intrinsically religious practice

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cannot meet the secular purpose prong of the Lemon test....”). The point of Allred's daily “ritual” was

to show that praying is a compassionate act; such

an endorsement of an intrinsically religious activity

is inconsistent with the Establishment Clause. For

these reasons, we find that Allred violated the Establishment Clause because her acts were motivated, at least in part, by a desire to inculcate

“religiosity.”

2.

Allred's behavior also fails the “effects” prong of

the Lemon-Agostini test because the effect of her

behavior was clearly to promote praying, a religious activity. Praying is perhaps the

“quintessential religious practice,” see Treen, 653

F.2d at 901, and to explicitly call for prayer requests, invoke a moment of silence for prayer with

the phrase “let us pray,” actually hold such a moment of silence, and sometimes conclude with

“Amen” has the effect of both endorsing religious

activity, as well as encouraging or facilitating its

practice.

This behavior is clearly the type of “invocation of

God's blessings” of which the Supreme Court disapproved in Engel v. Vitale, 370 U.S. 421, 422, 82

S.Ct. 1261, 1262, 8 L.Ed.2d 601 (1962). Allred's

use of the concept of silent prayer could quite reasonably appear to be an “endorsement [of religion

that] is not consistent with the established principle

that the government must pursue a course of complete neutrality toward religion.” Jaffree II, 472

U.S. at 60, 105 S.Ct. at 2491 (holding that a statute

allowing public school teachers to expressly dedicate a moment of silence to *1287 prayer violates

the Establishment Clause); see also Schempp, 374

U.S. at 225, 83 S.Ct. at 1573 (“[T]he Government

[must] maintain strict neutrality, neither aiding nor

opposing religion.”). While Allred did not promote

any particular prayer, or even compel prayer in general, her policy undeniably “encourage[d] recitation

of ... prayer.” Engel, 370 U.S. at 424, 82 S.Ct. at

1263. Consequently, we conclude that Allred's acts

violated the Establishment Clause.

Allred argues that her behavior does not have the

effect of furthering religion because her students

frequently asked her to hold the moments of silence. We held in Chandler v. Siegelman, “So long

as the prayer is genuinely student-initiated, and not

the product of any school policy which actively or

surreptitiously encourages it, the speech is private

and it is protected.” 230 F.3d 1313, 1317 (11th

Cir.2000)(Chandler II ). Allred takes an exceedingly broad view of the phrase “student-initiated,”

interpreting it to be woefully inconsistent with the

rest of our opinion in that case.

[36] Under Chandler II, read as a whole, a prayer is

not “student-initiated,” and hence constitutional,

simply because the initial idea for the prayer was a

student's. For example, the fact that a student may

come up with the idea of having the Lord's Prayer

recited over his school's loudspeakers each day

does not mean the prayer is “student initiated,” and

so constitutional, under Chandler II. Indeed, in the

Supreme Court's Santa Fe ruling (which Chandler

II applied), the student body had conducted an election and affirmatively voted to have prayers recited

at football games, but the Court nevertheless invalidated the practice. School personnel may not facilitate prayer simply because a student requests or

leads it.

The true test of constitutionality is whether the

school encouraged, facilitated, or in any way conducted the prayer. Chandler II used the phrase

“student-initiated” to mean “independently student

organized and conducted,” as opposed to “school

sponsored” or “school conducted.” In fact, in the

actual holding of the case, we upheld a portion of

an injunction enjoining the school district from “

‘aiding, abetting, commanding, counseling, inducing, ordering, or procuring’ school organized or

officially sanctioned religious activity.” Id. at 1317.

While purely private prayer by students is constitutionally protected, prayer that is led, encouraged, or

facilitated by school personnel is constitutionally

prohibited. “[E]ven genuinely student-initiated

speech may constitute state action if the State participates in or supervises the speech.... [S]tudent religious speech must be without oversight, without su370 F.3d 1252 Page 36

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pervision, subject only to the same reasonable time,

place, and manner restrictions as all other student

speech in school.” Chandler v. James [Chandler I ],

180 F.3d 1254, 1264-65 (11th Cir.1999). In this

case, the prayer requests and moments of silence

for prayer cannot be considered purely student

speech because they were coordinated and conducted by a teacher (in a classroom during school

hours, no less).

[37] That students were not actually forced to pray

during the moment of silence, and may have been

free to leave the room, does not alleviate the constitutional infirmities of Allred's moment of silence.

The Engel Court declared, “[T]he fact that the program ... does not require all pupils to recite the

prayer but permits those who wish to do so to remain silent or be excused from the room, ignores

the essential nature of the program's constitutional

defects.” 370 U.S. at 430, 82 S.Ct. at 1266. The

Court further explained, “The Establishment

Clause, unlike the Free Exercise *1288 Clause,

does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion

whether those laws operate directly to coerce

nonobserving individuals or not.” Id., 82 S.Ct. at

1267. The Schempp Court later reaffirmed that the

unconstitutionality of school-sponsored prayer is

not “mitigated by the fact that individual students

may absent themselves upon parental request, for

that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause.”

Schempp, 374 U.S. at 223, 83 S.Ct. at 1572.

The “nondenominational” nature of the moment of

silence is similarly of no avail. Weisman, 505 U.S.

at 594, 112 S.Ct. at 2659 (stating that the nonsectarian nature of a school-sponsored prayer “does

not lessen the offense or isolation to the objectors.

At best it narrows their number, at worst increases

their sense of isolation and affront.”).

“[G]overnment is required to be a neutral among

religions and between religion and nonreligion.”

Mitchell v. Helms, 530 U.S. 793, 878, 120 S.Ct.

2530, 2578, 147 L.Ed.2d 660 (2000) (emphasis added) (quotation and citation omitted). “It is now

firmly established that a law may be one

‘respecting an establishment of religion’ even

though its consequence is not to promote a ‘state

religion’ and even though it does not aid one religion more than another but merely benefits all religions alike.” Comm. for Pub. Educ. v. Nyquist, 413

U.S. 756, 771, 93 S.Ct. 2955, 2964-65, 37 L.Ed.2d

948 (1973). Encouraging or facilitating any prayer

clearly fosters and endorses religion over nonreligion, and so runs afoul of the First Amendment.

The brevity of Allred's moment of silent prayer

does not alleviate her constitutional violation,

either. It is “no defense to urge that the religious

practices here may be relatively minor encroachments on the First Amendment.” Schempp, 374

U.S. at 225, 83 S.Ct. at 1573. Our own precedents

clearly state that “[t]he Establishment Clause does

not focus on the amount of time an activity takes,

but rather examines the religious character of the

activity.” Jager, 862 F.2d at 832.

It is instructive to compare the case before us with

another moment-of-silence case in which we found

that the Establishment Clause was not violated. In

Bown v. Gwinnett County School District, 112 F.3d

1464 (11th Cir.1997), we held that a Georgia statute requiring public school teachers to observe a

moment of silence each day in their classrooms did

not violate the Lemon test. The statute had a secular

purpose because it expressly declared that the

“moment of quiet reflection ... is not intended to be

and shall not be conducted as a religious service or

exercise but shall be conducted as an opportunity

for a moment of silent reflection on the anticipated

activities of the day.” Id. at 1469 (quotingO.C.G.A.

§ 20-2-1050(b)). Moreover, the statute's sponsor

stated that he “viewed the Act not as providing for

school prayer, but rather as providing for a moment

for students to collect their thoughts, focus on the

upcoming day, and begin to develop self-respect

and discipline.” Id. at 1471.

Because the statute, as actually implemented, did

not have the effect of promoting or inhibiting religion, it also satisfied the second prong of the Lemon test. The announcement made over the school

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loudspeaker that commenced the moment of silence

each day “indicated only that there would be a moment of silence to reflect on the day's activities ....

[and] in no way suggested that students should or

should not pray silently during the moment of quiet

reflection....” Id. at 1472. Moreover, “[t]he Administrative Bulletin circulated to all school principals

instructed *1289 that teachers should not suggest

that students use the moment of quiet reflection for

prayer,” and we found no indication “that any

teacher encouraged prayer in violation of the

guidelines stated in the Administrative Bulletin.”

Id.

The instant case is easily distinguishable from

Bown in that Allred, far from taking steps to ensure

that her moment of silence was not regarded as a

religious activity, affirmatively and repeatedly

labeled it as such. Her characterization of the moment of silence is important; in Adler v. Duval Cty.

Sch. Bd., 250 F.3d 1330, 1342 (11th Cir.2001), we

upheld a school's policy of having student graduation speakers in part because of “the complete absence ... of code words such as ‘invocation’ unequivocally connoting religion.” The district court in

this case was willing to overlook the fact that

Allred would frequently “ ‘slip[ ] up’ by using the

word ‘pray’ instead of the words ‘moment of silence,’ ... and by indicating the end of the moment

of silence by voicing the word ‘amen’, a poor substitute, perhaps, for the words ‘let's get to work.’ ”

(Mem. Op. June 4, 2001, at 6). Such labels,

however, are quite important in determining not

only the purpose behind the actions at issue

(discussed in the prior Subsection), but also their

nature, likely effects, and the degree to which they

are likely to be perceived as state endorsement, facilitation, or promotion of religion.

For these reasons, we have no trouble in concluding

that these facts amount to blatant and repeated violations of the Establishment Clause.

B.

[38] Having established that Allred infringed Holloman's rights under the Establishment Clause, we

now must assess whether these rights were “clearly

established” at the time of her actions. The district

court held, without explanation, that “[n]o jury

could reasonably conclude that ‘every like-situated,

reasonable’ teacher or principal would necessarily

know ... that using the word ‘prayer’ as a euphemism for ‘moment of silence,’ violated freedom of

religion or freedom from religion.” (Mem. Op.,

June 4, 2001, at 10). We are again forced to disagree.

By now it should go without saying that it is unconstitutional for a teacher or administrator (or

someone acting at their behest) to lead students

aloud in voluntary prayer. See Engel, 370 U.S. at

422, 82 S.Ct. at 1262 (prohibiting recitation of

nondenominational prayer); Schempp, 374 U.S. at

216, 83 S.Ct. at 1568 (invalidating school board

practice of reciting the Lord's Prayer over the

school loudspeakers each day).

In Jaffree II, another case from Alabama involving

unconstitutional Establishment Clause practices, the

Supreme Court went a step further and condemned

the use of a moment of silence when one of the purposes for which it was expressly instituted was

prayer. 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29.

The Alabama state legislature had enacted a statute,

Ala.Code § 16-1-20, requiring that public school

teachers in the first through sixth grades establish a

daily moment of silence “for meditation.” Id. at

40,105 S.Ct. at 2481. Three years later, it enacted §

16-1-20.1, which permitted (though not required)

all public school teachers to hold a moment of silence “for meditation or voluntary prayer.” The

parties agreed that the original statute, providing

only for a moment of silence for meditation, was

constitutionally permissible. The Court held that

the later enactment, which expressly specified

“voluntary prayer” as an additional purpose for, or

permissible activity to perform during, the moment

of silence, was unconstitutional. It found that the

enactment of § 16-1-20.1 “was not motivated by

any *1290 clearly secular purpose-indeed, the statute had no secular purpose.” Id. at 56, 105 S.Ct. at

2489-90. It further noted that, notwithstanding the

general permissibility of a moment of silence, ex370 F.3d 1252 Page 38

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pressly designating it as an opportunity for prayer

“convey[s] a message of state endorsement and promotion of prayer.” Id. at 59, 105 S.Ct. at 2491. The

Court concluded, “Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.” Id. at 60, 105 S.Ct. at 2491.

We see no way of distinguishing Jaffree II from the

instant case. If a law that allowed teachers to institute a moment of silence expressly for prayer is unconstitutional, then it surely also unconstitutional

for a teacher to actually institute a moment of silence expressly for prayer. The law cannot get

much more “clearly established” than that.

Having concluded that Holloman successfully alleged a violation of the Establishment Clause, we

now turn to the viability of both his Speech and Establishment Clause claims against the School

Board.

V.

[39] The School Board may not be held liable for

the unconstitutional acts of its employees under a

respondeat superior theory. In cases such as Monell

v. Department of Social Services, 436 U.S. 658,

690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611

(1978), the Supreme Court articulated the circumstances in which “local governing bodies” are subject to § 1983 liability. This Part examines each of

the ways in which Holloman contends that the

School Board may be sued.

A.

[40] Monell states that “when execution of a government's policy ... inflicts the injury ... [then] the

government as an entity is responsible under §

1983.” Id. at 694,98 S.Ct. at 2037-38. To hold the

School Board liable for Holloman's Speech Clause

claim under this theory, we must locate some affirmative official policy that a reasonable jury

could understand as calling upon teachers to compel students to salute the flag. Ala.Code § 16-43-5

provides, “The State Board of Education shall afford all students attending public kindergarten,

primary and secondary schools the opportunity each

school day to voluntarily recite the pledge of allegiance to the United States flag.”(emphasis added).

State law clearly does not allow students to be

forced to salute the flag. The Superintendent of the

Walker County Public School System issued a

memorandum on the Board of Education's letterhead, stating, “[E]ach school system must incorporate a Character Education Plan which will consist

of ten minutes of instruction per day in various

areas, such as, the Pledge of Allegiance.... Each day

must include the Pledge of Allegiance, and then

other areas mentioned as you determine at your

school.” This official policy directive lacks the language of voluntariness found in the statute. It also

mandates that each day include the pledge, rather

than include the opportunity to recite the pledge. A

reasonable jury could conclude that this memorandum required teachers to ensure that their students actually recited the pledge.FN14 *1291 Consequently, the Board may be held liable for Holloman's compelled-speech First Amendment claim.

FN14. In his deposition, Harland briefly

discussed the memo. He testified, “We

[have] a memo from when Mr. Larry

Banks was the superintendent. I think the

Pledge of Allegiance was spelled out as

being one of the things that took place in

the morning.... [The] Pledge of Allegiance

was part of the character education, and

the teachers did various things in there to

teach character and promote good citizenship, but the pledge was part of it.”

[41] To hold the Board liable under the Establishment Clause claim for Allred's daily moment of silent prayer under an “official policy” theory, we

must find a policy mandating, authorizing, or permitting teachers to take prayer requests or hold moments of silence for prayer. The only testimony in

the record concerning whether or not these prayers

were conducted pursuant to School Board policy

came from Allred. She testified during her deposition that her practice of asking for prayer requests

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press compassion for someone else would be contrary to our character education plan that we implement through our curriculum.” Based on the uncontroverted testimony from the teacher charged with

implementing School Board policies (including the

character education plan the Board required schools

in the district to implement) that her unconstitutional acts were required by a Board policy, we cannot

help but conclude that Holloman has introduced

sufficient evidence to show that the Board can be

held liable because Allred was acting pursuant to a

Board policy.

In further support of this theory, we also note that

each high school's character education plan had to

be approved by the School District before being

forwarded onto the State Department of Education.

For reasons that are unclear to us, it appears that

neither party actually entered Parrish High School's

character education plan into the record. Consequently, we can only attempt to determine what

inferences a reasonable jury could make. We know

that the plan had to be approved by the School

Board, and that Allred claims that her daily prayer

ritual was part of it. It is also noteworthy that Vice

Principal Adkins was aware of Allred's practice,

having experienced it firsthand during his visit to

her classroom; based on his lack of surprise or disapproval, a jury could infer that Adkins knew that

prayer was part of Allred's contribution to the character development plan. Interpreting these facts in

the light most favorable to Holloman, a reasonable

jury could draw the inference that prayer was included in the written plan approved by the School

Board, forming another, more direct way in which

the Board may be held liable as having promulgated

an unconstitutional policy.FN15

FN15. Earlier, we held that (based on the

facts before us interpreted in the light most

favorable to the plaintiff) Allred had failed

to establish as a matter of law that she was

engaged in a discretionary function of her

job when she held her daily moment of silent prayer. If a jury were to make this determination based on the evidence at trial,

it would be impossible for the jury to likewise conclude that she was acting pursuant

to an official board policy. Even under

those circumstances, however, the Board

could still be held liable under any of the

other theories discussed in this Part.

B.

[42][43][44][45] A municipal governing body may

be held liable for acts or policies of individuals to

whom it delegated final decisionmaking authority

in a particular area. Matthews v. Columbia Cty.,

294 F.3d 1294, 1297 (11th Cir.2002) (“Local government liability can exist when someone with final

policymaking authority delegates that authority to

someone else. But, the delegation must be such that

the decision is not subject to review by the policymaking authority.”); Gattis v. Brice, 136 F.3d 724,

725 (11th Cir.1998) (“If a county official *1292

holds final policymaking authority for the county in

the subject area of the alleged constitutional violation, that official's decisions may constitute county

policy.”). A member or employee of a governing

body is a final policy maker only if his decisions

have legal effect without further action by the governing body, see Matthews, 294 F.3d at 1297

(“[E]ven if [member of governing entity] was given

the power to select which positions would be eliminated ... his selections still had to be accepted by a

majority of the board. As such, [that member] never

possessed final policymaking power himself ....”),

and if the governing body lacks the power to reverse the member or employee's decision, see

Quinn v. Monroe Cty., 330 F.3d 1320, 1326 (11th

Cir.2003) (“Because the [governmental entity] has

the power to reverse any termination decision made

by [individual government official], he is not a final

policymaker with regard to termination decisions at

the library.”). To determine if someone is a final

policy maker, we look not only to “state and local

positive law,” but also “custom and usage having

the force of law.” McMillian v. Johnson, 88 F.3d

1573, 1577 (11th Cir.1996); see also Jett v. Dallas

Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702,

2723, 105 L.Ed.2d 598 (1989) (holding that an individual can be a “final policymaker” either by operation of “state and local positive law” or by “custom

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or usage having the force of law”). We review de

novo a district court's ruling about whether an individual is a final policy maker. Scala v. City of

Winter Park, 116 F.3d 1396, 1401 (11th Cir.1997).

In Denno v. School Bd., 218 F.3d 1267, 1277 (11th

Cir.2000), we held that the existence of a three-step

process allowing parents to appeal a principal's decision to an area assistant superintendent and ultimately to the School Board was sufficient to strip

the principal of final policymaking authority. While

the principal's decisions clearly had immediate legal effect, the fact that at least two other entities

could reverse those decisions was inconsistent with

the notion that the principal was a final decision

maker.

The School Board would have us rest this case on

Denno because the Parrish High School student

handbook specifies that students have “the right and

the responsibility to express school-related concerns and grievances to the teachers and school administrator(s).... [I]n the event that the grievance

cannot be settled by this procedure, then the student

... may pursue the grievance to the Superintendent

of Schools and then to the Board.” In Denno,

however, the student was suspended, and we found

that, under the circumstances, the policies outlined

in the student handbook “allowed for meaningful

review of Denno's suspension.” Denno, 218 F.3d at

1277.

[46] Our ruling in Denno was based on a theme reiterated through much of our caselaw-in assessing

whether a governmental decision maker is a final

policy maker, we look to whether there is an actual

“opportunity” for “meaningful” review. See

Oladeinde v. City of Birmingham, 230 F.3d 1275,

1295 (11th Cir.2000) (emphasizing that there must

be an actual “opportunity” for “meaningful administrative review” before we conclude that a governmental decision maker lacks final policymaking authority); Scala, 116 F.3d at 1401 (“Final policymaking authority over a particular subject area does

not vest in an official whose decisions in the area

are subject to meaningful administrative review.”)

(emphasis added); see also Grech v. Clayton Cty.,

335 F.3d 1326, 1351 (11th Cir.2003) (Barkett, J.,

concurring) (“An official must have discretion in a

particular area of law in order to exercise final

*1293 policymaking authority in that area and may

not be subject to significant review.”) (emphasis

added); Bowen v. Watkins, 669 F.2d 979 (5th

Cir.1982) (“If a higher official has the power to

overrule a decision but as a practical matter never

does so, the decision maker may represent the effective final authority on the question.”).

[47] In the instant case, there was no opportunity

for meaningful review by the School Board. While

the student handbook set out an formal multi-step

appellate process that was theoretically available on

paper, Holloman could not, as a practical matter,

take advantage of it. Graduation was barely a few

days away, and Harland did not offer to “stay” Holloman's punishment while he sought Board review.

Indeed, the record is silent as to whether there

would even be an intervening meeting of the Board

or other opportunity to invoke its oversight. Even if

the School Board were to engage in an ex post review of the punishment, the fact remains that the

paddling could not be undone. Due to the impending end of the school year, the punishment-unlike

the suspension in Denno-could not be postponed to

potentially allow for Board review; Harland had

made it clear that if Holloman did not submit to

punishment, he would not receive his diploma on

graduation day. Cf. Weisman, 505 U.S. at 595, 112

S.Ct. at 2659 (“Everyone knows that in our society

and in our culture high school graduation is one of

life's most significant occasions.”).

Needless to say, our holding that Harland acted as a

final decision maker in this context does not mean

that he always acts as such. As we noted in McMillian,“[a]n official or entity may be a final policymaker with respect to some actions but not others.”

88 F.3d at 1578. On other occasions, where there is

a meaningful opportunity for substantive Board review, or where a punishment is not a fait accompli

or otherwise irreversible, the “appellate” procedures outlined in the student handbook may be pursued, and Harland would act as merely the initialrather than final-policy maker.

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We could also interpret the “Corporal Punishment”

section of the student handbook as a delegation to

Harland of final decisionmaking authority regarding the administration of corporal punishment. It

reads:

In order to establish and maintain an educational

climate conducive to learning, the Board permits

reasonable corporal punishment of students in the

schools of the School District. If such punishment

is required, it shall be administered with care, tact,

and caution by the principal or his/her designee in

accordance with Board policies.

Vice Principal Adkins testified in his deposition

that there were no other Board policies regarding

corporal punishment.

A student's pain and humiliation from this act of

physical violence cannot be undone; Holloman cannot be un-spanked. In the absence of any meaningful Board oversight mechanism prior to the administration of corporal punishment, we cannot help

but conclude that Harland had been delegated final

policymaking authority in determining when to

spank a student. In granting him this power without

integrating itself into the pre-spanking review process, the Board necessarily bound itself to his decisions. Thus, the School Board's delegation of effectively unreviewable corporal punishment authority constitutes a related yet alternate basis upon

which we find that Harland was a final decision

maker. Consequently, depending on how the facts

ultimately develop at trial, the Board may be held

liable under the First Amendment for either his decision to punish Holloman for engaging in constitutionally protected expression, or to punish Holloman *1294 for engaging in unprotected expression

on impermissible viewpoint-based grounds.

[48] Regarding the Establishment Clause issue, we

find that Allred was not a final policy maker. The

prayers were recited as part of the character education program, which as discussed earlier was expressly subject to School Board approval. Consequently, Allred could not have been the final

policy maker in this area, and Holloman's Establishment Clause claims against the School Board

cannot be supported on this basis.

C.

[49] The Supreme Court has recognized that municipal governing entities may be held liable for unconstitutional acts of employees that occur pursuant

to a municipal “custom.” See Monell, 436 U.S. at

690-91, 98 S.Ct. at 2036. We are unable to conclude, based on the incidents involving Holloman

and Hutto, that a “custom” or “practice” of disciplining students for failing to recite the Pledge of Allegiance (or for engaging in a non-disruptive

protest during the pledge) existed in the school district. Consequently, Holloman may not pursue his

Speech Clause claim against the Board under this

theory.

[50][51] In contrast, Allred's practice of conducting

a daily moment for silent prayer-which she actually

referred to as a “ritual”-was sufficiently systematic

to be considered a pattern or custom for which the

Board may be held accountable. Our precedents are

clear that, for constitutional violations to be sufficiently “widespread” for a governmental supervisor

to be held liable, they need occur with frequency,

see Brown, 906 F.2d at 671 (holding that violations

must be “obvious, flagrant, rampant, and of continued duration” to hold a supervisor liable); see also

Greason v. Kemp, 891 F.2d 829, 837 (11th

Cir.1990) (noting that the “situation of municipal liability” is “analogous” to the question of supervisoral liability), and need not necessarily be committed by several people within a department or

agency. When rights are systematically violated on

a near-daily basis, such abuses are sufficiently egregious to warrant supervisory liability, even if it is a

single “bad apple” engaging in the repeated pattern

of unconstitutional behavior. See St. Louis v.

Praprotnik, 485 U.S. 112, 130, 108 S.Ct. 915, 928,

99 L.Ed.2d 107 (1988) (noting that vicarious liability under § 1983 is appropriate “if a series of decisions by a subordinate official [singular] manifested a ‘custom or usage’ of which the supervisor

must have been aware”) (emphasis added). Consequently, based on the systematic frequency of

these violations, a jury could conclude that the

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Board knew of the practice yet nevertheless permitted it to fester unabated.

VI.

Allred is not entitled to summary judgment on qualified immunity grounds against Holloman's Speech

Clause claim to be free from compelled speech, his

Speech Clause claim to affirmative freedom of expression, his Speech Clause claim to be free of

viewpoint discrimination, or his Establishment

Clause claim.

Harland is not entitled to summary judgment on

qualified immunity grounds against Holloman's

Speech Clause claim to be free from compelled

speech, his Speech Clause claim to affirmative freedom of expression, or his Speech Clause claim to

be free from viewpoint discrimination. We do not

consider the question of Harland's entitlement to

summary judgment against Holloman's Establishment Clause claim because Holloman abandoned

this issue on appeal.

Holloman has successfully articulated claims

against the School Board for violations*1295 of his

Speech Clause right to be free from compelled

speech (under an “official policy” theory), his

Speech Clause right to engage in affirmative expression (under a “delegation to a final policymaker” theory), his Speech Clause claim to be free

from viewpoint discrimination (also under a

“delegation to a final policymaker” theory), and his

Establishment Clause rights (under either an

“official policy” or a “custom” theory). We reverse

the district court's grant of summary judgment, and

reinstate Holloman's claims against the Board.

REVERSED AND REMANDED.

WILSON, Circuit Judge, concurring in part and dissenting in part:

I join Parts I, II-A, and II-B of the majority's opinion, which hold that there is an issue of material

fact as to whether Holloman was punished for failing to say the Pledge of Allegiance (“the Pledge”),

which if true, would violate Holloman's clearly established constitutional right not to say the Pledge.

However, I respectfully dissent from Part II-C. In

Part II-C, the majority holds that even if Holloman

was in fact punished for raising his fist in the air

during the recitation of the Pledge rather than for

merely failing to say the Pledge, then there is an issue of material fact as to whether his First Amendment right was violated. In addition, the majority

holds that such a First Amendment right is clearly

established in our case law. I disagree. I contend,

rather, that Holloman does not have a First Amendment right to raise his clenched fist in the air during

the school's recitation of the Pledge any more than

he would have a First Amendment right to raise his

fist in the air during math class. Such an act is inherently disruptive, and a teacher has every right to

prevent such conduct in his or her classroom in order to prevent any potential disruption.FN1 I also

believe that even if Holloman had a First Amendment right to raise his fist in the air during the recitation of the Pledge, such a right certainly was not

clearly established in our case law.

FN1. We are not called upon to decide the

propriety of the type of punishment inflicted here.

I agree with the majority's conclusion, though, with

respect to Part II-D of its opinion. While Holloman's expression was not constitutionally protected

in the classroom because it is inherently disruptive,

he still has a clearly established First Amendment

right to not be discriminated against on the basis of

the viewpoint he is communicating. See Cornelius

v. NAACP Legal Defense and Educ. Fund, Inc., 473

U.S. 788, 812, 105 S.Ct. 3439, 87 L.Ed.2d 567

(1985) (“While we accept the validity and reasonableness of the justifications offered by petitioner

for excluding [the relevant speech], those justifications cannot save an exclusion that is in fact based

on the desire to suppress a particular point of

view.”). There is a genuine issue of material fact as

to whether Allred and Harland were motivated by a

desire to suppress Holloman's apparent unpatriotic

viewpoint, which if true, would violate Holloman's

First Amendment right. Thus, I concur with the majority's conclusion with respect to Part II-D of its

opinion.

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In addition, I join Part IV of the majority's opinion,

which holds that there is an issue of material fact as

to whether Allred violated clearly established rights

under the Establishment Clause by leading her class

in a prayerful moment of silence. However, while I

concur in the result of Part III (for the reasons

stated in Part IV of the majority's opinion), I cannot

join the majority's holding that Allred did not act

within her “discretionary function” when she led

the class in a moment of silent prayer. I would hold,

rather, that Allred acted within her discretionary

function *1296 when leading her class in silent

prayer, but that she violated the Establishment

Clause by so doing.

Finally, I also join Part V of the majority's opinion

only to the extent that it holds that there is an issue

of material fact as to whether the School Board may

be liable for punishing Holloman for remaining silent during the Pledge (if the factfinder finds that is

the reason for his punishment) and for Allred's

practice of leading the class in a prayerful moment

of silence.

I.

The majority not only holds that the evidence, reviewed in Holloman's favor, demonstrates that Holloman had a First Amendment right to raise his

clenched fist in the air during the recitation of the

Pledge in school, but also that such a right was

clearly established. Because the majority's holding

in this regard is neither consistent with Supreme

Court precedent nor Eleventh Circuit case law, I respectfully dissent. I would hold that the First

Amendment does not give a student in Holloman's

circumstances the right to actively partake in conduct that is inherently disruptive during the curriculum portion of the school day. Yet, even if the

First Amendment does grant such a right, that right

certainly was not clearly established for qualified

immunity purposes.

A.

I agree with the majority that Holloman's act of

raising his fist in the air during the Pledge is a form

of expression, or indeed, may very well be “pure

speech.” It is an act that is, as the majority puts it,

“purely communicative as a sign-language gesture

or the act of holding up a sign....” Majority Opinion

at 1270. I agree that Holloman's First Amendment

right to Free Speech is implicated, but we must be

mindful that “the constitutional rights of students in

public school are not automatically coextensive

with the rights of adults in other settings.” Bethel

Sch. Dist. v. Fraser, 478 U.S. 675, 682, 106 S.Ct.

3159, 92 L.Ed.2d 549 (1986). “It is always within

the province of school authorities to provide by regulation the prohibition and punishment of acts calculated to undermine the school routine.” Blackwell

v. Issaquena County Bd. of Educ., 363 F.2d 749,

753 (5th Cir.1966).FN2 When balancing the First

Amendment right of students at school, we must

not forget that the state's interest to maintain “an

orderly program of classroom learning” is a

“compelling” one. Burnside v. Byars, 363 F.2d 744,

748 (5th Cir.1966). Thus, public schools have a

“wide latitude of discretion” to formulate regulations “pertaining to the discipline of school children.” Id.

FN2. In Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir.1981) (en banc),

this court adopted as binding precedent all

decisions of the former Fifth Circuit

handed down prior to October 1, 1981.

Public schools are allowed “to adopt and enforce

reasonable, non-discriminatory regulations as to the

time, place and manner of student expressions and

demonstrations.” Bayless v. Martine, 430 F.2d 873,

878 (5th Cir.1970). Such a regulation may infringe

upon a student's right to free speech only “where

the exercise of such rights in the school buildings

and schoolrooms do[es] not materially and substantially interfere with the requirements of appropriate

discipline in the operation of the school.” Burnside,

363 F.2d at 749. Keeping in mind that schools are

given a “wide latitude of discretion,” the critical issue in this case becomes whether Holloman's act of

holding his clenched fist in the air during the recitation of the Pledge “materially and substantially interfere[d] *1297 with the requirements of appropriate discipline....” Id. at 748, 749.

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The majority cites several cases supporting its view

that Holloman's act was not a sufficient interference

to justify a punishment. Yet, some of these cases

involve student expression occurring outside the

classroom. See, e.g., Shanley v. Northeast Indep.

Sch. Dist., 462 F.2d 960, 964 (5th Cir.1972)

(involving the distribution of newspapers before

and after school hours); Reineke v. Cobb County

Sch. Dist., 484 F.Supp. 1252 (N.D.Ga.1980)

(involving the censorship of a student newspaper).

Certainly, the type and amount of expression occurring outside class that would “interfere with the requirements of appropriate discipline,”Burnside, 363

F.2d at 749, will be different than the type and

amount of expression that interferes with appropriate discipline in the classroom. The school has a

more compelling interest to establish order and discipline in the classroom because that is where the

curriculum portion of the school day occurs.

In addition, those cases cited by the majority that

protect student expression within the classroom are

easily distinguishable from Holloman's expression.

For instance, the majority relies on Burnside, which

held that students wearing “freedom buttons” to

class did not cause a sufficient interruption to justify prohibiting students from wearing the buttons at

school. Id. We based our holding in Burnside on the

lack of evidence demonstrating that “the buttons

tended to distract the minds of the students away

from their teachers.” Id. at 748 (emphasis added).

We held that “[w]earing buttons on collars or shirt

fronts is certainly not in the class of those activities

which inherently distract students and break down

the regimentation of the classroom such as carrying

banners, scattering leaflets, and speech making, all

of which are protected methods of expressions, but

all of which have no place in an orderly

classroom.” Id. (emphasis added). In addition, we

said,

Regulations which are essential in maintaining order and discipline on school property are reasonable. Thus school rules which assign students to a

particular class, forbid unnecessary discussion in

the classroom and prohibit the exchange of conversation between students are reasonable even though

these regulations infringe on such basic rights as

freedom of speech and association, because they

are necessary for the orderly presentation of

classroom activities.

Id. Our inquiry should focus upon, therefore,

whether a student holding his fist in the air during a

curriculum portion of the school day is more akin to

a student “carrying banners” and “exchang[ing]

conversation” during class, rather than wearing a

button on the front of one's shirt. Id.

Activity that can be regulated by a public school,

like “unnecessary discussion in the classroom,”

“the exchange of conversation between students,”

“carrying banners,” “scattering leaflets,” and

“speech making,” all have in common the fact that

they inherently compete with the teacher for the

other students' attention. Wearing a button on the

front of one's shirt, though, does not compete with

the teacher for the students' attention anymore than

a student wearing a shirt advertising a particular

sports team. Thus, we must determine whether a

student raising his fist in the air during class inherently is the sort of activity that competes with the

teacher for the students' attention, or whether it is a

more passive expression like a wearing a shirt or a

button conveying a particular message.

I think it is quite clear that a student raising his

clenched fist in the air during a curriculum portion

of the school day is the sort of activity that inherently competes with the teacher for the other students' *1298 attention and thus can be prohibited by

the school authorities. Holloman's act of holding his

fist in the air during the recitation of the Pledge is,

as the majority says, akin to “the act of holding up a

sign.” Majority Opinion at 1270. Such expression,

unlike a button pinned to one's shirt, is meant to

compete for students' attention, and thus inherently

distracts students from a legitimate portion of the

curriculum. Holding one's fist in the air is more like

“carrying banners” which “inherently distract[s]

students,” Burnside, 363 F.2d at 748, than wearing

a button on a shirt. Would a student have a right to

hold up a sign during the recitation of the Pledge,

as long as the student does not obstruct others' view

of the flag? The answer to that question is plainly

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“no.” Holding one's fist in the air is the same sort of

communication as holding up a sign, as the majority even admits. It is meant to compete for students'

attention and unnecessarily distract students from

the recitation of the Pledge. It is not a passive expression, like wearing a button on the front of one's

shirt. Like holding up a sign, it inherently is the sort

of activity that distracts students during class.

While a student may have more freedom to express

himself outside of class, students in the classroom

are limited to passive expressions that do not inherently distract students. A public school teacher is

well within his or her authority to prohibit activity,

like a student holding his fist in the air during class,

that inherently distracts students.

Even if we were to assume, though, that a student

holding his fist in the air during class is not activity

that inherently distracts students, there is evidence

on the record that Holloman in fact distracted students with his gesture, which would further distinguish the instant action from Burnside. After Holloman's act of raising his fist during the Pledge, students approached their teacher to complain that

Holloman's expression was not “right.” The majority reasons that this fact alone is not sufficient to

show a material disruption. While the majority is

correct that schools cannot prohibit expression on

the basis that others may disagree with the content

of the expression, the students' comments not only

demonstrate disagreement with the content of Holloman's expression, but also that Holloman's gesture “distract [ed] the[ir] minds” during a curriculum portion of the school day. Id. The students'

comments demonstrate that they at least focused

their attention during a portion of the recitation of

the Pledge on Holloman's fist-which precisely is

what is intended by such expression-rather than on

the planned curriculum of saying the Pledge.FN3

FN3. The majority claims that this approach “appears to ignore the principle ...

that student expression must cause (or be

likely to cause) a ‘material and substantial’

disruption ... before it may be curtailed.”

Majority Opinion at 1272. I do not ignore

this principle, but rather disagree with the

majority by what we meant in Burnside

when we said that public schools can only

infringe on a student's speech when it

“materially and substantially interfere[s]

with the requirements of appropriate discipline in the operation of the school.”

Burnside, 363 F.2d at 749. One of the

“requirements of appropriate discipline” is

preventing students from competing with

the teacher or with the curriculum for other

students' attention. For instance, we said in

Burnside that a school may prohibit “the

exchange of conversation between students” during class. Id. at 748. Thus, a

teacher may prohibit and punish a student

for whispering to his classmate during

class, even if it causes a “brief, easily overlooked, de minimum impact.” Majority

Opinion at 1272. One student whispering

to another student during class competes

with the teacher for the attention of other

students, and thus “materially and substantially interfere[s]” with one of the fundamental “requirements of appropriate discipline.” Burnside, 363 F.2d at 749.

Similarly, Holloman's act of raising his fist

in the air during the Pledge competed for

the students' attention during a legitimate

curriculum portion of the school day. Indeed, some of the students' reaction after

class indicated that he successfully distracted students from the recitation of the

Pledge. Thus, Holloman's act

“substantially and materially interfere [d]

with the requirements of appropriate discipline” because it “tended to distract the

minds of the students away from” the recitation Pledge. Id. at 749, 748.

*1299 If we do not interpret the students' comments

as evidence of distraction, we necessitate absurd

results in similar student expressions in the future.

The majority's holding would imply, for example,

that a student would be justified in holding up his

fist in protest of the Vietnam conflict during a history lesson about Vietnam. Assume that the only

evidence of disruption, like in the instant action, is

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that of students complaining that such a gesture

during a class about the Vietnam conflict is not

“right.” Does such a circumstance necessarily indicate that the teacher does not have enough evidence of a disturbance to prohibit the student from

holding his clenched fist in the air during history

class? It would be difficult to conclude otherwise

following the reasoning of the majority's opinion.

Such a conclusion, though, would plainly go well

beyond what was intended by the First Amendment

right to Free Speech as it applies to students in the

classroom.

A public school is given “wide latitude” in disciplining its students. Id. The defendants in the instant

case had every right to prevent Holloman from distracting the students during a legitimate, curriculum

portion of the school day because a student holding

his fist in the air is the sort of activity that

“inherently distract[s] the minds of students,” and

that is exactly what Holloman did here. Id. In the

very least, such activity is distinguishable from a

student wearing a button on his shirt during class.

The result in Burnside does not demand the same

result here.

The majority also relies on Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733,

21 L.Ed.2d 731 (1969), which held that students

had a constitutional right to wear a black arm band

during class in protest of the Vietnam conflict. Id.

at 514, 89 S.Ct. 733. The Court in Tinker, relying

heavily on our reasoning in Burnside, said that

wearing an arm band was not “disruptive action,”

nor was there any evidence of “interference, actual

or nascent, with the school's work.” Id. at 508,89

S.Ct. 733.

The instant case is distinguishable from Tinker for

the same reason it is distinguishable from Burnside.

Wearing a button or an arm band is passive activity

that does not inherently distract students during the

curriculum portion of the school day, unlike raising

one's fist in the air. Also, in Tinker there was no

evidence of any interference or distraction during

class. In the instant case, however, we have evidence of students, at the very least, being distracted

for a portion of the Pledge due to Holloman's gesture. I fail to see how it follows that a right to wear

a button or an arm band during class means that a

student has a right to raise his fist during class. The

result in Tinker, like Burnside, is inapposite to the

instant action.

Finally, the district court relies on the reasoning

and holding of Banks v. Bd. of Pub. Instruction, 314

F.Supp. 285 (S.D.Fla.1970), vacated by401 U.S.

988, 91 S.Ct. 1223, 28 L.Ed.2d 526 (1971), reinstated without published opinion by dist. ct. and

aff'd,450 F.2d 1103 (5th Cir.1971). In Banks, the

Southern District of Florida held that a student has

a constitutional right to remain seated during the recitation of the Pledge in class. The district *1300

court in Banks, according to the majority's interpretation, held that refusing to stand was a form of

expression that was protected by the First Amendment, and that the “district court makes clear that

its ruling was not based on Banks's First Amendment right to remain silent.” Majority Opinion at

1273. The majority concludes that the expression of

remaining seated during the Pledge is akin to Holloman's holding his fist in the air during the Pledge,

and thus Holloman's expression is entitled to First

Amendment protection.

In addition to the fact that a district court holding is

not binding authority on this Court, it is not at all

“clear that [the district court's] ruling was not based

on Banks's First Amendment right to remain silent.” Majority Opinion at 1273. The court in Banks

discussed extensively the reasoning of West Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 624, 63

S.Ct. 1178, 87 L.Ed. 1628 (1943), which held that a

public school cannot compel a student to participate

in the Pledge. After discussing Barnette, the district

court in Banks said,

Without more Barnette would be dispositive of this

matter for [the plaintiff] was suspended for his refusal to act in accordance with a regulation, the operation of which prevented him from exercising his

First Amendment rights.

Banks, 314 F.Supp. at 295. The court continued

later in the opinion,Here, as in Barnette, the regula370 F.3d 1252 Page 47

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tion required the individual to communicate, by

standing, his acceptance of and respect for all that

for which our flag is but a symbol.

Id. at 296. In other words, the district court's holding was based on the reasoning of Barnette. The

school's policy of forcing a student to stand during

the Pledge violated the student's First Amendment

right not to be compelled to speak or express a particular belief. Any discussion by the district court in

addition to this more limited holding is arguably

dictum.

As the majority points out, the court in Banks also

said that remaining seated during the Pledge “was

no less a form of expression than the wearing of the

black arm-band was to Mary Beth Tinker. He was

exercising a right ‘akin to pure speech.’ ” Id. at

295. I agree that a student may intend to express

himself by remaining seated-yet I do not agree that

it follows that the Tinker-Burnside standard applies

to a student who merely remains seated during the

Pledge. Remaining seated during the Pledge is a

way for a student not to participate in the Pledge.

Thus, such a decision is afforded the more absolute

protection of Barnette, in which the Supreme Court

said,

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can

prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force

citizens to confess by word or act their faith

therein.

Barnette, 319 U.S. at 642, 63 S.Ct. 1178 (emphasis

added). Forcing a student to stand during the Pledge

would be compelling that student to “confess by

...act [his] faith” in the content of the Pledge and all

that it symbolizes. Id. (emphasis added). Such a

regulation would violate the central principle of

Barnette. See Lipp v. Morris, 579 F.2d 834, 836

(3rd Cir.1978) (per curiam) (holding that forcing a

student to stand is unconstitutional because it requires a student “to engage in what amounts to implicit expression by standing at respectful attention

while the flag salute is being administered”).

While it is true that remaining seated during the

Pledge may also be construed as a way of speaking,

remaining seated is already in the class of those

activities that are afforded the more absolute protections *1301 of Barnette-i.e., the right not to participate in the Pledge. To hold that the TinkerBurnside standard applies to a student who remains

seated during the Pledge would limit a student's

right not to participate in the Pledge. If it can be

shown that a student, or a group of students, who

do not participate in the Pledge by remaining seated

causes a material disruption, we would be forced to

defer to the school's decision to compel students to

stand during the Pledge. Such a ruling would allow

a public official to “force citizens to confess by ...

act their faith” in the content of the Pledge and all it

symbolizes. Barnette, 319 U.S. at 642, 63 S.Ct.

1178. As a result, the “fixed star in our constitutional constellation” would become contingent

upon the degree of disruption judges decide is too

much in a particular classroom. Limiting the central

right of being free to abstain from participating in

the Pledge should not be limited by applying the

Tinker-Burnside standard to a decision more absolutely protected by Barnette.

A student may decide not to participate in the recitation of the Pledge by remaining silent and seated.

In such circumstances, the holding in Barnette applies. On the other hand, raising one's fist in the air

during the Pledge is not a way in which a student

abstains from participating in the Pledge. It can

only be construed as expression. Thus, Barnette and

Banks are not applicable to Holloman's act, but

rather Tinker and Burnside apply. As I indicated

above, I believe Holloman's act of raising his fist in

the air during class is easily distinguished from the

act of wearing a button or an arm band during class

because raising one's fist in the air during the curriculum portion of the school day inherently distracts students, and thus materially disrupts the requirements of appropriate discipline.

Reciting the Pledge of Allegiance during the school

day is a legitimate activity of the curriculum, just as

legitimate as conducting math or history class.

While a student is not required to participate in the

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Pledge, a student cannot engage in expressive conduct that inherently distracts the minds of the students from a legitimate portion of the school day. I

would hold that there is no issue of material fact as

to whether the school was justified in punishing

Holloman, if that punishment was based on his act

of raising his fist in the air during the recitation of

the Pledge of Allegiance and was not motivated by

a desire to suppress Holloman's point of view.

B.

Even if Holloman has a First Amendment right to

hold his fist in the air during the recitation of the

Pledge in class, such a right was not “clearly established.” Hope v. Pelzer, 536 U.S. 730, 739, 122

S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.

2727, 73 L.Ed.2d 396 (1982)). In order for a right

to be clearly established, the public official must be

given “fair warning” that his or her conduct violates

a statutory or constitutional right. See id. at 741,122

S.Ct. 2508. Recently, the Supreme Court in Hope

held that we improperly used a “rigid gloss” when

demanding that the facts of previous cases be

“materially similar” to the facts of the applicable

case in order for the law to be clearly established.

Id. at 739, 122 S.Ct. 2508. There are other ways,

though, besides comparing the facts of the instant

case with the facts of previous cases, to determine

if a public official was given “fair warning” that a

certain act violated a statutory or constitutional provision. There are some cases in which the law

provides “obvious clarity,” even in the absence of

instances in which courts have applied a general

principle to particular *1302 facts. See Vinyard v.

Wilson, 311 F.3d 1340, 1351 (11th Cir.2002). The

majority holds that Holloman's constitutional right

to put his fist in the air during the recitation of the

Pledge is clearly established because the TinkerBurnside standard was “sufficiently specific” to

give the defendants fair warning. See Majority

Opinion at 1278-79. I respectfully disagree with

both the majority's analysis and conclusion.

There are three ways in which we can find that the

law is clearly established so as to give public officials fair warning that a particular act violates a

statutory or constitutional right. First, the words of

a statute or constitutional provision can be specific

enough to clearly establish the law applicable to

particular conduct and circumstances, even in the

absence of any case law. Vinyard, 311 F.3d at 1350.

No one alleges that such a case is present here.

Second, sometimes “broad statements of principle

in case law [that] are not tied to particularized facts

... can clearly establish law applicable in the future

to different sets of detailed facts.” Id. at 1351. The

majority believes that such a case is present here,

while I do not. I will address my disagreement below. Finally, and this is true in the vast majority of

our qualified immunity cases, we inquire whether

fact-specific precedents are “fairly distinguishable”

from the facts facing a government official. Id. at

1352. I think this is the proper inquiry in the instant

case. Using this inquiry, I would conclude that the

precedent is fairly distinguishable from the circumstances in this case, and thus the defendants were

not given fair warning that disciplining a student

for raising his fist in the air during the Pledge was

unconstitutional.

The majority considers whether the test, by itself,

articulated in Tinker and Burnside clearly establishes that Holloman's act was constitutionally protected. The Tinker-Burnside test is whether the student expression “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” Burnside, 363

F.2d at 749. The majority claims this test is

“sufficiently specific” to give the defendants fair

warning that Holloman's expression was constitutionally protected because it is reasonable “to expect the defendants-who hold themselves out as

educators-to be able to apply such a standard, notwithstanding the lack of a case with material factual

similarities.” Majority Opinion at 1278. In addition,

the majority says applying this test would be

“effortless,” as “[a] teacher or principal should be

able to instantly recognize whether a student is disrupting class, and it should not be too hard to determine whether a student's activities are likely to

have such an effect.” Majority Opinion at 1279.

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These reasons articulated by the majority are irrelevant to our analysis. The defendants thought that

Holloman's act was not constitutionally protectedthat is, they believed that his act “materially and

substantially interfere[d] with the requirement of

appropriate discipline.” Burnside, 363 F.2d at 749.

It simply does not follow that because it is “not too

hard” for teachers to determine when a student disrupts class, that it is then obvious to every reasonable teacher that a certain disruption will survive

judicial scrutiny. In other words, teachers cannot be

expected to readily determine what conduct falls

within the Court's definition of “material and substantial interference with appropriate discipline.”

Id. Reasonable people certainly can disagree about

how the Court will apply such a general standard,

especially to the facts of the instant action. See Vinyard, 311 F.3d at 1351 (“[I]f a broad principle in

case law is to establish clearly the law applicable to

a specific set *1303 of facts facing a governmental

official, it must do so ‘with obvious clarity’ to the

point that every objectively reasonable government

official facing the circumstances would know that

the official's conduct did violate federal law when

the official acted.”).

I do not think that the balancing test we use in our

Free Speech cases established with “obvious clarity” that a student can raise his fist in the air during

the curriculum portion of the school day. We define

our broad standard of “materially and substantially

interfer[ing] with the requirements of appropriate

discipline” as including “those activities which inherently distract students” during class. Burnside,

363 F.2d at 749, 748. A reasonable teacher could

conclude that a student raising his fist in the air

during a curriculum portion of the school day is the

sort of activity that “inherently distract[s] students.”

Id. at 748. Thus, the defendants were not given fair

warning by our case law that they were prohibited

from punishing Holloman for his expressive act.

In the alternative, the majority states that Holloman's right to raise his fist in the air during the

Pledge is clearly established under Barnette. In

Barnette, the Supreme Court held that a public

school cannot compel a student to participate in the

Pledge. 319 U.S. at 642, 63 S.Ct. 1178. The majority says that it is “very reluctant” to conclude that

Holloman shed his First Amendment protection to

remain silent during the Pledge by simply lifting his

fist into the air. Majority Opinion at 1279. “This is

a hair we will not split,” according to the majority

because, I assume, “First Amendment protections

are not lost that easily.” Majority Opinion at 1279.

Yet, this is precisely the “hair” the majority “split”

earlier in its own opinion. For instance, the majority

in Part II-B-1 persuasively establishes that there is

an issue of material fact as to whether Holloman

was punished for failing to say the Pledge or for

raising his fist in the air. This was a proper distinction to make, because the answer to that question

determines whether Barnette applies or whether

Burnside and Tinker apply. Barnette prohibits a

school from compelling a student to say the Pledge.

Burnside and Tinker prohibits a school from preventing a student from voluntarily engaging in expression, as long as that expression does not sufficiently interfere with proper discipline in the

classroom. Holloman's act of raising his fist in the

air, as the majority aptly pointed out, is what made

his act expression, rather than just a failure to participate in the Pledge. In other words, Holloman's act

of raising his fist is exactly what allows us to apply

Burnside and Tinker. To conclude later, when considering whether Barnette clearly establishes Holloman's right to raise his fist, that it is no longer legally significant that Holloman raised his fist, is inconsistent.

Barnette holds that a student cannot be compelled

to speak. Barnette says nothing about a student's

right to speak. Holloman “spoke” by raising his

fist. Thus, Barnette is not relevant to this inquiry.

For the reasons that I articulated above for why I

believe Holloman's expression is distinguishable

from the expression in Tinker and Burnside, I

would hold that the law was not clearly established

that Holloman had a right to raise his fist in the air

during the recitation of the Pledge in class.

II.

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I agree with the majority's conclusion that Allred is

not entitled to qualified immunity for leading the

class in a moment of silent prayer. Such action, as

aptly pointed out in Part IV of the majority's *1304

opinion, violates the Establishment Clause. See Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8

L.Ed.2d 601 (1962). Thus, I join Part IV of the majority's opinion. However, the majority also held, in

Part III, that Allred is not even potentially entitled

to summary judgment on qualified immunity

grounds against Holloman's Establishment Clause

claim because leading the class in a moment of

prayerful silence is not within her “discretionary

function.” I think that such an interpretation

stretches our inquiry of “discretionary function”

beyond what is articulated in our case law. Thus, I

would find that (1) Allred's act of leading her class

in a prayerful moment of silence was within her

discretionary authority, but (2) such an act was unconstitutional under the Supreme Court's interpretation of the Establishment Clause.

A government official acts within his discretionary

authority when his actions “were undertaken pursuant to the performance of his duties and within the

scope of his authority.” Sims v. Metro. Dade

County, 972 F.2d 1230, 1236 (11th Cir.1992)

(internal quotations omitted). We must keep in

mind that our “inquiry is not whether it was within

the defendant's authority to commit the allegedly illegal act. Framed that way, the inquiry is no more

than an untenable tautology.” Harbert Int'l, Inc. v.

James, 157 F.3d 1271, 1282 (11th Cir.1998)

(internal quotation omitted). Thus, just because a

defendant's act may be unconstitutional does not

mean that the act was not within the defendant's

discretionary authority.

In the instant action, the Alabama state legislature

enacted a statute requiring local school boards to

“implement ... a comprehensive character education

program ... focusing upon the students' development of ... compassion.” ALA.CODE § 16-6B-2(h).

Allred claims she promoted compassion by asking

the students for prayer requests before observing a

moment of silence. While such an act would not

pass muster under the Supreme Court's interpretation of the Establishment Clause, it is a legitimate

way to promote compassion. Asking students to offer prayers for other people may habituate students

to think of others by praying for them. Thus, I agree

with the majority that Allred's act was pursuant to

her job related goal of promoting compassion.

The majority believes, though, that while Allred's

act of leading her class in a prayerful moment of silence was pursuant to a job related function, it was

not within the scope of her authority. The majority

states that “[p]raying goes sufficiently beyond the

range of activities normally performed by high

school teachers,” because “[p]rayer is a relatively

sui generis activity.” Majority Opinion at 1283.

Yet, the “sui generis activity” of praying in public

schools was “normally performed” prior to the Supreme Court's decision in Engel. Indeed, even

today, many teachers in private high schools

throughout America, whether they be religious or

secular, lead their students in prayer. Public school

teachers no longer have the authority to lead their

classes in prayer by virtue of the fact that the Supreme Court ruled it unconstitutional. It was certainly within the scope of a public high school

teacher's authority to lead students in prayer prior

to 1962, when the Court ruled that teacher led prayer in public schools is a violation of the Establishment Clause. The fact that a particular act may now

be deemed unconstitutional does not mean that such

an act is outside the scope of a public official's discretionary authority. See Harbert, 157 F.3d at 1282.

There must be some other reason, besides the fact

that a particular activity is unconstitutional, for that

activity not to be within a public authority's scope

of authority. I do not see an additional reason, besides the unconstitutionality of *1305 school prayer, in the majority's opinion giving me reason to believe that Allred's act was not within her discretionary authority. And neither can I think of one. Thus,

I cannot join Part III of the majority's opinion. Its

application of the “discretionary authority” requirement to Allred's act of leading her class in silent

prayer is too stringent. However, I agree that Allred

is nonetheless not entitled to qualified immunity for

the reasons the majority states in Part IV of its

opinion.

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III.

A student raising his fist in the air during a curriculum portion of the school day engages in an act

that inherently distracts student during class. A

teacher, therefore, may prohibit a student from engaging in such activity. Thus, I cannot join Part IIC of the majority opinion's in which it holds that

there is an issue of material fact as to whether Holloman's First Amendment right to free speech was

violated if he was punished for holding his fist in

the air during the recitation of the Pledge and if that

punishment was not motivated by a desire to suppress a particular viewpoint. I also dissent from the

majority's holding that Holloman's right to hold his

fist in the air was clearly established for qualified

immunity purposes.

In addition, while I agree with the majority's conclusion that there is an issue of material fact as to

whether Allred violated Holloman's clearly established right under the Establishment Clause when

Allred led the class in a moment of silent prayer, I

cannot join Part III of the majority's opinion. In my

view, Allred acted within her discretionary function

when leading her class in prayer.

Finally, I join Part V of the majority's opinion, but

only to the extent that it holds that the School

Board may be held liable if Holloman was punished

for remaining silent during the Pledge and for

Allred's act of leading her students in silent prayer.

Thus, I concur in part and dissent in part with the

majority's opinion.

C.A.11 (Ala.),2004.

Holloman ex rel. Holloman v. Harland

370 F.3d 1252, 188 Ed. Law Rep. 620, 28 Fla. L.

Weekly Fed. C 593

END OF DOCUMENT

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Crosby v. Monroe County

C.A.11 (Ala.),2004.

United States Court of Appeals,Eleventh Circuit.

William J. CROSBY, Plaintiff-Appellant,

v.

MONROE COUNTY, Jason Terry, Defendants-Appellees.

William J. Crosby, Plaintiff-Appellant,

v.

Jason Terry, Defendant-Appellee.

Nos. 03-13716, 03-14310.

Dec. 28, 2004.

Background: Arrestee brought suit in state court,

alleging section 1983 claims of unlawful arrest, use

of excessive force, and denial of medical care while

in custody. Following removal, the United States

District Court for the Southern District of Alabama,

No. 01-00888-CV-1-BH-S,William B. Hand, J.,

dismissed all claims except federal law claims

against officer in his individual capacity, and granted officer summary judgment on that claim based

on qualified immunity. Arrestee appealed.

Holdings: The Court of Appeals, Carnes, Circuit

Judge, held that:

(1) officer was entitled to qualified immunity from

unlawful arrest claim;

(2) officer was entitled to qualified immunity from

excessive force claim; and

(3) arrestee was not denied medical care in violation of his right to due process.

Affirmed.

West Headnotes

[1] Bankruptcy 51 2395

51 Bankruptcy

51IV Effect of Bankruptcy Relief; Injunction

and Stay

51IV(B) Automatic Stay

51k2394 Proceedings, Acts, or Persons

Affected

51k2395 k. Judicial Proceedings in

General. Most Cited Cases

Plaintiff's bankruptcy filing and automatic stay did

not preclude adjudication of merits of his appeal of

assessment of fees and costs against him upon dismissal of his civil rights claims. Bankr.Code, 11

U.S.C.A. § 362; 42 U.S.C.A. § 1988.

[2] Bankruptcy 51 2154.1

51 Bankruptcy

51II Courts; Proceedings in General

51II(B) Actions and Proceedings in General

51k2154 Rights of Action by or on Behalf

of Trustee or Debtor

51k2154.1 k. In General. Most Cited

Cases

Chapter 13 debtor retained standing to pursue legal

claims on behalf of the estate. Bankr.Code, 11

U.S.C.A. § 1303; Fed.Rules Bankr.Proc.Rule 6009,

11 U.S.C.A.

[3] Civil Rights 78 1376(1)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(1) k. In General. Most Cited

Cases

To be eligible for qualified immunity under § 1983,

official must first establish that he was performing

discretionary function at time alleged violation of

federal law occurred. 42 U.S.C.A. § 1983.

[4] Civil Rights 78 1407

78 Civil Rights

78III Federal Remedies in General

78k1400 Presumptions, Inferences, and Burdens of Proof

394 F.3d 1328 Page 1

394 F.3d 1328, 18 Fla. L. Weekly Fed. C 127

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Case 2:06-cv-00672-WKW-WC Document 25-6 Filed 11/16/2007 Page 160 of 273
78k1407 k. Defenses; Immunity and Good

Faith. Most Cited Cases

Once official asserting qualified immunity under §

1983 has established that he was engaged in discretionary function, burden shifts to plaintiff to show:

(1) that defendant has committed constitutional violation and (2) that constitutional right defendant

violated was “clearly established” at time he did it.

42 U.S.C.A. § 1983.

[5] Officers and Public Employees 283 114

283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities

283k114 k. Liabilities for Official Acts. Most

Cited Cases

To determine whether official asserting qualified

immunity was engaged in discretionary function,

court considers whether acts the official undertook

are of a type that fell within employee's job responsibilities.

[6] Civil Rights 78 1376(6)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(6) k. Sheriffs, Police, and

Other Peace Officers. Most Cited Cases

Sheriff's deputy was performing discretionary function, as required to support his assertion of qualified immunity under § 1983, when he arrested

plaintiff, since making arrest was within his official

responsibilities. 42 U.S.C.A. § 1983.

[7] Arrest 35 63.4(2)

35 Arrest

35II On Criminal Charges

35k63 Officers and Assistants, Arrest

Without Warrant

35k63.4 Probable or Reasonable Cause

35k63.4(2) k. What Constitutes Such

Cause in General. Most Cited Cases

Probable cause for arrest is defined in terms of facts

and circumstances sufficient to warrant prudent

man in believing that suspect had committed or was

committing an offense. U.S.C.A. Const.Amend. 4.

[8] Civil Rights 78 1376(6)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(6) k. Sheriffs, Police, and

Other Peace Officers. Most Cited Cases

Arresting officer is protected by qualified immunity

under § 1983 when there was arguable probable

cause for arrest even if actual probable cause did

not exist; arguable probable cause exists if, under

all of the facts and circumstances, officer reasonably could, not necessarily would, have believed

that probable cause was present. U.S.C.A.

Const.Amend. 4; 42 U.S.C.A. § 1983.

[9] Civil Rights 78 1376(6)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(6) k. Sheriffs, Police, and

Other Peace Officers. Most Cited Cases

Officer who had responded to report of gunshots

fired toward a home was entitled to qualified immunity from arrestee's § 1983 claim that his arrest

was unlawful; officer had arguable probable cause

to make arrest for reckless endangerment after hearing shot from direction of arrestee's home, seeing

arrestee carrying shotgun and hearing sound of him

ejecting shell from the weapon. U.S.C.A.

Const.Amend. 4; 42 U.S.C.A. § 1983; Ala.Code

1975, § 13A-6-24.

[10] Arrest 35 63.4(5)

35 Arrest

35II On Criminal Charges

394 F.3d 1328 Page 2

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35k63 Officers and Assistants, Arrest

Without Warrant

35k63.4 Probable or Reasonable Cause

35k63.4(5) k. Nature of Offense;

Felony or Misdemeanor. Most Cited Cases

Under Alabama law, warrantless arrest for misdemeanor does not require that offense have occurred

in officer's presence. Ala.Code 1975, §

13A-6-24(b).

[11] Arrest 35 68(2)

35 Arrest

35II On Criminal Charges

35k68 Mode of Making Arrest

35k68(2) k. Use of Force. Most Cited

Cases

Fourth Amendment encompasses right to be free

from use of excessive force during arrest. U.S.C.A.

Const.Amend. 4.

[12] Arrest 35 68(2)

35 Arrest

35II On Criminal Charges

35k68 Mode of Making Arrest

35k68(2) k. Use of Force. Most Cited

Cases

Reasonableness inquiry in suit alleging use of excessive force in violation of Fourth Amendment is

objective one; question is whether officer's actions

are objectively reasonable in light of facts and circumstances confronting him, without regard to his

underlying intent or motivation. U.S.C.A.

Const.Amend. 4.

[13] Arrest 35 68(2)

35 Arrest

35II On Criminal Charges

35k68 Mode of Making Arrest

35k68(2) k. Use of Force. Most Cited

Cases

In determining whether officer used excessive force

during arrest, in violation of Fourth Amendment,

court must view situation through eyes of officer on

scene who is hampered by incomplete information

and forced to make split-second decision between

action and inaction in circumstances where inaction

could prove fatal. U.S.C.A. Const.Amend. 4.

[14] Civil Rights 78 1376(6)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(6) k. Sheriffs, Police, and

Other Peace Officers. Most Cited Cases

Officer who had responded to report of gunshots

fired toward a home was entitled to qualified immunity from arrestee's § 1983 claim that officer

used excessive force, in violation of Fourth Amendment, particularly in putting his foot on arrestee's

face when arrestee was down on the ground; reasonable officer could have believed that force applied was reasonably necessary after multiple shots

had been fired and arrestee was not docile as he lay

face down on the pavement, and force applied,

while undignified in its placement, was not severe

in amount. U.S.C.A. Const.Amend. 4; 42 U.S.C.A.

§ 1983.

[15] Constitutional Law 92 4545(2)

92 Constitutional Law

92XXVII Due Process

92XXVII(H) Criminal Law

92XXVII(H)3 Law Enforcement

92k4543 Custody and Confinement of

Suspects; Pretrial Detention

92k4545 Conditions

92k4545(2) k. Medical Treatment. Most Cited Cases

(Formerly 92k262)

Officer violates detainee's Fourteenth Amendment

right to due process if he acts with deliberate indifference to serious medical needs of detainee; officer acts with “deliberate indifference” when he

knows that detainee is in serious need of medical

care and does not obtain medical care for that detainee. U.S.C.A. Const.Amend. 14.

[16] Constitutional Law 92 4537

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92 Constitutional Law

92XXVII Due Process

92XXVII(H) Criminal Law

92XXVII(H)3 Law Enforcement

92k4533 Stop and Arrest

92k4537 k. Conduct. Most Cited

Cases

(Formerly 92k262)

Prisons 310 17(2)

310 Prisons

310k17 Maintenance and Care of Prisoners

310k17(2) k. Medical and Mental Care. Most

Cited Cases

There was no evidence that detainee was in need of

medical care, much less evidence that arresting officer was aware of his need and refused to obtain

care for him, as required to support detainee's claim

that he was denied medical care in violation of his

right to due process. U.S.C.A. Const.Amend. 14.

*1330 William Maurice Pompey, Pompey & Pompey, P.C., Camden, AL, for Crosby.

Ashley Hawkins Freeman, Kendrick Emerson

Webb, Bart Gregory Harmon, Webb & Eley, P.C.,

Montgomery, AL, for Defendants-Appellees.

Appeals from the United States District Court for

the Southern District of Alabama.

Before ANDERSON, CARNES and RONEY, Circuit Judges.

CARNES, Circuit Judge:

Willie J. Crosby appeals the district court's grant of

summary judgment in favor of former Monroe

County Sheriff's Deputy Jason Terry based upon

the court's decision that Terry was entitled to qualified immunity.

I.

On November 11, 1999 at 8:48 p.m., Willie Scott

called 911 to report that someone was trying to kill

him.FN1 Gunshots could be heard in the background. Jason Terry, then a Monroe County Sheriff's Deputy, listened to a recording of Scott's call

and then responded immediately with other officers. When the officers arrived at Scott's home in

Beatrice, Alabama, he told them that the shooter

was in the woods near his home. The officers saw a

person but were unable to apprehend him.

FN1. Because we are required to view the

facts in the light most favorable to the nonmoving party, Skrtich v. Thornton, 280

F.3d 1295, 1299 (11th Cir.2002), we recite

the facts in the light most favorable to

Crosby.

As the officers walked back to Scott's house after

failing to apprehend the shooter, they heard another

gunshot. The sound came from the direction of Willie J. Crosby's house, which is located across a

wooded area from Scott's house. Upon investigating, the officers spotted Crosby carrying a shotgun.

At the time the officers approached Crosby, he was

returning the shotgun to his garage. (Crosby admits

that earlier he had fired a “warning shot” at an individual he had spotted in his backyard.)

On his way to the garage, Crosby “racked” the

shotgun, ejecting a spent shell. The officers heard

this distinctive and threatening sound as they approached Crosby's home. The officers drew their

weapons and ordered Crosby to “drop” the shotgun

and lie face down on the ground. Crosby did not

immediately comply but instead continued placing

the shotgun inside the garage door. Crosby then lay

on the ground as the officers had ordered him to do.

Two of the officers got on top of Crosby, putting

their knees in his back, and began to handcuff him.

Crosby raised his head and asked why he was being

arrested. Deputy Terry then placed his foot on the

side of Crosby's face and neck and applied pressure. In response, Crosby jerked one hand away

from the officers who were attempting to handcuff

him, shoved Terry's foot off his face, cursed at

Terry, and asked Terry if he were crazy.

Crosby was then handcuffed and arrested. When the

officers searched him, he was found to be carrying

a .38 handgun. He was initially charged with reckless endangerment, and days later with resisting arrest. He was confined to jail on the reckless endan394 F.3d 1328 Page 4

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germent charge for approximately ten hours before

being released.

At the time of his arrest, Crosby complained to

Deputy Terry that he was handcuffed too tightly. At

no time while he was in jail did Crosby display any

symptoms indicating that he needed medical treatment, nor did he request medical attention. After

being released on the morning of November 12,

Crosby waited *1331 several days before visiting a

doctor. The doctor he eventually saw merely refilled a prescription that Crosby had previously received for back pain and gave him some other pain

medication for arthritis. On or about January 5,

2000, Crosby was diagnosed with congestive heart

failure.

Crosby was tried in the state district court for reckless endangerment and resisting arrest. He was

found not guilty of reckless endangerment but

guilty of resisting arrest. He appealed the conviction for resisting arrest to the Circuit Court of Monroe County where he received a jury trial, and he

was again found guilty. The court then granted

Crosby's motion for a new trial on the resisting arrest charge. (The grounds on which the motion was

granted are not clear in the record.) As of the time

of oral argument in this case, Crosby had not been

retried.

II.

Crosby filed a lawsuit in Alabama state court

against Monroe County, various other Monroe

County entities, and Deputy Terry. Terry was

named both in his individual capacity and in his official capacity as a Monroe County sheriff's deputy.

In addition to various state law claims, Crosby's

complaint alleged unlawful arrest, use of excessive

force, and denial of medical care while in custody,

all asserted as 42 U.S.C. § 1983 claims.

[1][2] The case was removed to federal court by the

defendants. The district court dismissed: all claims

against Monroe County and its various entities; all

the state law claims against Deputy Terry; and all

the federal law claims against Terry in his official

capacity. That action left standing only the federal

law claims against Terry in his individual capacity.

When the district court dealt with those claims, it

decided Terry was entitled to qualified immunity,

and accordingly granted summary judgment in his

favor on all of them. This is Crosby's appeal from

the grant of summary judgment in favor of Terry on

the three federal law claims against him in his individual capacity.FN2

FN2. Crosby also appealed the district

court's order that he pay Deputy Terry's attorney's fees and costs, pursuant to 42

U.S.C. § 1988. After filing his appeal with

this Court, Crosby filed for bankruptcy.

The parties then agreed that the portion of

the appeal dealing with attorney's fees and

costs was moot because Crosby has no assets with which to satisfy an award.

Crosby's bankruptcy filing does not prevent us from adjudicating the merits of this

appeal. The automatic stay provision of the

Bankruptcy Code, 11 U.S.C. § 362, does

not extend to lawsuits initiated by the debtor. See11 U.S.C. § 362; Martin-Trigona v.

Champion Fed. Sav. & Loan Ass'n, 892

F.2d 575, 577 (7th Cir.1989) (the automatic stay is inapplicable to suits by the debtor); Carley Capital Group v. Fireman's

Fund Ins. Co., 889 F.2d 1126, 1127

(D.C.Cir.1989) (same); see also Victor

Foods, Inc. v. Crossroads Econ. Dev. of St.

Charles County, Inc., 977 F.2d 1224, 1227

(8th Cir.1992); Trans Caribbean Lines,

Inc. v. Tracor Marine, Inc., 49 B.R. 360,

362 (S.D.Fla.1985) (stating that the automatic stay provision only applies to proceedings against the debtor).

Additionally, because Crosby filed under

Chapter 13 of the Bankruptcy Code, he retains standing to pursue legal claims on behalf of the estate. See11 U.S.C. § 1303;

Fed. R. Bankr.P. 6009; In re Mosley, 260

B.R. 590, 595 (Bankr.S.D.Ga.2000) (“In

Chapter 13 cases where the debtor is the

party plaintiff, courts recognize that the

Chapter 13 debtor may sue and be sued,

and that the debtor controls the litigation

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as well as the terms of the settlement.”);

see also Cable v. Ivy Tech State Coll., 200

F.3d 467, 474 (7th Cir.1999); Olick v.

Parker & Parsley Petroleum Co., 145 F.3d

513, 515 (2d Cir.1998); Mar. Elec. Co. v.

United Jersey Bank, 959 F.2d 1194, 1210

n. 2 (3d Cir.1991).

III.

This Court reviews de novo the district court's grant

of summary judgment, applying*1332 the same legal standards as did the district court. Skrtich v.

Thornton, 280 F.3d 1295, 1299 (11th Cir.2002).

Summary judgment is proper only when the evidence before the court establishes “that there is no

genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter

of law.” Fed.R.Civ.P. 56(c); see also Skrtich, 280

F.3d at 1299. All evidence must be viewed in the

light most favorable to the nonmoving party. Skrtich, 280 F.3d at 1299.

IV.

[3][4] A government official who is sued under §

1983 may seek summary judgment on the ground

that he is entitled to qualified immunity. Holloman

ex rel. Holloman v. Harland, 370 F.3d 1252, 1263

(11th Cir.2004). To be eligible for qualified immunity, the official must first establish that he was

performing a “discretionary function” at the time

the alleged violation of federal law occurred. Id. at

1263-64. Once the official has established that he

was engaged in a discretionary function, the

plaintiff bears the burden of demonstrating that the

official is not entitled to qualified immunity. Id. at

1264. In order to demonstrate that the official is not

entitled to qualified immunity, the plaintiff must

show two things: (1) that the defendant has committed a constitutional violation and (2) that the

constitutional right the defendant violated was

“clearly established” at the time he did it. Saucier v.

Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150

L.Ed.2d 272 (2001); Holloman, 370 F.3d at 1264.

A.

[5][6] To determine whether an official was engaged in a discretionary function, we consider

whether the acts the official undertook “are of a

type that fell within the employee's job responsibilities.” Holloman, 370 F.3d at 1265. That is easy

here. Because making an arrest is within the official

responsibilities of a sheriff's deputy, Terry was performing a discretionary function when he arrested

Crosby.

B.

We turn now to the question of whether the doctrine of qualified immunity entitled Deputy Terry to

summary judgment insofar as the three constitutional claims Crosby brought against him are concerned. Those three claims assert unlawful arrest,

use of excessive force, and denial of medical care

while in custody, and that is the order in which we

will take up the claims.

[7] As to the unlawful arrest claim, Crosby asserts

that there was no probable cause for his arrest. The

Fourth Amendment's guarantee against unreasonable searches and seizures encompasses the right to

be free from arrest without probable cause. See,

e.g., Von Stein v. Brescher, 904 F.2d 572, 579 (11th

Cir.1990). Probable cause is “defined in terms of

facts and circumstances sufficient to warrant a

prudent man in believing that the suspect had committed or was committing an offense.” Gerstein v.

Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 862, 43

L.Ed.2d 54 (1975) (internal marks and citations

omitted).

[8] The issue here, however, is not whether probable cause existed but instead whether there was arguable probable cause. Qualified immunity applies

when there was arguable probable cause for an arrest even if actual probable cause did not exist.

Jones v. Cannon, 174 F.3d 1271, 1283 n. 3 (11th

Cir.1999) (“Arguable probable cause, not the higher standard of actual probable cause, governs the

qualified immunity inquiry.”). Arguable probable

cause exists if, under all of the facts and circumstances, an officer reasonably could-not necessarily

would-have believed that probable cause was

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present. Durruthy v. Pastor, 351 F.3d 1080, 1089

*1333 (11th Cir.2003) (“Arguable probable cause

exists when an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed.”(internal marks

and citation omitted)); Montoute v. Carr, 114 F.3d

181, 184 (11th Cir.1997) (“In order to be entitled to

qualified immunity from a Fourth Amendment

claim, an officer need not have actual probable

cause but only ‘arguable probable cause,’ i.e., the

facts and circumstances must be such that the officer reasonably could have believed that probable

cause existed.”).

Whether a particular set of facts gives rise to probable cause or arguable probable cause to justify an

arrest for a particular crime depends, of course, on

the elements of the crime. Under Alabama law, “A

person commits the crime of reckless endangerment

if he recklessly engages in conduct which creates a

substantial risk of serious physical injury to another

person.” Ala.Code § 13A-6-24. That is one of the

crimes for which Crosby was arrested.

[9] It is undisputed that, in the events leading up to

the arrest, Deputy Terry was responding to a report

of gunshots fired toward the home of Crosby's

neighbor, Scott, shortly before the officers arrived.

The officers knew that Scott, who had been there

when the shots were fired, was in fear for his life.

While on the scene, they heard a shot from the direction of Crosby's home. As they approached that

area, the officers saw Crosby carrying a shotgun

and heard the sound of him ejecting a shell from the

weapon. Given these facts, an officer in Terry's position reasonably could have believed that Crosby

had fired multiple shots in the direction of his

neighbor's house, including the shots they had

heard while the neighbor was on the phone calling

the sheriff's office for help, and that he had fired

another shot after they arrived. Because an officer

in that position reasonably could have believed that

Crosby had “create[d] a substantial risk of serious

physical injury to another person,” there was arguable probable cause to arrest Crosby for reckless

endangerment as defined in Ala.Code § 13A-6-24.

[10] Crosby argues that, even if there was probable

cause, his arrest was still a violation of the Fourth

Amendment. He points out that reckless endangerment is a misdemeanor, seeAla.Code §

13A-6-24(b), and Alabama law does not permit a

warrantless arrest for a misdemeanor unless it occurred in the officer's presence, see Telfare v. City

of Huntsville, 841 So.2d 1222, 1228-29 (Ala.2002).

We rejected a materially identical contention in

Knight v. Jacobson, 300 F.3d 1272, 1275-76 (11th

Cir.2002), and that decision requires that we do the

same here.

Crosby's second federal claim is that Deputy Terry

used excessive force in arresting him. Although not

happy about the way in which the officers held him

down, Crosby's primary focus in making this claim

is that at one point Terry put his foot on Crosby's

face. Except for that fact, this would be an easy

case.

[11][12] The Fourth Amendment encompasses the

right to be free from the use of excessive force during an arrest. See Vinyard v. Wilson, 311 F.3d 1340,

1347 (11th Cir.2002). As we have recently said,

“[t]he ‘reasonableness' inquiry in an excessive force

case is an objective one: the question is whether the

officer's actions are ‘objectively reasonable’ in light

of the facts and circumstances confronting him,

without regard to his underlying intent or motivation.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir.2004).

[13] In making an excessive force inquiry, we are

not to view the matter as judges from the comfort

and safety of our *1334 chambers, fearful of nothing more threatening than the occasional paper cut

as we read a cold record accounting of what turned

out to be the facts. We must see the situation

through the eyes of the officer on the scene who is

hampered by incomplete information and forced to

make a split-second decision between action and inaction in circumstances where inaction could prove

fatal. See Graham v. Connor, 490 U.S. 386, 396-97,

109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989); Kesinger, 381 F.3d at 1248-50; Garrett v. AthensClarke County, 378 F.3d 1274, 1279 (11th

394 F.3d 1328 Page 7

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Cir.2004).

[14] From that perspective, a reasonable officer

could have believed that the force applied was reasonably necessary in the situation Deputy Terry

found himself in that night. The circumstances were

fraught with danger for the officers. Multiple shots

had been fired, Crosby's neighbor was in fear for

his life, and after the officers arrived on the scene a

shot was fired from the direction of Crosby's house.

As they approached, the officers saw Crosby carrying a shotgun and heard the sound of him ejecting a

shell from the weapon. As Crosby himself described that “racking” sound in his deposition: “It

makes a heart-wrenching sound if you're on the

wrong side of the fence.” Around this time, the officers began running and yelling, “He's got a shotgun!” Then one or more of the officers, with pistol

drawn, ordered Crosby to drop the shotgun, but he

did not do so. Instead, he continued placing the

shotgun in the garage.

Thereafter Crosby did lie face down on the pavement, as the officers had ordered, but he was not

docile. While the officers were trying to hold him

down and handcuff him, Crosby raised his head and

asked why he was being arrested. It was then that

Deputy Terry put his foot on Crosby's face and

pushed his head back down. In response, Crosby

jerked his hand away from the handcuffing attempt,

shoved Terry's foot off, cursed at Terry, and asked

him if he were crazy. Terry did not put his foot

back on Crosby's face or otherwise respond to the

cursing. Eventually, the officers got Crosby handcuffed. At no time did Terry or any other officer

kick or punch Crosby. Crosby did not cry out in

pain. Other than being indignant about having a

foot on his face, Crosby did not say then-and so far

as the record reveals he has not testified since-that

it was painful.

The Supreme Court “has long recognized that the

right to make an arrest ... necessarily carries with it

the right to use some degree of physical coercion or

threat thereof to effect it.” Graham, 490 U.S. at

397, 109 S.Ct. at 1872-73; accord Garrett, 378

F.3d 1274 (hit with baton, tackled, pepper-sprayed,

and tied up); Draper v. Reynolds, 369 F.3d 1270

(11th Cir.2004) (taser gun); Durruthy, 351 F.3d

1080 (knee in back). Furthermore, the purpose of

the qualified immunity doctrine is to give meaning

to the proposition that “[g]overnment officials are

not required to err on the side of caution” when it

comes to avoiding constitutional violations. Marsh

v. Butler County, 268 F.3d 1014, 1030 n. 8 (11th

Cir.2001) (en banc).

Though Crosby was on the ground at the time

Deputy Terry put his foot on Crosby's face, he had

not yet been handcuffed. For all the officers knew,

Crosby had other weapons concealed on his personas it turned out, he actually did have another

weapon on him-and raising his head to ask why he

was being arrested could have been an attempt by

Crosby to distract Terry and a prelude to actual resistance. Given the circumstances and the risks inherent in apprehending any suspect, an officer in

Terry's position reasonably could have concluded

that it was imperative to keep Crosby, who had not

been *1335 entirely cooperative, completely flat

and immobile until he had been successfully handcuffed. The fact that Crosby was able to wrestle his

hand loose and push Terry's foot away indicates

that he had not been subdued.

There is also the fact that the force about which

Crosby complains, while undignified in its placement, was not severe in amount. See Durruthy, 351

F.3d at 1094 (stating that “ ‘the application of de

minimis force, without more, will not support a

claim for excessive force in violation of the Fourth

Amendment’ ” (quoting Nolin v. Isbell, 207 F.3d

1253, 1257 (11th Cir.2000))); Lee v. Ferraro, 284

F.3d 1188, 1198 (11th Cir.2002) (noting that one

factor to be considered in evaluating excessive

force claims is “the relationship between the need

and amount of force used” (internal citation omitted)). Before us there is no evidence-as distinguished from bare allegations-that Deputy Terry's

foot on Crosby's face caused him any physical injury. Crosby did say in his affidavit that being

handcuffed hurt, and he testified in his deposition

that he thinks having the two officers on his backTerry was not one of them-aggravated his preexist394 F.3d 1328 Page 8

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ing back condition. However, he did not say in any

affidavit or deposition testimony in the record before us that the foot on his face was physically

painful.

[15] Crosby's final claim is that Deputy Terry

denied him medical care while he was incarcerated.

An officer violates a detainee's “Fourteenth

Amendment right to due process if he acts with deliberate indifference to the serious medical needs of

the detainee.” Lancaster v. Monroe County, 116

F.3d 1419, 1425 (11th Cir.1997). An officer acts

with “deliberate indifference” when he knows that a

detainee is in “serious need of medical care” and

does not obtain medical care for that detainee. Id.

[16] Crosby has presented no evidence that he was

in need of medical care, much less evidence that

Deputy Terry was aware of his need and refused to

obtain care for him. In his deposition, Crosby admits that he did not request medical care while in

jail. In fact, he did not seek medical treatment until

several days after his release. He says that he went

to see a doctor “whenever [he] could get around to

it.” Crosby's behavior upon being released is inconsistent with his argument that, while in jail, he had

such serious medical needs that it should have been

obvious to Terry. Besides, Crosby has not even

presented any evidence that Terry observed him

while he was incarcerated.

C.

The district court's grant of summary judgment to

Deputy Terry on grounds of qualified immunity is

AFFIRMED.

C.A.11 (Ala.),2004.

Crosby v. Monroe County

394 F.3d 1328, 18 Fla. L. Weekly Fed. C 127

END OF DOCUMENT

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Chesser v. Sparks

C.A.11 (Ga.),2001.

United States Court of Appeals,Eleventh Circuit.

Angie CHESSER, a.k.a. Angie Kimball, PlaintiffAppellee,

v.

Amos SPARKS, individually and in his official capacity as Haralson County Commissioner, Defendant-Appellant.

No. 99-14594.

April 18, 2001.

Employee terminated from her county clerk position brought § 1983 action against county commissioner, alleging violation of her First Amendment

rights of free speech and freedom of association.

Commissioner moved to dismiss on qualified immunity grounds. The United States District Court

for the Northern District of Georgia, No.

99-00023-CV-JTC-3,Jack T. Camp, J., denied motion. Commissioner appealed. The Court of Appeals, Tjoflat, Circuit Judge, held that commissioner was entitled to qualified immunity.

Reversed.

West Headnotes

[1] Federal Courts 170B 579

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(C) Decisions Reviewable

170BVIII(C)2 Finality of Determination

170Bk576 Particular Actions, Interlocutory Orders Appealable

170Bk579 k. Civil Rights Cases.

Most Cited Cases

Federal Court of Appeals has jurisdiction to review

the district court's denial of the defense of qualified

immunity in a civil rights action pursuant to statute

allowing interlocutory appeals. 28 U.S.C.A. § 1291.

[2] Federal Civil Procedure 170A 2491.5

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)2 Particular Cases

170Ak2491.5 k. Civil Rights Cases in

General. Most Cited Cases

While qualified immunity defense to a §1983 action

is typically addressed at the summary judgment

stage of the case, the defense may be raised and

considered on a motion to dismiss; the motion will

be granted if the complaint fails to allege the violation of a clearly established constitutional right. 42

U.S.C.A. § 1983.

[3] Federal Courts 170B 776

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk776 k. Trial De Novo. Most

Cited Cases

Federal Courts 170B 797

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)3 Presumptions

170Bk797 k. Dismissal. Most Cited

Cases

On review of district court's denial of motion to dismiss §1983 action on qualified immunity grounds,

court of appeals reviews de novo issue of whether

complaint alleges a clearly established constitutional right, accepting the facts alleged in the complaint

as true and drawing all reasonable inferences therefrom in the plaintiff's favor. 42 U.S.C.A. § 1983.

[4] Civil Rights 78 1376(1)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Of248 F.3d 1117 Page 1

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ficers

78k1376(1) k. In General. Most Cited

Cases

(Formerly 78k214(1))

“Qualified immunity” protects government actors

performing discretionary functions from being sued

for civil rights violations in their individual capacities.

[5] Civil Rights 78 1376(2)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(2) k. Good Faith and Reasonableness; Knowledge and Clarity of Law; Motive

and Intent, in General. Most Cited Cases

(Formerly 78k214(2))

“Qualified immunity” doctrine shields government

officials from liability in civil rights actions to the

extent that their conduct does not violate clearly established constitutional rights of which a reasonable

person would have known.

[6] Civil Rights 78 1376(1)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(1) k. In General. Most Cited

Cases

(Formerly 78k214(1))

“Qualified immunity” doctrine protects government

officials from always erring on the side of caution

by shielding them both from liability in civil rights

actions and the other burdens of litigation, including discovery.

[7] Civil Rights 78 1376(2)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(2) k. Good Faith and Reasonableness; Knowledge and Clarity of Law; Motive

and Intent, in General. Most Cited Cases

(Formerly 78k214(2))

Evaluating the defense of qualified immunity raised

by a government official in a federal civil rights action involves a two step inquiry: first, whether the

official's conduct violated a clearly established constitutional right; and second, whether a reasonable

government official would have been aware of that

fact.

[8] Civil Rights 78 1376(2)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(2) k. Good Faith and Reasonableness; Knowledge and Clarity of Law; Motive

and Intent, in General. Most Cited Cases

(Formerly 78k214(2))

A constitutional right is “clearly established,” precluding defense of qualified immunity in a federal

civil rights action, if controlling precedent has recognized the right in a concrete and factually

defined context.

[9] Civil Rights 78 1376(2)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(2) k. Good Faith and Reasonableness; Knowledge and Clarity of Law; Motive

and Intent, in General. Most Cited Cases

(Formerly 78k214(2))

A § 1983 plaintiff cannot prove existence of a

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“clearly established right,” as required to avoid the

qualified immunity defense, by referring to general

rules and to the violation of abstract rights. 42

U.S.C.A. § 1983.

[10] Constitutional Law 92 1946

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1946 k. Demotion. Most Cited Cases

(Formerly 92k90.1(7.2))

Constitutional Law 92 1947

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1947 k. Discharge. Most Cited Cases

(Formerly 92k90.1(7.2))

A state may not demote or discharge a public employee in retaliation for protected speech. U.S.C.A.

Const.Amend. 1.

[11] Constitutional Law 92 1925

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1925 k. In General. Most Cited Cases

(Formerly 92k90.1(7.2))

A public employee's right to freedom of speech is

not absolute. U.S.C.A. Const.Amend. 1.

[12] Constitutional Law 92 1929

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1929 k. Public or Private Concern.

Most Cited Cases

(Formerly 92k90.1(7.2))

Constitutional Law 92 1934

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1934 k. Efficiency of Public Services.

Most Cited Cases

(Formerly 92k90.1(7.2))

To determine whether a government official has retaliated against an employee because of the employee's protected speech, as would violate the First

Amendment, court considers first whether employee's speech is fairly characterized as constituting

speech on a matter of public concern; if it is, court

applies Pickering balancing test, which weighs the

employee's free speech interest against the interest

of the government, as an employer, in promoting

the efficiency of the public services it performs.

U.S.C.A. Const.Amend. 1.

[13] Civil Rights 78 1421

78 Civil Rights

78III Federal Remedies in General

78k1416 Weight and Sufficiency of Evidence

78k1421 k. Employment Practices. Most

Cited Cases

(Formerly 78k242(3))

Constitutional Law 92 1947

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1947 k. Discharge. Most Cited Cases

(Formerly 92k90.1(7.2))

If a public employee's speech involves a matter of

public concern, and the employee's interests outweigh those of the government as an employer under Pickering test, court, in determining whether

First Amendment violation occurred, asks whether

the speech played a substantial part in the government's decision to discharge the employee; if it did,

court examines whether the government has shown

by a preponderance of the evidence that it would

have discharged the employee regardless of the protected conduct. U.S.C.A. Const.Amend. 1.

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[14] Constitutional Law 92 1929

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1929 k. Public or Private Concern.

Most Cited Cases

(Formerly 92k90.1(7.2))

For purposes of determining whether government's

alleged retaliation against employee for his speech

violated the First Amendment, employee's speech

addresses a “matter of public concern” if it relates

to any matter of political, social, or other concern to

the community. U.S.C.A. Const.Amend. 1.

[15] Constitutional Law 92 1929

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1929 k. Public or Private Concern.

Most Cited Cases

(Formerly 92k90.1(7.2))

In determining whether a public employee's speech

involved a “matter of public concern,” as required

to establish First Amendment retaliation claim,

court examines the content, form, and context of

the employee's speech. U.S.C.A. Const.Amend. 1.

[16] Civil Rights 78 1376(10)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(10) k. Employment Practices.

Most Cited Cases

(Formerly 78k214(4))

County commissioner was entitled to qualified immunity from county employee's §1983 claim, which

alleged that she was discharged in violation of the

First Amendment for informing commissioner that

county's failure to pay wages for overtime would

violate the Fair Labor Standards Act (FLSA); precedent did not clearly establish that such statement

involved a “matter of public concern.” U.S.C.A.

Const.Amend. 1; 42 U.S.C.A. § 1983; Fair Labor

Standards Act of 1938, § 7(a, o), 29 U.S.C.A. §

207(a, o).

[17] Constitutional Law 92 1929

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1929 k. Public or Private Concern.

Most Cited Cases

(Formerly 92k90.1(7.2))

Constitutional Law 92 1934

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1934 k. Efficiency of Public Services.

Most Cited Cases

(Formerly 92k90.1(7.2))

In determining whether a public employee's First

Amendment right to engage in speech on a matter

of public concern outweighs government's interest

in promoting efficiency of public services it performs, court must consider three factors: (1) whether the speech at issue impedes the government's

ability to perform its duties efficiently; (2) the manner, time and place of the speech; and (3) the context within which the speech was made. U.S.C.A.

Const.Amend. 1.

[18] Constitutional Law 92 1947

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(P) Public Employees and Officials

92k1947 k. Discharge. Most Cited Cases

(Formerly 92k90.1(7.2))

Counties 104 67

104 Counties

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104III Officers and Agents

104k67 k. Removal. Most Cited Cases

County employee who was allegedly terminated for

informing county commissioner that county's failure to pay overtime wages violated the Fair Labor

Standards Act (FLSA) could not establish First

Amendment retaliation claim, even if such speech

involved a “matter of public concern”; commissioner's interest in maintaining loyalty, discipline and

good working relationships among his employees

outweighed employee's free speech interest.

U.S.C.A. Const.Amend. 1; Fair Labor Standards

Act of 1938, § 7(a, o), 29 U.S.C.A. § 207(a, o).

[19] Officers and Public Employees 283 66

283 Officers and Public Employees

283I Appointment, Qualification, and Tenure

283I(G) Resignation, Suspension, or Removal

283k66 k. Grounds for Removal. Most

Cited Cases

(Formerly 92k82(11))

For public employee to establish that employer took

action affecting his or her job in way that impermissibly burdened a constitutional right, employee

must first demonstrate that asserted right is protected by the Constitution and that he or she suffered

“adverse employment action” for exercising the

right.

[20] Civil Rights 78 1376(10)

78 Civil Rights

78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith

and Probable Cause

78k1376 Government Agencies and Officers

78k1376(10) k. Employment Practices.

Most Cited Cases

(Formerly 78k214(4))

County commissioner was entitled to qualified immunity from county employee's claim that commissioner terminated her in violation of her First

Amendment right to association because she was

married to sheriff, who was political enemy of commissioner; employee also alleged that she was terminated in part for insubordination and lack of cooperation, and precedent did not clearly establish

that such a termination violated the First Amendment. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. §

1983.

[21] Constitutional Law 92 1442

92 Constitutional Law

92XVI Freedom of Association

92k1442 k. Intimate Association; Dating Relationships in General. Most Cited Cases

(Formerly 92k82(10))

At a minimum, the right of intimate association under the First Amendment encompasses the personal

relationships that attend the creation and sustenance

of a family, specifically marriage. U.S.C.A.

Const.Amend. 1.

*1120 Benton J. Mathis, Jr.,Freeman Mathis &

Gary, LLP, Atlanta, GA, for Defendant-Appellant.

Susan Marie Garrett, Decatur, GA, for PlaintiffAppellee.

Appeal from the United States District Court for the

Northern District of Georgia.

Before TJOFLAT, HULL and PROPST FN*, Circuit Judges.

FN* Honorable Robert B. Propst, U.S.

District Judge for the Northern District of

Alabama, sitting by designation.

TJOFLAT, Circuit Judge:

The sole issue in this interlocutory appeal is whether the defendant county Commissioner, who is being sued for money damages in his individual capacity under 42 U.S.C. § 1983, is entitled to qualified

immunity with respect to the plaintiff's claims that

he terminated her employment in violation of her

First Amendment rights of free speech and freedom

of association. The district court denied the Commissioner's motion to dismiss, holding that the

plaintiff's complaint alleged facts sufficient to defeat the defense of qualified immunity. We reverse.

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I.

A.

According to the allegations of her complaint,

plaintiff Angie Chesser began working in the

clerk's office in Haralson County, Georgia, in 1985.

At the time of her discharge in February 1997, she

held the position of Assistant County Clerk. Her responsibilities included the preparation of the

payroll for the County's several departments, including the sheriff's office.

Haralson County is governed by a one-person commission. In the November 1996 general election,

defendant Amos Sparks was elected Commissioner

and Chesser's then-husband, Ronnie Kimball, was

elected Sheriff; both took office on January 1,

1997. Sparks and Kimball were political enemies.

So, in an effort to avoid what might appear to be a

conflict of interest, Chesser arranged for a coworker to prepare the payroll for the sheriff's department.

On February 6, 1997, Sparks issued a memorandum

to all county departments which stated that, due to

budget concerns, overtime would not be reimbursed

in the form of wages. Notwithstanding this instruction, overtime wages were paid to sheriff's department employees. Calling her attention to his

memorandum, Sparks asked Chesser why overtime

had been paid. After disclaiming knowledge of the

memorandum, Chesser said that the County's failure to compensate overtime in the form of wages

would violate the Fair Labor Standards Act.FN1

Sparks terminated Chesser's employment on February 20, 1997; FN2 his stated reason for the termination was that she was insubordinate and demonstrated a “lack of cooperation.”

FN1. Pursuant to the Fair Labor Standards

Act, 29 U.S.C. §§ 201 et seq., a public employee working overtime has the choice to

be reimbursed either in the form of wages

or compensatory time. 29 U.S.C. §§ 207(a)

and (o). A public employer may only substitute compensatory compensation for

overtime pay pursuant to a collective bargaining agreement or agreement between

the employer and employee if there is no

applicable collective bargaining agreement. 29 U.S.C. § 207(o)(2).

FN2. Although the complaint makes no

mention of the terms of her employment,

we assume that Chesser was an at-will employee and that Sparks had the authority to

terminate her employment.

B.

Chesser responded to her discharge by filing a two

count complaint in the Northern*1121 District of

Georgia against Haralson County and Sparks, in

both his official and individual capacities. Count

One, brought under the Fair Labor Standards Act

(“FLSA”), alleged that her discharge constituted retaliatory conduct proscribed by the

FLSA.FN3Count Two, brought under 42 U.S.C. §

1983,FN4 alleged that Sparks's termination of

Chesser's employment infringed her First Amendment rights of free speech and of freedom of association (her marriage to the Sheriff).FN5

FN3. The FLSA makes it unlawful for an

employer to:

discharge or in any other manner discriminate against any employee because such

employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or

has testified or is about to testify in any

such proceeding, or has served or is about

to serve on an industry committee.

29 U.S.C. § 215(a)(3) (1994).

FN4. 42 U.S.C. § 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States

or other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by the

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Constitution and laws, shall be liable to the

party injured in an action at law ....

FN5. Although Chesser's complaint does

not mention the Fourteenth Amendment,

which is the constitutional provision that

makes the First Amendment applicable to

state and local governments, see Wallace v.

Jaffree, 472 U.S. 38, 49 n. 34, 105 S.Ct.

2479, 2486, 86 L.Ed.2d 29 (1985)

(collecting cases), we treat the complaint

as alleging violations of the Fourteenth

Amendment.

Both defendants moved to dismiss the complaint

pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure, contending that neither count

stated a claim for relief. Sparks, in addition, contended that he was entitled to qualified immunity on

the Count Two claims asserted against him in his

individual capacity. The district court granted the

defendants' motions as to Count One, but denied

them as to Count Two. The court also found the allegations of the complaint sufficient to overcome

Sparks's qualified immunity defense. The court

stated that it would reconsider the defense if Sparks

moved for summary judgment following the completion of discovery. After the court made these rulings, Sparks lodged this appeal.

II.

A.

[1][2][3] We have jurisdiction to review the denial

of the defense of qualified immunity pursuant to 28

U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S.

511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411

(1985). While qualified immunity is typically addressed at the summary judgment stage of the case,

the defense may be raised and considered on a motion to dismiss; the motion will be granted if the

“complaint fails to allege the violation of a clearly

established constitutional right.” Williams v. Ala.

State Univ., 102 F.3d 1179, 1182 (11th Cir.1997).

Whether the complaint alleges such a violation is a

question of law which we review de novo, accepting the facts alleged in the complaint as true and

drawing all reasonable inferences therefrom in the

plaintiff's favor. Id.

B.

[4][5][6] Qualified immunity protects government

actors performing discretionary functions from being sued in their individual capacities. Williams,

102 F.3d at 1182; Lassiter v. Ala. A & M Univ., Bd.

of Trustees, 28 F.3d 1146, 1149 (11th

Cir.1994)*1122 (en banc). The doctrine shields

government officials from liability to the extent that

“their conduct does not violate clearly established

... constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 817-18, 102 S.Ct. 2727, 2738, 73 L.Ed.2d

396 (1982). The doctrine protects government officials from always “err[ing] on the side of caution”

by shielding them both from liability “and the other

burdens of litigation, including discovery.” Lassiter, 28 F.3d at 1149.

[7] Evaluating the defense of qualified immunity

involves a two step inquiry: first, whether the defendant's conduct violated a clearly established constitutional right; and, second, whether a reasonable

government official would have been aware of that

fact. See Tindal v. Montgomery County Comm'n, 32

F.3d 1535, 1539 (11th Cir.1994). This two-step inquiry is designed to “provide[ ] ample protection to

all but the plainly incompetent 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).

[8][9] A constitutional right is clearly established if

controlling precedent has recognized the right in a

“concrete and factually defined context.” Lassiter,

28 F.3d at 1149; see also Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993) (“If case

law, in factual terms, has not staked out a bright

line, qualified immunity almost always protects the

defendant.”). A plaintiff cannot avoid the qualified

immunity defense “by referring to general rules and

to the violation of abstract ‘rights.’ ” Lassiter, 28

F.3d at 1150. If the constitutional right has been

clearly established, the plaintiff must demonstrate

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that a reasonable government actor would have

known that what he was doing infringed that right.

See Williams, 102 F.3d at 1182. With this two step

inquiry in mind, we turn to the question of whether

Sparks's decision to terminate Chesser's employment violated either of the First Amendment rights

involved here-freedom of speech or freedom of association-in such a manner that a reasonable government official would have known.

III.

A.

[10][11] “It is axiomatic that ‘[a] state may not demote or discharge a public employee in retaliation

for protected speech.’ ” Tindal v. Montgomery

County Comm'n, 32 F.3d 1535, 1539 (11th

Cir.1994) (quoting Morgan v. Ford, 6 F.3d 750,

753-54 (11th Cir.1993)); see Rankin v. McPherson,

483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97

L.Ed.2d 315 (1987). A public employee's right to

freedom of speech, however, is not absolute.

Bryson v. City of Waycross, 888 F.2d 1562, 1565

(11th Cir.1989). To determine whether a state actor

has retaliated against an employee because of the

employee's protected speech, we have used a fourpronged test based on the Supreme Court's decision

in Pickering v. Board of Education, 391 U.S. 563,

88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See RiceLamar v. City of Fort Lauderdale, 232 F.3d 836,

841 (11th Cir.2000).

[12][13] First, we consider whether the employee's

speech is “ ‘fairly characterized as constituting

speech on a matter of public concern.’ ” Bryson,

888 F.2d at 1565 (quoting Rankin, 483 U.S. at 384,

107 S.Ct. at 2896-97). If it is, we apply the Pickering balancing test, which weighs the employee's

free speech interest against “the interest of the state,

as an employer, in promoting the efficiency of the

public services it performs.” Pickering, 391 U.S. at

568, 88 S.Ct. at 1734-35. If the employee's interests

outweigh those of the state as an employer, we turn

to the third *1123 prong: whether the speech

“played a ‘substantial part’ in the government's decision to discharge the employee.” Fikes v. City of

Daphne, 79 F.3d 1079, 1084 (11th Cir.1996). If it

did, we must address the fourth prong, which is

whether the government has shown by a preponderance of the evidence that it would have discharged

the employee regardless of the protected conduct.

Id. at 1085.

1.

[14][15] Speech addresses a matter of public concern, and thus establishes Pickering 's first prong, if

it relates “to any matter of political, social, or other

concern to the community.” Connick v. Myers, 461

U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d

708 (1983). In making this determination, we examine the content, form, and context of the employee's speech. Bryson, 888 F.2d at 1565.

[16] The speech at issue here is Chesser's statement

to Sparks that the County's failure to pay wages for

overtime would violate the FLSA. In focusing on

the content, form, and context of the speech, we

consider whether the employee is speaking as a citizen on behalf of the public or “as an employee

upon matters only of personal interest.” Connick,

461 U.S. at 147, 103 S.Ct. at 1690. Chesser's statement may not have been “only of personal interest,”

id., but she was certainly speaking as an employee

when, as Assistant County Clerk in charge of

payroll, she told Sparks, in his capacity as County

Commissioner, that the County could not lawfully

refuse to pay overtime wages. Chesser cites no

case, and our independent research has uncovered

none, holding that a statement such as Chesser's,

made in the same or similar context, satisfies the

first prong of the Pickering test.FN6 Because “case

law, in factual terms, has not staked out a bright

line,”Post v. City of Fort Lauderdale, 7 F.3d 1552,

1557 (11th Cir.1993), indicating that Chesser's

speech was a matter of public concern, a reasonable

government official in Sparks's position would have

had no reason to believe that the Constitution protected Chesser's statement that the County's refusal

to pay overtime wages would violate the FLSA.

FN6. Chesser contends that Martinez v.

City of Opa-Locka, 971 F.2d 708 (11th

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Cir.1992), and Gonzalez v. Lee County

Housing Authority, 161 F.3d 1290 (11th

Cir.1998), support her claim that the First

Amendment clearly protected her statement to Sparks. Neither case is on point. In

Gonzalez we reversed the district court's

denial of qualified immunity on the

plaintiff's free speech claim. We affirmed

the district court's denial of qualified immunity only on the plaintiff's claim that the

defendant terminated her employment in

violation of a provision of the Fair Housing Act, 42 U.S.C. § 3617. Gonzalez, 161

F.3d at 1298, 1305.

In Martinez, the plaintiff alleged that she

was discharged for testifying before a

Board of Inquiry that the defendant, the

city manager, had violated bid procedures

in purchasing furniture for the city hall.

Martinez, 971 F.2d at 710-11. We affirmed

the denial of qualified immunity, finding

that the plaintiff's speech was protected under the first prong of the Pickering test, id.

at 712; the plaintiff's statements were made

before a Board of Inquiry and provided information concerning the expenditure of

public funds. Id. We further noted that the

form of the speech was testimony and that

the context was an examination into the

activities of city personnel which was being conducted by officials having investigatory powers. Id. None of these factors exist in the instant case. Here, Chesser spoke

directly to Sparks about paying overtime

wages; there was no official investigation

and the speech was not made to inform a

third party.

2.

[17] Even if we were to find that binding precedent

FN7 clearly established a constitutional*1124 right

to inform one's supervisor of the requirements of

the law, Chesser cannot satisfy the second prong of

the Pickering test. That prong requires us to consider three factors: “(1) whether the speech at issue

impedes the government's ability to perform its duties efficiently, (2) the manner, time and place of

the speech, and (3) the context within which the

speech was made.” Bryson, 888 F.2d at 1567

(internal quotations omitted). “Because no brightline standard puts the reasonable public employer

on notice of a constitutional violation, the employer

is entitled to immunity except in the extraordinary

case where Pickering balancing would lead to the

inevitable conclusion that the discharge of the employee was unlawful.” Dartland v. Metropolitan

Dade County, 866 F.2d 1321, 1323 (11th Cir.1989).

FN7. Binding precedent in this circuit consists of Supreme Court and Eleventh Circuit decisions (including Fifth Circuit

cases handed down prior to October 1,

1981). Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir.1981).

[18] “We need not decide the precise result of applying the ... balancing test to this case. We must

decide only whether the result would be such that a

reasonable official in [the defendant's] place would

know that the termination of [the plaintiff] under

these circumstances violated [the plaintiff's] constitutional rights.” Id. at 1324. Here, Sparks certainly

had an interest in maintaining “loyalty, discipline

and good working relationships among those he supervises.” Id. Regardless of whether Chesser's interpretation of the FLSA was correct, Sparks may

reasonably have believed that Chesser was being

insubordinate and disruptive, and hence that he was

justified in discharging her.FN8 In sum, Chesser

cannot satisfy the second prong of the test; consequently, we need not move to the third and fourth

prongs. The district court erred in not granting

Sparks qualified immunity with respect to the free

speech component of Count Two.

FN8. The complaint, in fact, specifically

alleges that Sparks claimed that Chesser

was being insubordinate.

B.

[19] The second theory of recovery in County Two

is that Chesser's employment was terminated because of her association with her then-husband,

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Ronnie Kimball. To prevail on this theory, the

plaintiff must demonstrate that she had a constitutional right and that she suffered “adverse employment action for exercising the right.” McCabe v.

Sharrett, 12 F.3d 1558, 1562 (11th Cir.1994)

(quotation omitted). If the plaintiff has established

both elements, we use the Pickering balancing test

to determine whether the adverse employment action was permissible. See Ross v. Clayton County,

173 F.3d 1305, 1310-11 (11th Cir.1999); cf. Shahar

v. Bowers, 114 F.3d 1097, 1106-07 (11th Cir.1997)

(en banc) (employing the Pickering balancing test

in the context of a same-sex marriage).

[20][21] Count Two contains the two elements set

out above. First, it asserts the constitutional right of

free association, which in this case is an intimate

association. “At a minimum, the right of intimate

association encompasses the personal relationships

that attend the creation and sustenance of a family-

[specifically] marriage ....”McCabe, 12 F.3d at

1563. Second, Count Two alleges that, because of

her relationship with her husband, Chesser suffered

an adverse employment action (termination). Count

Two goes on to state, however, that her employment was terminated for insubordination and lack

of cooperation.

*1125 As an employer, Haralson County certainly

has an interest in having employees who are not insubordinate.FN9 We can find no concrete and factually defined case that has held unconstitutional an

employer's decision to discharge an employee due

in part to insubordination.FN10 A reasonable government actor in Sparks's position would have no

reason to believe that such a decision would violate

the law. The district court erred in not granting

qualified immunity to Sparks on this Count Two

claim.

FN9. As we have said:

The more a public employee's transfer or

discharge is necessary to the effective

functioning of the office, the more the

transfer or discharge becomes justifiable,

and thus the more likely it is that a court

will find the transfer or discharge constitutionally permissible by finding the employer's interest to outweigh the employee's interest in the Pickering balance.

McCabe, 12 F.3d at 1570.

FN10. The district court based its denial of

the motion to dismiss on our decision in

Wilson v. Taylor, 733 F.2d 1539, 1544

(11th Cir.1984). Wilson involved a claim

by a police officer that his employment

was terminated for dating the adopted

daughter of “a convicted felon reputed to

be a key figure in organized crime in central Florida.” Id. at 1540. We stated that

“[a] state violates the [F]ourteenth

[A]mendment when it seeks to interfere

with the social relationship of two or more

people.” Id. at 1544. While that statement

holds true today, we expressly recognized

in Wilson that it was “a narrow holding.”

Id. at 1544 n. 3.

In this case, the [defendant] made the argument that dating was not protected under

the [F]irst [A]mendment freedom of

speech provision. The [defendant] did not

make the argument that even if dating were

protected under the freedom of association

provision of the [F]irst [A]mendment, a[n

employee's] rights under that provision

could be curtailed due to the nature of [the

employment].

Id.Because Wilson did not employ the

Pickering balancing test, the decision

would not have informed a reasonable government actor standing in Sparks's shoes

that he would infringe Chesser's constitutional right of intimate association if he

terminated her employment.

IV.

For the foregoing reasons, the decision of the district court denying Sparks's qualified immunity on

Chesser's Count Two claims is

REVERSED.

C.A.11 (Ga.),2001.

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Chesser v. Sparks

248 F.3d 1117, 143 Lab.Cas. P 59,233, 17 IER

Cases 883, 6 Wage & Hour Cas.2d (BNA) 1736, 14

Fla. L. Weekly Fed. C 643

END OF DOCUMENT

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Warren v. Crawford

C.A.11 (Ga.),1991.

United States Court of Appeals,Eleventh Circuit.

James A. WARREN, Plaintiff-Appellant,

v.

Dave CRAWFORD, et al., Defendants-Appellees.

No. 90-8677.

March 26, 1991.

Former Georgia county department head filed state

court wrongful discharge action against county

board and commissioners. Following removal of

case, the United States District Court for the Northern District of Georgia, No. 1:89-cv-916-ODE,

Orinda D. Evans, J., granted summary judgment

denying claim and declined to exercise pendent jurisdiction over state law claims. Appeal was taken.

The Court of Appeals, Johnson, Circuit Judge, held

that: (1) department head failed to establish that he

had due process property interest in his former position, and (2) he also did not show that commissioner's issuance of statements noting inefficiencies at

department deprived him of protected liberty interest.

Affirmed.

West Headnotes

[1] Federal Courts 170B 776

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk776 k. Trial De Novo. Most

Cited Cases

District court's order granting motion for summary

judgment is reviewed de novo.

[2] Federal Courts 170B 802

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)3 Presumptions

170Bk802 k. Summary Judgment.

Most Cited Cases

On review of district court order granting summary

judgment, all evidence and reasonable factual inferences drawn therefrom are reviewed in light most

favorable to party opposing motion.

[3] Constitutional Law 92 3879

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3878 Notice and Hearing

92k3879 k. In General. Most Cited

Cases

(Formerly 92k278(1.1), 92k255(1))

Fourteenth Amendment protects against government's deprivation of liberty or property without

procedural due process. U.S.C.A. Const.Amend.

14.

[4] Constitutional Law 92 4165(1)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4165 Rights and Interests Protected in General

92k4165(1) k. In General. Most

Cited Cases

(Formerly 92k277(2))

State law determines whether public employee has

due process property interest in his or her job.

U.S.C.A. Const.Amend. 14.

[5] Constitutional Law 92 4156

92 Constitutional Law

92XXVII Due Process

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92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4156 k. Rights and Interests Protected in General. Most Cited Cases

(Formerly 92k277(1))

To obtain due process property interest in employment, person must have more than mere unilateral

expectation of continued employment; one must

have legitimate claim of entitlement to continued

employment. U.S.C.A. Const.Amend. 14.

[6] Labor and Employment 231H 40(2)

231H Labor and Employment

231HI In General

231Hk37 Term, Duration, and Termination

231Hk40 Definite or Indefinite Term;

Employment At-Will

231Hk40(2) k. Termination; Cause or

Reason in General. Most Cited Cases

(Formerly 255k20 Master and Servant)

Under Georgia law, absent controlling contract

between parties, employment for indefinite period

is terminable at will by either party. O.C.G.A. §

34-7-1.

[7] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k277(2))

While Georgia public employee generally has no

due process property right in employment, public

employee who may be discharged only for cause

has protected property interest in continued employment. U.S.C.A. Const.Amend. 14.

[8] Constitutional Law 92 4172(6)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4172 Notice and Hearing; Proceedings and Review

92k4172(6) k. Termination or

Discharge. Most Cited Cases

(Formerly 92k277(2))

Georgia county department head failed to establish

he had protected property interest in his job, for

purposes of claim that his procedural due process

rights were violated by his dismissal without notice

or hearing; personnel handbook defined dismissal

as a “separation for definable cause” but also granted county administrator discretion to dismiss department heads, and mutual understanding allegedly

created by board's past actions could not create

property interest contrary to state law. U.S.C.A.

Const.Amend. 14.

[9] Constitutional Law 92 4173(4)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4173 Reputational Interests,

Protection and Deprivation of

92k4173(4) k. Notice and Hearing; Proceedings and Review. Most Cited Cases

(Formerly 92k278.4(3))

To establish deprivation of liberty interest without

due process of law discharged governmental employee must show false statement of stigmatizing

nature attending discharge, made public by governmental employer without meaningful opportunity

for name clearing hearing. U.S.C.A. Const.Amend.

14.

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[10] Constitutional Law 92 4173(3)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4173 Reputational Interests,

Protection and Deprivation of

92k4173(3) k. Termination or

Discharge. Most Cited Cases

(Formerly 92k278.4(3))

Counties 104 67

104 Counties

104III Officers and Agents

104k67 k. Removal. Most Cited Cases

County did not deprive discharged department head

of due process liberty interest through issuance of

allegedly false and damaging statements regarding

his management of department; statements consisted almost entirely of fact intensive examples of

inefficiency at department and department head

failed to identify specific disputes with those factual statements or to show that they were false.

U.S.C.A. Const.Amend. 14.

*560 Amy Totenberg, Atlanta, Ga., Wade M.

Crumbley, Crumbley & Crumbley, McDonough,

Ga., for plaintiff-appellant.

Michael A. O'Quinn, Smith & Welch, McDonough,

Ga., for defendants-appellees.

Appeal from the United States District Court for the

Northern District of Georgia.

Before FAY and JOHNSON, Circuit Judges, and

PECK FN*, Senior Circuit Judge.

FN* Honorable John W. Peck, Senior U.S.

Circuit Judge for the Sixth Circuit, sitting

by designation.

JOHNSON, Circuit Judge:

Plaintiff James A. Warren appeals the district

court's summary judgment denying his claim that

he had been illegally terminated from his position

as head of the Henry County, Georgia, Department

of Transportation (“the DOT”).

I. STATEMENT OF THE CASE

A. Background Facts

In September of 1985, Warren accepted a position

as Road Superintendent for Henry County. When

he was hired, Warren received a copy of the Personnel Handbook,FN1 which he believed established a probationary period of one year, during

which he could be terminated at will. After completing the probationary period, Warren believed

that he could only be fired for cause.

FN1. This handbook represented a compilation of the Personnel System Ordinance

and its amendments, which the Board

passed in November of 1980.

During the fall of 1988, several candidates in the

upcoming elections for the Board of Commissioners of Henry County (“the Board”) made the efficiency of the DOT a campaign issue. Defendants

Crawford, Honea, and Joyner were elected to the

Board in November of 1988.

The defendant Board assumed office in January of

1989. In early 1989, defendants Crawford, Honea,

and Joyner inspected the DOT's office. The inspection purportedly lasted for fifteen minutes. Defendant Crawford testified that they found the shop area

of the DOT in disarray. Defendant Joyner testified

that he and defendant Honea subsequently returned

to the DOT offices for a second inspection and

found things worse instead of better. Warren testified that the Board made no complaints to him personally about his job performance as a result of

these inspections. Defendant Joyner testified,

however, that he related his complaints to County

Administrator Don Norton, who was Warren's supervisor.

On March 15, 1989, the Board held a specially

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scheduled meeting to consider reorganizing the

DOT. During the meeting, the Board retired into

executive session in order to discuss the job performance of Warren.FN2 During the executive session, *561 the Board discussed the DOT's deficiencies, e.g., damage to two trash compactors, poor

maintenance of equipment, lack of efficiency in

road repair, decreased productivity in paving roads,

and the disarray of the DOT shop. Defendants

Joyner and Crawford both expressed their opinion

that the DOT was not providing service commensurate with its share of the county budget.

FN2. Under the Georgia Open Meeting

Act, Ga.Code Ann. § 50-14-1et seq., Board

meetings must be public. Ga.Code Ann. §

50-14-3(6) allows a closed meeting,

however, when discussing the performance

of an employee. A transcript of this Executive Session was admitted into evidence.

The Board then reconvened in public session, and

Commissioner Joyner proposed a reorganization

plan for the DOT in order to improve efficiency.

This plan divided the DOT into two separate departments. The shop and landfill functions became

a separate department of services, and the preexisting engineering department was consolidated with

the remaining sections of the DOT under the supervision of the County Engineer. The stated goal of

the reorganization was to improve efficiency by reducing the number of employees under the supervision of DOT and by combining the road designing

functions of the County Engineer with the road

maintenance functions of the DOT. Thus, under the

reorganization, all county activities associated with

roads, including design, construction and maintenance, were under a single department headed by the

County Engineer. Warren's job as head of the DOT

was the only job eliminated by the reorganization.

At the meeting, the County Administrator FN3requested an additional thirty days to study the reorganization. He stated that by making specific personnel changes the reorganization crossed the

boundary between his role and the Board's and undermined his authority. According to the minutes,

defendant Crawford stated that he believed the reorganization was a policy decision, not a personnel

decision. The Board, with one abstention and one

dissent, then voted to adopt the plan immediately.

FN3. The County Administrator is the head

of the administrative branch of county government, acting as the personnel director

with the power to hire and fire most county

employees. The Administrator is appointed

by the Board and serves at their pleasure.

Mr. Warren testified that he considered the

County Administrator his boss.

B. Procedural History

On April 5, 1989, Warren filed a complaint in state

court, alleging that the Board had violated his procedural due process rights by terminating his employment as head of the DOT without notice and a

hearing and that the reorganization violated the

state's open meeting law. Warren asked that the

state court enjoin the Board from terminating him

until such time as they afforded him notice and a

hearing and that he receive damages for wrongful

termination.

After the case was removed to federal court, Warren amended his complaint to add two additional

federal claims. He asserted that he had been dismissed arbitrarily, capriciously, and by pretextual

means in violation of his substantive due process

rights. Warren also asserted a Fourteenth Amendment liberty interest claim based on the defendants'

publication of allegedly false and stigmatizing

statements regarding Warren's supposedly unprofessional management of the DOT and their failure

to provide Warren with a “name clearing” hearing.

After discovery, the parties filed cross motions for

summary judgment. On June 15, 1990, the district

court denied Warren's motion for summary judgment and granted the defendants' motion for summary judgment. The court declined to exercise

pendant jurisdiction over the state law claims. Warren appeals these rulings.

II. ANALYSIS

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[1][2] This Court reviews de novo a district court's

order granting a motion for summary judgment. Ordway v. United States, 908 F.2d 890, 893 (11th

Cir.1990). We must determine whether there is any

genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106

S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). All evidence and reasonable*562 factual inferences drawn

therefrom are reviewed in the light most favorable

to the party opposing the motion. Hinesville Bank v.

Pony Express Courier Corp., 868 F.2d 1532, 1535

(11th Cir.1989).

A. Due Process

[3][4][5][6][7] The Fourteenth Amendment protects

against the government's deprivation of liberty or

property without procedural due process. Board of

Regents of State Colleges v. Roth, 408 U.S. 564,

569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

State law determines whether a public employee

has a property interest in his or her job. Bishop v.

Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48

L.Ed.2d 684 (1976); Barnett v. Housing Auth. of

Atlanta, 707 F.2d 1571, 1576 (11th Cir.1983). A

constitutionally protected property interest is created if there are “rules or mutually explicit understandings that support [a] claim of entitlement.”

Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct.

2694, 2699, 33 L.Ed.2d 570 (1972). To obtain a

protected property interest in employment, a person

must have more than a mere unilateral expectation

of continued employment; one must have a legitimate claim of entitlement to continued employment.

Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Under

Georgia law, in the absence of a controlling contract between the parties, employment for an indefinite period is terminable at will by either party.

Land v. Delta Air Lines, 130 Ga.App. 231, 203

S.E.2d 316 (1973); see alsoGa.Code Ann. § 34-7-1

(1988). Moreover, a public employee generally has

no property right in such employment. Ogletree v.

Chester, 682 F.2d 1366, 1369 (11th Cir.1982)

(citing Barnes v. Mendonsa, 110 Ga.App. 464, 138

S.E.2d 914, 915 (1964)). A public employee who

may be terminated only for cause, however, has a

protected property interest in continued employment. Barnett, 707 F.2d at 1576; Brownlee v. Williams, 233 Ga. 548, 212 S.E.2d 359, 362 (1975).

Thus, to evaluate the validity of Warren's due process claims, we must first determine whether he has

a protected property interest in his employment as

head of the DOT.

[8] Warren argues that the Personnel Handbook he

received when he was hired states that he could be

dismissed only for cause and only after a hearing.

He therefore claims that he had a protected property

interest in his position as head of the DOT. In the

alternative, Warren argues that the Personnel Handbook stated that the County Administrator could

dismiss him only when the Administrator had determined that his termination was in the best interest of the County and only after he had received

notice and a hearing. Warren also claims that the

Board usurped the Administrator's authority by dismissing him. He therefore argues that the Board violated his procedural due process rights by dismissing him without notice or a hearing.

The defendants contend that they have not dismissed Warren. Rather, they argue that his position

was eliminated as part of the reorganization of the

DOT. They claim that the Board was acting within

its authority under 1974 Ga.Laws 3680 (“the 1974

Act”) in executing the reorganization.FN4 More

importantly, the defendants argue that the Personnel

Handbook did not grant Warren a property interest

in his employment because Warren could be fired at

the County Administrator's discretion. They therefore argue that Warren has no due process rights.

FN4. The 1974 Act states in part:

Section 1. The Board of Commissioners of

Henry County shall be the governing authority of Henry County and shall be vested with the control and management of

the affairs of said county. Said Board shall

exercise all of the powers, duties and responsibilities hereinafter provided for ...

Section 16. It shall be the duty of the

Board to maintain the public roads of the

entire county. Said Board shall have the

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authority to hire a superintendent of roads

and such other persons as may be necessary for the proper working of the roads

and building of bridges and keeping the

same in repair, and to pay the same out of

county funds.

The district court observed that while the Personnel

Handbook defined dismissal as “a separation for

definable cause” it also stated that department

heads may be removed by the County Administrator “when, in his [the Administrator's]

judgment,*563 it is in the best interest of the

County.” After reading the Personnel Handbook in

its entirety, the court concluded that the Handbook

was not intended to cover Warren's position as head

of the DOT.FN5 The court therefore found that the

Personnel Manual did not grant Warren a protected

property interest in his position as department

head.FN6

FN5. Both parties agree that Mr. Warren,

as Road Superintendent, was a department

head.

FN6. Furthermore, the court noted that the

Personnel Handbook covered only those

positions over which the County Administrator had appointment authority. The court

held that while the Board had delegated

some of its appointment authority to the

Administrator, there was no indication that

the Board had renounced its own power in

this area.

As the district court noted, the Personnel Handbook

states both that a “dismissal is a separation made

for definable cause”, and that the County Administrator may dismiss “department heads when, in his

judgment, it is in the best interests of the County.”

Georgia courts have held that “a limited or specific

provision will prevail over one that is more broadly

inclusive.” Hearn v. Old Dominion Freight Lines,

172 Ga.App. 658, 324 S.E.2d 517, 518 (1984). Accordingly, we must determine whether the “best interests of the County” language grants Warren a

protected property interest in his job.

This Court has held that an ordinance which

provided that an employee “shall serve during good

behavior and efficient service, to be judged by the

commissioner or a designee” created no property

right for the employee. Edwards v. Brown, 699 F.2d

1073, 1077 (11th Cir.1983); see also Wofford v.

Glenn Brunswick Memorial Hosp., 864 F.2d 117

(11th Cir.1989) (per curiam) (holding internal personnel policies do not give an at-will employee a

property interest in a job). In Edwards, this Court

concluded that because the ordinance at issue

placed no limit on the commissioner's discretion to

determine whether an employee had fulfilled the

standards of “good behavior and efficient service”

it created no protected property interest.FN7 Thus,

Edwards supports the Board's argument that the

Personnel Handbook created no property interest

for department heads because they may be dismissed at the discretion of the Administrator. This

conclusion is further bolstered when the Personnel

Handbook is read in its entirety. See Glenn v. Newman, 614 F.2d 467, 471 (5th Cir.1980).FN8 The

Handbook makes numerous distinctions between

department heads and rank and file employees, e.g.,

department heads are given the authority to evaluate rank and file employees, to grant raises, and to

hear appeals from employees facing detrimental job

actions. These distinctions support the conclusion

that the Board intended to grant a property interest

to rank and file employees but not to department

heads when it passed the personnel ordinances

which make up the Handbook.

FN7. Mr. Warren's argument relies heavily

on Brown v. Georgia Dept. of Revenue,

881 F.2d 1018 (11th Cir.1989). Brown is

not dispositive of the instant case. In

Brown, the plaintiff claimed that the Georgia State Merit Systems Act (“the Merit

Act”) granted state employees a property

interest in their employment, notwithstanding a disclaimer stating that the Merit Act

“is not intended to create a property interest in the job.” Id. at 1024. This Court

held that the Merit Act's provision providing that state employees could only be terminated for a specified list of reasons was

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equivalent to dismissal for cause and therefore ruled that the Merit Act granted a protected property interest in employment. Id.

at 1028. In the instant case, the Personnel

Handbook placed no limit on the Administrator's discretion to determine whether

dismissal of a department head was in the

best interest of the County. There are no

guidelines, reasons, or “causes” that the

Administrator must find before determining that the dismissal of a department head

is the best interest of the County.

FN8. In Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir.1981) (en banc),

this Court adopted as binding precedent all

decisions of the former Fifth Circuit

handed down before October 1, 1981.

Warren argues that the Board's past actions with regard to the Personnel Handbook created a mutual

understanding granting him a property right in his

employment. See Perry, 408 U.S. at 602, 92 S.Ct.

at 2700 (holding that the meaning of a promisor's

words may be found from past usage). In particular,

he points to the fact *564 that two former department heads had been given written notice and a

hearing in front of the Board before termination.

The Board's past actions are not dispositive for two

reasons. First, the parties' statement of stipulated

facts states that these departments heads were being

terminated for cause not because of a reorganization. More importantly, it is generally held that a

mutual understanding cannot create a property interest contrary to state law. Batterton v. Texas Gen.

Land Office, 783 F.2d 1220, 1124 (5th Cir.), cert.

denied479 U.S. 914, 107 S.Ct. 316, 93 L.Ed.2d 289

(1986); see also Baden v. Koch, 638 F.2d 486 (2nd

Cir.1980).FN9 Batterton is particularly instructive.

In that case, the plaintiff argued that the practice of

the Texas General Land Office (“the GLO”) of giving employees notice and an opportunity to improve their performance before being dismissed

created a protected property interest in employment. Batterton, 783 F.2d at 1223. The Fifth Circuit

first determined that the Texas law governing employment in the GLO established that the employees were hired under an “at will” status. The court

then held that informal customs cannot be the

source of an employee's property interest where

state law establishes at will employment. Id. In

light of the statutory presumption of Ga.Code Ann.

§ 34-7-1 (1988) that employment for an indefinite

term is terminable at will as well as this Court's

holding in Brown, we must conclude the Personnel

Ordinance did not grant department heads a property interest in their employment. Warren conceded

at oral argument that the reorganization of the DOT

fell completely within the Board's authority.FN10

Because Warren has failed to establish that he had a

protected property interest in his job as head of

DOT, both his procedural and substantive due process claims must fail. Nolin v. Douglas County, 903

F.2d 1546, 1553 (11th Cir.1990).FN11 We therefore need not reach the district court's rulings on legislative and qualified immunity.

FN9. Mr. Warren also contends that 1982

Ga.Laws 4094 (“the 1982 Act”) vested supervisory authority over all Henry County

employees, including the decision to terminate, exclusively in the County Administrator. He therefore argues that the Board

did not have the authority to terminate

him. Mr. Warren's reading of the 1982 Act

is overbroad. This 1982 Act amended the

1974 Act which had established the Board

as the governing body of Henry County

and set forth the Board's authority. See n. 1

supra. The 1974 Act gave the Board the

specific duty to maintain the county roads

and authorized it to hire a superintendent

of roads. The 1982 Act did not restrict the

Board's authority. Rather, it merely created

an administrative office to exercise some

of the Board's administration functions.

FN10. Mr. Warren argues that if the

Board's power over personnel maintaining

roads was not repealed by the 1982 Act,

then the Personnel Handbook provides

property rights in employment for all

County employees except those working

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for the DOT. He claims that the Georgia

legislature and the Board could not have

intended this result. We have determined

that the Board intended the Personnel

Handbook to distinguish between department heads and rank and file employees.

Accordingly, the Personnel Handbook may

be read as providing a property right to all

rank and file employees in the DOT but

not to the DOT department head.

FN11. Moreover, Mr. Warren presented insufficient evidence to support a finding

that the reorganization was a sham. The efficiency of the DOT had been an important

campaign issue in the 1988 election. Furthermore, the Board implemented the reorganization fully. It consolidated all functions associated with road design, construction, and repair under a single department and placed the other DOT functions,

the landfill and the shop, in a separate department of services. Consequently, Mr.

Warren's reliance on our decision in Hearn

v. City of Gainesville, 688 F.2d 1328 (11th

Cir.1982), is misplaced. In Hearn, the

plaintiff, a personnel technician, claimed

that he was fired because of his boss' personal animosity toward him. Id. at 1333.

The city claimed the plaintiff was terminated because there was insufficient work to

occupy two personnel technicians. We

found the evidence sufficient to support a

finding that a reorganization was a sham

where the plaintiff proved that his duties

were assumed by the other personnel technician, whose overtime hours increased

substantially, and that in the next city

budget the supervisor requested funds for a

second personnel technician, the position

previously held by the plaintiff. Id. at

1334. In the instant case, the reorganization has remained in effect and related

activities have been consolidated among

separate departments.

B. The Liberty Interest Claim

[9][10] Warren argues that defendant Joyner issued

false and damaging statements*565 regarding his

management of the DOT which deprived him of a

protected liberty interest.

The district court found that the statements consisted almost entirely of fact intensive examples of

inefficiency at the DOT, e.g., comments about

broken equipment and a decrease in productivity.

The court held that Warren failed to identify specific disputes with these factual statements or to show

that they were false. The court concluded that Warren had failed to come forward with specific facts

showing that there was a genuine issue for trial.

To establish a deprivation of a liberty interest

without due process of law, a plaintiff must show:

“(1) a false statement (2) of a stigmatizing nature

(3) attending a governmental employee's discharge

(4) made public (5) by the governmental employer

(6) without a meaningful opportunity for [an] employee name clearing hearing.” Buxton v. City of

Plant City, 871 F.2d 1037, 1042-43 (11th

Cir.1989).

In his brief, Warren claims that he did not specifically challenge the truth of the defendant's statements because the defendants' motion for summary

judgment was premised on his waiver of an employee name clearing hearing. Nevertheless, Warren still fails to identify any false statements made

by the defendants. Rather, he complains that the defendants' investigation was cursory and that the defendants did not have the expertise to evaluate the

DOT. Warren is merely objecting to the defendants'

conclusion that the DOT was run inefficiently, not

to the truthfulness or accuracy of their specific

statements. Accordingly, the district court was correct in granting the defendants' summary judgment

on the liberty interest claim.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court's grant of summary judgment.

C.A.11 (Ga.),1991.

Warren v. Crawford

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END OF DOCUMENT

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Board of Regents of State Colleges v. Roth,

U.S.Wis. 1972.

Supreme Court of the United States

The BOARD OF REGENTS OF STATE COLLEGES et al., Petitioners,

v.

David F. ROTH, etc.

No. 71-162.

Argued Jan. 18, 1972.

Decided June 29, 1972.

Action by assistant professor at state university,

who had no tenure rights to continued employment

and who was informed that he would not be rehired

after first academic year, alleging that decision not

to rehire him infringed his Fourteenth Amendment

rights. The United States District Court for the

Western District of Wisconsin, 310 F.Supp. 972,

granted summary judgment for assistant professor

on procedural issue, ordering university officials to

provide him with reasons and a hearing, and appeal

was taken. The Court of Appeals, 446 F.2d 806, affirmed the partial summary judgment, and certiorari

was granted. The Supreme Court, Mr. Justice Stewart, held that where state did not make any charge

against assistant professor that might seriously

damage his standing and associations in his community and there was no suggestion that state imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities, he was not deprived of

‘liberty’ protected by the Fourteenth Amendment

when he simply was not rehired in the job but remained as free as before to seek another. The Court

further held that where terms of appointment of assistant professor secured absolutely no interest in

reemployment for the next year and there was no

state statute or university rule or policy that secured

his interest in reemployment or that created any legitimate claim to it, he did not have a property interest protected by Fourteenth Amendment that was

sufficient to require university authorities to give

him a hearing when they declined to renew his contract of employment.

Judgment of Court of Appeals reversed and case remanded.

Mr. Justice Douglas filed a dissenting opinion.

Mr. Justice Marshall filed a dissenting opinion.

For concurring opinion of Mr. Chief Justice Burger,

see 92 S.Ct. 2717.

For dissenting opinion of Mr. Justice Brennan in

which Mr. Justice Douglas joined, see 92 S.Ct.

2717.

Mr. Justice Powell took no part in decision of case.

West Headnotes

[1] Constitutional Law 92 3869

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3868 Rights, Interests, Benefits, or

Privileges Involved in General

92k3869 k. In General. Most Cited

Cases

(Formerly 92k252.5, 92k277(1), 92k255(1))

Constitutional Law 92 3879

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3878 Notice and Hearing

92k3879 k. In General. Most Cited

Cases

(Formerly 92k255(1))

Requirements of procedural due process apply only

to deprivation of interests encompassed by Fourteenth Amendment's protection of liberty and property, and when protected interests are implicated

the right to some kind of prior hearing is paramount. U.S.C.A.Const. Amend. 14.

92 S.Ct. 2701 Page 1

408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, 1 IER Cases 23

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[2] Constitutional Law 92 3869

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3868 Rights, Interests, Benefits, or

Privileges Involved in General

92k3869 k. In General. Most Cited

Cases

(Formerly 92k252.5, 92k277(1), 92k255(1))

To determine whether due process requirements apply in the first place, court must look not to the

“weight” but to the nature of the interest at stake

and must look to see if the interest is within the

Fourteenth Amendment's protection of liberty and

property. U.S.C.A.Const. Amend. 14.

[3] Constitutional Law 92 3873

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3868 Rights, Interests, Benefits, or

Privileges Involved in General

92k3873 k. Liberties and Liberty Interests. Most Cited Cases

(Formerly 92k254.1, 92k255(1))

Constitutional Law 92 3874(1)

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3868 Rights, Interests, Benefits, or

Privileges Involved in General

92k3874 Property Rights and Interests

92k3874(1) k. In General. Most

Cited Cases

(Formerly 92k277(1))

Property interests protected by procedural due process extend well beyond actual ownership of real

estate, chattels or money, and due process protection is required for deprivations of liberty beyond

the sort of formal constraints imposed by the criminal process. U.S.C.A.Const. Amend. 14.

[4] Constitutional Law 92 4040

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)1 In General

92k4040 k. Reputation; Defamation.

Most Cited Cases

(Formerly 92k251.6, 92k251)

Where a person's good name, reputation, honor or

integrity is at stake because of what the government

is doing to him, notice and an opportunity to be

heard are essential. U.S.C.A.Const. Amend. 14.

[5] Constitutional Law 92 2017

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and

Press

92XVIII(Q) Education

92XVIII(Q)2 Post-Secondary Institutions

92k2016 Employees

92k2017 k. In General. Most Cited

Cases

(Formerly 92k90(2))

Whatever may be a teacher's right of free speech,

interest in holding a teaching job at a state university, simpliciter, is not itself a free speech interest.

[6] Constitutional Law 92 4223(7)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)8 Education

92k4218 Post-Secondary Education

92k4223 Employment Relationships

92k4223(7) k. Reputational Interests, Protection and Deprivation Of. Most Cited

Cases

(Formerly 92k278.5(3), 92k255(2))

Where state in declining to rehire assistant professor at state university, who had no tenure rights to

continued employment, did not make any charge

92 S.Ct. 2701 Page 2

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against him that might seriously damage his standing and associations in his community and there

was no suggestion that state imposed on him a

stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities, he was not deprived of “liberty” protected

by the Fourteenth Amendment when he simply was

not rehired but remained as free as before to seek

another. U.S.C.A.Const. Amend. 14; W.S.A.

37.31(1).

[7] Constitutional Law 92 3874(3)

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3868 Rights, Interests, Benefits, or

Privileges Involved in General

92k3874 Property Rights and Interests

92k3874(3) k. Benefits, Rights, and

Interests In. Most Cited Cases

(Formerly 92k277(1))

Fourteenth Amendment's procedural protection of

property is a safeguard of security of interests that a

person has already acquired in specific benefits.

U.S.C.A.Const. Amend. 14.

[8] Constitutional Law 92 3874(3)

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3868 Rights, Interests, Benefits, or

Privileges Involved in General

92k3874 Property Rights and Interests

92k3874(3) k. Benefits, Rights, and

Interests In. Most Cited Cases

(Formerly 92k277(1))

Constitutional Law 92 3879

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3878 Notice and Hearing

92k3879 k. In General. Most Cited

Cases

(Formerly 92k277(1))

To have a property interest in a benefit, a person

must have more than an abstract need or desire for

it or a unilateral expectation of it, and he must have

a legitimate claim of entitlement to it, it is a purpose of ancient institution of property to protect

those claims upon which people rely in their daily

lives, reliance that must not be arbitrarily undermined, and it is a purpose of the constitutional right

to a hearing to provide an opportunity for a person

to vindicate those claims. U.S.C.A.Const. Amend.

14.

[9] Constitutional Law 92 3874(2)

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3868 Rights, Interests, Benefits, or

Privileges Involved in General

92k3874 Property Rights and Interests

92k3874(2) k. Source of Right or

Interest. Most Cited Cases

(Formerly 92k277(1))

Constitutional Law 92 3874(3)

92 Constitutional Law

92XXVII Due Process

92XXVII(B) Protections Provided and

Deprivations Prohibited in General

92k3868 Rights, Interests, Benefits, or

Privileges Involved in General

92k3874 Property Rights and Interests

92k3874(3) k. Benefits, Rights, and

Interests In. Most Cited Cases

(Formerly 92k277(1))

Property interests are not created by the Constitution; rather, they are created and their dimensions

are defined by existing rules or understandings that

stem from an independent source such as state law,

rules or understandings that secure certain benefits

and that support claims of entitlement to those benefits. U.S.C.A.Const. Amend. 14.

92 S.Ct. 2701 Page 3

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[10] Constitutional Law 92 4223(5)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)8 Education

92k4218 Post-Secondary Education

92k4223 Employment Relationships

92k4223(5) k. Tenure. Most

Cited Cases

(Formerly 92k277(2))

Where terms of appointment of assistant professor

at state university, who had no tenure rights to continued employment and who was informed that he

would not be rehired after first academic year, secured absolutely no interest in reemployment for

the next year and there was no state statute or university rule or policy that secured his interest in

reemployment or that created any legitimate claim

to it, he did not have a property interest protected

by Fourteenth Amendment that was sufficient to require university authorities to give him a hearing

when they declined to renew his contract of employment. U.S.C.A.Const. Amend. 14; W.S.A.

37.31(1).

**2702 SyllabusFN*

FN* The syllabus constitutes no part of the

opinion of the Court but has been prepared

by the Reporter of Decisions for the convenience of the reader. See United States

v. Detroit Timber & Lumber Co., 200 U.S.

321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

*564 Respondent, hired for a fixed term of one academic year to teach at a state **2703 university,

was informed without explanation that he would

not be rehired for the ensuing year. A statute

provided that all state university teachers would be

employed initially on probation and that only after

four years' continuous service would teachers

achieve permanent employment ‘during efficiency

and good behavior,’ with procedural protection

against separation. University rules gave a nontenured teacher ‘dismissed’ before the end of the year

some opportunity for review of the ‘dismissal,’ but

provided that no reason need be given for nonretention of a nontenured teacher, and no standards were

specified for reemployment. Respondent brought

this action claiming deprivation of his Fourteenth

Amendment rights, alleging infringement of (1) his

free speech right because the true reason for his

nonretention was his criticism of the university administration, and (2) his procedural due process

right because of the university's failure to advise

him of the reason for its decision. The District

Court granted summary judgment for the respondent on the procedural issue. The Court of Appeals

affirmed. Held: The Fourteenth Amendment does

not require opportunity for a hearing prior to the

nonrenewal of a nontenured state teacher's contract,

unless he can show that the nonrenewal deprived

him of an interest in ‘liberty’ or that he had a

‘property’ interest in continued employment, despite the lack of tenure or a formal contract. Here the

nonretention of respondent, absent any charges

against him or stigma or disability foreclosing other

employment, is not tantamount to a deprivation of

‘liberty,’ and the terms of respondent's employment

accorded him no ‘property’ interest protected by

procedural due process. The courts below therefore

erred in granting summary judgment for the respondent on the procedural due process issue. Pp.

2705-2710.

446 F.2d 806, reversed and remanded.

*565 Charles A. Bleck, Asst. Atty. Gen., Madison,

Wis., for petitioners.

Steven H. Steinglass, Milwaukee, Wis., for respondent.

*566 Mr. Justice STEWART delivered the opinion

of the Court.

In 1968 the respondent, David Roth, was hired for

his first teaching job as assistant professor of political science at Wisconsin State UniversityOshkosh. He was hired for a fixed term of one academic year. The notice of his faculty appointment

specified that his employment would begin on

September 1, 1968, and would end on June 30,

1969.FN1 The respondent completed that term. But

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he was informed that he would not be rehired for

the next academic year.

FN1. The respondent had no contract of

employment. Rather, his formal notice of

appointment was the equivalent of an employment contract.

The notice of his appointment provided that: ‘David

F. Roth is hereby appointed to the faculty of the

Wisconsin State University Position number 0262.

(Location:) Oshkosh as (Rank:) Assistant Professor

of (Department:) Political Science this (Date:) first

day of (Month:) September (Year:) 1968.’The notice went on to specify that the respondent's

‘appointment basis' was for the ‘academic year.’

And it provided that ‘(r)egulations governing tenure

are in accord with Chapter 37.31, Wisconsin Statutes. The employment of any staff member for an

academic year shall not be for a term beyond June

30th of the fiscal year in which the appointment is

made.’See n. 2, infra.

The respondent had no tenure rights to continued

employment. Under Wisconsin statutory law a state

university teacher can acquire tenure as a

‘permanent’ employee only after four years of yearto-year employment. Having acquired tenure, a

teacher is entitled to continued employment ‘during

efficiency and good behavior.’ A relatively new

teacher without tenure, however, is under Wisconsin law entitled to nothing**2704 beyond his oneyear appointment.FN2 There are no statutory*567

or administrative standards defining eligibility for

re-employment. State law thus clearly leaves the

decision whether to rehire a nontenured teacher for

another year to the unfettered discretion of university officials.

FN2.Wis.Stat. s 37.31(1) (1967), in force

at the time, provided in pertinent part that:

‘All teachers in any state university shall initially

be employed on probation. The employment shall

be permanent, during efficiency and good behavior

after 4 years of continuous service in the state university system as a teacher.’

The procedural protection afforded a Wisconsin

State University teacher before he is separated from

the University corresponds to his job security. As a

matter of statutory law, a tenured teacher cannot be

‘discharged except for cause upon written charges'

and pursuant to certain procedures.FN3 A nontenured teacher, similarly, is protected to some extent

during his one-year term. Rules promulgated by the

Board of Regents provide that a nontenured teacher

‘dismissed’ before the end of the year may have

some opportunity for review of the ‘dismissal.’ But

the Rules provide no real protection for a nontenured teacher who simply is not re-employed for the

next year. He must be informed by February 1

‘concerning retention or non-retention for the ensuing year.’But ‘no reason for non-retention need be

given. No review or appeal is provided in such

case.'FN4

FN3.Wis.Stat. s 37.31(1) further provided

that:

‘No teacher who has become permanently employed as herein provided shall be discharged except for cause upon written charges. Within 30 days

of receiving the written charges, such teacher may

appeal the discharge by a written notice to the president of the board of regents of state colleges. The

board shall cause the charges to be investigated,

hear the case and provide such teacher with a written statement as to their decision.’

FN4. The Rules, promulgated by the Board

of Regents in 1967, provide:

‘RULE I-February first is established throughout

the State University system as the deadline for written notification of non-tenured faculty concerning

retention or non-retention for the ensuing year. The

President of each University shall give such notice

each year on or before this date.’

‘RULE II-During the time a faculty member is on

probation, no reason for non-retention need be given. No review or appeal is provided in such case.

‘RULE III-‘Dismissal’ as opposed to

‘Non-Retention’ means termination of responsibilities during an academic year. When a non-tenure

faculty member is dismissed he has no right under

Wisconsin Statutes to a review of his case or to appeal. The President may, however, in his discretion,

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grant a request for a review within the institution,

either by a faculty committee or by the President, or

both. Any such review would be informal in nature

and would be advisory only.

‘RULE IV-When a non-tenure faculty member is

dismissed he may request a review by or hearing

before the Board of Regents. Each such request will

be considered separately and the Board will, in its

discretion, grant or deny same in each individual

case.’

*568 In conformance with these Rules, the President of Wisconsin State University-Oshkosh informed the respondent before February 1, 1969,

that he would not be rehired for the 1969-1970 academic year. He gave the respondent no reason for

the decision and no opportunity to challenge it at

any sort of hearing.

The respondent then brought this action in Federal

District Court alleging that the decision not to rehire him for the next year infringed his Fourteenth

Amendment rights. He attacked the decision both in

substance and procedure. First, he alleged that the

true reason for the decision was to punish him for

certain statements critical of the University administration, and that it therefore violated his right to

freedom of speech.FN5**2705 *569 Second, he alleged that the failure of University officials to give

him notice of any reason for nonretention and an

opportunity for a hearing violated his right to procedural due process of law.

FN5. While the respondent alleged that he

was not rehired because of his exercise of

free speech, the petitioners insisted that the

non-retention decision was based on other,

constitutionally valid grounds. The District

Court came to no conclusion whatever regarding the true reason for the University

President's decision. ‘In the present case,’

it stated, ‘it appears that a determination as

to the actual bases of (the) decision must

await amplification of the facts at trial. . . .

Summary judgment is inappropriate.’310

F.Supp. 972, 982.

The District Court granted summary judgment for

the respondent on the procedural issue, ordering the

University officials to provide him with reasons and

a hearing. 310 F.Supp. 972. The Court of Appeals,

with one judge dissenting, affirmed this partial

summary judgment. 446 F.2d 806. We granted certiorari. 404 U.S. 909, 92 S.Ct. 227, 30 L.Ed.2d 181.

The only question presented to us at this stage in

the case is whether the respondent had a constitutional right to a statement of reasons and a hearing

on the University's decision not to rehire him for

another year.FN6 We hold that he did not.

FN6. The courts that have had to decide

whether a nontenured public employee has

a right to a statement of reasons or a hearing upon nonrenewal of his contract have

come to varying conclusions. Some have

held that neither procedural safeguard is

required. E.g., Orr v. Trinter, 444 F.2d 128

(CA6);Jones v. Hopper, 410 F.2d 1323

(CA10); Freeman v. Gould Special School

District, 405 F.2d 1153 (CA8). At least one

court has held that there is a right to a

statement of reasons but not a hearing.Drown v. Portsmouth School District,

435 F.2d 1182 (CA1). And another has

held that both requirements depend on

whether the employee has an ‘expectancy’

of continued employment.Ferguson v.

Thomas, 430 F.2d 852, 856 (CA5).

I

[1] The requirements of procedural due process apply only to the deprivation of interests encompassed

by the Fourteenth Amendment's protection of

liberty and property. When protected interests are

implicated, the right *570 to some kind of prior

hearing is paramount.FN7 But the range of interests

protected by procedural due process is not infinite.

FN7. Before a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, ‘except

for extraordinary situations where some

valid governmental interest is at stake that

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justifies postponing the hearing until after

the event.’Boddie v. Connecticut, 401 U.S.

371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d

113.‘While '(m)any controversies have

raged about . . . the Due Process Clause,’ .

. . it is fundamental that except in emergency situations (and this is not one) due

process requires that when a State seeks to

terminate (a protected) interest . . ., it must

afford ‘notice and opportunity for hearing

appropriate to the nature of the case’ before the termination becomes effective.'Bell v. Burson, 402 U.S. 535, 542, 91

S.Ct. 1586, 1591, 29 L.Ed.2d 90.For the

rare and extraordinary situations in which

we have held that deprivation of a protected interest need not be preceded by opportunity for some kind of hearing, see, e.g.,

Central Union Trust Co. v. Garvan, 254

U.S. 554, 566, 41 S.Ct. 214, 215, 65 L.Ed.

403;Phillips v. Commissioner of Internal

Revenue, 283 U.S. 589, 597, 51 S.Ct. 608,

611, 75 L.Ed. 1289;Ewing v. Mytinger &

Casselberry, Inc., 339 U.S. 594, 70 S.Ct.

870, 94 L.Ed. 1088.

[2] The District Court decided that procedural due

process guarantees apply in this case by assessing

and balancing the weights of the particular interests

involved. It concluded that the respondent's interest

in re-employment at Wisconsin State UniversityOshkosh outweighed the University's interest in

denying him re-employment summarily. 310

F.Supp., at 977-979. Undeniably, the respondent's

re-employment prospects were of major concern to

him-concern that we surely cannot say was insignificant. And a weighing process has long been a part

of any determination of the form of hearing required in particular situations by procedural due

process.

FN8But, to determine whether *571 due

**2706 process requirements apply in the first

place, we must look not to the ‘weight’ but to the

nature of the interest at stake. See Morrissey v.

Brewer, 408 U.S. 471, at 481, 92 S.Ct. 2593, at

2600, 33 L.Ed.2d 484. We must look to see if the

interest is within the Fourteenth Amendment's protection of liberty and property.

FN8.‘The formality and procedural requisites for the hearing can vary, depending

upon the importance of the interests involved and the nature of the subsequent

proceedings.’Boddie v. Connecticut, supra,

401 U.S., at 378, 91 S.Ct., at 786. See,

e.g., Goldberg v. Kelly, 397 U.S. 254, 263,

90 S.Ct. 1011, 1018, 25 L.Ed.2d

287;Hannah v. Larche, 363 U.S. 420, 80

S.Ct. 1502, 4 L.Ed.2d 1307. The constitutional requirement of opportunity for some

form of hearing before deprivation of a

protected interest, of course, does not depend upon such a narrow balancing process. See n. 7, supra.

[3] ‘Liberty’ and ‘property’ are broad and majestic

terms. They are among the ‘(g)reat (constitutional)

concepts . . . purposely left to gather meaning from

experience. . . . (T)hey relate to the whole domain

of social and economic fact, and the statesmen who

founded this Nation knew too well that only a stagnant society remains unchanged.’National Mutual

Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582,

646, 69 S.Ct. 1173, 1195, 93 L.Ed. 1556

(Frankfurter, J., dissenting). For that reason, the

Court has fully and finally rejected the wooden distinction between ‘rights' and ‘privileges' that once

seemed to govern the applicability of procedural

due process rights.FN9 The Court has also made

clear that the property interests protected by *572

procedural due process extend well beyond actual

ownership of real estate, chattels, or money.FN10

By the same token, the Court has required due process protection for deprivations of liberty beyond

the sort of formal constraints imposed by the criminal process.FN11

FN9. In a leading case decided many years

ago, the Court of Appeals for the District

of Columbia Circuit held that public employment in general was a ‘privilege,’ not

a ‘right,’ and that procedural due process

guarantees therefore were inapplicable.Bailey v. Richardson, 86

U.S.App.D.C. 248, 182 F.2d 46, aff'd by

an equally divided Court, 341 U.S. 918, 71

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S.Ct. 669, 95 L.Ed. 1352. The basis of this

holding has been thoroughly undermined

in the ensuing years. For, as Mr. Justice

Blackmun wrote for the Court only last

year, ‘this Court now has rejected the

concept that constitutional rights turn upon

whether a governmental benefit is characterized as a ‘right’ or as a

‘privilege.“Graham v. Richardson, 403

U.S. 365, 374, 91 S.Ct. 1848, 1853, 29

L.Ed.2d 534. See, e.g., Morrissey v. Brewer, supra, 408 U.S., at 482, 92 S.Ct., at

2600;Bell v. Burson, supra, 402 U.S., at

539, 91 S.Ct., at 1589;Goldberg v. Kelly,

supra, 397 U.S., at 262, 90 S.Ct., at

1017;Shapiro v. Thompson, 394 U.S. 618,

627 n. 6, 89 S.Ct. 1322, 1329, 22 L.Ed.2d

600;Pickering v. Board of Education, 391

U.S. 563, 568, 88 S.Ct. 1731, 1734, 20

L.Ed.2d 811;Sherbert v. Verner, 374 U.S.

398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d

965.

FN10. See, e.g., Connell v. Higginbotham,

403 U.S. 207, 208, 91 S.Ct. 1772, 1773, 29

L.Ed.2d 418;Bell v. Burson,

supra;Goldberg v. Kelly, supra.

FN11.‘Although the Court has not assumed to define ‘liberty’ (in the Fifth

Amendment's Due Process Clause) with

any great precision, that term is not confined to mere freedom from bodily restraint.'Bolling v. Sharpe, 347 U.S. 497,

499, 74 S.Ct. 693, 694, 98 L.Ed. 884. See,

e.g., Stanley v. Illinois, 405 U.S. 645, 92

S.Ct. 1208, 31 L.Ed.2d 551.

Yet, while the Court has eschewed rigid or formalistic limitations on the protection of procedural due

process, it has at the same time observed certain

boundaries. For the words ‘liberty’ and ‘property’

in the Due Process Clause of the Fourteenth

Amendment must be given some meaning.

II

‘While this court has not attempted to define with

exactness the liberty . . . guaranteed (by the Fourteenth Amendment), the term has received much

consideration and some of the included things have

been definitely stated. Without doubt, it denotes not

merely **2707 freedom from bodily restraint but

also the right of the individual to contract, to engage in any of the common occupations of life, to

acquire useful knowledge, to marry, establish a

home and bring up children, to worship God according to the dictates of his own conscience, and

generally to enjoy those privileges long recognized

. . . as essential to the orderly pursuit of happiness

by free men.’Meyer v. Nebraska, 262 U.S. 390,

399, 43 S.Ct. 625, 626, 67 L.Ed. 1042. In a Constitution for a free people, there can be no doubt that

the meaning of ‘liberty’ must be broad indeed. See,

e.g., Bolling v. Sharpe, 347 U.S. 497, 499-500, 74

S.Ct. 693, 694, 98 L.Ed. 884;Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.

*573 There might be cases in which a State refused

to re-employ a person under such circumstances

that interests in liberty would be implicated. But

this is not such a case.

[4] The State, in declining to rehire the respondent,

did not make any charge against him that might seriously damage his standing and associations in his

community. It did not base the nonrenewal of his

contract on a charge, for example, that he had been

guilty of dishonesty, or immorality. Had it done so,

this would be a different case. For ‘(w)here a person's good name, reputation, honor, or integrity is

at stake because of what the government is doing to

him, notice and an opportunity to be heard are essential.’Wisconsin v. Constantineau, 400 U.S. 433,

437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515;Wieman v.

Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 219,

97 L.Ed. 216;Joint Anti- Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95

L.Ed. 817;United States v. Lovett, 328 U.S. 303,

316-317, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252;Peters

v. Hobby, 349 U.S. 331, 352, 75 S.Ct. 790, 801, 99

L.Ed. 1129 (Douglas, J., concurring). See Cafeteria

& Restaurant Workers v. MeElroy, 367 U.S. 886,

898, 81 S.Ct. 1743, 1750, 6 L.Ed.2d 1230. In such a

case, due process would accord an opportunity to

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refute the charge before University officials.FN12

In the present case, however, there is no suggestion

whatever that the respondent's ‘good name, reputation, honor, or integrity’ is at stake.

FN12. The purpose of such notice and

hearing is to provide the person an opportunity to clear his name. Once a person has

cleared his name at a hearing, his employer, of course, may remain free to deny him

future employment for other reasons.

Similarly, there is no suggestion that the State, in

declining to re-employ the respondent, imposed on

him a stigma or other disability that foreclosed his

freedom to take advantage of other employment opportunities. The State, for example, did not invoke

any regulations to bar the respondent from all other

public employment in state universities. Had it

done so, this, again, would *574 be a different case.

For ‘(t)o be deprived not only of present government employment but of future opportunity for it

certainly is no small injury . . ..’Joint Anti-Fascist

Refugee Committee v. McGrath, supra, 341 U.S. at

185, 71 S.Ct. at 655 (Jackson, J., concurring). See

Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60

L.Ed. 131. The Court has held, for example, that a

State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities ‘in a manner . . . that contravene(s) . . .

Due Process,’Schware v. Board of Bar Examiners,

353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d

796, and, specifically, in a manner that denies the

right to a full prior hearing.Willner v. Committee

on Character, 373 U.S. 96, 103, 83 S.Ct. 1175,

1180, 10 L.Ed.2d 224. See Cafeteria Workers v.

McElroy, supra, 367 U.S. at 898, 81 S.Ct. at 1750.

In the present case, however, this principle does not

come into play.FN13

FN13. The District Court made an assumption ‘that non-retention by one university

or college creates concrete and practical

difficulties for a professor in his subsequent academic career.’310 F.Supp., at

979. And the Court of Appeals based its

affirmance of the summary judgment

largely on the premise that ‘the substantial

adverse effect non-retention is likely to

have upon the career interests of an individual professor’ amounts to a limitation

on future employment opportunities sufficient invoke procedural due process guarantees. 446 F.2d, at 809. But even assuming, arguendo, that such a ‘substantial adverse effect’ under these circumstances

would constitute a state-imposed restriction on liberty, the record contains no support for these assumptions. There is no

suggestion of how nonretention might affect the respondent's future employment

prospects. Mere proof, for example, that

his record of nonretention in one job, taken

alone, might make him somewhat less attractive to some other employers would

hardly establish the kind of foreclosure of

opportunities amounting to a deprivation

of ‘liberty.’ Cf. Schware v. Board of Bar

Examiners, 353 U.S. 232, 77 S.Ct. 752, 1

L.Ed.2d 796.

**2708 [5] To be sure, the respondent has alleged

that the nonrenewal of his contract was based on his

exercise of his right to freedom of speech. But this

allegation is not now before us. The District Court

stayed proceedings on this issue, and the respondent has yet to prove that *575 the decision not to rehire him was, in fact, based on his free speech

activities.FN14

FN14. See n. 5, supra. The Court of Appeals, nonetheless, argued that opportunity

for a hearing and a statement of reasons

were required here ‘as a prophylactic

against non-retention decisions improperly

motivated by exercise of protected

rights.’446 F.2d, at 810 (emphasis supplied). While the Court of Appeals recognized the lack of a finding that the respondent's nonretention was based on exercise of the right of free speech, it felt that

the respondent's interest in liberty was sufficiently implicated here because the decision not to rehire him was made ‘with a

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background of controversy and unwelcome

expressions of opinion.’Ibid.

When a State would directly impinge upon interests

in free speech or free press, this Court has on occasion held that opportunity for a fair adversary hearing must precede the action, whether or not the

speech or press interest is clearly protected under

substantive First Amendment standards. Thus, we

have required fair notice and opportunity for an adversary hearing before an injunction is issued

against the holding of rallies and public meetings.Carroll v. President and Com'rs of Princess

Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325.

Similarly, we have indicated the necessity of procedural safeguards before a State makes a largescale seizure of a person's allegedly obscene books,

magazines, and so forth. A Quantity of Books v.

Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d

809;Marcus v. Search Warrant, 367 U.S. 717, 81

S.Ct. 1708, 6 L.Ed.2d 1127. See Freedman v.

Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d

649;Bantam Books v. Sullivan, 372 U.S. 58, 83

S.Ct. 631, 9 L.Ed.2d 584. See generally Monaghan,

First Amendment ‘Due Process', 83 Harv.L.Rev.

518.

In the respondent's case, however, the State has not

directly impinged upon interests in free speech or

free press in any way comparable to a seizure of

books or an injunction against meetings. Whatever

may be a teacher's rights of free speech, the interest

in holding a teaching job at a state university, simpliciter, is not itself a free speech interest.

[6] Hence, on the record before us, all that clearly

appears is that the respondent was not rehired for

one year at one university. It stretches the concept

too far to suggest that a person is deprived of

‘liberty’ when he simply is not rehired in one job

but remains as free as before to seek another.Cafeteria Workers v. McElroy, supra, 367 U.S. at

895-896, 81 S.Ct. at 1748-1749, 6 L.Ed.2d 1230.

*576 III

[7] The Fourteenth Amendment's procedural protection of property is a safeguard of the security of

interests that a person has already acquired in specific benefits. These interests-property interestsmay take many forms.

Thus, the Court has held that a person receiving

welfare benefits under statutory and administrative

standards defining eligibility for them has an interest in continued receipt of those benefits that is

safeguarded by procedural due process.Goldberg v.

Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d

287.FN15**2709 See Flemming v. Nestor, 363

U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d

1435. Similarly, in the area of public employment,

the Court has held that a public college professor

dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U.S.

551, 76 S.Ct. 637, 100 L.Ed. 692, and college professors and *577 staff members dismissed during

the terms of their contracts, Wieman v. Updegraff,

344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, have interests in continued employment that are safeguarded by due process. Only last year, the Court

held that this principle ‘proscribing summary dismissal from public employment without hearing or

inquiry required by due process' also applied to a

teacher recently hired without tenure or a formal

contract, but nonetheless with a clearly implied

promise of continued employment. Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 1773,

29 L.Ed.2d 418.

FN15.Goldsmith v. United States Board of

Tax Appeals, 270 U.S. 117, 46 S.Ct. 215,

70 L.Ed. 494, is a related case. There, the

petitioner was a lawyer who had been refused admission to practice before the

Board of Tax Appeals. The Board had

‘published rules for admission of persons

entitled to practice before it, by which attorneys at law admitted to courts of the

United States and the states, and the District of Columbia, as well as certified public accountants duly qualified under the

law of any state or the District are made

eligible. . . . The rules further provide that

the Board may in its discretion deny admission to any applicant, or suspend or

disbar any person after admission.’Id., at

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119, 46 S.Ct., at 216. The Board denied

admission to the petitioner under its discretionary power, without a prior hearing and

a statement of the reasons for the denial.

Although this Court disposed of the case

on other grounds, it stated, in an opinion

by Mr. Chief Justice Taft, that the existence of the Board's eligibility rules gave

the petitioner an interest and claim to practice before the Board to which procedural

due process requirements applied. It said

that the Board's discretionary power ‘must

be construed to mean the exercise of a discretion to be exercised after fair investigation, with such a notice, hearing and opportunity to answer for the applicant as

would constitute due process.’Id., at 123,

46 S.Ct., at 217.

[8] Certain attributes of ‘property’ interests protected by procedural due process emerge from these

decisions. To have a property interest in a benefit, a

person clearly must have more than an abstract

need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it. It is a purpose

of the ancient institution of property to protect

those claims upon which people rely in their daily

lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a

hearing to provide an opportunity for a person to

vendicate those claims.

[9] Property interests, of course, are not created by

the Constitution. Rather they are created and their

dimensions are defined by existing rules or understandings that stem from an independent source

such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in

the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that

they had a right to a hearing at which they might attempt to do so.

*578 Just as the welfare recipients' ‘property’ interest in welfare payments was created and defined

by statutory terms, so the respondent's ‘property’

interest in employment at Wisconsin State University-Oshkosh was created and defined by the

terms of his appointment. Those terms secured his

interest in employment up to June 30, 1969. But the

important fact in this case is that they specifically

provided that the respondent's employment was to

terminate on June 30. They did not provide for contract renewal absent ‘sufficient cause.’ Indeed, they

made no provision for renewal whatsoever.

**2710 [10] Thus, the terms of the respondent's appointment secured absolutely no interest in reemployment for the next year. They supported absolutely no possible claim of entitlement to reemployment. Nor, significantly, was there any state

statute or University rule or policy that secured his

interest in re-employment or that created any legitimate claim to it.FN16In these circumstances, the

respondent surely had an abstract concern in being

rehired, but he did not have a property interest sufficient to require the University authorities to give

him a hearing when they declined to renew his contract of employment.

FN16. To be sure, the respondent does

suggest that most teachers hired on a yearto-year basis by Wisconsin State University-Oshkosh are, in fact, rehired. But

the District Court has not found that there

is anything approaching a ‘common law’

of re-employment, see Perry v. Sindermann, 408 U.S. 593, at 602, 92 S.Ct. 2694,

at 2705,33 L.Ed.2d 570, so strong as to require University officials to give the respondent a statement of reasons and a

hearing on their decision not to rehire him.

IV

Our analysis of the respondent's constitutional

rights in this case in no way indicates a view that an

opportunity for a hearing or a statement of reasons

for nonretention would, or would not, be appropriate or wise in public *579 colleges and

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FN17 For it is a written Constitution that we apply.

Our role is confined to interpretation of that Constitution.

FN17. See, e.g., Report of Committee A on

Academic Freedom and Tenure, Procedural Standards in the Renewal or Nonrenewal

of Faculty Appointments, 56 AAUP Bulletin No. 1, p. 21 (Spring 1970).

We must conclude that the summary judgment for

the respondent should not have been granted, since

the respondent has not shown that he was deprived

of liberty or property protected by the Fourteenth

Amendment. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this

opinion. It is so ordered. Reversed and remanded.

Mr. Justice POWELL took no part in the decision

of this case.

Mr. Justice DOUGLAS, dissenting.

Respondent Roth, like Sindermann in the companion case, had no tenure under Wisconsin law and,

unlike Sindermann, he had had only one year of

teaching at Wisconsin State UniversityOshkosh-where during 1968-1969 he had been Assistant Professor of Political Science and International Studies. Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administration for suspending an entire

group of 94 black students without determining individual guilt. He also criticized the university's regime as being authoritarian and autocratic. He used

his classroom to discuss what was being done about

the *580 black episode; and one day, instead of

meeting his class, he went to the meeting of the

Board of Regents.

In this case, as in Sindermann, an action was started

in Federal District Court under 42 U.S.C. s

1983FN1 claiming in part that the decision of the

school authorities not to rehire was in retaliation for

his expression of opinion. The District Court, in

partially granting Roth's motion for summary judgment, held that the Fourteenth Amendment required

the university to give a hearing **2711 to teachers

whose contracts were not to be renewed and to give

reasons for its action. 310 F.Supp. 972, 983.The

Court of Appeals affirmed. 446 F.2d 806.

FN1.Section 1983 reads as follows:

‘Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress.’

Professor Will Herberg, of Drew University, in

writing of ‘academic freedom’ recently said:

‘(I)t is sometimes conceived as a basic constitutional right guaranteed and protected under the First

Amendment.

‘But, of course, this is not the case. Whereas a

man's right to speak out on this or that may be guaranteed and protected, he can have no imaginable

human or constitutional right to remain a member

of a university faculty. Clearly, the right to academic freedom is an acquired one, yet an acquired right

of such value to society that in the minds of many it

has verged upon the constitutional.’

Washington Sunday Star, Jan. 23, 1972, B-3, col. 1.

*581 There may not be a constitutional right to continued employment if private schools and colleges

are involved. But Prof. Herberg's view is not correct when public schools move against faculty

members. For the First Amendment, applicable to

the States by reason of the Fourteenth Amendment,

protects the individual against state action when it

comes to freedom of speech and of press and the related freedoms guaranteed by the First Amendment;

and the Fourteenth protects ‘liberty’ and ‘property’

as stated by the Court in Sindermann.

No more direct assault on academic freedom can be

imagined than for the school authorities to be allowed to discharge a teacher because of his or her

philosophical, political, or ideological beliefs. The

same may well be true of private schools, if through

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the device of financing or other umbilical cords

they become instrumentalities of the State. Mr.

Justice Frankfurther stated the constitutional theory

in Sweezy v. New Hampshire, 354 U.S. 234,

261-262, 77 S.Ct. 1203, 1217, 1 L.Ed.2d 1311

(concurring in result):

‘Progress in the natural sciences is not remotely

confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in

the pursuit of understanding in the groping endeavors of what are called the social sciences, the

concern of which is man and society. The problems

that are the respective preoccupations of anthropology, economics, law, psychology, sociology and

related areas of scholarship are merely departmentalized dealing, by way of manageable division of

analysis, with interpenetrating aspects of holistic

perplexities. For society's good-if understanding be

an essential need of society-inquires into these

problems, speculations about them, stimulation in

others of reflection upon them, must be left as unfettered *582 as possible. Political power must abstain from intrusion into this activity of freedom,

pursued in the interest of wise government and the

people's well-being, except for reasons that are exigent and obviously compelling.’

We repeated that warning in Keyishian v. Board of

Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17

L.Ed.2d 629:

‘Our Nation is deeply committed to safeguarding

academic freedom, which is of transcendent value

to all of us and not merely to the teachers concerned. That freedom is therefore a special concern

of the First Amendment, which does not tolerate

laws that cast a pall of orthodoxy over the

classroom.’

When a violation of First Amendment rights is alleged, the reasons for dismissal or for nonrenewal

of an employment contract must be examined to see

if the reasons given are only a cloak for activity or

attitudes protected by the Constitution. A statutory

analogy is present under the National Labor Relations Act, 29 U.S.C. s 151 et seq. While discharges

of employees for ‘cause’ are **2712 permissible

(Fibreboard Paper Products Corp. v. NLRB, 379

U.S. 203, 217, 85 S.Ct. 398, 406, 13 L.Ed.2d 233),

discharges because of an employee's union activities are banned by s 8(a)(3), 29 U.S.C. s 158(c)(3).

So the search is to ascertain whether the stated

ground was the real one or only a pretext. See J. P.

Stevens & Co. v. NLRB, 380 F.2d 292, 300 (2

Cir.).

In the case of teachers whose contracts are not renewed, tenure is not the critical issue. In the

Sweezy case, the teacher, whose First Amendment

rights we honored, had no tenure but was only a

guest lecturer. In the Keyishian case, one of the petitioners (Keyishian himself) had only a

‘one-year-term contract’ that was not renewed. 385

U.S., at 592, 87 S.Ct., at 678. In Shelton v. Tucker,

364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, one of

the petitioners was *583 a teacher whose ‘contract

for the ensuing school year was not renewed’ (id.,

at 483, 81 S.Ct., at 249) and two others who refused

to comply were advised that it made ‘impossible

their re-employment as teachers for the following

school year.’Id., at 484, 81 S.Ct., at 250. The oath

required in Keyishian and the affidavit listing memberships required in Shelton were both, in our view,

in violation of First Amendment rights. Those cases

mean that conditioning renewal of a teacher's contract upon surrender of First Amendment rights is

beyond the power of a State.

There is sometimes a conflict between a claim for

First Amendment protection and the need for orderly administration of the school ststem, as we

noted in Pickering v. Board of Education, 391 U.S.

563, 569, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811.

That is one reason why summary judgments in this

class of cases are seldom appropriate. Another reason is that careful factfinding is often necessary to

know whether the given reason for nonrenewal of a

teacher's contract is the real reason or a feigned

one.

It is said that since teaching in a public school is a

privilege, the State can grant it or withhold it on

conditions. We have, however, rejected that thesis

in numerous cases, e.g., Graham v. Richardson, 403

92 S.Ct. 2701 Page 13

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U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d

534.See Van Alstyne, The Demise of the RightPrivilege Distinction in Constitutional Law, 81

Harv.L.Rev. 1439 (1968). In Hannegan v. Esquire,

Inc., 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed.

586, we said that Congress may not by withdrawal

of mailing privileges place limitations on freedom

of speech which it could not do constitutionally if

done directly. We said in American Communications Ass'n v. Douds, 339 U.S. 382, 402, 70 S.Ct.

674, 685, 94 L.Ed. 925, that freedom of speech was

abridged when the only restraint on its exercise was

withdrawal of the privilege to invoke the facilities

of the National Labor Relations Board. In Wieman

v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed.

216, we held that an applicant could not be denied

the opportunity *584 for public employment because he had exercised his First Amendment rights.

And in Speiser v. Randall, 357 U.S. 513, 78 S.Ct.

1332, 2 L.Ed.2d 1460, we held that a denial of a tax

exemption unless one gave up his First Amendment

rights was an abridgment of Fourteenth Amendment rights.

As we held in Speiser v. Randall, supra, when a

State proposes to deny a privilege to one who it alleges has engaged in unprotected speech, Due Process requires that the State bear the burden of proving that the speech was not protected.‘(T)he

‘protection of the individual against arbitrary action’ . . . (is) the very essence of due process,'Slochower v. Board of Higher Education, 350

U.S. 551, 559, 76 S.Ct. 637, 641, 100 L.Ed. 692,

but where the State is allowed to act secretly behind

closed doors and without any notice to those who

are affected by its actions, there is no check against

the possibility of such ‘arbitrary action.’

**2713 Moreover, where ‘important interests' of

the citizen are implicated (Bell v. Burson, 402 U.S.

535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90) they

are not to be denied or taken away without due process. Ibid. Bell v. Burson involved a driver's license. But also included are disqualification for unemployment compensation (Sherbert v. Verner, 374

U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965), discharge from public employment (Slochower v.

Board of Education, supra), denial of tax exemption

(Speiser v. Randall, supra), and withdrawal of welfare benefits (Goldberg v. Kelly, 397 U.S. 254, 90

S.Ct. 1011, 25 L.Ed.2d 287). And see Wisconsin v.

Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27

L.Ed.2d 515. We should now add that nonrenewal

of a teacher's contract, whether or not he has tenure,

is an entitlement of the same importance and dignity.

Cafeteria & Restaurant Workers v. McElroy, 367

U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230, is not opposed. It held that a cook employed in a cafeteria in

a military installation was not entitled to a hearing

prior *585 to the withdrawal of her access to the facility. Her employer was prepared to employ her at

another of its restaurants, the withdrawal was not

likely to injure her reputation, and her employment

opportunities elsewhere were not impaired. The

Court held that the very limited individual interest

in this one job did not outweigh the Government's

authority over an important federal military establishment. Nonrenewal of a teacher's contract is tantamount in effect to a dismissal and the consequences may be enormous. Nonrenewal can be a

blemish that turns into a permanent scar and effectively limits any chance the teacher has of being rehired as a teacher, at least in his State.

If this nonrenewal implicated the First Amendment,

then Roth was deprived of constitutional rights because his employment was conditioned on a surrender of First Amendment rights; and, apart from

the First Amendment, he was denied due process

when he received no notice and hearing of the adverse action contemplated against him. Without a

statement of the reasons for the discharge and an

opportunity to rebut those reasons-both of which

were refused by petitioners-there is no means short

of a lawsuit to safeguard the right not to be discharged for the exercise of First Amendment guarantees.

The District Court held, 310 F.Supp., at 979-980:

‘Substantive constitutional protection for a university professor against non-retention in violation

of his First Amendment rights or arbitrary non92 S.Ct. 2701 Page 14

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retention is useless without procedural safeguards. I

hold that minimal procedural due process includes a

statement of the reasons why the university intends

not to retain the professor, notice of a hearing at

which he may respond to the stated reasons, and a

hearing if the professor appears at the appointed

*586 time and place. At such a hearing the professor must have a reasonable opportunity to submit

evidence relevant to the stated reasons. The burden

of going forward and the burden of proof rests with

the professor. Only if he makes a reasonable showing that the stated reasons are wholly inappropriate

as a basis for decision or that they are wholly

without basis in fact would the university administration become obliged to show that the stated reasons are not inappropriate or that they have a basis

in fact.’

It was that procedure that the Court of Appeals approved. 446 F.2d, at 809-810. The Court of Appeals

also concluded that though the s 1983 action was

pending in court, the court should stay its hand until

the academic procedures**2714 had been completed.FN1a As stated by the Court of Appeals in

Sindermann v. Perry, 430 F.2d 939 (CA5):

FN1a. Such a procedure would not be contrary to the well-settled rule that s 1983 actions do not require exhaustion of other

remedies. See, e.g., Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30

L.Ed.2d 419 (1971); Damico v. California,

389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d

647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10

L.Ed.2d 622 (1963); Monroe v. Pape, 365

U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492

(1961). One of the allegations in the complaint was that respondent was denied any

effective sate remedy, and the District

Court's staying its hand thus furthered

rather than thwarted the purposes of s

1983.

‘School-constituted review bodies are the most appropriate forums for initially determining issues of

this type, both for the convenience of the parties

and in order to bring academic expertise to bear in

resolving the nice issues of administrative discipline, teacher competence and school policy, which

so frequently must be balanced in reaching a proper

determination.’Id., at 944-945.

That is a permissible course for district courts to

take, though it does not relieve them of the final determination *587 whether nonrenewal of the teacher's contract was in retaliation for the exercise of

First Amendment rights or a denial of due process.

Accordingly I would affirm the judgment of the

Court of Appeals.

Mr. Justice MARSHALL, dissenting.

Respondent was hired as an assistant professor of

political science at Wisconsin State UniversityOshkosh for the 1968-1969 academic year. During

the course of that year he was told that he would

not be rehired for the next academic term, but he

was never told why. In this case, he asserts that the

Due Process Clause of the Fourteenth Amendment

to the United States Constitution entitled him to a

statement of reasons and a hearing on the University's decision not to rehire him for another

year.FN1 This claim was sustained by the District

Court, which granted respondent summary judgment, 310 F.Supp. 972, and by the Court of Appeals which affirmed the judgment of the District

Court. 446 F.2d 806. This Court today reverses the

judgment of the Court of Appeals and rejects respondent's claim. I dissent.

FN1. Respondent has also alleged that the

true reason for the decision not to rehire

him was to punish him for certain statements critical of the University. As the

Court points out, this issue is not before us

the present time.

While I agree with Part I of the Court's opinion, setting forth the proper framework for consideration of

the issue presented, and also with those portions of

Parts II and III of the Court's opinion that assert

that a public employee is entitled to procedural due

process whenever a State stigmatizes him by denying employment, or injures his future employment

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prospects severely, or whenever the State deprives

him of a property*588 interest. I would go further

than the Court does in defining the terms ‘liberty’

and ‘property.’

The prior decisions of this Court, discussed at

length in the opinion of the Court, establish a principle that is as obvious as it is compelling-i.e., federal and state governments and governmental agencies are restrained by the Constitution from acting

arbitrarily with respect employment opportunities

that they either offer or control. Hence, it is now

firmly established that whether or not a private employer is free to act capriciously or unreasonably

with respect to employment practices, at least absent statutoryFN2 or contractual FN3 controls, a

government employer is different. The government

may only act fairly and reasonably.

FN2. See, e.g., Griggs v. Duke Power Co.,

401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d

158 (1971); 42 U.S.C. s 2000e.

FN3. Cf. Note, Procedural ‘Due Process' in

Union Disciplinary Proceedings, 57 Yale

L.J. 1302 (1948).

**2715 This Court has long maintained that ‘the

right to work for a living in the common occupations of the community is of the very essence of the

personal freedom and opportunity that it was the

purpose of the (Fourteenth) Amendment to secure.’Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7,

10, 60 L.Ed. 131 (1915) (Hughes, J.). See also

Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct.

625, 626, 67 L.Ed. 1042 (1923). It has also established that the fact that an employee has no contract

guaranteeing work for a specific future period does

not mean that as the result of action by the government he may be ‘discharged at any time, for any

reason or for no reason.’Truax v. Raich, supra, 239

U.S., at 38, 36 S.Ct., at 9.

In my view, every citizen who applies for a government job is entitled to it unless the government can

establish some reason for denying the employment.

This is the ‘property’ right that I believe is protected by the Fourteenth Amendment and that cannot

be denied ‘without due process of law.’ And it is

also liberty-*589 liberty to work-which is the ‘very

essence of the personal freedom and opportunity’

secured by the Fourteenth Amendment.

This Court has often had occasion to note that the

denial of public employment is a serious blow to

any citizen. See, e.g., Joint Anti-Fascist Refugee

Committee v. McGrath, 341 U.S. 123, 185, 71 S.Ct.

624, 655, 95 L.Ed. 817 (1951) (Jackson, J., concurring); United States v. Lovett, 328 U.S. 303,

316-317, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252

(1946). Thus, when an application for public employment is denied or the contract of a government

employee is not renewed, the government must say

why, for it is only when the reasons underlying

government action are known that citizens feel secure and protected against arbitrary government action.

Employment is one of the greatest, if not the

greatest, benefits that governments offer in modernday life. When something as valuable as the opportunity to work is at stake, the government may not

reward some citizens and not others without

demonstrating that its actions are fair and equitable.

And it is procedural due process that is our fundamental guarantee of fairness, our protection against

arbitrary, capricious, and unreasonable government

action.

Mr. Justice Douglas has written that:

‘It is not without significance that most of the provisions of the Bill of Rights are procedural. It is

procedure that spells much of the difference

between rule by law and rule by whim or caprice.

Steadfast adherence to strict procedural safeguards

is our main assurance that there will be equal

justice under law.’Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S., at 179, 71

S.Ct., at 652 (concurring opinion).

And Mr. Justice Frankfurter has said that ‘(t)he history of American freedom is, in no small measure,

the *590 history of procedure.’Malinski v. New

York, 324 U.S. 401, 414, 65 S.Ct. 781, 787, 89

L.Ed. 1029 (1945) (separate opinion). With respect

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to occupations controlled by the government, one

lower court has said that ‘(t)he public has the right

to expect its officers . . . to make adjudications on

the basis of merit. The first step toward insuring

that these expectations are realized is to require adherence to the standards of due process; absolute

and uncontrolled discretion invites abuse.’Hornsby

v. Allen, 326 F.2d 605, 610 (CA5 1964).

We have often noted that procedural due process

means many different things in the numerous contexts in which it applies. See, e.g., Goldberg v.

Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287

(1970); Bell v. Burson, 402 U.S. 535, 91 S.Ct.

1586, 29 L.Ed.2d 90 (1971). Prior decisions have

held that an applicant for admission to practice as

an attorney before the United States Board of Tax

Appeals may not be rejected without a statement of

reasons**2716 and a chance for a hearing on disputed issues of fact; FN4 that a tenured teacher

could not be summarily dismissed without notice of

the reasons and a hearing; FN5 that an applicant for

admission to a state bar could not be denied the opportunity to practice law without notice of the reasons for the rejection of his application and a hearing; FN6 and even that a substitute teacher who had

been employed only two months could not be dismissed merely because she refused to take a loyalty

oath without an inquiry into the specific facts of her

case and a hearing on those in dispute.FN7 I would

follow these cases and hold that respondent was

denied due process when his contract was not renewed and he was not informed of the reasons and

given an opportunity to respond.

FN4.Goldsmith v. United States Board of

Tax Appeals, 270 U.S. 117, 46 S.Ct. 215,

70 L.Ed. 494 (1926).

FN5.Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed.

692 (1956).

FN6.Willner v. Committee on Character,

373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d

224 (1963).

FN7.Connell v. Higginbotham, 403 U.S.

207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971).

*591 It may be argued that to provide procedural

due process to all public employees or prospective

employees would place an intolerable burden on the

machinery of government. Cf. Goldberg v. Kelly,

supra.The short answer to that argument is that it is

not burdensome to give reasons when reasons exist.

Whenever an application for employment is denied,

an employee is discharged, or a decision not to rehire an employee is made, there should be some

reason for the decision. It can scarcely be argued

that government would be crippled by a requirement that the reason be communicated to the person

most directly affected by the government's action.

Where there are numerous applicants for jobs, it is

likely that few will choose to demand reasons for

not being hired. But, if the demand for reasons is

exceptionally great, summary procedures can be devised that would provide fair and adequate information to all persons. As long as the government has a

good reason for its actions it need not fear disclosure. It is only where the government acts improperly that procedural due process is truly burdensome. And that is precisely when it is most necessary.

It might also be argued that to require a hearing and

a statement of reasons is to require a useless act,

because a government bent on denying employment

to one or more persons will do so regardless of the

procedural hurdles that are placed in its path. Perhaps this is so, but a requirement of procedural regularity at least renders arbitrary action more difficult. Moreover, proper procedures will surely eliminate some of the arbitrariness that results, not from

malice, but from innocent error.‘Experience teaches

. . . that the affording of procedural safeguards,

which by their nature serve to illuminate the underlying facts, in itself often operates to prevent erroneous decisions on the merits *592 from occurring.’Silver v. New York Stock Exchange, 373 U.S.

341, 366, 83 S.Ct. 1246, 1262, 10 L.Ed.2d 389

(1963). When the government knows it may have to

justify its decisions with sound reasons, its conduct

is likely to be more cautious, careful, and correct.

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Professor Gellhorn put the argument well:

‘In my judgment, there is no basic division of interest between the citizenry on the one hand and officialdom on the other. Both should be interested

equally in the quest for procedural safeguards. I

echo the late Justice Jackson in saying: ‘Let it not

be overlooked that due process of law is not for the

sole benefit of an accused. It is the best insurance

for the Government itself against those blunders

which leave lasting stains on a system of

justice’-blunders which are **2717 likely to occur

when reasons need not be given and when the reasonableness and indeed legality of judgments need

not be subjected to any appraisal other than one's

own. . . .' Summary of Colloquy on Administrative

Law, 6 J. Soc. Pub. Teachers of Law, 70, 73 (1961).

Accordingly, I dissent.

U.S.Wis. 1972.

Board of Regents of State Colleges v. Roth

408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, 1 IER

Cases 23

END OF DOCUMENT

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Bishop v. Wood

U.S.N.C.,1976.

Supreme Court of the United States

Carl D. BISHOP, Petitioner,

v.

W. H. WOOD, etc., et al.

No. 74-1303.

Argued March 1, 1976.

Decided June 10, 1976.

Former police officer brought action against city,

city manager and chief of police contending that his

due process rights were violated when he was discharged from his job. The United States District

Court for the Western District of North Carolina,

Shelby Division, 377 F.Supp. 501, granted motion

of defendants for summary judgment, and plaintiff

appealed. The Court of Appeals for the Fourth Circuit affirmed, 498 F.2d 1341, and certiorari was

granted. The Supreme Court, Mr. Justice Stevens,

held that where district court's reading of ordinance

was a tenable construction of state law and accepted by the Court of Appeals, independent examination of state law issued by the Supreme Court was

foreclosed; that under view of state law that

“permanent” employee held his position at the will

and pleasure of city, with removal being conditioned only on compliance with certain specified

procedures, discharge of police officer without

hearing did not deprive him of a property interest

protected by the Fourteenth Amendment; and that

statements of asserted reasons for discharge did not

deprive officer of “liberty,” even if the reasons given were false, where initial statement of reasons

was communicated orally to officer in private, and

not made public, and later written statement was in

response to interrogatories after the litigation had

commenced.

Affirmed.

Mr. Justice Brennan dissented and filed opinion in

which Mr. Justice Marshall concurred.

Mr. Justice White, with whom Mr. Justice Brennan,

Mr. Justice Marshall, and Mr. Justice Blackmun

joined, filed a dissenting opinion.

Mr. Justice Blackmun, with whom Mr. Justice

Brennan joined, filed a dissenting opinion.

West Headnotes

[1] Civil Rights 78 1349

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1349 k. Employment Practices. Most

Cited Cases

(Formerly 78k206(1), 78k13.7)

City was not a “person” within meaning of civil

rights statute, section 1983, and thus was not a

proper defendant in action brought under such statute by discharged city policeman. 42 U.S.C.A. §

1983; 28 U.S.C.A. § 1343(3).

[2] Constitutional Law 92 4165(1)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4165 Rights and Interests Protected in General

92k4165(1) k. In General. Most

Cited Cases

(Formerly 92k277(2))

Federal Courts 170B 421

170B Federal Courts

170BVI State Laws as Rules of Decision

170BVI(C) Application to Particular Matters

170Bk421 k. Labor and Employment;

Workers' Compensation. Most Cited Cases

(Formerly 106k359.1(9))

96 S.Ct. 2074 Page 1

426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684

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A property interest in public employment in state,

within the protection of due process guarantee, can

be created by ordinance or by implied contract, but

in either case the sufficiency of the claim of entitlement must be decided by reference to state law.

U.S.C.A.Const. Amend. 14.

[3] Federal Courts 170B 460.1

170B Federal Courts

170BVII Supreme Court

170BVII(B) Review of Decisions of Courts

of Appeals

170Bk460 Review on Certiorari

170Bk460.1 k. In General. Most Cited

Cases

(Formerly 170Bk460, 106k383(7))

Where reading of ordinance by district judge familiar with North Carolina law and based on construction of North Carolina law was tenable and was accepted by the Court of Appeals for the Fourth Circuit, albeit by an equally divided court, independent

examination of the state law issue by the Supreme

Court was foreclosed, even though the ordinance on

its face might have been fairly read so as to arrive

at a different construction.

[4] Constitutional Law 92 4172(6)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4172 Notice and Hearing; Proceedings and Review

92k4172(6) k. Termination or

Discharge. Most Cited Cases

(Formerly 92k278.4(3), 92k277(2))

Where, under state law as reasonably construed by

district court, city ordinance providing that a

“permanent employee” could be discharged if he

failed to perform work up to the standards of his

classification or was negligent, inefficient or unfit

to perform his duties granted “permanent” employee no right to continued employment, so that he

held his position at the will and pleasure of the city,

though removal was conditioned on compliance

with certain specified procedures, discharge of city

policeman without a hearing did not deprive him of

a property interest protected by the Fourteenth

Amendment. U.S.C.A.Const. Amend. 14.

[5] Federal Courts 170B 460.1

170B Federal Courts

170BVII Supreme Court

170BVII(B) Review of Decisions of Courts

of Appeals

170Bk460 Review on Certiorari

170Bk460.1 k. In General. Most Cited

Cases

(Formerly 170Bk460, 106k383(9))

Where district court rendered summary judgment

against plaintiff, plaintiff's version of the facts had

to be accepted on appraisal of his claim by the Supreme Court. Fed.Rules Civ.Proc. rule 56(c), 28

U.S.C.A.

[6] Constitutional Law 92 4173(3)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4173 Reputational Interests,

Protection and Deprivation of

92k4173(3) k. Termination or

Discharge. Most Cited Cases

(Formerly 92k278.4(3), 92k255(2))

Discharge of public employee whose position is terminable at the will of the employer does not deprive such employee of “liberty” when there is no

public disclosure of the reasons for the discharge.

U.S.C.A.Const. Amend. 14.

[7] Constitutional Law 92 4173(4)

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92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4173 Reputational Interests,

Protection and Deprivation of

92k4173(4) k. Notice and Hearing; Proceedings and Review. Most Cited Cases

(Formerly 92k278.4(5), 92k255(2))

Where asserted reasons for city manager's decision

to discharge policeman were communicated orally

to policeman in private, and were not made public,

such statement of reasons could not form the basis

of a claim that policeman's interest in his “good

name, reputation, honor or integrity,” and thus his

interest in “liberty” under the Fourteenth Amendment, was thereby impaired, even if the reasons

given for the discharge were false. U.S.C.A.Const.

Amend. 14.

[8] Constitutional Law 92 4173(4)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4173 Reputational Interests,

Protection and Deprivation of

92k4173(4) k. Notice and Hearing; Proceedings and Review. Most Cited Cases

(Formerly 92k278.4(5), 92k255(2))

Where written statement of reasons for discharge of

city policeman were made in answer to interrogatories in the course of judicial proceeding which did

not commence until after policeman had suffered

the injuries for which he sought redress, such statement could not provide retroactive support for his

claim that he was deprived of “liberty” guaranteed

by the Fourteenth Amendment, even if the reasons

given for the discharge were false or constituted a

deliberate lie. U.S.C.A.Const. Amend. 14.

[9] Officers and Public Employees 283

72.41(1)

283 Officers and Public Employees

283I Appointment, Qualification, and Tenure

283I(H) Proceedings for Removal, Suspension, or Other Discipline

283I(H)3 Judicial Review

283k72.41 Decisions Reviewable; Forum for Review

283k72.41(1) k. In General. Most

Cited Cases

(Formerly 283k72.41, 283k72(2))

United States Constitution cannot feasibly be construed to require federal judicial review for every

error in connection with discharge of a public employee; in absence of any claim that the public employer was motivated by a desire to curtail or penalize the exercise of employee's constitutionally

protected rights, federal courts must presume that

official action was regular and, if erroneous, can be

corrected in other ways than by review of personnel

decisions in the federal court.

[10] Constitutional Law 92 4166(1)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4166 Conduct and Control;

Deprivations and Adverse Employment Actions

92k4166(1) k. In General. Most

Cited Cases

(Formerly 92k278.4(1), 92k277(2))

The due process clause of the Fourteenth Amendment is not a guarantee against incorrect or illadvised personnel decisions by public employers.

U.S.C.A.Const. Amend. 14.

**2075 *341 SyllabusFN*

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FN* The syllabus constitutes no part of the

opinion of the Court but has been prepared

by the Reporter of Decisions for the convenience of the reader. See United States

v. Detroit Timber & Lumber Co., 200 U.S.

321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

On respondent Chief of Police's recommendation,

respondent City Manager terminated**2076 petitioner's employment as a policeman without a hearing, telling him privately that the dismissal was

based on a failure to follow orders, poor attendance

at police training classes, causing low morale, and

conduct unsuited to an officer. A city ordinance

provides that a permanent city employee (as petitioner was classified) may be discharged if he fails

to perform work up to the standard of his classification, or if he is negligent, inefficient, or unfit to

perform his duties. Petitioner brought suit against

respondents, claiming that as a “permanent employee” he had a constitutional right to a pretermination

hearing; that the ordinance, even though not expressly so providing, should be read to prohibit discharge for any reason other than those specified and

therefore to confer tenure on all permanent employees; that his period of service, together with his

“permanent” classification, gave him a sufficient

expectation of continued employment to constitute

a protected property interest under the Due Process

Clause of the Fourteenth Amendment; and that the

false explanation for his discharge deprived him of

interest in liberty protected by that Clause. During

pretrial discovery petitioner was again advised of

the reasons for his dismissal. The District Court

granted respondents' motion for a summary judgment, holding, on the basis of its understanding of

state law, that petitioner “held his position at the

will and pleasure of the city.”The Court of Appeals

affirmed. Held:

1. Under the District Court's tenable view of state

law, which was upheld by the Court of Appeals and

which will be accepted by this Court in the absence

of any authoritative state-court interpretation of the

ordinance involved, petitioner's discharge did not

deprive him of a property interest protected by the

Due Process Clause of the Fourteenth Amendment.

Pp. 2077-2079.

2. Assuming that the explanation for petitioner's

discharge was false, as this Court must do since

summary judgment was entered against him, such

false explanation did not deprive him of an interest

in liberty protected by that Clause. Pp. 2079-2080.

*342 (a) Since the City Manager's private oral communication to petitioner of the reasons for his discharge was never made public, it cannot properly

form the basis for a claim that petitioner's interest

in his “good name, reputation, honor, or integrity”

was thereby impaired. Nor can the communication

of such reasons during pretrial discovery provide

retroactive support for such claim, since it was

made in the course of a judicial proceeding that did

not commence until after petitioner had suffered his

alleged injury. Pp. 2079-2080.

(b) The truth or falsity of the city manager's explanation determines whether or not his decision to discharge petitioner was correct or prudent, but neither

enhances nor diminishes petitioner's claim that his

constitutionally protected interest in liberty was impaired. P. 2080.

Affirmed. See 498 F.2d 1341.

Norman B. Smith, Greensboro, N. C., for petitioner.

Charles E. Burgin, Marion, N. C., for respondents.

Mr. Justice STEVENS delivered the opinion of the

Court.

[1] Acting on the recommendation of the Chief of

Police, the City Manager of Marion, N. C., terminated petitioner's employment as a policeman

without affording him a hearing to determine the

sufficiency of the cause for his discharge. Petitioner

brought suit contending *343 that since a city ordinance classified him as a “permanent employee,”

he had a constitutional right to a pretermination

hearing.FN1During pretrial **2077 discovery petitioner was advised that his dismissal was based on a

failure to follow certain orders, poor attendance at

police training classes, causing low morale, and

conduct unsuited to an officer. Petitioner and several other police officers filed affidavits essentially

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denying the truth of these charges. The District

Court granted defendants' motion for summary

judgment.FN2The Court of Appeals affirmed,FN3

and we granted certiorari, 423 U.S. 890, 96 S.Ct.

185, 46 L.Ed.2d 121.

FN1. He relied on 42 U.S.C. s 1983, invoking federal jurisdiction under 28 U.S.C.

s 1343(3). He sought reinstatement and

back-pay. The defendants were the then

City Manager, Chief of Police, and the city

of Marion. Since the city is not a “person”

within the meaning of the statute, it was

not a proper defendant. Monroe v. Pape,

365 U.S. 167, 187-192, 81 S.Ct. 473, 484,

5 L.Ed.2d 492.

FN2.377 F.Supp. 501 (WDNC 1973).

FN3. A three-judge panel of the Court of

Appeals affirmed, with one judge dissenting, 498 F.2d 1341 (CA4 1974); then, after

granting a rehearing en banc, the court affirmed without opinion by an equally divided court.

The questions for us to decide are (1) whether petitioner's employment status was a property interest

protected by the Due Process Clause of the Fourteenth Amendment,FN4 and (2) assuming that the

explanation for his discharge was false, whether

that false explanation deprived him of an interest in

liberty protected by that Clause.

FN4.“(N)or shall any State deprive any

person of life, liberty, or property, without

due process of law . . . .” U.S.Const. Amdt.

14.

I

Petitioner was employed by the city of Marion as a

probationary policeman on June 9, 1969. After six

months he became a permanent employee. He was

dismissed on March 31, 1972. He claims that he

had either an express or an implied right to continued employment.

*344 A city ordinance provides that a permanent

employee may be discharged if he fails to perform

work up to the standard of his classification, or if

he is negligent, inefficient, or unfit to perform his

duties.FN5Petitioner first contends that even

though the ordinance does not expressly so provide,

it should be read to prohibit discharge for any other

reason, and therefore to confer tenure on all permanent employees. In addition, he contends that his

period of service, together with his “permanent”

classification, gave him a sufficient expectancy of

continued employment to constitute a protected

property interest.

FN5. Article II, s 6, of the Personnel Ordinance of the city of Marion, reads as follows:

“Dismissal. A permanent employee whose work is

not satisfactory over a period of time shall be notified in what way his work is deficient and what he

must do if his work is to be satisfactory. If a permanent employee fails to perform work up to the

standard of the classification held, or continues to

be negligent, inefficient, or unfit to perform his duties, he may be dismissed by the City Manager.

Any discharged employee shall be given written

notice of his discharge setting forth the effective

date and reasons for his discharge if he shall request such a notice.”

[2] A property interest in employment can, of

course, be created by ordinance, or by an implied

contract.FN6In either case, however, the sufficiency of the claim of entitlement must be decided

by reference to state law.FN7 *345 The North Carolina Supreme Court has held that an enforceable

expectation of continued public employment in that

State can exist only if the employer, by statute or

contract, has actually granted some form of guarantee. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403

(1971). Whether such a guarantee has been given

can be determined only by an examination of the

particular statute or ordinance in question.

FN6. In Perry v. Sindermann, 408 U.S.

593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d

570, 579, the Court said that a “person's in96 S.Ct. 2074 Page 5

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terest in a benefit is a ‘property’ interest

for due process purposes if there are . . .

rules or mutually explicit understandings

that support his claim of entitlement to the

benefit and that he may invoke at a hearing.”

FN7.“Property interests, of course, are not

created by the Constitution. Rather, they

are created and their dimensions are

defined by existing rules or understandings

that stem from an independent source such

as state law rules or understandings that secure certain benefits and that support

claims of entitlement to those benefits.”Board of Regents v. Roth, 408 U.S.

564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d

548.

**2078 [3] On its face the ordinance on which petitioner relies may fairly be read as conferring such a

guarantee. However, such a reading is not the only

possible interpretation; the ordinance may also be

construed as granting no right to continued employment but merely conditioning an employee's removal on compliance with certain specified

procedures.FN8We do not have any authoritative

interpretation of this ordinance by a North Carolina

state court. We do, however, have the opinion of

the United States District Judge who, of course, sits

in North Carolina and practiced law there for many

years. Based on his understanding of state law, he

concluded that petitioner “held his position at the

will and pleasure of the city.”FN9This construction

of North *346 Carolina law was upheld by the

Court of Appeals for the Fourth Circuit, albeit by

an equally divided court. In comparable circumstances, this Court has accepted the interpretation

of state law in which the District Court and the

Court of Appeals have concurred even if an examination of the state-law issue without such guidance

might have justified a different conclusion.FN10

FN8. This is not the construction which six

Members of this Court placed on the federal regulations involved in Arnett v.

Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40

L.Ed.2d 15.In that case the Court concluded that because the employee could

only be discharged for cause, he had a

property interest which was entitled to

constitutional protection. In this case, a

holding that as a matter of state law the

employee “held his position at the will and

pleasure of the city” necessarily establishes

that he had No property interest. The

Court's evaluation of the federal regulations involved in Arnett sheds no light on

the problem presented by this case.

FN9.“Under the law in North Carolina,

nothing else appearing, a contract of employment which contains no provision for

the duration or termination of employment

is terminable at the will of either party irrespective of the quality of performance by

the other party. By statute, G.S. s

115-142(b), a county board of education in

North Carolina may terminate the employment of a teacher at the end of the school

year without filing charges or giving its

reasons for such termination, or granting

the teacher an opportunity to be heard. Still

v. Lance, 279 N.C. 254, 182 S.E.2d 403

(1971).

“It is clear from Article II, Section 6, of the City's

Personnel Ordinance, that the dismissal of an employee does not require a notice or a hearing. Upon

request of the discharged employee, he shall be given written notice of his discharge setting forth the

effective date and the reasons for the discharge. It

thus appears that both the city ordinance and the

state law have been complied with.

“It further appears that the plaintiff held his position at the will and pleasure of the city.”377

F.Supp., at 504.

FN10. See United States v. Durham Lumber Co., 363 U.S. 522, 80 S.Ct. 1282, 4

L.Ed.2d 1371.In Propper v. Clark, 337

U.S. 472, 486-487, 69 S.Ct. 1333,

1341-1342, 93 L.Ed. 1480, the Court

stated: “The precise issue of state law involved, I. e., whether the temporary receiv96 S.Ct. 2074 Page 6

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er under s 977-b of the New York Civil

Practice Act is vested with title by virtue

of his appointment, is one which has not

been decided by the New York courts.

Both the District Court and the Court of

Appeals faced this question and answered

it in the negative. In dealing with issues of

state law that enter into judgments of federal courts, we are hesitant to overrule decisions by federal courts skilled in the law

of particular states unless their conclusions

are shown to be unreasonable.”In Township of Hillsborough v. Cromwell, 326

U.S. 620, 629-630, 66 S.Ct. 445, 451, 90

L.Ed. 358, the Court stated: “Petitioner

makes an extended argument to the effect

that Duke Power Co. (V. State Board, 129

N.J.L. 449, 30 A.2d 416; 131 N.J.L. 275,

36 A.2d 201,) is not a controlling precedent on the local law question on which the

decision below turned. On such questions

we pay great deference to the views of the

judges of those courts ‘who are familiar

with the intricacies and trends of local law

and practice.’Huddleston v. Dwyer, 322

U.S. 232, 237, 64 S.Ct. 1015, 1018, 88

L.Ed. 1246.We are unable to say that the

District Court and the Circuit Court of Appeals erred in applying to this case the rule

of Duke Power Co. v. State Board, which

involved closely analogous facts.”And in

MacGregor v. State Mut. Life Assur. Co.,

315 U.S. 280, 281, 62 S.Ct. 607, 86 L.Ed.

846, the Court stated: “No decision of the

Supreme Court of Michigan, or of any other court of that State, construing the relevant Michigan law has been brought to our

attention. In the absence of such guidance,

we shall leave undisturbed the interpretation placed upon purely local law by a

Michigan federal judge of long experience

and by three circuit judges whose circuit

includes Michigan.”

*347 In this case, as the District Court construed

the ordinance, the City Manager's determination of

the adequacy of the grounds for discharge is not

subject to judicial**2079 review; the employee is

merely given certain procedural rights which the

District Court found not to have been violated in

this case. The District Court's reading of the ordinance is tenable; it derives some support from a decision of the North Carolina Supreme Court, Still v.

Lance, supra ; and it was accepted by the Court of

Appeals for the Fourth Circuit. These reasons are

sufficient to foreclose our independent examination

of the state-law issue.

[4] Under that view of the law, petitioner's discharge did not deprive him of a property interest

protected by the Fourteenth Amendment.

II

Petitioner's claim that he has been deprived of

liberty has two components. He contends that the

reasons given for his discharge are so serious as to

constitute a stigma that may severely damage his

reputation in the community; in addition, he claims

that those reasons were false.

[5] In our appraisal of petitioner's claim we must

accept his version of the facts since the District

Court granted summary judgment against

him.FN11 His evidence established*348 that he

was a competent police officer; that he was respected by his peers; that he made more arrests than any

other officer on the force; that although he had been

criticized for engaging in high-speed pursuits, he

had promptly heeded such criticism; and that he

had a reasonable explanation for his imperfect attendance at police training sessions. We must therefore assume that his discharge was a mistake and

based on incorrect information.

FN11. In granting summary judgment for

respondents, the District Court was required to resolve all genuine disputes as to

material facts in favor of petitioner.

Fed.Rule Civ.Proc. 56(c); Arnett v.

Kennedy, supra, 416 U.S. at 139-140, 94

S.Ct. at 1637, 40 L.Ed.2d 15.

[6] In Board of Regents v. Roth, 408 U.S. 564, 92

S.Ct. 2701, 33 L.Ed.2d 548, we recognized that the

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nonretention of an untenured college teacher might

make him somewhat less attractive to other employers, but nevertheless concluded that it would

stretch the concept to far “to suggest that a person

is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to

seek another.”Id., at 575, 92 S.Ct. at 2708.This

same conclusion applies to the discharge of a public

employee whose position is terminable at the will

of the employer when there is no public disclosure

of the reasons for the discharge.

[7][8] In this case the asserted reasons for the City

Manager's decision were communicated orally to

the petitioner in private and also were stated in

writing in answer to interrogatories after this litigation commenced. Since the former communication

was not made public, it cannot properly form the

basis for a claim that petitioner's interest in his

“good name, reputation, honor, or integrity”FN12

was thereby impaired. And since the latter communication was made in the course of a judicial proceeding which did not commence until after petitioner had suffered the injury for which he seeks redress, it surely cannot provide retroactive support

for his claim. A contrary*349 evaluation of either

explanation would penalize forthright and truthful

communication between employer and employee in

the former instance, and between litigants in the latter.

FN12. See Wisconsin v. Constantineau,

400 U.S. 433, 437, 91 S.Ct. 507, 510, 27

L.Ed.2d 515, and the discussion of the interest in reputation allied to employment in

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155,

47 L.Ed.2d 405.

Petitioner argues, however, that the reasons given

for his discharge were false. Even so, the reasons

stated to him in private had no different impact on

his reputation than if they had been true. And the

answers to his interrogatories, whether true or false,

did not cause the discharge. The truth or falsity of

the City Manager's statement determines whether or

not his decision to discharge the petitioner was correct or prudent, but neither enhances nor

**2080 petitioner's claim that his constitutionally

protected interest in liberty has been

impaired.FN13A contrary evaluation of his contention would enable every discharged employee to assert a constitutional claim merely by alleging that

his former supervisor made a mistake.

FN13. Indeed, the impact on petitioner's

constitutionally protected interest in liberty

is no greater even if we assume that the

City Manager deliberately lied. Such fact

might conceivably provide the basis for a

state-law claim, the validity of which

would be entirely unaffected by our analysis of the federal constitutional question.

[9][10] The federal court is not the appropriate forum in which to review the multitude of personnel

decisions that are made daily by public

agencies.FN14We must accept the *350 harsh fact

that numerous individual mistakes are inevitable in

the day-to-day administration of our affairs. The

United States Constitution cannot feasibly be construed to require federal judicial review for every

such error. In the absence of any claim that the public employer was motivated by a desire to curtail or

to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action was regular and, if erroneous, can best

be corrected in other ways. The Due Process Clause

of the Fourteenth Amendment is not a guarantee

against incorrect or ill-advised personnel decisions.

FN14. The cumulative impression created

by the three dissenting opinions is that this

holding represents a significant retreat

from settled practice in the federal courts.

The fact of the matter, however, is that the

instances in which the federal judiciary has

required a state agency to reinstate a discharged employee for failure to provide a

pretermination hearing are extremely rare.

The reason is clear. For unless we were to

adopt Mr. Justice BRENNAN's remarkably

innovative suggestion that we develop a

federal common law of property rights, or

his equally far-reaching view that almost

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every discharge implicates a constitutionally protected liberty interest, the ultimate

control of state personnel relationships is,

and will remain, with the States; they may

grant or withhold tenure at their unfettered

discretion. In this case, whether we accept

or reject the construction of the ordinance

adopted by the two lower courts, the power

to change or clarify that ordinance will remain in the hands of the City Council of

the city of Marion.

The judgment is affirmed.

So ordered.

Mr. Justice BRENNAN, with whom Mr. Justice

MARSHALL concurs, dissenting.

Petitioner was discharged as a policeman on the

grounds of insubordination, “causing low morale,”

and “conduct unsuited to an officer.” Ante, at 2077.

It is difficult to imagine a greater “badge of infamy” that could be imposed on one following petitioner's calling; in a provision in which prospective

employees are invariably investigated, petitioner's

job prospects will be severely constricted by the

governmental action in this case. Although our case

law would appear to require that petitioner thus be

accorded an opportunity “to clear his name” of this

calumny, see, E. g., Board of Regents v. Roth, 408

U.S. 564, 573, and n. 12, 92 S.Ct. 2701, 2707, 33

L.Ed.2d 548 (1972); Arnett v. Kennedy, 416 U.S.

134, 157, 94 S.Ct. 1633, 1645, 40 L.Ed.2d 15

(1974) (opinion *351 of Rehnquist, J.), the Court

condones this governmental action and holds that

petitioner was deprived of no liberty interest

thereby.

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47

L.Ed.2d 405 (1976), a decision overtly hostile to

the basic constitutional safeguards of the Due Process Clauses of the Fifth and Fourteenth Amendments that I had hoped would be a “short-lived aberration,” Id., at 735, 96 S.Ct., at 1177 (Brennan, J.,

dissenting), held that the “interest in reputation asserted in (Paul) is neither ”liberty' nor ‘property’

guaranteed against state deprivation without due

process of law.“Id., at 712, 96 S.Ct., at

1166.Accordingly, it found inapplicable the rule

that ”(w)here a person's good name, reputation,

honor, or integrity is at stake because of what the

government is doing to him, notice and an opportunity to be heard are essential.“Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27

L.Ed.2d 515 (1971), and cases cited therein. In so

holding, the Court eviscerated the substance**2081

of a long line of prior cases, see, E. g., Anti-Fascist

Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95

L.Ed. 817 (1951); Cafeteria Workers v. McElroy,

367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230

(1961); Board of Regents v. Roth, supra, by confining their protection of ”liberty“ to situations in

which the State inflicts damage to a government

employee's ”good name, reputation, honor, or integrity“ in the process of terminating his employment.

See Paul v. Davis, supra, 424 U.S., at 708, 96 S.Ct.,

at 1164.Compare Id., at 709-710, 96 S.Ct., at

1164-1165, with Id., at 732-733, 96 S.Ct., at 1176

(Brennan, J., dissenting).FN1 Today the Court effectively destroys even that last vestige of protection for ”liberty“ by holding that a State may tell an

employee that he is being fired for some nonderogatory reason, and then turn around and inform prospective employers that the employee*352 was in

fact discharged for a stigmatizing reason that will

effectively preclude future employment.

FN1. The Court in Paul also ignored the

clear import of Goss v. Lopez, 419 U.S.

565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975);

Wisconsin v. Constantineau, 400 U.S. 433

(1971); and Jenkins v. McKeithen, 395

U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404

(1969). See Paul v. Davis, 424 U.S., at

729-733, 96 S.Ct., at 1174-1176 (Brennan,

J., dissenting).

The Court purports to limit its holding to situations

in which there is “no public disclosure of the reasons for the discharge,”Ante, at 2079, but in this

case the stigmatizing reasons have been disclosed,

and there is no reason to believe that respondents

will not convey these actual reasons to petitioner's

prospective employers.FN2The Court responds by

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asserting that since the stigma was imposed “after

petitioner had suffered the injury for which he

seeks redress, it surely cannot provide retroactive

support for his claim.”Ibid. But the “claim” does

not arise until the State has officially branded petitioner in some way, and the purpose of the due process hearing is to accord him an opportunity to

clear his name; merely because the derogatory information is filed in respondents' records and no

“publication” occurs until shortly after his discharge from employment does not subvert the fact

that a post-deprivation hearing to accord petitioner

an opportunity to clear his name has been contemplated by our cases.FN3 *353 Even under Paul v.

Davis, respondents should be required to accord petitioner a due process hearing in which he can attempt to vindicate his name; this further expansion

of those personal interests that the Court simply

writes out of the “life, liberty, or property” Clauses

of the Fifth and Fourteenth Amendments is simply

another curtailment of precious constitutional safeguards that marks too many recent decisions of the

Court.

FN2. It is only common sense, to be sure,

that prospective employers will inquire as

to petitioner's employment during the 33

months in which he was in respondents'

service.

FN3. The Court asserts that to provide petitioner with a post-deprivation hearing

when the stigmatizing reasons become

known during litigation “would penalize

forthright and truthful communication . . .

between litigants.”Ante, at 2080. Of

course, there are various sanctions under

our judicial system to ensure that testimony is “forthright and truthful” without

necessitating denial of petitioner's due process rights. And I suppose the Court would

declare that according a discharged employee a postdeprivation hearing as soon as

it is clear his former employer is stigmatizing his name when it communicates with

prospective employers would similarly discourage “forthright and truthful” communication between employers in that situation. However, the purpose of the due

process hearing is to provide petitioner a

mechanism for clearing his name of a

cloud that is not in fact “truthful.”

I also fully concur in the dissenting opinions of Mr.

Justice WHITE and Mr. Justice BLACKMUN,

which forcefully demonstrate the Court's error in

holding that petitioner was not deprived of

“property” without due process of law. I would

only add that the strained reading of the local ordinance, which the Court deems to be “tenable,” Ante,

at 2079, cannot be dispositive of the existence Vel

non of petitioner's “property” interest. There is certainly a federal dimension to the definition of

“property” in the Federal Constitution; cases such

as Board of Regents v. Roth, supra, held

merely**2082 that “property” interests encompass

those to which a person has “a legitimate claim of

entitlement,” 408 U.S., at 577, 92 S.Ct., at 2709,

and Can arise from “existing rules or understandings” that derive from “an independent source Such

as state law.”Ibid. (emphasis supplied). But certainly, at least before a state law is definitively construed as not securing a “property” interest, the relevant inquiry is whether it was objectively reasonable for the employee to believe he could rely on

continued employment. Cf. Ibid.(“It is a purpose of

the ancient institution of property to protect those

claims upon which people rely in their daily lives,

reliance that must not be arbitrarily

undermined.”FN4) At a minimum, this would require in this *354 case an analysis of the common

practices utilized and the expectations generated by

respondents, and the manner in which the local ordinance would reasonably be read by respondents'

employees.FN5These disputed issues of fact are not

meet for resolution, as they were on summary judgment, and would thus at a minimum require a remand for further factual development in the District

Court.

FN4. By holding that States have

“unfettered discretion” in defining

“property” for purposes of the Due Process

Clause of the Federal Constitution, see

96 S.Ct. 2074 Page 10

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Ante, at 2080, n. 14, the Court is, as my

Brother WHITE argues, effectively adopting the analysis rejected by a majority of

the Court in Arnett v. Kennedy, 416 U.S.

134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

More basically, the Court's approach is a

resurrection of the discredited rights/

privileges distinction, for a State may now

avoid all due process safeguards attendant

upon the loss of even the necessities of

life, cf. Goldberg v. Kelly, 397 U.S. 254,

90 S.Ct. 1011, 25 L.Ed.2d 287 (1970),

merely by labelling them as not constituting “property.” See also, E. g. Bell v.

Burson, 402 U.S. 535, 91 S.Ct. 1586, 29

L.Ed.2d 90 (1971); Fuentes v. Shevin, 407

U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556

(1972); Morrissey v. Brewer, 408 U.S.

471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

FN5. For example, petitioner was hired for

a “probationary” period of six months,

after which he became a “permanent” employee. No reason appears on the record

for this distinction, other than the logical

assumption, confirmed by a reasonable

reading of the local ordinance, that after

completion of the former period, an employee may only be discharged for

“cause.” As to respondents' personnel

practices, it is important to note that in a

department which currently employs 17

persons, petitioner's was the only discharge, for cause or otherwise, during the

period of over three years from the time of

his hiring until the time of pretrial discovery.

These observations do not, of course, suggest that a

“federal court is . . . the appropriate forum in which

to review the multitude of personnel decisions that

are made daily by public agencies.”Ante, at 2080.

However, the federal courts Are the appropriate

forum for ensuring that the constitutional mandates

of due process are followed by those agencies of

government making personnel decisions that pervasively influence the lives of those affected

thereby; the fundamental premise of the Due Process Clause is that those procedural safeguards will

help the government avoid the “harsh fact” of

“incorrect or ill-advised personnel decisions.” Ante,

at 2080. *355 Petitioner seeks no more than that,

and I believe that his “property” interest in continued employment and his “liberty” interest in his

good name and reputation dictate that he be accorded procedural safeguards before those interests are

deprived by arbitrary or capricious government action.

Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice

BLACKMUN join, dissenting.

I dissent because the decision of the majority rests

upon a proposition which was squarely addressed

and in my view correctly rejected by six Members

of this Court in Arnett v. Kennedy, 416 U.S. 134,

94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

Petitioner Bishop was a permanent employee of the

Police Department of the city of Marion, N. C. The

city ordinance applicable to him provides:

“Dismissal. A permanent employee whose work is

not satisfactory over a period of time shall be notified in what way his work is deficient and what he

must do if his work is to be satisfactory. **2083 If

a permanent employee fails to perform work up to

the standard of the classification held, or continues

to be negligent, inefficient, or unfit to perform his

duties, he may be dismissed by the City Manager.

Any discharged employee shall be given written

notice of his discharge setting forth the effective

date and reasons for his discharge if he shall request such a notice.”(Emphasis added.)

The second sentence of this ordinance plainly conditions petitioner's dismissal on cause I. e., failure

to perform up to standard, negligence, inefficiency,

or unfitness to perform the job. The District Court

below did not otherwise construe this portion of the

ordinance. In the only part of its opinion rejecting

petitioner's claim that the ordinance gave him a

property interest in his job, *356 the District Court

said, in an opinion predating this Court's decision in

Arnett v. Kennedy, supra :“It is clear from Article

96 S.Ct. 2074 Page 11

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II, Section 6, of the City's Personnel Ordinance,

that the dismissal of an employee does not require a

notice or a hearing. Upon request of the discharged

employee, he shall be given written notice of his

discharge setting forth the effective date and the

reasons for the discharge. It thus appears that both

the city ordinance and the state law have been complied with.”377 F.Supp. 501, 504 (WDNC 1973).

Thus in concluding that petitioner had no “property

interest” in his job entitling him to a hearing on discharge and that he held his position “at the will and

pleasure of the city,”ibid., the District Court relied

on the fact that the ordinance described its own

Procedures for determining cause, which procedures did not include a hearing. The majority purports, Ante, at 2078, and n. 8, to read the District

Court's opinion as construing the ordinance Not to

condition dismissal on cause, and, if this is what the

majority means, its reading of the District Court's

opinion is clearly erroneous for the reasons just

stated.FN1However, later in its opinion the majority appearsto *357 eschew this construction of the

District Court's opinion and of the ordinance. In the

concluding paragraph of its discussion of petitioner's property interest, the majority holds that since

neither the ordinance nor state law provides for a

hearing, or any kind of review of the City Manager's dismissal decision, petitioner had no enforceable property interest in his job. The majority concludes:

FN1. The Court accepts the District Court's

conclusion that the city employee holds his

position at the will and pleasure of the city.

If the Court believes that the District

Court's conclusion did not rest on the procedural limitations in the ordinance, then

the Court must construe the District

Court's opinion and the ordinance as permitting, but not limiting, discharges to

those based on the causes specified in the

ordinance. In this view, discharges for other reasons or for no reason at all could be

made. Termination of employment would

in effect be within the complete discretion

of the city; and for this reason the employee would have no property interest in his

employment which would call for the protections of the Due Process Clause. As indicated in the text, I think this construction

of the ordinance and of the District Court's

opinion is in error.

“In this case, as the District Court construed the ordinance, the City Manager's Determination of the

adequacy of the grounds for discharge is not subject

to judicial review; the employee is merely given

certain procedural rights which the District Court

found not to have been violated in this case. The

District Court's reading of the ordinance is tenable .

. . .”Ante, at 2079. (Emphasis added.)

The majority thus implicitly concedes that the ordinance supplies the “grounds” for discharge and

that the City Manager must determine them to be

“adequate” before he may fire an employee. The

majority's holding that petitioner had no property

interest in his job in spite of the unequivocal language in the city ordinance that he may be dismissed only for certain kinds of cause rests, then,

on the fact that state law provides no Procedures for

assuring that the City Manager dismiss him only for

cause. The right to his job apparently given by the

first two sentences of the ordinance is thus **2084

redefined, according to the majority, by the procedures provided for in the third sentence and as redefined is infringed only if the procedures are not

followed.

This is precisely the reasoning which was embraced

by only three and expressly rejected by six Members of this Court in Arnett v. Kennedy,

Supra.There a federal employee had “a statutory

expectancy that he not be removed other than for

‘such cause as will promote *358 the efficiency of

(the) service.’”416 U.S., at 151-152, 94 S.Ct., at

1643 (opinion of Rehnquist, J., joined by Burger,.

J., and Stewart, J.). The three Justices whose views

were rejected by a majority of the Court went on to

say:

“But the very section of the statute which granted

him that right . . . expressly provided also for the

procedure by which ‘cause’ was to be determined,

and expressly omitted the procedural guarantees

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which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the

Act of Congress which conferred upon appellee the

right not to be removed save for cause could it be

said that he had an expectancy of that substantive

right without the procedural limitations which Congress attached to it. . . .”Id., at 152, 94 S.Ct. at

1643.

The three Justices went on:

“Here the property interest which appellee had in

his employment was itself conditioned by the procedural limitations which had accompanied the

grant of that interest. . . .”Id., at 155, 94 S.Ct. at

1645.

Accordingly they concluded that the Constitution

imposed no independent procedural requirements.

This view was rejected by Mr. Justice Powell in an

opinion joined by Mr. Justice Blackmun.

“The plurality opinion evidently reasons that the

nature of appellee's interest in continued federal

employment is necessarily defined and limited by

the statutory procedures for discharge and that the

constitutional guarantee of procedural due process

accords to appellee no procedural protections

against arbitrary or erroneous discharge other than

those expressly provided in the statute. The plurality would thus conclude that the statute governing

federal employment determines not only the nature

of appellee's property interest, but also the extent of

*359 the procedural protections to which he may

lay claim. It seems to me that this approach is incompatible with the principles laid down in Roth

and Sindermann.Indeed, it would lead directly to

the conclusion that whatever the nature of an individual's statutorily created property interest,

deprivation of that interest could be accomplished

without notice or a hearing at any time. This view

misconceives the origin of the right to procedural

due process. That right is conferred, not by legislative grace, but by constitutional guarantee. While

the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. . . .”Id., at 166-167,94 S.Ct. at

1650.(Emphasis added.)

I, too, disagreed with the view stated in Mr. Justice

Rehnquist's opinion:“I differ basically with the

plurality's view that ‘where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed

in determining that right, a litigant in the position

of appellee must take the bitter with the sweet,’ and

that ‘the property interest which appellee had in his

employment was itself conditioned by the procedural limitations which had accompanied the grant of

that interest.’Ante, at 1644, 1645.The rationale of

this position quickly leads to the conclusion that

even though the statute requires cause for discharge, the requisites of due process could equally

have been satisfied had the law dispensed with any

hearing at all, whether pretermination or posttermination.”Id., at 177-178, 94 S.Ct., at 1656.

*360 **2085 The view was also rejected by Mr.

Justice Marshall in an opinion joined by Mr. Justice

Brennan and Mr. Justice Douglas in which it was

correctly observed:“Accordingly, a majority of the

Court rejects Mr. Justice REHNQUIST's argument

that because appellee's entitlement arose from statute, it could be conditioned on a statutory limitation

of procedural due process protections, an approach

which would render such protection inapplicable to

the deprivation of any statutory benefit any

‘privilege’ extended by Government where a statute

prescribed a termination procedure, no matter how

arbitrary or unfair. It would amount to nothing less

than a return, albeit in somewhat different verbal

garb, to the thoroughly discredited distinction

between rights and privileges which once seemed to

govern the applicability of procedural due process.”Id., at 211, 94 S.Ct., at 1673.

The views now expressed by the majority are thus

squarely contrary to the views expressed by a majority of the Justices in Arnett.As Mr. Justice Powell suggested in Arnett, they are also “incompatible

with the principles laid down in Roth And Sindermann.”FN2Id., at 166, 94 S.Ct., at 1650.I would not

so soon depart from these cases nor from the views

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expressed by a majority in Arnett.The ordinance

plainly grants petitioner a right to his job unless

there is cause to fire him. Having granted him such

a right it is the Federal Constitution,FN3 *361 not

state law, which determines the process to be applied in connection with any state decision to deprive him of it.

FN2.Board of Regents v. Roth, 408 U.S.

564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972),

and Perry v. Sindermann, 408 U.S. 593, 92

S.Ct. 2694, 33 L.Ed.2d 570 (1972).

FN3. The majority intimates, Ante, at 2078

n. 8, that the views of the three plurality

Justices in Arnett v. Kennedy were rejected because the other six Justices disagreed

on the question of how the federal Statute

Involved in that case should be construed.

This is incorrect. All Justices agreed on the

meaning of the statute. As the remarks of

the six Justices quoted above indicate, it

was the constitutional significance of the

statute on which the six disagreed with the

plurality.

Similarly, here, I do not disagree with the majority

or the courts below on the meaning of the state law.

If I did, I might be inclined to defer to the judgments of the two lower courts. The state law says

that petitioner may be dismissed by the City Manager only for certain kinds of cause and then

provides that he will receive notice and an explanation, but no hearing and no review. I agree that as a

matter of state law petitioner has no remedy no

matter how arbitrarily or erroneously the City Manager has acted. This is what the lower courts say the

statute means. I differ with those courts and the majority only with respect to the constitutional significance of an unambiguous state law. A majority of

the Justices in Arnett v. Kennedy stood on the proposition that the Constitution requires procedures

Not Required by state law when the state conditions

dismissal on “cause.”Mr. Justice BLACKMUN,

with whom Mr. Justice BRENNAN joins, dissenting.

I join Mr. Justice WHITE's dissent for I agree that

the Court appears to be adopting a legal principle

which specifically was rejected by a majority of the

Justices of this Court in Arnett v. Kennedy, 416

U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

I also feel, however, that Still v. Lance, 279 N.C.

254, 182 S.E.2d 403 (1971), the only North Carolina case cited by the Court and by the District

Court, is by no means the authoritative holding on

state law that the Court, Ante, at 2078 and n. 9,

seems to think it is. In Still the Supreme Court of

North Carolina considered a statute that contained

no “for cause” standard for failure to renew a teacher's contract at the End of a school year. In holding

that this provision did not create a continued expectation of employment, the North Carolina court

noted that it “does not limit the right of the employer board to terminate the employment of a teacher

at the *362 end of a school year to a specified cause

or circumstances.”279 N.C., at 260, 182 S.E.2d, at

407.This provision, the court observed, stood in

sharp contrast with another provision of the statute

relating to termination of employment during the

school year and prescribing that **2086 when “it

shall have been determined that the services of an

employee are not acceptable for the remainder of

the current school year” (emphasis added), ibid.,

notice and hearing were required.

The Marion ordinance in the present case contains a

“for cause” standard for dismissal and, it seems to

me, is like that portion of the statute construed in

Still pertaining to termination of employment during the year. As such, it plainly does not subject an

employee to termination at the will and pleasure of

the municipality, but, instead, creates a proper expectation of continued employment so long as he

performs his work satisfactorily. At this point, the

Federal Constitution steps in and requires that appropriate procedures be followed before the employee may be deprived of his property interest.

U.S.N.C.,1976.

Bishop v. Wood

426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684

END OF DOCUMENT

96 S.Ct. 2074 Page 14

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Hargray v. City of Hallandale

C.A.11 (Fla.),1995.

United States Court of Appeals,Eleventh Circuit.

Vernon E. HARGRAY, Plaintiff-Appellee,

v.

CITY OF HALLANDALE, Defendant-Appellant.

No. 93-5281.

July 19, 1995.

Former city employee brought suit under § 1983

against city, alleging violation of his property interest in continued employment with city. Plaintiff

maintained that he was wrongfully discharged

without pretermination hearing when he resigned

involuntarily after being given choice between

resigning or facing possible criminal charges for

misappropriation of city property. The United

States District Court for the Southern District of

Florida, No. 91-6661-CIV-DLG, Donald L. Graham, J., 830 F.Supp. 1467, entered judgment in favor of plaintiff, and city appealed. The Court of

Appeals held that plaintiff failed to overcome presumption of voluntary resignation, either under theory of duress or coercion or misrepresentation, and

thus he was not deprived of any protected interest

in his employment by city.

Reversed.

West Headnotes

[1] Federal Courts 170B 850.1

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)5 Questions of Fact, Verdicts

and Findings

170Bk850 Clearly Erroneous Findings

of Court or Jury in General

170Bk850.1 k. In General. Most

Cited Cases

Court of Appeals will not reverse district court's

findings of fact in actions tried without a jury unless they are clearly erroneous; if court's findings

are plausible in light of record viewed in its entirety, Court of Appeals must accept them.

[2] Federal Courts 170B 776

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk776 k. Trial De Novo. Most

Cited Cases

Review of district court's application of law to facts

to determine whether city employee's resignation

was involuntary was de novo.

[3] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(1))

For purposes of due process, public employee

resignations are presumed to be voluntary.

U.S.C.A. Const.Amend. 14.

[4] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(3))

There are two situations in which a public employ57 F.3d 1560 Page 1

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ee's resignation will be considered involuntary, and

thus a deprivation of due process: where employer

forces resignation by coercion or duress; or where

employer obtains resignation by deceiving or misrepresenting material fact to employee. U.S.C.A.

Const.Amend. 14.

[5] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(3))

In determining whether public employee's resignation was involuntary, and thus a deprivation of due

process, under coercion or duress theory, Court of

Appeals considers whether, under totality of the circumstances, employer's conduct in obtaining employee's resignation deprived employee of free will

in choosing to resign. U.S.C.A. Const.Amend. 14.

[6] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(3))

In determining whether public employee's resignation was obtained by coercion or duress, depriving

employee of due process, factors to consider include: whether employee was given some alternative to resignation; whether employee understood

nature of choice he was given; whether employee

was given reasonable time in which to choose;

whether employee was permitted to select effective

date of resignation; and whether employee had advice of counsel. U.S.C.A. Const.Amend. 14.

[7] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(3))

In determining whether public employee's resignation was obtained by coercion or duress, depriving

employee of due process, assessment of whether

real alternatives were offered is gauged by objective standard rather than by employee's subjective

evaluation; that employee may perceive his only

option to be resignation is irrelevant; moreover,

mere fact that choice is between comparably unpleasant alternatives does not of itself establish that

resignation was induced by duress or coercion, and

thus was involuntary. U.S.C.A. Const.Amend. 14.

[8] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(1))

For due process purposes, public employee resignations can be voluntary even where the alternative to

resignation is facing possible termination for cause

or criminal charges; resignations obtained in cases

57 F.3d 1560 Page 2

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where employee is faced with such unpleasant alternatives are nevertheless voluntary because fact

remains that employee had a choice; one exception

to rule where employer actually lacked good cause

to believe that grounds for termination and criminal

charges existed. U.S.C.A. Const.Amend. 14.

[9] Federal Courts 170B 858

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)5 Questions of Fact, Verdicts

and Findings

170Bk855 Particular Actions and Proceedings, Verdicts and Findings

170Bk858 k. Civil Rights Cases.

Most Cited Cases

District court's factual finding that city employee

had no advance notice that criminal charges might

be filed against him was clearly erroneous in employee's suit against city alleging that his resignation was obtained by coercion or duress in violation

of due process; employee testified that he knew that

many city employees had been summoned to police

station to be questioned about misappropriation of

city property, and he was also aware that there had

been serious allegations made against him;

moreover, employee knew that subordinate had

resigned, and employee confessed to city manager

that he knew that subordinate had city property.

U.S.C.A. Const.Amend. 14.

[10] Federal Courts 170B 858

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)5 Questions of Fact, Verdicts

and Findings

170Bk855 Particular Actions and Proceedings, Verdicts and Findings

170Bk858 k. Civil Rights Cases.

Most Cited Cases

District court's finding that city employee was not

given an opportunity to consider alternatives before

resigning was clearly erroneous in employee's action against city alleging that his resignation was

obtained by coercion or duress, depriving him of

due process; employee was aware that allegations

that he misappropriated city property were being investigated some weeks before he was called to police station, he knew that subordinate resigned and

consented to answer questions in exchange for not

being criminally prosecuted, and during that time,

employee had opportunity to consider whether he

would go to police station at all, whether he would

answer questions, and whether he would resign, if

asked to do so, or not resign, even if it meant criminal charges being pressed. U.S.C.A. Const.Amend.

14.

[11] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(3))

Municipal Corporations 268 150

268 Municipal Corporations

268V Officers, Agents, and Employees

268V(A) Municipal Officers in General

268k150 k. Resignation or Abandonment.

Most Cited Cases

Mere fact that city employee was forced to chose

between resignation and facing criminal charges

arising from misappropriation of city property did

not in itself mean that his resignation was submitted

under duress, depriving him of due process, absent

evidence that police or city manager lacked good

cause for threatened criminal proceedings at time

alternatives were offered. U.S.C.A. Const.Amend.

14.

[12] Constitutional Law 92 4171

57 F.3d 1560 Page 3

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92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(3))

Municipal Corporations 268 150

268 Municipal Corporations

268V Officers, Agents, and Employees

268V(A) Municipal Officers in General

268k150 k. Resignation or Abandonment.

Most Cited Cases

Fact that city employee suspected of misappropriation of city property was forced to make decision

to resign or face criminal charges under time pressure and that he did so without advice of counsel

were not, by themselves, sufficient to support conclusion that his resignation was involuntary, depriving him of due process. U.S.C.A.

Const.Amend. 14.

[13] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(3))

Municipal Corporations 268 150

268 Municipal Corporations

268V Officers, Agents, and Employees

268V(A) Municipal Officers in General

268k150 k. Resignation or Abandonment.

Most Cited Cases

Under totality of circumstances, city's conduct in

obtaining city employee's resignation did not constitute coercion or duress, depriving employee of

due process; employee, who was accused of misappropriation of city property, was free to leave police station before signing resignation statement, he

knew what charges were against him, he knew

sources of allegations, he never requested more

time to make decision, and he did not request to

speak with his supervisor or an attorney; moreover,

entire conversation was on tape, which indicated

that interview was conducted in a casual atmosphere, during which employee at times even

laughed with police. U.S.C.A. Const.Amend. 14.

[14] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(3))

Under misrepresentation theory, court may find

public employee's resignation to be involuntary,

and a deprivation of due process, if induced by employee's reasonable reliance upon employer's misrepresentation of material fact concerning the resignation; misrepresentation may be material if it concerns an alternative to resignation, such as possibility of criminal prosecution. U.S.C.A. Const.Amend.

14.

[15] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

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92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(3))

In order for public employee to establish that his

resignation was involuntary, depriving him of due

process, on ground that it was obtained by misrepresentation, employee is not required to show that

employer intentionally deceived him; since standard is an objective one, court will not inquire into

subjective perceptions of employer or employee.

U.S.C.A. Const.Amend. 14.

[16] Constitutional Law 92 4171

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4171 k. Termination or Discharge. Most Cited Cases

(Formerly 92k278.4(3))

Municipal Corporations 268 150

268 Municipal Corporations

268V Officers, Agents, and Employees

268V(A) Municipal Officers in General

268k150 k. Resignation or Abandonment.

Most Cited Cases

City employee did not establish that his resignation

was involuntary, depriving him of due process, on

ground that city misrepresented possibility of criminal prosecution for grand theft of city property because city knew, or reasonably should have known,

that police did not have probable cause to prosecute

employee for grand theft at time they requested his

resignation; at time of police interrogation which

resulted in resignation, officers had corroborated allegations made in anonymous letter against employee and allegations made against him by other city

employees during their police interviews, and during interrogation, employee admitted taking city

lumber and a garbage can. U.S.C.A. Const.Amend.

14.

*1562 Richard Kane, Hallandale, FL, for appellant.

Robert Elliot Weisberg, Coral Gables, FL, Martha

Chapman, Abling & Chapman, P.A., Orlando, FL,

for appellee.

Appeal from the United States District Court for the

Southern District of Florida.

Before COX and BLACK, Circuit Judges, and

FAY, Senior Circuit Judge.

PER CURIAM:

Appellee Vernon E. Hargray brought this suit under

42 U.S.C. § 1983 against his former employer, Appellant City of Hallandale (City), alleging a violation of his property interest in continued employment with the *1563 City. Hargray maintained that

he was wrongfully discharged without a pretermination hearing when he resigned after being

given a choice between resigning or facing possible

criminal charges. After a non-jury trial, the district

court entered judgment in favor of Hargray, and the

City appealed. Because we conclude that, under the

totality of the circumstances, Hargray's resignation

was voluntary, we reverse on the ground that the

City did not deprive him of any protected interest in

his employment within the meaning of the due process clause.

I. BACKGROUND

The full factual findings of the district court are recounted at Hargray v. City of Hallandale, 830

F.Supp. 1467 (S.D.Fla.1993). The facts relevant to

the issue presented in this appeal are as follows.

Hargray was employed by the City from 1979 until

his resignation in 1990. At the time he resigned,

Hargray held the position of Operations Manager in

the Department of Public Works (DPW), and reported directly to the Director of the DPW, John Depp.

In this position, Hargray was responsible for managing the operations of several divisions within the

DPW, including the grounds and maintenance division. Hargray had direct supervisory control over at

least four superintendents, who were the heads of

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the divisions. In total, Hargray was responsible for

approximately forty employees who worked within

the divisions.

Sometime in 1989, Hargray recommended an acquaintance, Richard McDonald, to the City Manager, R.J. Intindola, for the position of superintendent over grounds and maintenance. Intindola, who

had the final policy-making authority for the City

with respect to personnel and administration, made

the final decision to hire McDonald as a superintendent. As the superintendent of grounds and

maintenance, McDonald reported directly to Hargray.

In June 1990, three or four employees of the DPW

approached Richard Wroblewski, the City's Personnel Director, with allegations that Hargray and McDonald were misappropriating City property for

their personal use. Wroblewski sent the employees

to speak with Depp. Within a few days, Wroblewski informed Hargray of the allegations of theft

in his department, and Hargray began an investigation to find out who had made these allegations.

Hargray also consulted McDonald, and told him

that McDonald had been accused of theft. Thereafter, Hargray found out that McDonald had met

with Depp concerning the allegations.

On Saturday, August 4, 1990, Hargray went to

Sheridan Lumber to pick up some timber for the

Hepburn Center-a social services facility that the

DPW was renovating. Hargray purchased with City

money thirteen 4 x 4 pieces of lumber listed on a

purchase order for the Hepburn Center and loaded

them onto a City truck which he was driving alone

that day. Hargray drove back to the DPW compound and placed the lumber behind the compound.

On August 7 or 8, 1990, Hargray took seven of the

4 x 4's home.

On August 8, 1990, City officials, including Depp,

received an anonymous letter dated August 5, 1990,

accusing Hargray and McDonald of gross misuses

of the City's equipment and supplies.FN1 Intindola

directed the City police department to conduct an

investigation of the allegations contained in the August 5 letter. Lieutenant William Owens and Investigator Tommy Long were primarily responsible for

the investigation.

FN1. Among other things, the letter alleged that:

(1) Hargray or McDonald used a City truck

to transport top soil purchased by the City

to his own home;

(2) Hargray or McDonald used a City truck

to transport City landscaping logs to his

own home;

(3) Hargray and McDonald misappropriated trees, plants, grass, sod, fertilizer,

Dursban, and sprinkler supplies;

(4) Hargray and McDonald misappropriated supplies from the warehouse (the

DPW compound) or directly from the

vendors; and

(5) Hargray or McDonald used other City

employees to make improvements on his

own home during working hours.

In the course of their investigation, Owens and

Long photographed Hargray's house and yard. Four

photos, which were introduced into evidence, revealed the following to the police. First, there were

two types of plants, *1564 liriopes and exorias,

around the trees and house in Hargray's yard. Some

of the plants were planted, and some were still in

pots. Both of these plants were the type that the

City's grounds and maintenance division used in its

landscaping of different areas of the City. Second,

there were seven 4 x 4 timbers, some placed into

the yard apparently creating a landscaping border,

and some stacked against the house. Third, there

was evidence of new sodding. Fourth, the lawn

looked quite plush, indicating that fertilizer may

have been recently laid down. Finally, there was a

large City garbage can located in the side yard.

In the next step of their investigation, Owens and

Long pulled City purchasing records. They discovered, among other things, a purchasing order

signed by both McDonald and Hargray for the 4 x

4's which were photographed in Hargray's yard, and

a receipt for the 4 x 4's from Sheridan Lumber.

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They also discovered a requisition signed by both

McDonald and Hargray for $325 worth of repairs to

a trailer. This same trailer had been photographed

in McDonald's yard, and McDonald later confessed

to keeping the trailer for at least a few months prior

to the investigation.

By the week of June 15, 1990, Owens and Long

began to interview City employees by calling them

down one by one to the police station for questioning. In total, twenty-eight City employees were interviewed; McDonald and Hargray were the last

two to be interviewed. Many employees made allegations accusing Hargray of misappropriating

City property. Summaries of the interviews were

compiled into a police report.FN2

FN2. Although the district court found that

the report was hearsay, it did allow the report to be admitted for the limited purpose

of determining whether the officers had

probable cause that Hargray was misappropriating the property. As such, our overview of the summary of the report is

simply to establish what Owens and Long

knew at the time they questioned Hargray,

as opposed to determining whether or not

Hargray actually misappropriated property.

Specifically, Elfran Gomez stated that he observed

Hargray and McDonald dumping personal items at

a lake using a City truck on City time. Angus Bryant stated that Hargray had given McDonald permission to use a City truck for personal use at his

home. John Deck told police that three months prior

to the investigation he observed Hargray pick up a

load of top soil from Florida Silica Sand. Deck told

police that it was unusual for Hargray, a director of

operations, to be personally picking up supplies, especially on a Saturday. Elbridge Dean told police

that Hargray had instructed him in May or June

1990 to take approximately 20-30 plants to Hargray's house.

Andrew Smith told police that he observed Hargray

and another City employee driving a City truck

which contained five yards of muck, which Smith

maintained was not used on a City project. Smith

stated that the two returned in the truck two hours

later and the muck was gone. Jose Garcia stated

that on several occasions he observed Hargray and

McDonald inside the DPW compound, where supplies were kept, on Saturdays. Finally, James Simmons told police that he observed Hargray and a

City employee using a City truck sometime in June.

After Hargray returned the truck, Simmons found a

receipt inside the truck for fourteen yards of top

soil from Florida Silica Sand. Simmons claimed

that there was no job needing top soil at the time,

and that Hargray and the other employee were the

only two employees in the truck that day.

Other employees told police that, although they had

not personally observed Hargray stealing City property, they had heard many rumors about his misappropriations and his using City employees to make

improvements on his home during City time. Many

of these same employees told police that they had

personally observed McDonald misappropriating

various items of City property, as well as making

improvements on his home during City time. McDonald corroborated the substance of the allegations against him in his own interview with the police.

On Monday, August 20, 1990, McDonald resigned

and admitted to violating City policy by using City

equipment or property for his personal use. On August 23, 1990, the police called McDonald to the

station and offered him the option of resolving the

criminal investigation against him through administrative*1565 rather than criminal channels. The police presented McDonald with a written agreement

stating that he would answer all questions honestly

in exchange for their not initiating criminal charges

against him. McDonald requested to consider the

offer overnight so that he could consult an attorney,

and the officers allowed him to do so.

McDonald signed the agreement on August 24, and

Long and Owens then conducted a two-hour taped

interview regarding the allegations made against

him. McDonald confessed to FN3, and corroborated, many of the allegations made against him by

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the other employees and by the anonymous letter.

He denied that Hargray had any involvement with

his theft of City property, but conceded that Hargray knew that McDonald used a City truck and a

City trailer for personal purposes. He also conceded

that it would have been unusual for Hargray to pick

up lumber himself on a Saturday.

FN3. Specifically, McDonald confessed

the following: that he used a City truck to

deliver top soil to his residence; that he

stole some bedrock to use in his flower

garden; that he stole some 6 x 8 timbers;

that he made improvements on his property

during City hours; that he stole two palm

trees; that he stole some hibiscus, moripy,

exoria, and bougenvillia plants; that he

signed for many of the items stolen on purchase orders for the City; that he misappropriated six pallets of sod after purchasing

them for the City from Kelly's Sod; that he

was using a City trailer which he kept in

his possession and had repair work on for

over a month; that he stole some sprinkler

fittings, piping, and valves; and finally,

that he misappropriated the time of several

City employees.

During the week of August 15, Hargray was aware

that many City employees were being called down

to the police station to be interviewed regarding

misappropriation of City property. He also was

aware that these employees were making serious allegations against him, and he discussed his concerns with his wife. During this time, Depp and Intindola observed that at the budget meetings on Friday, August 17 and Monday, August 20, Hargray,

who was usually an active participant in meetings,

was “unable to respond” and seemed

“preoccupied.” After McDonald resigned on August 20, Hargray went into Intindola's office and

told him that he knew that McDonald had the trailer

and other supplies, but that Hargray had told him to

return them. When Intindola asked Hargray how he

could have let McDonald have these items, Hargray

had no answer.

Prior to August 24, Owens had three meetings with

Intindola regarding the investigation of Hargray's

alleged involvement. At the third meeting, Owens

told Intindola that he had probable cause to bring

criminal charges of grand theft against Hargray.

After discussing the situation, Intindola and Owens

decided to give Hargray the option of proceeding

administratively, rather than criminally. They

agreed that if Hargray chose the administrative

route and confessed to some wrongdoing, they

should secure his resignation.

At about 2:00 p.m. on August 24, 1990, Depp informed Hargray that the police wanted to interview

him and that he should go to the police station.

Owens and Long commenced the investigation at

about 3:30. The interview was taped, but the recording did not commence until five to ten minutes

after the beginning of the interrogation. During

those pre-taping minutes, Owens informed Hargray

that he was the subject of a grand theft investigation. Owens handed Hargray a memo from the chief

of police offering Hargray the option of resolving

the allegations of impropriety in the DPW through

administrative rather than criminal channels.

Initially, Hargray indicated he preferred to go the

criminal route. Owens told Hargray he would give

Hargray a few minutes alone to consider the choice.

Before leaving the room, Owens said to Hargray “I

will give you two words to think about-Sheridan

Lumber.” When Owens returned a few minutes

later, Hargray indicated that he wanted to proceed

administratively, and signed an agreement to that

effect. The police then began the tape recording,

during which Hargray repeatedly denied taking any

City property, besides the lumber and garbage can.

Hargray, however, did not have receipts for many

of the items found in his yard, and he was evasive

when asked how he purchased the sod in his yard.

As to the lumber and *1566 the garbage can, the interrogation proceeded as follows:

Lt. Owens: ... what, in fact, is the property misappropriated for your own use and the means by

which you did it?

Mr. Hargray: Okay. I picked up the Sheridan

[l]umber, I dropped it off on the weekend when

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McDonald was having inspections because I'd been

on his case about having inspections. Later in the

week, as I was working in the yard, I needed borders so I can line up, because I had weeds growing

on it, so that would help me line it up ... Now, there

is nothing else in my house or yard that belongs to

the City.

Inv. Long: How about that yellow trash can we saw

at your house? ... Is that the property of the City of

Hallandale?

* * * * * *

Mr. Hargray: Yes.

During this line of questioning, Hargray tried to explain that the City usually threw away the type of

garbage can found in his yard. He also stated that

he knew the 4 x 4's “had to come back,” although

he never used the term “borrow” during the taped

interview. Owens then informed Hargray that even

using City property temporarily is a crime, as follows:

Lt. Owens: The bottom line of this interview is, the

only property of the City of Hallandale that you

misappropriated to your own personal use, or to use

another word, to steal for your own personal use,

either temporary-see, you have to understand what

theft says. The theft statute says temporarily or permanently. Okay? So to take temporarily or permanently to your own personal use is a commission of

theft. That's the reading of the statute, that's the legal end of it. There's borrowing and then there's borrowing permanently. So the only thing is one of the

yellow trash cans on a temporary basis and the lumber?

Mr. Hargray: That is it, that is it. That's why I felt,

you know, and I even forgot about the, like I said,

you know, about the timber.

The topic of Hargray's resignation came up twice

during the interview, as follows:

Lt. Owens: I've got a couple of things. I'll put this

on. Upon conclusion of this meeting, before you go

home tonight, and the City manager wants your

resignation-if you would like to-I believe you'll be

seeing Mr. McDonaldMr. Hargray: No-oh, yeahLt. Owens: -resignation?

Inv. Long: Yeah, I do. John gave it to me

something-two years, that is at least a guide to

your-probably be appropriate. I'm assuming by the

time we're done here the secretarial staff will be

gone.

Mr. Hargray: Well, somebody should be there.

Lt. Owens: If they're not, we can have the secretarial staff here do that for you. You can either write it

out yourself, or we'll give you a copy of that and

you can, you know, take the appropriate verbiage

from it that you feel is relevant to yours-

* * * * * *

Inv. Long: Good. I don't have any more questions.

Do you?

Lt. Owens: I have no more either, but the City

Manager is adamant about the resignation before

you leave today. If you want to make a call, you

can use the phone out here, then call us.

At all times during the interview, Hargray was free

to leave. He never requested to do so, nor did he request the assistance of an attorney or his supervisor.

The interrogation concluded at about 5:00 p.m., at

which time Hargray was free to leave the police station. Although the investigation was not complete

at this point, pursuant to their agreement, Owens

and Long abandoned the investigation as to Hargray's alleged misappropriation. Hargray then left

the police station by himself, went back to the

DPW building, and signed a letter of resignation

which John Depp's secretary prepared for him.FN4

FN4. We note that the resignation letter

made no mention of any agreement to

resign in exchange for the police not initiating criminal prosecution. For purposes of

this appeal, however, we will assume, as

the district court has, that Hargray's agreement to proceed administratively and avoid

criminal prosecution encompassed an

agreement to resign.

*1567 Thereafter, Hargray brought an action pursuant to 42 U.S.C. § 1983, claiming that the City had

violated his due process rights by forcing him to

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resign from his employment without a hearing in

that the police led him to believe that if he did not

resign he could and would be prosecuted for grand

theft. The City defended the suit on the ground that

Hargray's resignation was voluntary. After a nonjury trial, the district court concluded that the City

had constructively discharged Hargray because his

resignation was involuntary. The court awarded

Hargray back pay and reimbursement in the amount

of $84,884.97 and compensatory damages in the

amount of $150,000, and ordered the City to reinstate him. On appeal, the City maintains first, that

Hargray's resignation was voluntary, and second,

that if it were involuntary, the compensatory damages awarded were excessive.FN5

FN5. As we hold that Hargray's resignation

was voluntary, we need not address the issue of damages.

II. STANDARD OF REVIEW

[1][2] The City contends that the district court erred

in both its factual findings and its application of the

law to these findings to determine whether Hargray

voluntarily resigned. This Circuit will not reverse a

district court's findings of fact in actions tried

without a jury unless they are clearly erroneous.

Barnes v. Lacy, 927 F.2d 539, 542 (11th Cir.1991);

Fed.R.Civ.P. 52(a). “If the court's findings are

‘plausible in light of the record viewed in its entirety,’ ” we must accept them. Barnes, 927 F.2d at

542 (quoting United States v. Fidelity Capital

Corp., 920 F.2d 827, 836 n. 36 (11th Cir.1991)). In

contrast, our review of the district court's application of the law to the facts to determine whether

Hargray's resignation was involuntary is de

novo.FN6 Barnes, 927 F.2d at 543.

FN6. Hargray cites Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th

Cir.1989) and Huddleston v. Roger Dean

Chevrolet, Inc., 845 F.2d 900 (11th

Cir.1988), for the proposition that a finding of involuntary resignation is a factual

finding. Hargray's reliance on these cases

is misplaced. The courts in Steele and Huddleston were reviewing the plaintiffs' alleged constructive discharge in the context

of a hostile work environment created by

sexual harassment. The only question for

resolution in those cases was a factual onewhether intolerable working conditions

caused by sexual harassment existed, thus

forcing a constructive discharge. In contrast, here we are examining whether the

district court could determine, from the

facts presented, that coercion or misrepresentation, causing constructive discharge,

occurred. The question of whether coercion or misrepresentation is present is a

legal one, in which we are free to substitute our judgment for that of the district

court. See generally, Reich v. Dep't of Conservation and Natural Resources, 28 F.3d

1076, 1082 (11th Cir.1994).

III. DISCUSSION

The district court found, and the City does not dispute, that Hargray had a property interest in his

continued employment with the City because he

was covered by the City's Civil Service rules which

protected him from arbitrary dismissal. The only issue on appeal is whether the City deprived Hargray

of that interest without due process. Cleveland Bd.

of Education v. Loudermill, 470 U.S. 532, 537, 105

S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985); Board of

Regents v. Roth, 408 U.S. 564, 574-576, 92 S.Ct.

2701, 2708-2709, 33 L.Ed.2d 548 (1972). “If he

resigned of his own free will even though prompted

to do so by events set in motion by his employer, he

relinquished his property interest voluntarily and

thus cannot establish that the [City] ‘deprived’ him

of it within the meaning of the due process clause.”

Stone v. University of Md. Medical Sys., Corp., 855

F.2d 167, 173 (4th Cir.1988). “If, on the other

hand, [Hargray]'s resignation was so involuntary

that it amounted to a constructive discharge, it must

be considered a deprivation by [City] action triggering the protections of the due process clause.”

Id. Our constitutional inquiry therefore must focus

on the voluntariness of Hargray's resignation. The

answer to this question will dispose of the constitu57 F.3d 1560 Page 10

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tional deprivation issue.

[3] The question of whether a resignation from public employment that has been requested by an employer is sufficiently involuntary*1568 to trigger

the protections of the due process clause is one of

first impression in this Circuit. As an initial matter,

employee resignations are presumed to be voluntary. Angarita v. St. Louis County, 981 F.2d 1537,

1544 (8th Cir.1992); Alvarado v. Picur, 859 F.2d

448, 453 (7th Cir.1988); Christie v. United States,

518 F.2d 584, 587, 207 Ct.Cl. 333 (1975). “This

presumption will prevail unless [the employee]

comes forward with sufficient evidence to establish

that the resignation was involuntarily extracted.”

Christie, 518 F.2d at 587. Those circuits that have

addressed whether a resignation was involuntary

agree that the court must examine the surrounding

circumstances to test the ability of the employee to

exercise free choice. See Angarita, 981 F.2d at

1544; Parker v. Board of Regents, 981 F.2d 1159,

1162 (10th Cir.1992); Alvarado, 859 F.2d at

453-54; Stone, 855 F.2d at 173; Scharf v. Dep't of

the Air Force, 710 F.2d 1572, 1574 (Fed.Cir.1983);

Christie, 518 F.2d at 587.

[4] The relevant cases reveal that there are two situations in which an employee's resignation will be

deemed involuntary, and thus a deprivation of due

process: (1) where the employer forces the resignation by coercion or duress, see, e.g., Schultz v.

United States Navy, 810 F.2d 1133, 1135-37

(Fed.Cir.1987); or (2) where the employer obtains

the resignation by deceiving or misrepresenting a

material fact to the employee, see, e.g., Scharf, 710

F.2d at 1574-76; Covington v. Department of

Health & Human Serv., 750 F.2d 937, 942-44

(Fed.Cir.1984).

A. Resignations Obtained by Coercion or Duress

[5][6] Under the coercion or duress theory, we consider whether, under the totality of the circumstances, the employer's conduct in obtaining the

employee's resignation deprived the employee of

free will in choosing to resign. Other circuits addressing this issue have indicated that certain

factors may be helpful in determining whether the

resignation was obtained by coercion or duress: (1)

whether the employee was given some alternative

to resignation; (2) whether the employee understood the nature of the choice he was given; (3)

whether the employee was given a reasonable time

in which to choose; (4) whether the employee was

permitted to select the effective date of the resignation; and (5) whether the employee had the advice

of counsel. Stone, 855 F.2d at 174, 177. See also

Angarita, 981 F.2d at 1544; Parker, 981 F.2d at

1162; Schultz, 810 F.2d at 1136; Scharf, 710 F.2d at

1574. These factors, although not dispositive, will

guide us in our determination of whether Hargray's

resignation was involuntary under the totality of the

circumstances.

[7] “[T]he assessment [of] whether real alternatives

were offered is gauged by an objective standard

rather than by the employee's purely subjective

evaluation; that the employee may perceive his only

option to be resignation ... is irrelevant.” Stone, 855

F.2d at 174. See Christie, 518 F.2d at 587-88.

Moreover, “the mere fact that the choice is between

comparably unpleasant alternatives ... does not of

itself establish that a resignation was induced by

duress or coercion, hence was involuntary.” Stone,

855 F.2d at 174.

[8] Specifically, resignations can be voluntary even

where the only alternative to resignation is facing

possible termination for cause or criminal charges.

Pitt v. United States, 420 F.2d 1028, 190 Ct.Cl. 506

(1970). Resignations obtained in cases where an

employee is faced with such unpleasant alternatives

are nevertheless voluntary because “the fact remains that plaintiff had a choice. [Plaintiff] could

stand pat and fight.” Christie, 518 F.2d at 587. The

one exception to this rule is where the employer actually lacked good cause to believe that grounds for

the termination and the criminal charges existed.

Stone, 855 F.2d at 174; Schultz, 810 F.2d at

1136-37; Christie, 518 F.2d at 587-88.

The City contends that Hargray's resignation was

voluntary because he was given a choice between

resigning or facing criminal charges. Hargray con57 F.3d 1560 Page 11

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tends that this was not a real choice, and that he had

no other choice but to resign. The district court

found that Hargray did not have a real alternative to

resigning. The district court based this conclusion

primarily on its findings that (1) Hargray*1569 was

not given advance notice of the nature of the

charges against him; (2) he did not have an opportunity to consider alternatives; (3) he did not have

an opportunity to consult an attorney; (4) he did not

have a reasonable amount of time to make a carefully-considered decision; and (5) he did not have

the opportunity to select the effective date of his

resignation. The court also found that Hargray felt

intimidated during the interview.

[9] Initially, the City challenges many of the factual

findings made by the district court. The record supports the City's position as to at least two of these

findings. First, the record supports the City's contention that Hargray did have advance notice that

charges may be brought against him. Hargray testified that he knew that many employees were being

called down to the police station to be questioned

about City misappropriation. He was also aware

that there had been serious allegations made against

him, and discussed these allegations with his wife.

He knew that McDonald had resigned on August

20, that McDonald was called to the police station

on August 23, and that McDonald elected to consult

an attorney and did so after asking the police to

delay his interrogation. In fact, after finding out

that McDonald had resigned, Hargray confessed to

Intindola that he knew McDonald had the trailer. In

light of Hargray's own testimony, a finding that

Hargray had no advance notice that criminal

charges might be made against him is clearly erroneous.

[10] The second factual finding that is inconsistent

with the record is the finding that Hargray was not

given an opportunity to consider alternatives. As

already noted, Hargray was aware that the allegations against him would be investigated at least a

few weeks before he was called to the police station. He also knew that McDonald resigned and

consented to answer questions in exchange for not

being criminally prosecuted. During that time, Hargray had the opportunity to consider whether he

would go to the police station at all, whether he

would answer questions, and whether he would

resign, if asked to do so, or “stand pat and fight,”

even if it meant criminal charges being pressed. He

and his wife discussed at length what was occurring, and he was obviously preoccupied during the

budget meetings. No other conclusion could be

reached but that he had ample opportunity to think

long and hard about what he would do when he was

called down for questioning.

[11] As such, Hargray's argument is reduced to the

following: that he was forced to make an unpleasant decision in a short period of time, while he felt

intimidated, without the advice of an attorney. Unfortunately for Hargray, the mere fact that he was

forced to choose between two inherently unpleasant

alternatives does not in itself mean that his resignation was submitted under duress, absent evidence

that the police or Intindola lacked good cause for

the threatened criminal proceedings at the time the

alternatives were offered. Stone, 855 F.2d at 174;

Christie, 518 F.2d at 587-88.

A careful review of the record convinces us that at

the time Hargray resigned, there was no evidence to

suggest that Intindola or the police knew or believed that charges of grand theft could not be substantiated. At the time of his third meeting with the

police, Intindola was aware of the following: (1)

that there had been an anonymous letter written accusing Hargray of stealing City property; (2) that

other employees had approached Wroblewski accusing Hargray of taking City property; (3) that the

photos taken of Hargray's yard depicted City timbers and a City garbage can,FN7 as well as plants

and sodding used by the City; and (4) that Hargray

was aware that McDonald was using City property

for personal use. Thus, the record does not establish

that Intindola lacked good cause to threaten proceeding criminally at the time he authorized the police to offer Hargray the two alternatives. In fact,

the record establishes that Intindola had more than

enough evidence to threaten Hargray with criminal

action. The record further establishes that the police

had sufficient evidence to support *1570 probable

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cause for threatening criminal prosecution, as discussed herein.

FN7. At the time of the meeting, Intindola

testified that he was not aware that Hargray had received permission from Grover

Jones to borrow the garbage can.

[12] It is true that Hargray was forced to make the

decision to resign while under time pressure and

that he did so without the advice of counsel. While

these facts might seem sufficient to support the

conclusion that Hargray's resignation was involuntary, the cases finding a resignation to be involuntary based on coercion or duress involve circumstances much more coercive than those in the instant case. For example, in Paroczay v. Hodges,

297 F.2d 439 (D.C.Cir.1961), the court found the

employee's resignation to be involuntary where the

employee was told he had to sign a resignation letter before he left the supervisor's room, or charges

would be filed immediately, despite his repeated requests to have more time and to consult an attorney.

In Angarita v. St. Louis County, 981 F.2d 1537 (8th

Cir.1992), the court found that employee police officers suspected of using drugs involuntarily

resigned under another set of extremely coercive

circumstances. Specifically, they were told that

they were not permitted to leave the interrogation

room without first signing a resignation form; no

specific complaint of their actions was presented to

them; their requests to speak with their supervisors

or have them present were continually denied; they

were threatened with disclosure of the allegations

to their family; they were threatened with adverse

publicity in the media; a tape recorder was turned

off many times during the interrogation; and they

were not told the source of their allegations, among

other things. Id. at 1545.

[13] In contrast to these cases, neither the district

court's findings nor the record in the instant case

supports the legal conclusion that Hargray's resignation was coerced. Instead, the record reveals: (1)

that Hargray was free to leave the police station before signing a resignation statement; (2) that he

knew what the charges were against him; (3) that he

knew the sources of the allegations; and (4) that he

never requested more time to make a decision, nor

did he request to speak with his supervisor or an attorney. Moreover, other than the first few minutes

while Hargray was choosing whether to proceed administratively, the entire conversation was on tape.

The transcript of the tape reveals that the officers

conducted a routine police inquiry. In fact, the tape

indicates that the interview was conducted under a

casual atmosphere, during which Hargray at times

even laughed with the police. Finally, although

Hargray may have felt intimidated, we must keep in

mind that the test of coercion is conducted via an

objective analysis, rather than by the employee's

subjective evaluation of the situation. Stone, 855

F.2d at 174; Walsh v. City of Chicago, 712 F.Supp.

1303, 1308 (N.D.Ill.1989). Objectively, the findings of the district court, in addition to the evidence

contained in the record, do not, under the totality of

the circumstances, support the legal conclusion that

Hargray's resignation was involuntary due to coercion or duress.

B. Resignations Obtained by Misrepresentation

[14] The district court also found Hargray's resignation to be involuntarily obtained by misrepresentation. Under the misrepresentation theory, a court

may find a resignation to be involuntary if induced

by an employee's reasonable reliance upon an employer's misrepresentation of a material fact concerning the resignation. Scharf, 710 F.2d at 1575. A

misrepresentation may be material if it concerns an

alternative to resignation, such as the possibility of

criminal prosecution. See Covington, 750 F.2d at

942; Walsh, 712 F.Supp. at 1308-09.

[15] Further, an employee is not required to show

that the employer intentionally deceived him in order for his resignation to be held involuntary.

Scharf, 710 F.2d at 1575. Just as the duress or coercion theories apply an objective test, the objective

standard is equally applicable in situations involving misrepresentation. The court, therefore,

“will neither inquire into the subjective perceptions

of the employee, see Taylor v. United States, 591

F.2d 688, 692, 219 Ct.Cl. 86 (1979), nor the sub57 F.3d 1560 Page 13

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jective intentions of [the employer].” Scharf, 710

F.2d at 1575. Thus, in the instant case, Hargray

must show (1) that the City knew, or reasonably

should have known, that the threatened criminal

*1571 prosecution could not be substantiated.

Schultz, 810 F.2d at 1136, and (2) that Hargray

reasonably relied on the City's misrepresentation.

Scharf, 710 F.2d at 1575.

[16] As the parties concede that Hargray reasonably

relied on the police officers' representations that he

could be prosecuted for grand theft, the question is

whether the police knew, or reasonably should have

known, that charges of grand theft could not be

substantiated against Hargray. In the instant case,

as the individuals who ultimately obtained Hargray's resignation were police officers, rather than

the City's manager, the question may be analyzed in

terms of whether or not the police officers had

probable cause to prosecute Hargray for grand theft

at the time that they requested his resignation.

The district court found that the police officers did

not have probable cause. Hargray, 830 F.Supp. at

1473. Hargray agrees, claiming that the police

could not have probable cause based solely on his

admission that he borrowed the garbage can and the

timber. The City responds that probable cause to

prosecute for grand theft was based not only on the

garbage can and timbers, which the police did not

know Hargray had borrowed, but also on other allegations of misappropriation, which were corroborated by the evidence and the witnesses.

The question of what amounts to probable cause is

purely a question of law and hence is subject to

plenary review by this court. United States v. Allison, 953 F.2d 1346, 1350 (11th Cir.1992). After a

thorough review of the record, we conclude, contrary to the district court, that the police had probable cause to bring charges of grand theft against

Hargray at the time they requested his resignation.

The Florida criminal theft statute provides that a

person commits theft if he knowingly obtains or

uses the property of another with intent to, either

temporarily or permanently, deprive the other person of a right to the property or a benefit therefrom,

or appropriate the property to his own use or to the

use of any person not entitled thereto. Fla.Stat.Ann.

§ 812.014 (West 1993); Daniels v. State, 587 So.2d

460, 462 (1991). It is grand theft if the property

stolen is valued at $300 or more. Fla.Stat.Ann. §

812.014(2)(c)(1).

The existence of probable cause is based on objective standards and the totality of the circumstances.

United States v. Hastamorir, 881 F.2d 1551, 1557

(11th Cir.1989). “Probable cause to arrest is present

when the facts and circumstances within the officer's knowledge are sufficient to warrant a

prudent person, or one of reasonable caution, in believing, under the circumstances shown, that the

suspect has committed, is committing, or is about to

commit an offense.” United States v. Mastrangelo,

733 F.2d 793, 799 (11th Cir.1984). As such, the existence of probable cause in the instant case is a

two-step inquiry: First, what did the police officers

actually know at the time they threatened Hargray

with prosecution for grand theft, and second, based

on such knowledge, would a reasonable police officer believe that there was probable cause to prosecute Hargray.

At trial, Owens testified that by the time he began

his interrogation of Hargray, he knew the following: (1) that an anonymous letter accusing Hargray

of misappropriation had been sent to City managers; (2) that three City employees had gone to

Wroblewski accusing Hargray of misappropriation;

(3) that many other employees interviewed by the

police had either personally observed Hargray taking property or had heard about it, thereby corroborating the accusations contained in the letter and in

the complaints; (4) that pictures of Hargray's house

revealed the existence of a City garbage can, timbers arranged in an apparently permanent nature for

landscaping purposes, plants used by the City, new

sodding, and an extremely plush, heavily fertilized

lawn; (5) that City purchasing orders were signed

by Hargray for many of the items found in his yard,

which were valued at over $300; and (6) that Hargray was aware that McDonald was using a City

trailer for his personal use.

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Owens further testified, and the tape reveals, that

during the taped interview Hargray admitted taking

the garbage can and the timbers home for his own

personal use. Although at trial Hargray states that

he *1572 borrowed the garbage can with the permission of Grover Jones, and that he borrowed the

timbers for a party, he never stated that he

“borrowed” anything during the interview.FN8

Thus, at the time Owens asked for Hargray's resignation, he did not know that Hargray had allegedly

borrowed these two items. Finally, Owens testified

that Hargray was extremely evasive when questioned as to how he obtained the sodding in his

yard.

FN8. Although Hargray admitted that he

knew the 4 x 4's “had to come back,” he

did not state during the taped interview

that he had permission to borrow either of

these items, or that he intended to return

these items. Thus, although it is true that

Owens advised Hargray that he could be

prosecuted for grand theft for “borrowing,”

Hargray never told Owens during the interview that he was merely borrowing these

items.

Even assuming, arguendo, that the officers

knew that Hargray borrowed the garbage

can and timber, as the district court found,

the officers nevertheless had probable

cause to bring charges of grand theft

against Hargray. First, it is apparent that

the officers based the existence of probable

cause not only on the garbage can and the

timber, but also on the other items that the

anonymous letter and the other City employees accused Hargray of stealing, in

combination with Hargray's inability to account for the way in which he obtained

such items.

Second, even if the garbage can and the

timber were the only items at issue, the officers did not misrepresent that they had

probable cause to bring charges for grand

theft, because grand theft includes the temporary taking of the property of another.

See Daniels, 587 So.2d at 462. Thus, Hargray's admission to the police that he in

fact took home the garbage can and the

timbers for his personal use establishes

that there was probable cause to believe

grand theft had been committed. Even if

the interrogation had revealed an actual intent on the part of Hargray to return these

items, the officers had probable cause to

prosecute Hargray for temporarily depriving the City of its property.

Long also testified that by the time he began his interrogation of Hargray, he knew the following: (1)

that an anonymous letter accusing Hargray of misappropriation had been sent to City managers; (2)

that many other employees interviewed by the police had either personally observed Hargray taking

property or had heard about it, thereby corroborating the accusations contained in the letter; (3) that

pictures of Hargray's house revealed the existence

of many of the items alleged to have been stolen

from the City; (4) that City purchasing orders were

signed by Hargray for many of the items found in

his yard; (5) that Hargray was aware that McDonald

was using the City trailer for his personal use; and

(6) that McDonald had corroborated the allegations

made in the anonymous letter against him and the

allegations made against him by the City employees

during their police interviews. Long testified that

during Hargray's interview, he admitted taking City

lumber and a garbage can. Long also noted that

Hargray could not account for how he obtained the

sod in his yard.

Based on the totality of the circumstances and the

officers' knowledge described above, we hold that

at the time of the interrogation, Owens and Long

had probable cause to bring charges of grand theft

against Hargray.FN9 At the time of the investigation, the facts and circumstances within the officers'

knowledge were sufficient to warrant a man of

reasonable caution in believing that an offense had

been committed. United States v. Tomaszewski, 833

F.2d 1532, 1535 (11th Cir.1987). As such, the police officers did not misrepresent to Hargray that

the alternative to his resignation was proceeding

with a grand theft criminal investigation. Con57 F.3d 1560 Page 15

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sequently, Hargray's resignation cannot be deemed

involuntary under the misrepresentation theory.

FN9. We note that after Hargray signed his

resignation, the police abandoned their investigation of Hargray, and Owens admitted at trial that much more would have had

to be done with the case before it was

presented to the State Attorney. This fact,

however, does not vitiate our conclusion

that the police had probable cause at the

time they told Hargray he could be prosecuted for grand theft.

IV. CONCLUSION

In sum, we hold that the only reasonable conclusion

from the record is that Hargray made a voluntary

decision to resign from his position with the City

rather than submit to a grand theft criminal investigation. Hargray has attempted to characterize his

voluntary resignation as a constructive discharge,

entitling him to reinstatement and damages for a

resulting deprivation of his property interest in continued employment. He has failed, *1573 however,

to overcome the presumption of voluntary resignation, either by the duress or coercion theory or by

the misrepresentation theory. As Hargray's resignation was voluntary, we conclude that he was not deprived of any protected interest in his employment

by the City. As such, he has no due process claim,

and is entitled to neither reinstatement nor damages.

REVERSED.

C.A.11 (Fla.),1995.

Hargray v. City of Hallandale

57 F.3d 1560, 10 IER Cases 1409

END OF DOCUMENT

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Christie v. U. S.

Ct.Cl. 1975.

United States Court of Claims.

Ruth CHRISTIE

v.

The UNITED STATES.

No. 486-73.

July 11, 1975.

Plaintiff, who had tendered her resignation from

government employment, sought reinstatement and

back pay on ground that her resignation was not

voluntary. Cross-motions for summary judgment

were filed. The Court of Claims, Kunzig, J., held

that element of voluntariness of a resignation is

vitiated only when the resignation is submitted under duress brought on by Government action, that

employee resignations are presumed voluntary, that

were plaintiff had a choice, in that she could stand

pat and fight agency's proposed termination for

cause or could resign and accept discontinued service retirement, her choice to accept the latter was a

voluntary one, absent any showing that threatened

termination was other than for good cause or that

resignation was obtained as result of agency deception and that since plaintiff failed to present an adequate claim of coerced resignation the Civil Service Commission properly declined to accept her

appeal or afford her a hearing.

Defendant's motion granted; plaintiff's cross-motion

denied; petition dismissed.

Bennett, J., concurred and filed opinion.

Skelton, J., dissented and filed opinion.

West Headnotes

[1] United States 393 36

393 United States

393I Government in General

393k36 k. Appointment or Employment and

Tenure of Agents, Clerks, and Employees in General. Most Cited Cases

Element of voluntariness of a resignation by a civil

servant is vitiated only when the resignation is submitted under duress brought on by Government action.

[2] United States 393 36

393 United States

393I Government in General

393k36 k. Appointment or Employment and

Tenure of Agents, Clerks, and Employees in General. Most Cited Cases

Resignations of civil servants are presumed to be

voluntary; such presumption prevails unless the servant comes forward with sufficient evidence to establish that the resignation was involuntarily extracted.

[3] Officers and Public Employees 283 76

283 Officers and Public Employees

283I Appointment, Qualification, and Tenure

283I(H) Proceedings for Removal, Suspension, or Other Discipline

283I(H)7 Reinstatement and Back Pay

283k76 k. In General. Most Cited

Cases

Under the doctrine of exhaustion of administrative

remedies, the Court of Claims, in suit by government civilian employee seeking reinstatement on

ground that her resignation was not voluntary, was

required to restrict its review to the factual matters

presented to the civil service officials.

[4] United States 393 36

393 United States

393I Government in General

393k36 k. Appointment or Employment and

Tenure of Agents, Clerks, and Employees in General. Most Cited Cases

Duress, as regards resignation of a civil servant, is

not measured by the employee's subjective evaluation of the situation but, rather, the test is an objective one.

518 F.2d 584 Page 1

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[5] United States 393 36

393 United States

393I Government in General

393k36 k. Appointment or Employment and

Tenure of Agents, Clerks, and Employees in General. Most Cited Cases

United States 393 39(8)

393 United States

393I Government in General

393k39 Compensation of Officers, Agents,

and Employees

393k39(8) k. Compensation After Suspension or Removal. Most Cited Cases

Where, when faced with agency decision to separate her for cause, civilian government employee

had a choice, in that she could either stand pat and

fight or could choose to resign and accept discontinued service retirement, her choice of the latter

did not render her resignation involuntary; merely

because she was faced with an inherently unpleasant situation did not obviate voluntariness of her

resignation and fact that she may have perceived no

viable alternative to resignation did not render her

resignation involuntary; hence, she was not entitled

to reinstatement and back pay.

[6] United States 393 36

393 United States

393I Government in General

393k36 k. Appointment or Employment and

Tenure of Agents, Clerks, and Employees in General. Most Cited Cases

Before a resignation by a civil servant to avoid

threatened termination for a cause will be found

voluntary the threat and termination must be for

good cause; however, such “good cause” requirement is met as long as the employee fails to show

that the agency knew or believed that the proposed

termination could not be substantiated.

[7] United States 393 36

393 United States

393I Government in General

393k36 k. Appointment or Employment and

Tenure of Agents, Clerks, and Employees in General. Most Cited Cases

Although former government civilian employee,

seeking reinstatement and back pay on ground that

her resignation was not voluntary, attempted to impugn agency's motivation for proceeding with proposed termination because of alleged physical altercation with her superior the employee did not deny

that the incident had taken place, such admission

was fatal to her attempt to impeach the decision to

terminate her for cause; whether charge could have

been sustained had employee chosen to appeal her

discharge for cause was irrelevant to determination

of whether her resignation was voluntary; admission of incident was prima facie evidence that arguable basis for discharge existed.

[8] United States 393 36

393 United States

393I Government in General

393k36 k. Appointment or Employment and

Tenure of Agents, Clerks, and Employees in General. Most Cited Cases

Although an ostensibly voluntary resignation by a

government employee may be found involuntary if

obtained by agency misrepresentation, reliance on

the claimed misrepresentation is essential to a finding of involuntariness.

[9] United States 393 36

393 United States

393I Government in General

393k36 k. Appointment or Employment and

Tenure of Agents, Clerks, and Employees in General. Most Cited Cases

Government employee's separation from service

was not to be voided on ground that she was not

permitted to set an effective date of her resignation

since when she signed the necessary forms requesting her separation from the rolls and her request for

discontinued service retirement she adopted the

date contained therein as her own; such ratification,

signified by her signature, satisfied the requirement

that she set her own effective date of resignation.

518 F.2d 584 Page 2

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[10] Officers and Public Employees 283

72.22

283 Officers and Public Employees

283I Appointment, Qualification, and Tenure

283I(H) Proceedings for Removal, Suspension, or Other Discipline

283I(H)2 Administrative Review

283k72.21 Decisions Reviewable; Forum for Review

283k72.22 k. In General; Adverse

Actions. Most Cited Cases

(Formerly 283k72(2))

Officers and Public Employees 283 76

283 Officers and Public Employees

283I Appointment, Qualification, and Tenure

283I(H) Proceedings for Removal, Suspension, or Other Discipline

283I(H)7 Reinstatement and Back Pay

283k76 k. In General. Most Cited

Cases

Since former government employee failed to

present an adequate claim of coerced resignation

the Civil Service Commission properly declined to

accept her appeal; likewise, Commission's denial of

requested hearing did not require reinstatement.

[11] Officers and Public Employees 283

72.22

283 Officers and Public Employees

283I Appointment, Qualification, and Tenure

283I(H) Proceedings for Removal, Suspension, or Other Discipline

283I(H)2 Administrative Review

283k72.21 Decisions Reviewable; Forum for Review

283k72.22 k. In General; Adverse

Actions. Most Cited Cases

(Formerly 283k72(2))

Voluntary separations by government employees

are not adverse actions and, thus, are not appealable

to the Civil Service Commission.

[12] Administrative Law and Procedure 15A

441

15A Administrative Law and Procedure

15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents

15AIV(D) Hearings and Adjudications

15Ak441 k. In General. Most Cited Cases

An agency is not required to grant a hearing any

time one is requested.

[13] Constitutional Law 92 4172(6)

92 Constitutional Law

92XXVII Due Process

92XXVII(G) Particular Issues and Applications

92XXVII(G)7 Labor, Employment, and

Public Officials

92k4163 Public Employment Relationships

92k4172 Notice and Hearing; Proceedings and Review

92k4172(6) k. Termination or

Discharge. Most Cited Cases

(Formerly 92k278.4(5), 92k318(2))

Nonprobationary federal employees have a property

interest in their jobs; as such, they are entitled to a

due process hearing if the Government initiates an

adverse action to remove them; however, when an

employee voluntarily relinquishes his property interest, his separation cannot be considered an adverse action.

*586 Elsa R. Kaufman, Washington, D.C. attorney

of record, for plaintiff.

Iraline G. Peniston, Washington, D.C., with whom

was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.

Before SKELTON, KUNZIG, and BENNETT,

Judges.

KUNZIG, Judge:

In this civilian employment action, the court is confronted with a single legal question: whether

plaintiff was wrongfully separated from government service, by means of a coerced resignation.

We hold that, as a matter of law, plaintiff's resignation was voluntary.

The factual setting in which this case arises may be

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briefly summarized as follows: Plaintiff, a 5-point

veteran's preference employee, had continuously

served in the Navy Department since 1943. From

1943 until August 1946, plaintiff was on active

duty in the United States Naval reserve. At the end

of World War II, she was converted to civilian

status and remained a civilian employee until the

effective date of her resignation, March 10, 1972.

At the time of her separation, plaintiff was employed as a Technical Data Management Specialist,

GS-13, with the Naval Weapons Engineering Support Activity, located at the Washington, D.C. Navy

Yard.

On November 22, 1971, plaintiff was issued an Advance Notice of Proposed Removal for ‘Attempting

to Inflict Bodily Injury to Your Supervisor-First

Offense.’This charge stemmed from an alleged

striking incident during a meeting on November 15,

1971, where plaintiff allegedly made threatening

gestures toward her supervisor. Plaintiff submitted

a written reply denying the charge on December 8,

1971.

By letter dated February 23, 1972, plaintiff was notified of the agency's decision to separate her for

cause, effective February 25, 1972. However, since

the installation was undergoing a reduction-in-force

(RIF), the effective date of plaintiff's discharge was

extended to give her the opportunity to explore the

alternative of voluntary resignation via Discontinued Service Retirement. While it is disputed as to

which side initiated the extension request, the effective date of plaintiff's proposed removal was reset to March 3, 1972.

The period between February 25 and March 3, 1972

was marked by a series of exchanges between the

agency and plaintiff. Plaintiff attempted to submit a

resignation conditioned by her allegation that it was

being tendered under duress. The agency informed

plaintiff it could not accept such a condition resignation because it was not ‘in consonance with the

most current controlling regulation’ and advised

plaintiff that applicable regulations mandate that

such resignations be voluntary. On March 3, 1972,

plaintiff tendered a resignation free of protest and

submitted an application for discontinued service

retirment, both effective March 10, 1972. Plaintiff's

resignation and application for *587 discountinued

service retirement were processed and approved by

the agency and plaintiff was separated from the

Navy Department effective March 10, 1972.

Subsequent to her resignation, plaintiff appealed to

the Appeals Examining Office (AEO) of the Civil

Service Commission (CSC). In her March 25, 1972

letter, plaintiff switched back to her earlier position

that her resignation was involuntary, described its

effect as an ‘adverse action’ taken against her, and

requested a hearing before the AEO. The AEO

held, in a decision issued on June 12, 1972, that

plaintiff's separation by resignation was voluntary.

Stating that voluntary separations are not within the

CSC's appellate jurisdictionThe AEO denied

plaintiff's request for a hearing. The decision of the

AEO was affirmed by the CSC Board of Appeals

and Review (BAR) on December 8, 1972. Having

exhausted her administrative remedies, plaintiff

filed the present action in this court on December

19, 1973, seeking back pay, reinstatement and other

relief.

This case, in its present posture, is before us on

cross-motions for summary judgment. Defendant's

motion is grounded on plaintiff's failure to establish

by objective standards that her resignation was obtained by duress. Plaintiff's cross-motion for summary judgment is premised on the view that the totality of events surrounding her resignation evidences a denial of any viable choice but to resign

and thus, as a matter of law, she is entitled to judgment. For the reasons stated below, we conclude

that plaintiff's allegation of involuntary resignation

fails as a matter of law and therefore dismiss the

petition.

[1] This court has enunciated a principle, now

firmly established, for determining whether a resignation is voluntarily tendered. The element of voluntariness is vitiated only when the resignation is

submitted under duress brought on by Government

action.Leone v. United States, 204 Ct.Cl. 334, 339

(1974). The tripart test for such duress is:

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* * * (1) that one side involuntarily accepted the

terms of another; (2) that circumstances permitted

no other alternative; and (3) that said circumstances

were the the result of coercive acts of the opposite

party. * * * Fruhauf Southwest Garment Co. v.

United States, 111 F.Supp. 945, 951, 126 Ct.Cl. 51,

62 (1953).

[2][3] Employee resignations are presumed to be

voluntary. This presumption will prevail unless

plaintiff comes forward with sufficient evidence to

establish that the resignation was involuntarily extracted. Plaintiff had the opportunity to rebut this

presumption before the CSC. This court, under the

doctrine of exhaustion of administrative remedies,

must restrict its review to the factual matters

presented below. See Haynes v. United States, 418

F.2d 1380, 1383, 190 Ct.Cl. 9, 12-13 (1969).

[4][5] Upon review of the facts as they appear in

the record before the CSC, it is clear that plaintiff

has failed to show that her resignation was obtained

by external coercion or duress. Duress is not measured by the employee's subjective evaluation of a

situation. Rather, the test is an objective

one.McGucken v. United States, 407 F.2d 1349,

1351, 187 Ct.Cl. 284, 289,cert. denied, 396 U.S.

894, 90 S.Ct. 190, 24 L.Ed.2d 170 (1969); Pitt v.

United States, 190 Ct.Cl. 506, 513, 420 F.2d 1028,

1032 (1970). While it is possible plaintiff, herself,

perceived no viable alternative but to tender her

resignation, the record evidence supports CSC's

finding that plaintiff chose to resign and accept discontinued service retirement rather than challenge

the validity of her proposed discharge for cause.

The fact remains, plaintiff had a choice. She could

stand pat and fight. She chose not to. Merely because plaintiff was faced with an inherently unpleasant situation in that her choice was arguably

limited to two unpleasant alternatives does not obviate the voluntariness of her resignation.*588

Federal Personnel Manual Supp. 752-1, subchapter

S1-2a(3).

[6][7] This court has repeatedly upheld the voluntariness of resignations where they were submitted

to avoid threatened termination for cause.Pitt v.

United States, supra (termination resulting from

possible criminal prosecution); Cosby v. United

States, 417 F.2d 1345, 189 Ct.Cl. 528 (1969)

(termination for gross insubordination); Autera v.

United States, 389 F.2d 815, 182 Ct.Cl. 495 (1968)

(termination for incompetence). Of course, the

threatened termination must be for good cause in

order to precipitate a binding, voluntary resignation.Autera v. United States, supra 389 F.2d at 817,

182 Ct.Cl. at 499. But this ‘good cause’ requirement is met as long as plaintiff fails to show that

the agency knew or believed that the proposed termination could not be substantiated.Leone v.

United States, supra 204 Ct.Cl. at 340. Although

plaintiff has attempted to impugn the agency's motivation for proceeding with her proposed termination, plaintiff does not deny that the incident which

formed the basis of the charge against her had taken

place (although she does assert the so-called assault

was nothing more than an ‘inadvertent touching’).

This admission is fatal to plaintiff's attempt to impeach the agency's decision to terminate her for

cause. Whether this charge could have been sustained had plaintiff chosen to appeal her discharge

for cause is irrelevant. What is relevant is that the

admission of this incident is prima facie evidence

that an arguable basis for discharge existed.

[8] Plaintiff's suggestion that her resignation was

obtained as a result of agency deception is completely unsupported by the record. It is true that

CSC regulations recognize that a normally voluntary action is transformed into an involuntary one if

obtained by agency misrepresentation. Federal Personnel Manual Supp. 752-1, subchapter S1-2a(1).

But reliance on the misrepresentation is an essential

element. Here, plaintiff not only fails to show such

reliance, her own words completely repudiate it. In

her request for consideration to the CSC AEO,

dated March 25, 1972, plaintiff did allege that the

agency misrepresented the consequences of a dismissal for cause regarding retirement/annuity

rights. But in the same sentence, plaintiff concedes

that the alleged misrepresentations were corrected

‘in later explorations of alternatives' before she submitted her disputed resignation. This concession

clearly negates any suggestion that plaintiff relief

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on any purported agency misrepresentations.

[9] Plaintiff's argument that her separation should

be voided because she was not permitted to set the

effective date of her resignation has no merit. When

plaintiff signed the necessary forms requesting her

separation from the rolls and her request for discontinued service retirement, she adopted the date contained therein as her own. This ratification, signified by her signature, clearly satisfies the requirements that plaintiff set her own effective date of

resignation.

[10][11][12][13] Since plaintiff has failed to

present an adequate claim of coerced resignation,

CSC properly declined to accept her appeal. Voluntary separations are not adverse actions and are thus

not appealable to the CSC. See 5 C.F.R. s

752-201(b).

At oral argument, plaintiff's counsel raised the issue

of whether CSC's denial of a requested hearing

compels reinstatement. Our answer is that it does

not.

It would be folly to suggest that any time a hearing

is requested, an agency must grant it. Yet, in effect,

that is what plaintiff seems to imply. What plaintiff

overlooks is that the legal classification of her separation is determinative of her entitlement to a hearing.

The Supreme Court has recognized that nonprobationary Federal employees have a property interest in their jobs.Arnett v. Kennedy, 416 U.S.

134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). As such,

employees are entitled to a due process hearing if

the Government initiates an *589 adverse action to

remove them. However, when an employee voluntarily relinquishes her property interest, her separation cannot be considered an adverse action. Since

there was no adverse action in this case, a hearing

is not required.McGucken v. United States, supra,

407 F.2d at 1352, 187 Ct.Cl. at 289. The underlying

rationale is that a Government-initiated removal

(adverse action) is analogous to a ‘taking’ of a

property interest; an employee-initiated separation

is not. Compare Board of Regents v. Roth, 408 U.S.

564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) with

Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694,

33 L.Ed.2d 570 (1972). Since plaintiff voluntarily

relinquished her property interest, the CSC correctly denied her hearing request.

In summary, we hold the CSC properly declined to

accept plaintiff's appeal because, as a matter of law,

her resignation was voluntary. We further conclude

CSC's denial of plaintiff's hearing request was

proper.

Accordingly, defendant's motion for summary judgment is granted, plaintiff's cross-motion for summary judgment is denied, and the petition is dismissed.

BENNETT, Judge (concurring):

I join in the opinion and conclusion of Judge KUNZIG. In response to the dissent, however, I wish to

add a few comments.

The dissent questions the substantiality of the

charge against plaintiff upon which the proposed

removal was based. The incident was described in

the ‘Advanced Notice of Proposed Removal,’ as

follows:

(2) Incident. On 15 November 1971, at approximately 0900, you came into my office with an information list, to describe certain problems you had

encountered while working with the Engineering

Change Proposal (ECP) program. You explained

that you receive information over the phone from

AIR 01A6 on Monday morning, and then relay it,

via phone, to NAVAIRTECHSERVFAC. You complained that this took up a great deal of your time. I

stated that assuming that the girl in AIR-01A6

reads from a list, she could send the data direct to

NAVAIRTECHSERVFAC over the telecopier, and

they, in turn, could phone back a confirmation directly to AIR-01A6. You replied in a disgusted manner that the girl at AIR-01A6 had better things to do

(or words to that effect). I stated that I would still

like to know if she could do it, whereupon you

stated ‘Well, I won't ask her’ (or words to that effect), and proceeded to walk out. I said, ‘Ruth, I

think you're being unreasonable.’At that, you

turned and approached where I was sitting at my

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desk. You stood over me and said in a somewhat

strained voice, ‘You drive me nuts-you bastard,

you're driving me nuts' (or words to that effect). At

the same time, you swung at my face with your

right hand doubled into a fist, which I stopped with

my hands. I became quite concerned, not only for

you and your apparant (sic) loss of self-control, but

for my own physical safety as well. I asked,

‘What's wrong with you Ruth?’ You just looked at

me and attempted to pound me with your fists, perhaps five or six times. None of the blows hit my

head or face, all fell on my hands and forearms with

which I warded off the blows. Although these

blows were not overly severe in nature, they were

never-the-less, in my opinion, intended to inflict

bodily harm to me. You then turned and left the office without uttering anything further. Mr. Harold

Booher, Publications Presentation Methods Specialist, was in the office at the time and observed the

incident, and more specifically, your actions immediately prior to leaving the room. I immediately

turned to Mr. Booher and asked him to go see if

you were all right. I indicated to him that I was

worried about you, but that I was afraid that if I

went in to see you personally, that it would only

upset you more. Mr. Booher did go in and *590 ask

you if you were all right, to which you replied that

you were.

Perhaps the notion of plaintiff's inflicting bodily injury on her male supervisor is not persuasive, but

the striking of a supervisor in anger is surely intolerable in any employment relationship and is a valid basis for removal for cause whether the blows

resulted in injury or not.

Furthermore, the incident was witnessed by a third

party. Clearly, therefore, this is not a case in which

the agency knew or believed that the proposed termination could not be substantiated.

Nor was the resignation the result of deception. In

her appeal to the Civil Service Commission,

plaintiff wrote:

* * * The false information that removal for misconduct would result in sacrifice of all retirement/annuity rights was originally offered, but was corrected in later exploration of alternatives. (Emphasis

supplied.)

Surely plaintiff cannot now be permitted to contradict that statement.

Finally, the dissent is mistaken in suggesting that

defendant has admitted the allegations made by

plaintiff, to wit, that the incident was contrived and

that she was deceived, intimidated, and thereby coerced to resign. Defendant nowhere admits these allegations and, of course, makes no such admission

by filing a motion for summary judgment as contrasted to a motion for dismissal. Defendant relies

on the various documents in the record which show

as a matter of law that plaintiff's resignation was

voluntary. With regard to the affidavits filed with

plaintiff's brief, defendant correctly notes that

* * * the affidavits filed with plaintiff's brief should

be disregarded to the extent they seek to raise new

factual matters not presented to The Commission.

Consideration of such new materials by this Court

is barred by the doctrine requiring exhaustion of administrative remedies.Haynes v. United States, 190

Ct.Cl. 9, 12-13 (1969); Pine v. United States, 178

Ct.Cl. 146, 148, 371 F.2d 466-68 (1967); Long v.

United States, 148 Ct.Cl. 4, 9 (1960).

Plaintiff simply has no legal basis for recovery in

this court on the facts properly before us on the motions.

SKELTON, Judge (dissenting):

I cannot agree with the decision of the majority because I believe that an injustice has been done in

this case.

The sole question before the court is whether the

plaintiff Ruth Christie voluntarily resigned her position with the Navy's Bureau of Aeronautics or

whether the agency forced her to resign against her

will by coercion, intimidation, and duress so as to

make her resignation involuntary. I am firmly convinced that her resignation was coerced.

The plaintiff was a five-point veteran's preference

eligible employee under the provisions of the Veterans' Preference Act of June 27, 1944, 58 Stat.

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387, as amended, 5 U.S.C. ss 1302, 2108, and 3309.

She founded and organized the Bureau and headed

it from 1944 to 1968. In 1968 a Mr. F. M. McNeal

was made civilian head and in 1971 a Mr. A. J.

McGuckin was made plaintiff's immediate supervisor. Neither man had had any prior experience in

the work. The facts show that these two men began

a course of harassing conduct toward the plaintiff to

provoke her and to eventually get rid of her regardless of the means or the cost. From then on her

doom was sealed, and it was only a question of time

until a situation could be created on which charges

could be brought against her. That opportunity

came when McGuckin provoked her to anger and

she inadvertently touched his shoulder with her fingers. As a result, plaintiff was charged with

‘attempting to inflict bodily injury on your supervisor.’Such a charge was ridiculous on its face.

McGuckin was in about as much danger of bodily

injury on that occasion as an elephant would be if

touched by a gnat or a fly.

The harassing treatment the plaintiff received at the

hands of McGuckin and *591 McNeal was totally

unjustified. Fellow employee Robert Clark said her

treatment was ‘grossly unfair, if not illegal.’ Another employee, Richard Kreider, said the treatment

Miss Christie received was ‘contemptuous,’ but that

she ‘was very capable, had the respect of her fellow

employees, and did nothing to warrant this treatment.’He said further ‘this was a pure and simple

case of sex discrimination.’(She was the only woman employee, except clerks and secretaries.) Nevertheless, McGuckin and McNeal forced her out regardless of the cost. The time has now come for the

cost to be paid.

The plaintiff alleges in this case that the charges

arising out of the McGuckin incident were planned,

contrived, and ridiculous, and that she had no intention of inflicting any bodily injury on McGuckin;

that the charge was held over her head to force her

to resign; and was not dismissed until after she

resigned; that she was threatened with removal

from her job on the charge and was told that if she

was so removed she would forfeit all of her retirement benefits that she had earned with 29 years of

service (which was of course a misrepresentation

and false); that in any event she would be removed

in a reduction-in-force program (which was false);

and that she could sign a resignation form and still

appeal her removal (which was false); and that her

resignation was not voluntary but was induced by

deceit, duress, intimidation, coercion and time pressure. The defendant filed a motion for summary

judgment thereby admitting the foregoing allegations of the plaintiff to be true. Under these circumstances, there is no way that the Government is entitled to a summary judgment.

Faced with the above threats, deceitful and false

misrepresentations, pressure, contrived charges, coercion, duress, intimidation, and time pressure, the

plaintiff had no choice except to sign the resignation form. She was forced to choose on the one

hand between what she believed to be the utter

disater of losing her job in disgrace along with her

29 year earned retirement annuity, and on the other

hand a bare living on discontinued service retirement. She had a choice, as the poet says, between

‘death and exile,’ a choice between the ‘guillotine

and the hangman's noose,’ a choice between ‘Scylla

and Charybdis' (in avoiding one monster you fall

prey to another. See Homer Od. XII. 73, 235, 430

and Gautier de Lille Alexandreis (cirea 12).) It is

clear that plaintiff had no choice except to sign the

resignation form. The ‘freedom of choice’ required

by the regulations below was absent. Under these

circumstances, plaintiff's resignation was not voluntary. Defendant's regulations so provide. The regulations are as follows:

Federal Personnel Manual Supplement 752-1,

Subchapter S1, Adverse Actions by Agencies

(February 4, 1972).

2a(1) Separations and reductions in rank or pay voluntarily initiated by an employee are by their very

nature actions which do not require the use of adverse action procedures. On the other hand, a normally voluntary action-i.e., a resignation, optional

retirement, or reduction in rank or pay at the employee's request-is an adverse action if it is obtained by duress, time pressure, intimidation, or deception. Whether an action is voluntary or involuntary is determined not by the form of the action but

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the circumstances that produced it.

(2) The Commission holds that an action requested

by an employee is voluntary only if the employee

has freedom of choice. The general principle is that

an action is voluntary if the employee is free to

choose, understands the transaction, is given a reasonable time to make his choice, and is permitted to

set the effective date.

(3) * * * (I)f the agency uses deception, duress,

time pressure or intimidation to force him to choose

a particular course of action, the action is involuntary.

S1-2b. (4). Employee does not set effective date.

An action is involuntary*592 if the employee does

not set the effective date. The agency may point out

the desirability of another date, but it may not arbitrarily set an earlier or later date and have the action

remain a voluntary one. (Emphasis supplied.)

These regulations plainly provide that:

* * * (A) resignation * * * is an adverse action if it

is obtained by duress, time pressure, intimidation,

or deception. * * *

All of these elements are present in the instant case.

Yet the majority holds that the resignation was voluntary. This is contrary to the facts.

Furthermore, the regulations provide that the resignation is voluntary:

* * * (O)nly if the employee has freedom of choice.

* * *

There was no freedom of choice in this case.

But there is more. The regulations provide:

* * * (I)f the agency used deception, duress, time

pressure or intimidation to force him (her) to

choose a particular course of action, the action is

involuntary.

In the face of the Government's admission by the

filing of its motion for summary judgment in this

case that the agency used deception, duress, time

pressure and intimidation to force the plaintiff to

sign a resignation form, it is difficult to understand

how the majority can hold that the resignation of

the plaintiff was voluntary. Even without the Government's admission, the facts affirmatively show

that her resignation was involuntary.

Under the circumstances pointed out above, the

resignation form the plaintiff was forced to sign

was an adverse action. Therefore, the agency was

required to treat it as such and conduct an investigation and accord the plaintiff a hearing. Neither

course was followed. The agency clearly violated

its own regulations. This violation was made all the

more evident by the fact that when the plaintiff

signed the resignation form and delivered it to the

agency she notified and advised the agency that she

was signing the resignation because of coercion and

duress by the agency. This information put the

agency on notice of her coercion and duress claim,

but it ignored these facts and denied the plaintiff

the protection guaranteed to her by the regulations.

It should be pointed out that the agency violated its

own regulations in another particular. The regulations quoted above provide that:

* * * An action is involuntary if the employee does

not set the effective date. (for retirement) * * *

(B)ut it (the agency) may not arbitrarily set an earlier or later date and have the action remain a voluntary one.

In this case this regulation was clearly violated because the agency arbitrarily set three different dates

for the resignation of plaintiff to become effective

without consulting with the plaintiff as to the dates

it selected and without allowing the plaintiff to ‘set

the effective date.’ This was a direct violation of

the regulations by the agency.

We have often held that a violation by an agency of

its own regulations voids an action taken by it

against an employee. Here we have not one but several of such violations.

The majority cites cases where we have held that

resignations by employees were voluntary and that

they were not entitled to any relief. However, a

close examination of those cases show they are distinguishable on the facts. The Government anticipated such situations when it promulgated the regulations quoted above that provide that each case depends on its own facts, as follows:

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* * * Whether an action is voluntary or involuntary

is determined not by the form of the action but the

circumstances that produced it. (Emphasis supplied.)

Consequently the cases cited by the majority are

not controlling here. The instant case is more like

the facts in Perlman v. United States, 490 F.2d 928,

932-*593 33, 203 Ct.Cl. 397, 406-08 (1974) that

the combination of the acts of the Government

denied freedom of choice to the plaintiff as to his

voluntary retirement.

The majority have undoubtedly been influenced by

those resignation cases where we have denied relief, in which I joined, where the employee was

guilty of overreaching or was attempting to gain an

undue advantage by resigning. This is not such a

case. The plaintiff was not guilty of any such overreaching nor was she trying to gain any extra benefits by resigning. On the other hand, she was bitterly opposed to resigning. She was merely trying

to keep body and soul together. She was led to believe by the misrepresentations and coercion of the

agency that the only way she could do this was by

resigning. There was no way that she could profit

or benefit by resigning. The overreaching and unconscionable conduct all occurred on the part of the

agency. In short, she was forced out against her

will. This sort of conduct should not be condoned,

much less approved.

In this case the plaintiff requested a hearing on

whether or not her retirement was voluntary (see affidavit of Mr. Carstater, her representative before

the Commission, attached to her cross-motion for

summary judgment and plaintiff's appeal letter of

June 27, 1972). The Commission denied the hearing request, even though plaintiff pointed out that

she was entitled to due process. This was clear error. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct.

1633, 40 L.Ed.2d 15 (1974) where the Supreme

Court held in no uncertain terms that a Government

job was property and that because of the due process clause it could not be taken from a Government employee without a hearing ‘at some stage of

the proceeding.’The decision of the Commission

denying such a hearing in this case clearly violates

the due process clause of the Constitution, and the

opinion of the majority in approving this denial

falls into the same error. See the following additional cases holding that property may not be taken

from a citizen without a hearing: Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d

418 (1971) (loss of a state job); Goldberg v. Kelly,

397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287

(1970) (loss of welfare payments); Morrissey v.

Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d

484 (1972) (revocation of a parole); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d

935 (1974) (cancellation of a prisoner's good-time

credits); Bell v. Burson, 402 U.S. 535, 91 S.Ct.

1586, 29 L.Ed.2d 90 (1971) (cancellation of a

driver's license); Board of Regents v. Roth, 408

U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)

(damaged reputation and standing); Sniadach v.

Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820,

23 L.Ed.2d 349 (1969) (garnishment of wages);

Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32

L.Ed.2d 556 (1972) (seizure of mortagaged property); and Goss v. Lopez, 419 U.S. 565, 95 S.Ct.

729, 42 L.Ed.2d 725 (1975) (suspension of school

children).

It is obvious that the agency violated its own regulations in several respects; that the resignation of

plaintiff was obtained by the agency through deceit,

intimidation, misrepresentation, time pressure,

duress and coercion (within the meaning of Fruhauf

Southwest Garment Co. v. United States, 126 Ct.Cl.

51, 111 F.Supp. 945 (1953)); and that the agency

denied the plaintiff due process as required by the

Constitution in refusing to grant her a hearing as to

the voluntariness of her resignation.

Accordingly, I would allow plaintiff's motion for

summary judgment and enter judgment for the

plaintiff, awarding her back pay plus other appropriate benefits and restoring her to her position, and

I would deny defendant's motion for summary judgment. I would remand the case to the trial judge to

determine the amount of plaintiff's recovery under

Rule 131(c).

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Ct.Cl. 1975.

Christie v. U. S.

207 Ct.Cl. 333, 518 F.2d 584

END OF DOCUMENT

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City of Canton, Ohio v. Harris

U.S.,1989.

Supreme Court of the United States

CITY OF CANTON, OHIO, Petitioner

v.

Geraldine HARRIS et al.

No. 86-1088.

Argued Nov. 8, 1988.

Decided Feb. 28, 1989.

Detainee brought civil rights action against city, alleging violation of her right to receive necessary

medical attention while in police custody. The

United States District Court for the Northern District of Ohio entered judgment in favor of detainee,

and city appealed. The Court of Appeals, 6th Circuit, 798 F.2d 1414, unpublished opinion, reversed

and remanded, and city petitioned for writ of certiorari. The Supreme Court, Justice White, held that

inadequacy of police training may serve as basis for

§ 1983 municipal liability only where failure to

train amounts to deliberate indifference to rights of

persons with whom police come into contact.

Vacated and remanded.

Justice Brennan filed concurring opinion.

Justice O'Connor filed opinion concurring in part

and dissenting in part in which Justice Scalia and

Justice Kennedy joined.

West Headnotes

[1] Civil Rights 78 1352(1)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1352 Lack of Control, Training, or Supervision; Knowledge and Inaction

78k1352(1) k. In General. Most Cited

Cases

(Formerly 78k206(4), 78k13.7)

Under certain circumstances, municipality can be

held liable in civil rights action under § 1983 for

constitutional violations resulting from its failure to

train municipal employees. 42 U.S.C.A. § 1983.

[2] Federal Courts 170B 452

170B Federal Courts

170BVII Supreme Court

170BVII(B) Review of Decisions of Courts

of Appeals

170Bk452 k. Certiorari in General. Most

Cited Cases

Federal Courts 170B 455.1

170B Federal Courts

170BVII Supreme Court

170BVII(B) Review of Decisions of Courts

of Appeals

170Bk455 Decisions Reviewable and

Grounds for Issuance

170Bk455.1 k. In General. Most Cited

Cases

Federal Courts 170B 461

170B Federal Courts

170BVII Supreme Court

170BVII(B) Review of Decisions of Courts

of Appeals

170Bk460 Review on Certiorari

170Bk461 k. Questions Not Presented

Below or in Petition for Certiorari. Most Cited

Cases

Writ of certiorari issued pursuant to city's petition

seeking review of decision holding it liable in civil

rights action for failing to train police officers when

to summon medical care for injured detainees

would not be dismissed as improvidently granted,

despite detainee's claim that city failed to preserve

principal issues for review; city's petition directly

addressed issue of circumstances under which inadequate training could be found to be “policy” that is

actionable in civil rights action, and detainee's brief

in opposition of petition did not contend that city's

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claims were not pressed on appeal. 42 U.S.C.A. §

1983.

[3] Civil Rights 78 1351(1)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(1) k. In General. Most Cited

Cases

(Formerly 78k206(3), 78k13.7)

First inquiry in any case alleging municipal liability

under § 1983 is question of whether there is direct

causal link between municipal policy or custom and

alleged constitutional deprivation. 42 U.S.C.A. §

1983.

[4] Federal Courts 170B 461

170B Federal Courts

170BVII Supreme Court

170BVII(B) Review of Decisions of Courts

of Appeals

170Bk460 Review on Certiorari

170Bk461 k. Questions Not Presented

Below or in Petition for Certiorari. Most Cited

Cases

Issue of whether city could be held liable for its alleged “custom” of denying medical care to detainees suffering from emotional or medical ailments

would not be considered by Supreme Court on writ

of certiorari from Court of Appeals' decision ruling

that city could be held liable for failing to adequately train police officers, where “custom”

claim was not passed on by Court of Appeals, and

was not presented to that Court as distinct ground

for decision. 42 U.S.C.A. § 1983.

[5] Civil Rights 78 1352(1)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1352 Lack of Control, Training, or Supervision; Knowledge and Inaction

78k1352(1) k. In General. Most Cited

Cases

(Formerly 78k206(4), 78k13.7)

There are limited circumstances in which allegation

of “failure to train” can be basis for municipal liability under § 1983; not only unconstitutional

policies are actionable under the statute. 42

U.S.C.A. § 1983.

[6] Civil Rights 78 1352(4)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1352 Lack of Control, Training, or Supervision; Knowledge and Inaction

78k1352(4) k. Criminal Law Enforcement; Prisons. Most Cited Cases

(Formerly 78k206(4), 78k13.7)

Inadequacy of police training may serve as basis for

§ 1983 municipal liability only where failure to

train amounts to deliberate indifference to rights of

persons with whom police come into contact; only

where municipality's failure to train its employees

in relevant respect evidences “deliberate indifference” to rights of its inhabitants can such shortcoming be properly thought of as city “policy or custom” that is actionable under § 1983. 42 U.S.C.A. §

1983.

[7] Civil Rights 78 1343

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1343 k. In General. Most Cited Cases

(Formerly 78k206(1), 78k13.7)

Proper standard for determining when municipality

will be liable under § 1983 for constitutional

wrongs does not turn on any underlying culpability

test that determines when such wrongs have occurred. 42 U.S.C.A. § 1983.

[8] Civil Rights 78 1352(4)

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78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1352 Lack of Control, Training, or Supervision; Knowledge and Inaction

78k1352(4) k. Criminal Law Enforcement; Prisons. Most Cited Cases

(Formerly 78k206(4), 78k13.7)

In resolving issue of city's liability for failing to

properly train police officers, focus must be on adequacy of training program in relation to tasks particular officers must perform; that particular officer

may be unsatisfactorily trained will not alone suffice to fasten liability on city, for officer's shortcomings may have resulted from factors other than

faulty training program. 42 U.S.C.A. § 1983.

[9] Civil Rights 78 1352(4)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1352 Lack of Control, Training, or Supervision; Knowledge and Inaction

78k1352(4) k. Criminal Law Enforcement; Prisons. Most Cited Cases

(Formerly 78k206(4), 78k13.7)

City could be held liable to detainee in civil rights

action based on detainee's claim that city failed to

adequately train police officers in determining

whether detainees needed medical care only if city's

failure to train represented deliberate indifference

to constitutional rights of its inhabitants. 42

U.S.C.A. § 1983.

[10] Federal Courts 170B 462

170B Federal Courts

170BVII Supreme Court

170BVII(B) Review of Decisions of Courts

of Appeals

170Bk462 k. Determination and Disposition of Cause. Most Cited Cases

After Supreme Court determined that “deliberate

indifference” standard applied to detainee's claim

that city failed to adequately train police officers in

deciding whether detainees needed medical care, issue of whether detainee was entitled to have opportunity to prove her case under deliberate indifference rule was matter for Court of Appeals to deal

with on remand. 42 U.S.C.A. § 1983.

**1199 *378 Syllabus FN*

FN* The syllabus constitutes no part of the

opinion of the Court but has been prepared

by the Reporter of Decisions for the convenience of the reader. See United States v.

Detroit Lumber Co., 200 U.S. 321, 337, 26

S.Ct. 282, 287, 50 L.Ed. 499.

Although respondent fell down several times and

was incoherent following her arrest by officers of

petitioner city's police department, the officers

summoned no medical assistance for her. After her

release, she was diagnosed as suffering from several emotional ailments requiring hospitalization and

subsequent outpatient treatment. Some time later,

she filed suit seeking, inter alia, to hold the city liable under 42 U.S.C. § 1983 for its violation of her

right, under the Due Process Clause of the Fourteenth Amendment, to receive necessary medical

attention while in police custody. The jury ruled in

her favor on this claim upon the basis of evidence

indicating that a city regulation gave shift commanders sole discretion to determine whether a detainee required medical care, and suggesting that

commanders were not provided with any special

training to make a determination as to when to summon such care for an injured detainee. Both the

District Court, in rejecting the city's motion for

judgment notwithstanding the verdict, and the

Court of Appeals, in ruling that there had been no

error in submitting the “failure to train” claim to the

jury, held that, under Circuit precedent, a municipality is liable for failure to train its police force,

where the plaintiff proves that the municipality acted recklessly, intentionally, or with gross negligence, and that the lack of training was so reckless

or grossly negligent that deprivation of persons'

constitutional rights was substantially certain to

result. However, upon finding that certain aspects

of the District Court's jury instructions might have

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led the jury to believe that it could find against the

city on a mere respondeat superior theory, and that

the jury's verdict did not state the basis on which it

had ruled for respondent, the Court of Appeals reversed the judgment in her favor and remanded the

case for a new trial.

Held:

1. The writ of certiorari will not be dismissed as

improvidently granted on the basis of respondent's

claim that petitioner failed to preserve for review

the principal issues before this Court. Since the petition for certiorari directly addressed the critical

question here-the § 1983 actionability of a municipality's failure to train-and since respondent's brief in

opposition neither raised the objection that petitioner had failed to press its claims on the courts below

nor informed this Court *379 that petitioner had arguably conceded below that inadequate training is

actionable, this Court will exercise its discretion to

deem these defects waived. Oklahoma City v.

Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85

L.Ed.2d 791. Moreover, even if the asserted failure

of petitioner to present the claims it makes here in

the same fashion below actually occurred, that failure does not affect this Court's jurisdiction. Pp.

1202-1203.

2. A municipality may, in certain circumstances, be

held liable under § 1983 for constitutional violations resulting from its failure to train its employees. Pp. 1203-1207.

(a) Petitioner's contention that § 1983 liability can

be imposed only where the municipal policy in

question is itself unconstitutional is rejected, in

light of the rule established by the Court in this

case that there are limited circumstances in which a

“failure to train” allegation can be the basis for liability. Pp. 1203-1204.

(b) The inadequacy of police training may serve as

the basis for § 1983 liability only where the failure

to train in a relevant respect amounts to deliberate

indifference to the constitutional rights of persons

with whom the police come into contact. In contrast

to the Court of Appeals' overly broad rule, this

“deliberate indifference” standard is most consistent with the rule of Monell v. New York City Dept.

of Social **1200 Services, 436 U.S. 658, 694, 98

S.Ct. 2018, 2037, 56 L.Ed.2d 611 that a city is not

liable under § 1983 unless a municipal “policy” or

“custom” is the moving force behind the constitutional violation. Only where a failure to train reflects a “deliberate” or “conscious” choice by the

municipality can the failure be properly thought of

as an actionable city “policy.” Monell will not be

satisfied by a mere allegation that a training program represents a policy for which the city is responsible. Rather, the focus must be on whether the

program is adequate to the tasks the particular employees must perform, and if it is not, on whether

such inadequate training can justifiably be said to

represent “city policy.” Moreover, the identified deficiency in the training program must be closely related to the ultimate injury. Thus, respondent must

still prove that the deficiency in training actually

caused the police officers' indifference to her medical needs. To adopt lesser standards of fault and

causation would open municipalities to unprecedented liability under § 1983; would result in de facto

respondeat superior liability, a result rejected in

Monell; would engage federal courts in an endless

exercise of second-guessing municipal employeetraining programs, a task that they are ill suited to

undertake; and would implicate serious questions of

federalism. Pp. 1204-1207.

3. Although the evidence presently in the record

does not satisfy the “deliberate indifference” rule of

liability, the question whether respondent should

have an opportunity to prove her case under that

rule must be left to the Court of Appeals on remand, since the standard of proof the *380 District

Court ultimately imposed on her was a lesser one

than the one here adopted. P. 1207.

798 F.2d 1414 (CA6 1986), vacated and remanded.

WHITE, J., delivered the opinion of the Court, in

which REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined,

and in Parts I, II, and III of which O'CONNOR,

SCALIA, and KENNEDY, JJ., joined, except as to

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n. 11. BRENNAN, J., filed a concurring opinion,

post, p. ---. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which

SCALIA and KENNEDY, JJ., joined, post, p. ---.

Carter G. Phillips argued the cause for petitioner.

With him on the briefs were Mark D. Hopson, W.

Scott Gwin, William J. Hamann,and John S. Coury.

David Rudovsky argued the cause for respondent.

With him on the brief were Emanuella Harris

Groves and Dexter W. Clark.*

* Benna Ruth Solomon, Beate Bloch, and Richard

K. Willard filed a brief for the International City

Management Association et al. as amici curiae urging reversal.

John A. Powell, Steven R. Shapiro, Howard A.

Friedman, and Michael Aaron Avery filed a brief

for the American Civil Liberties Union et al. as

amici curiae urging affirmance.

Justice WHITE delivered the opinion of the Court.

[1] In this case, we are asked to determine if a municipality can ever be liable under 42 U.S.C. § 1983

FN1 for constitutional violations resulting from its

failure to train municipal employees. We hold that,

under certain circumstances, such liability is permitted by the statute.

FN1. Title 42 U.S.C. § 1983 provides, in

relevant part, that:

“Every person who, under color of any

statute, ordinance, regulation, custom, or

usage ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress....”

*381 I

In April 1978, respondent Geraldine Harris was arrested by officers of the Canton Police Department.

Mrs. Harris was brought to the police station in a

patrol wagon.

When she arrived at the station, Mrs. Harris was

found sitting on the floor of the wagon. She was

asked if she needed medical attention, and responded with an incoherent remark. After she was

brought inside the station for processing, Mrs. Harris slumped to the floor on two occasions. Eventually, the police officers left Mrs. Harris lying on the

floor to prevent her **1201 from falling again. No

medical attention was ever summoned for Mrs.

Harris. After about an hour, Mrs. Harris was released from custody, and taken by an ambulance

(provided by her family) to a nearby hospital.

There, Mrs. Harris was diagnosed as suffering from

several emotional ailments; she was hospitalized

for one week and received subsequent outpatient

treatment for an additional year.

Some time later, Mrs. Harris commenced this action alleging many state-law and constitutional

claims against the city of Canton and its officials.

Among these claims was one seeking to hold the

city liable under 42 U.S.C. § 1983 for its violation

of Mrs. Harris' right, under the Due Process Clause

of the Fourteenth Amendment, to receive necessary

medical attention while in police custody.

A jury trial was held on Mrs. Harris' claims. Evidence was presented that indicated that, pursuant to a

municipal regulation,FN2 shift commanders were

authorized to determine, in their sole discretion,

whether a detainee required medical *382 care. Tr.

2-139-2-143. In addition, testimony also suggested

that Canton shift commanders were not provided

with any special training (beyond first-aid training)

to make a determination as to when to summon

medical care for an injured detainee. Ibid.; App. to

Pet. for Cert. 4a.

FN2. The city regulation in question

provides that a police officer assigned to

act as “jailer” at the city police station

“shall, when a prisoner is found to be unconscious or semi-unconscious, or when he

or she is unable to explain his or her condition, or who complains of being ill, have

such person taken to a hospital for medical

treatment, with permission of his supervisor before admitting the person to City

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Jail.”App. 33.

At the close of the evidence, the District Court submitted the case to the jury, which rejected all of

Mrs. Harris' claims except one: her § 1983 claim

against the city resulting from its failure to provide

her with medical treatment while in custody. In rejecting the city's subsequent motion for judgment

notwithstanding the verdict, the District Court explained the theory of liability as follows:

“The evidence construed in a manner most favorable to Mrs. Harris could be found by a jury to

demonstrate that the City of Canton had a custom

or policy of vesting complete authority with the police supervisor of when medical treatment would be

administered to prisoners. Further, the jury could

find from the evidence that the vesting of such

carte blanche authority with the police supervisor

without adequate training to recognize when medical treatment is needed was grossly negligent or so

reckless that future police misconduct was almost

inevitable or substantially certain to result.” Id., at

16a.

On appeal, the Sixth Circuit affirmed this aspect of

the District Court's analysis, holding that “a municipality is liable for failure to train its police force,

[where] the plaintiff ... prove[s] that the municipality acted recklessly, intentionally, or with gross

negligence.” Id., at 5a.FN3 The Court of Appeals

also stated that an additional prerequisite of this

theory *383 of liability was that the plaintiff must

prove “that the lack of training was so reckless or

grossly negligent that deprivations of persons' constitutional rights were substantially certain to result.” Ibid. Thus, the Court of Appeals found that

there had been no error in submitting Mrs. Harris'

“failure to train” claim to the jury. However, the

Court of Appeals reversed the judgment for respondent, and remanded this case for a new trial,

because it found that certain aspects of the District

Court's jury instructions might have led the jury to

believe that it could find against the city on a mere

respondeat**1202 superior theory. Because the

jury's verdict did not state the basis on which it had

ruled for Mrs. Harris on her § 1983 claim, a new

trial was ordered.

FN3. In upholding Mrs. Harris' “failure to

train” claim, the Sixth Circuit relied on

two of its previous decisions which had approved such a theory of municipal liability

under § 1983. See Rymer v. Davis, 754

F.2d 198 (CA6), vacated and remanded

sub nom. Shepherdsville v. Rymer, 473

U.S. 901, 105 S.Ct. 3518, 87 L.Ed.2d

646reinstated, 775 F.2d 756, 757 (1985);

Hays v. Jefferson County, 668 F.2d 869,

874 (1982).

The city petitioned for certiorari, arguing that the

Sixth Circuit's holding represented an impermissible broadening of municipal liability under § 1983.

We granted the petition. 485 U.S. 933, 108 S.Ct.

1105, 99 L.Ed.2d 267 (1988).

II

[2] We first address respondent's contention that the

writ of certiorari should be dismissed as improvidently granted, because “petitioner failed to preserve

for review the principal issues it now argues in this

Court.” Brief for Respondent 5.

We think it clear enough that petitioner's three

“Questions Presented” in its petition for certiorari

encompass the critical question before us in this

case: Under what circumstances can inadequate

training be found to be a “policy” that is actionable

under § 1983? See Pet. for Cert. i. The petition itself addressed this issue directly, attacking the

Sixth Circuit's “failure to train” theory as inconsistent with this Court's precedents. See id., at 8-12. It

is also clear-as respondent conceded at argument,

Tr. of Oral Arg. 34, 54-that her brief in opposition

to our granting of certiorari did not raise the objection that petitioner had failed to press its claims on

the courts below.

As to respondent's contention that the claims made

by petitioner here were not made in the same fashion below, that *384 failure, if it occurred, does not

affect our jurisdiction; and because respondent did

not oppose our grant of review at that time based on

her contention that these claims were not pressed

below, we will not dismiss the writ as improvid109 S.Ct. 1197 Page 6

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ently granted. “[T]he ‘decision to grant certiorari

represents a commitment of scarce judicial resources with a view to deciding the merits ... of the

questions presented in the petition.’ ” St. Louis v.

Praprotnik, 485 U.S. 112, 120, 108 S.Ct. 915, 922,

99 L.Ed.2d 107 (1988) (quoting Oklahoma City v.

Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85

L.Ed.2d 791 (1985)). As we have expressly admonished litigants in respondent's position:

“Nonjurisdictional defects of this sort should be

brought to our attention no later than in respondent's brief in opposition to the petition for certiorari; if not, we consider it within our discretion to

deem the defect waived.” Tuttle, supra, at 816, 105

S.Ct. at 2432.

It is true that petitioner's litigation posture with respect to the questions presented here has not been

consistent; most importantly, petitioner conceded

below that “ ‘inadequate training’ [is] a means of

establishing municipal liability under Section

1983.” Reply Brief for Petitioner 4, n. 3; see also

Petition for Rehearing in No. 85-3314 (CA6), p. 1.

However, at each stage in the proceedings below,

petitioner contested any finding of liability on this

ground, with objections of varying specificity. It

opposed the District Court's jury instructions on

this issue, Tr. 4-369; claimed in its judgment notwithstanding verdict motion that there was “no

evidence of a ... policy or practice on the part of the

City ... [of] den[ying] medical treatment to prisoners,” Motion for Judgment Notwithstanding Verdict

in No. C80-18-A (ND Ohio), p. 1; and argued to the

Court of Appeals that there was no basis for finding

a policy of denying medical treatment to prisoners

in this case. See Brief for Appellant in No. 85-3314

(CA6), pp. 26-29. Indeed, petitioner specifically

contended that the Sixth Circuit precedents that

permitted inadequate training to be a basis for municipal liability on facts similar to these, see n. 3,

supra, were in conflict with *385 our decision in

Tuttle. Brief for Appellant in No. 85-3314 (CA6),

p. 29. These various presentations of the issues below might have been so inexact that we would have

denied certiorari had this matter been brought to

our attention at the appropriate stage in the proceedings. But they were at least adequate to yield a

decision by the Sixth Circuit on the questions

presented for our review now.

**1203 Here the Sixth Circuit held that where a

plaintiff proves that a municipality, acting recklessly, intentionally, or with gross negligence, has

failed to train its police force-resulting in a deprivation of constitutional rights that was “substantially

certain to result”-§ 1983 permits that municipality

to be held liable for its actions. Petitioner's petition

for certiorari challenged the soundness of that conclusion, and respondent did not inform us prior to

the time that review was granted that petitioner had

arguably conceded this point below. Consequently,

we will not abstain from addressing the question

before us.

III

In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611

(1978), we decided that a municipality can be found

liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983. Id., at 694-695, 98 S.Ct. at

2037-38. “It is only when the ‘execution of the government's policy or custom ... inflicts the injury’

that the municipality may be held liable under §

1983.” Springfield v. Kibbe, 480 U.S. 257, 267, 107

S.Ct. 1114, 1119, 94 L.Ed.2d 293 (1987)

(O'CONNOR, J., dissenting) (quoting Monell,

supra, 436 U.S., at 694, 98 S.Ct. at 2037-38).

[3] Thus, our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal

policy or custom and the alleged constitutional

deprivation. The inquiry is a difficult one; one that

has left this Court deeply divided in a series of

*386 cases that have followed Monell; FN4one

that is the principal focus of our decision again

today.

FN4. See, e.g., St. Louis v. Praprotnik, 485

U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107

(1988); Springfield v. Kibbe, 480 U.S. 257,

107 S.Ct. 1114, 94 L.Ed.2d 293 (1987);

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Los Angeles v. Heller, 475 U.S. 796, 106

S.Ct. 1571, 89 L.Ed.2d 806 (1986); Oklahoma City v. Tuttle, 471 U.S. 808, 105

S.Ct. 2427, 85 L.Ed.2d 791 (1985).

A

[4] Based on the difficulty that this Court has had

defining the contours of municipal liability in these

circumstances, petitioner urges us to adopt the rule

that a municipality can be found liable under §

1983 only where “the policy in question [is] itself

unconstitutional.” Brief for Petitioner 15. Whether

such a rule is a valid construction of § 1983 is a

question the Court has left unresolved. See, e.g., St.

Louis v. Praprotnik, supra, 485 U.S., at 147, 108

S.Ct., at 936 (BRENNAN, J., concurring in judgment); Oklahoma City v. Tuttle, supra, 471 U.S., at

824, n. 7, 105 S.Ct., at 2437-38, n. 7. Under such an

approach, the outcome here would be rather clear:

we would have to reverse and remand the case with

instructions that judgment be entered for

petitioner.FN5 There can be little doubt that on its

face the city's policy regarding medical treatment

for detainees is constitutional. The policy states that

the city jailer “shall ... have [a person needing medical care] taken to a hospital for medical treatment,

with *387 permission of his supervisor....” App. 33.

It is difficult**1204 to see what constitutional guarantees are violated by such a policy.

FN5. In this Court, in addition to suggesting that the city's failure to train its officers

amounted to a “policy” that resulted in the

denial of medical care to detainees, respondent also contended the city had a

“custom” of denying medical care to those

detainees suffering from emotional or

mental ailments. See Brief for Respondent

31-32; Tr. of Oral Arg. 38-39. As respondent described it in her brief, and at argument, this claim of an unconstitutional

“custom” appears to be little more than a

restatement of her “failure-to-train as

policy” claim. See ibid.

However, to the extent that this claim

poses a distinct basis for the city's liability

under § 1983, we decline to determine

whether respondent's contention that such

a “custom” existed is an alternative ground

for affirmance. The “custom” claim was

not passed on by the Court of Appeals-nor

does it appear to have been presented to

that court as a distinct ground for its decision. See Brief of Appellee in No.

85-3314 (CA6), pp. 4-9, 11. Thus, we will

not consider it here.

[5] Nor, without more, would a city automatically

be liable under § 1983 if one of its employees

happened to apply the policy in an unconstitutional

manner, for liability would then rest on respondeat

superior. The claim in this case, however, is that if

a concededly valid policy is unconstitutionally applied by a municipal employee, the city is liable if

the employee has not been adequately trained and

the constitutional wrong has been caused by that

failure to train. For reasons explained below, we

conclude, as have all the Courts of Appeals that

have addressed this issue,FN6 that there are limited

circumstances in which an allegation of a “failure

to train” can be the basis for liability under § 1983.

Thus, we reject petitioner's contention that only unconstitutional policies are actionable under the statute.

FN6. In addition to the Sixth Circuit decisions discussed in n. 3, supra, most of

the other Courts of Appeals have held that

a failure to train can create liability under §

1983. See, e.g., Spell v. McDaniel, 824

F.2d 1380, 1389-1391 (CA4 1987);

Haynesworth v. Miller, 261 U.S.App.D.C.

66, 80-83, 820 F.2d 1245, 1259-1262

(1987); Warren v. Lincoln, 816 F.2d 1254,

1262-1263 (CA8 1987); Bergquist v.

County of Cochise, 806 F.2d 1364,

1369-1370 (CA9 1986); Wierstak v. Heffernan, 789 F.2d 968, 974 (CAl 1986);

Fiacco v. Rensselaer, 783 F.2d 319,

326-327 (CA2 1986); Gilmere v. Atlanta,

774 F.2d 1495, 1503-1504 (CA11 1985)

(en banc); Rock v. McCoy, 763 F.2d 394,

397-398 (CAl0 1985); Languirand v. Hay109 S.Ct. 1197 Page 8

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den, 717 F.2d 220, 227-228 (CA5 1983).

Two other Courts of Appeals have stopped

short of expressly embracing this rule, and

have instead only implicitly endorsed it.

See, e.g., Colburn v. Upper Darby Township, 838 F.2d 663, 672-673 (CA3 1988);

Lenard v. Argento, 699 F.2d 874, 885-887

(CA7 1983).

In addition, six current Members of this

Court have joined opinions in the past that

have (at least implicitly) endorsed this theory of liability under § 1983. See Oklahoma City v. Tuttle, supra, 471 U.S., at

829-831, 105 S.Ct., at 2439-2440

(BRENNAN, J., joined by MARSHALL

and BLACKMUN, JJ., concurring in part

and concurring in judgment); Springfield v.

Kibbe, supra, 480 U.S., at 268-270, 107

S.Ct., at 1120-1121 (O'CONNOR, J.,

joined by REHNQUIST, C.J., and Powell

and WHITE, JJ., dissenting).

*388 B

[6][7] Though we agree with the court below that a

city can be liable under § 1983 for inadequate training of its employees, we cannot agree that the District Court's jury instructions on this issue were

proper, for we conclude that the Court of Appeals

provided an overly broad rule for when a municipality can be held liable under the “failure to train”

theory. Unlike the question whether a municipality's failure to train employees can ever be a basis

for § 1983 liability-on which the Courts of Appeals

have all agreed, see n. 6, supra,-there is substantial

division among the lower courts as to what degree

of fault must be evidenced by the municipality's inaction before liability will be permitted.FN7 We

hold today that the inadequacy of police training

may serve as the basis for § 1983 liability only

where the failure to train amounts to deliberate indifference to the rights of persons with whom the

police come into contact.FN8 This rule is most consistent with our **1205 admonition*389 in Monell,

436 U.S., at 694, 98 S.Ct., at 2037, andPolk County

v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454,

70 L.Ed.2d 509 (1981), that a municipality can be

liable under § 1983 only where its policies are the

“moving force [behind] the constitutional violation.” Only where a municipality's failure to train

its employees in a relevant respect evidences a

“deliberate indifference” to the rights of its inhabitants can such a shortcoming be properly thought of

as a city “policy or custom” that is actionable under

§ 1983. As Justice BRENNAN's opinion in Pembaur v. Cincinnati, 475 U.S. 469, 483-484, 106

S.Ct. 1292, 1300-1301, 89 L.Ed.2d 452 (1986)

(plurality) put it: “[M]unicipal liability under §

1983 attaches where-and only where-a deliberate

choice to follow a course of action is made from

among various alternatives” by city policymakers.

See also Oklahoma City v. Tuttle, 471 U.S., at 823,

105 S.Ct., at 2436 (opinion of REHNQUIST, J.).

Only where a failure to train reflects a “deliberate”

or “conscious” choice by a municipality-a “policy”

as defined by our prior cases-can a city be liable for

such a failure under § 1983.

FN7. Some courts have held that a showing of “gross negligence” in a city's failure

to train its employees is adequate to make

out a claim under § 1983. See, e.g., Bergquist v. County of Cochise, supra, at

1370; Herrera v. Valentine, 653 F.2d 1220,

1224 (CA8 1981). But the more common

rule is that a city must exhibit “deliberate

indifference” towards the constitutional

rights of persons in its domain before a §

1983 action for “failure to train” is permissible. See, e.g., Fiacco v. Rensselaer,

supra, at 326; Patzner v. Burkett, 779 F.2d

1363, 1367 (CA8 1985); Wellington v.

Daniels, 717 F.2d 932, 936 (CA4 1983);

Languirand v. Hayden, supra, at 227.

FN8. The “deliberate indifference” standard we adopt for § 1983 “failure to train”

claims does not turn upon the degree of

fault (if any) that a plaintiff must show to

make out an underlying claim of a constitutional violation. For example, this Court

has never determined what degree of culpability must be shown before the particular

constitutional deprivation asserted in this

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case-a denial of the due process right to

medical care while in detention-is established. Indeed, in Revere v. Massachusetts

General Hospital, 463 U.S. 239, 243-245,

103 S.Ct. 2979, 2982-2983, 77 L.Ed.2d

605 (1983), we reserved decision on the

question whether something less than the

Eighth Amendment's “deliberate indifference” test may be applicable in claims by

detainees asserting violations of their due

process right to medical care while in custody.

We need not resolve here the question left

open in Revere for two reasons. First, petitioner has conceded that, as the case comes

to us, we must assume that respondent's

constitutional right to receive medical care

was denied by city employees-whatever

the nature of that right might be. See Tr. of

Oral Arg. 8-9. Second, the proper standard

for determining when a municipality will

be liable under § 1983 for constitutional

wrongs does not turn on any underlying

culpability test that determines when such

wrongs have occurred. Cf. Brief for Respondent 27.

Monell's rule that a city is not liable under § 1983

unless a municipal policy causes a constitutional

deprivation will not be satisfied by merely alleging

that the existing training program for a class of employees, such as police officers, represents a policy

for which the city is responsible.FN9 That much

*390 may be true. The issue in a case like this one,

however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to

represent “city policy.” It may seem contrary to

common sense to assert that a municipality will actually have a policy of not taking reasonable steps

to train its employees. But it may happen that in

light of the duties assigned to specific officers or

employees the need for more or different training is

so obvious, and the inadequacy so likely to result in

the violation of constitutional rights, that the policymakers of the city can reasonably be said to have

been deliberately indifferent to the need.FN10 In

that event, the failure to provide proper training

may fairly be said to represent a policy for which

the city is responsible, and for which the city may

be held liable if it actually causes injury.FN11

FN9. The plurality opinion in Tuttle explained why this must be so:

“Obviously, if one retreats far enough from

a constitutional violation some municipal

‘policy’ can be identified behind almost

any ... harm inflicted by a municipal official; for example, [a police officer] would

never have killed Tuttle if Oklahoma City

did not have a ‘policy’ of establishing a

police force. But Monell must be taken to

require proof of a city policy different in

kind from this latter example before a

claim can be sent to a jury on the theory

that a particular violation was ‘caused’ by

the municipal ‘policy.’ ” 471 U.S., at 823,

105 S.Ct., at 2436. Cf. also id., at 833, n. 9,

105 S.Ct., at 2441, n. 9 (opinion of BRENNAN, J.).

FN10. For example, city policymakers

know to a moral certainty that their police

officers will be required to arrest fleeing

felons. The city has armed its officers with

firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on

the use of deadly force, see Tennessee v.

Garner, 471 U.S. 1, 105 S.Ct. 1694, 85

L.Ed.2d 1 (1985), can be said to be “so obvious,” that failure to do so could properly

be characterized as “deliberate indifference” to constitutional rights.

It could also be that the police, in exercising their discretion, so often violate

constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are “deliberately indifferent” to the

need.

FN11. The record indicates that city did

train its officers and that its training in109 S.Ct. 1197 Page 10

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cluded first-aid instruction. See App. to

Pet. for Cert. 4a. Petitioner argues that it

could not have been obvious to the city

that such training was insufficient to administer the written policy, which was itself constitutional. This is a question to be

resolved on remand. See Part IV, infra.

**1206 [8] In resolving the issue of a city's liability, the focus must be on adequacy of the training

program in relation to the tasks the particular officers must perform. That a particular officer may

be unsatisfactorily trained will not alone suffice to

fasten liability on the city, for the officer's shortcomings may *391 have resulted from factors other

than a faulty training program. See Springfield v.

Kibbe, 480 U.S., at 268, 107 S.Ct., at 1120

(O'CONNOR, J., dissenting); Oklahoma City v.

Tuttle, supra, 471 U.S., at 821, 105 S.Ct., at 2435

(opinion of REHNQUIST, J.). It may be, for example, that an otherwise sound program has occasionally been negligently administered. Neither will

it suffice to prove that an injury or accident could

have been avoided if an officer had had better or

more training, sufficient to equip him to avoid the

particular injury-causing conduct. Such a claim

could be made about almost any encounter resulting

in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the

usual and recurring situations with which they must

deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says

little about the training program or the legal basis

for holding the city liable.

Moreover, for liability to attach in this circumstance the identified deficiency in a city's training

program must be closely related to the ultimate injury. Thus in the case at hand, respondent must still

prove that the deficiency in training actually caused

the police officers' indifference to her medical

needs.FN12 Would the injury have been avoided

had the employee been trained under a program that

was not deficient in the identified respect? Predicting how a hypothetically well-trained officer would

have acted under the circumstances may not be an

easy task for the factfinder, particularly since matters of judgment may be involved, and since officers who are well trained are not free from error

and perhaps might react very much like the untrained officer in similar circumstances. But judge

and jury, doing their respective jobs, will be adequate to the task.

FN12. Respondent conceded as much at argument. See Tr. of Oral Arg. 50-51; cf.

also Oklahoma City v. Tuttle, supra, 471

U.S., at 831, 105 S.Ct., at 2440 (opinion of

BRENNAN, J.).

To adopt lesser standards of fault and causation

would open municipalities to unprecedented liability under § 1983. *392 In virtually every instance

where a person has had his or her constitutional

rights violated by a city employee, a § 1983

plaintiff will be able to point to something the city

“could have done” to prevent the unfortunate incident. See Oklahoma City v. Tuttle, 471 U.S., at 823,

105 S.Ct. at 2436 (opinion of REHNQUIST, J.).

Thus, permitting cases against cities for their

“failure to train” employees to go forward under §

1983 on a lesser standard of fault would result in de

facto respondeat superior liability on municipalities-a result we rejected in Monell, 436 U.S., at

693-694, 98 S.Ct., at 2037. It would also engage the

federal courts in an endless exercise of secondguessing municipal employee-training programs.

This is an exercise we believe the federal courts are

ill suited to undertake, as well as one that would

implicate serious questions of federalism. Cf. Rizzo

v. Goode, 423 U.S. 362, 378-380, 96 S.Ct. 598,

607-608, 46 L.Ed.2d 561 (1976).

[9] Consequently, while claims such as respondent's-alleging that the city's failure to provide training to municipal employees resulted in the constitutional deprivation she suffered-are cognizable under

§ 1983, they can only yield liability against a municipality where that city's failure to train reflects deliberate indifference to the constitutional rights of

its inhabitants.

IV

[10] The final question here is whether this case

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should be remanded for a new trial, or whether, as

petitioner suggests, we **1207 should conclude

that there are no possible grounds on which respondent can prevail. See Tr. of Oral Arg. 57-58. It

is true that the evidence in the record now does not

meet the standard of § 1983 liability we have set

forth above. But, the standard of proof the District

Court ultimately imposed on respondent (which

was consistent with Sixth Circuit precedent) was a

lesser one than the one we adopt today, see Tr.

4-389-4-390. Whether respondent should have an

opportunity to prove her case under the “deliberate

indifference” rule we have adopted is a matter for

the Court of Appeals to deal with on remand.

*393 V

Consequently, for the reasons given above, we vacate the judgment of the Court of Appeals and remand this case for further proceedings consistent

with this opinion.

It is so ordered.

Justice BRENNAN, concurring.

The Court's opinion, which I join, makes clear that

the Court of Appeals is free to remand this case for

a new trial.

Justice O'CONNOR, with whom Justice SCALIA

and Justice KENNEDY join, concurring in part and

dissenting in part.

I join Parts I and II and all of Part III of the Court's

opinion except footnote 11, see ante, at 1205, n. 11.

I thus agree that where municipal policymakers are

confronted with an obvious need to train city personnel to avoid the violation of constitutional rights

and they are deliberately indifferent to that need,

the lack of necessary training may be appropriately

considered a city “policy” subjecting the city itself

to liability under our decision in Monell v. New

York City Dept. of Social Services, 436 U.S. 658,

98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). As the Court

observes, “[o]nly where a failure to train reflects a

‘deliberate’ or ‘conscious' choice by a municipalitya ‘policy’ as defined by our prior cases-can a city

be liable for such a failure under [42 U.S.C.]§

1983.” Ante, at 1205. I further agree that a § 1983

plaintiff pressing a “failure to train” claim must

prove that the lack of training was the “cause” of

constitutional injury at issue and that this entails

more than simply showing “but for” causation.

Ante, at 1205-1206. Lesser requirements of fault

and causation in this context would “open municipalities to unprecedented liability under §

1983,”ante, at 1206, and would pose serious federalism concerns. Ante, at 1206.

My single point of disagreement with the majority

is thus a small one. Because I believe, as the majority strongly hints, *394 see ibid., that respondent

has not and could not satisfy the fault and causation

requirements we adopt today, I think it unnecessary

to remand this case to the Court of Appeals for further proceedings. This case comes to us after a full

trial during which respondent vigorously pursued

numerous theories of municipal liability including

an allegation that the city had a “custom” of not

providing medical care to detainees suffering from

emotional illnesses. Respondent thus had every opportunity and incentive to adduce the type of proof

necessary to satisfy the deliberate indifference

standard we adopt today. Rather than remand in this

context, I would apply the deliberate indifference

standard to the facts of this case. After undertaking

that analysis below, I conclude that there is no evidence in the record indicating that the city of Canton

has been deliberately indifferent to the constitutional rights of pretrial detainees.

I

In Monell, the Court held that municipal liability

can be imposed under § 1983 only where the municipality, as an entity, can be said to be

“responsible” for a constitutional violation committed by one of its employees. “[T]he touchstone of

the § 1983 action against a government body is an

allegation that official policy is responsible for

**1208 a deprivation of rights protected by the

Constitution.” 436 U.S., at 690, 98 S.Ct., at 2036.

The Court found that the language of § 1983, and

rejection of the “Sherman Amendment” by the 42d

Congress, were both strong indicators that the

framers of the Civil Rights Act of 1871 did not intend that municipal governments be held vicari109 S.Ct. 1197 Page 12

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ously liable for the constitutional torts of their employees. Thus a § 1983 plaintiff seeking to attach liability to the city for the acts of one of its employees may not rest on the employment relationship

alone; both fault and causation as to the acts or

omissions of the city itself must be proved. The

Court reaffirms these requirements today.

Where, as here, a claim of municipal liability is

predicated upon a failure to act, the requisite degree

of fault must be *395 shown by proof of a background of events and circumstances which establish

that the “policy of inaction” is the functional equivalent of a decision by the city itself to violate the

Constitution. Without some form of notice to the

city, and the opportunity to conform to constitutional dictates both what it does and what it chooses not

to do, the failure to train theory of liability could

completely engulf Monell, imposing liability

without regard to fault. Moreover, absent a requirement that the lack of training at issue bear a very

close causal connection to the violation of constitutional rights, the failure to train theory of municipal

liability could impose “prophylactic” duties on municipal governments only remotely connected to underlying constitutional requirements themselves.

Such results would be directly contrary to the intent

of the drafters of § 1983. The central vice of the

Sherman Amendment, as noted by the Court's opinion in Monell, was that it “impose[d] a species of

vicarious liability on municipalities since it could

be construed to impose liability even if the municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything

about it.” 436 U.S., at 692, n. 57, 98 S.Ct., at 2036,

n. 57 (emphasis added). Moreover, as noted in

Monell, the authors of § 1 of the Ku Klux Act did

not intend to create any new rights or duties beyond

those contained in the Constitution. Id., at 684-685,

98 S.Ct., at 2032. Thus, § 1 was referred to as

“reenacting the Constitution.” Cong. Globe, 42d

Cong., 1st Sess., 569 (1871) (Rep. Edmunds). Representative Bingham, the author of § 1 of the Fourteenth Amendment, saw the purpose of § 1983 as

“the enforcement ... of the Constitution on behalf of

every individual citizen of the Republic ... to the

extent of the rights guaranteed to him by the Constitution.” Id., at App. 81. See also Chapman v.

Houston Welfare Rights Organization, 441 U.S.

600, 617, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508

(1979) (“[Section] 1 of the Civil Rights Act of 1871

did not provide for any substantive rights-equal or

otherwise. As introduced and enacted, it served

only to insure that an individual had a cause of action for violations of the Constitution”). *396 Thus

§ 1983 is not a “federal good government act” for

municipalities. Rather it creates a federal cause of

action against persons, including municipalities,

who deprive citizens of the United States of their

constitutional rights.

Sensitive to these concerns, the Court's opinion correctly requires a high degree of fault on the part of

city officials before an omission that is not in itself

unconstitutional can support liability as a municipal

policy under Monell. As the Court indicates, “it

may happen that ... the need for more or different

training is so obvious, and the inadequacy so likely

to result in the violation of constitutional rights,

that the policymakers of the city can reasonably be

said to have been deliberately indifferent to the

need.” Ante, at 1205-1206. Where a § 1983 plaintiff

can establish that the facts available to city policymakers put them on actual or constructive notice

that the particular omission is substantially certain

to result in the violation of the constitutional rights

of their citizens, the dictates of Monell are satisfied.

Only then can it be said **1209 that the municipality has made “ ‘a deliberate choice to follow a

course of action ... from among various alternatives.’ ” Ante, at 1205, quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-484, 106 S.Ct. 1292, 1300,

89 L.Ed.2d 452 (1986).

In my view, it could be shown that the need for

training was obvious in one of two ways. First, a

municipality could fail to train its employees concerning a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face. As the majority notes, see ante, at

1205, n. 10, the constitutional limitations established by this Court on the use of deadly force by

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stitutional duty of the individual officer is clear,

and it is equally clear that failure to inform city personnel of that duty will create an extremely high

risk that constitutional violations will ensue.

The claim in this case-that police officers were inadequately trained in diagnosing the symptoms of

emotional illness-falls far short of the kind of

“obvious” need for training *397 that would support a finding of deliberate indifference to constitutional rights on the part of the city. As the Court's

opinion observes, ante, at 1204, n. 8, this Court has

not yet addressed the precise nature of the obligations that the Due Process Clause places upon the

police to seek medical care for pretrial detainees

who have been physically injured while being apprehended by the police. See Revere v. Massachusetts General Hospital, 463 U.S. 239, 246, 103

S.Ct. 2979, 2984, 77 L.Ed.2d 605 (1983)

(REHNQUIST, J., concurring). There are thus no

clear constitutional guideposts for municipalities in

this area, and the diagnosis of mental illness is not

one of the “usual and recurring situations with

which [the police] must deal.” Ante, at 1205-1206.

The lack of training at issue here is not the kind of

omission that can be characterized, in and of itself,

as a “deliberate indifference” to constitutional

rights.

Second, I think municipal liability for failure to

train may be proper where it can be shown that

policymakers were aware of, and acquiesced in, a

pattern of constitutional violations involving the exercise of police discretion. In such cases, the need

for training may not be obvious from the outset, but

a pattern of constitutional violations could put the

municipality on notice that its officers confront the

particular situation on a regular basis, and that they

often react in a manner contrary to constitutional

requirements. The lower courts that have applied

the “deliberate indifference” standard we adopt

today have required a showing of a pattern of violations from which a kind of “tacit authorization” by

city policymakers can be inferred. See, e.g., Fiacco

v. Rensselaer, 783 F.2d 319, 327 (CA2 1986)

(multiple incidents required for finding of deliberate indifference); Patzner v. Burkett, 779 F.2d

1363, 1367 (CA8 1985) (“[A] municipality may be

liable if it had notice of prior misbehavior by its officers and failed to take remedial steps amounting

to deliberate indifference to the offensive acts”);

Languirand v. Hayden, 717 F.2d 220, 227-228

(CA5 1983) (municipal liability for failure to train

requires “evidence at least of a pattern of similar

*398 incidents in which citizens were injured or endangered”); Wellington v. Daniels, 717 F.2d 932,

936 (CA4 1983) (“[A] failure to supervise gives

rise to § 1983 liability, however, only in those situations where there is a history of wide-spread abuse. Only then may knowledge be imputed to the

supervisory personnel”).

The Court's opinion recognizes this requirement,

see ante, at 11, and n. 10, but declines to evaluate

the evidence presented in this case in light of the

new legal standard. Ante, at 13. From the outset of

this litigation, respondent has pressed a claim that

the city of Canton had a custom of denying medical

care to pretrial detainees with emotional disorders.

See Amended Complaint ¶ 28, App. 27. Indeed, up

to and including oral argument before this Court,

counsel for respondent continued to assert **1210

that respondent was attempting to hinge municipal

liability upon “both a custom of denying medical

care to a certain class of prisoners, and a failure to

train police that led to this particular violation.” Tr.

of Oral Arg. 37-38. At the time respondent filed her

complaint in 1980, it was clear that proof of the existence of a custom entailed a showing of “practices

... so permanent and well settled as to constitute a

‘custom or usage’ with the force of law.” Adickes v.

S.H. Kress & Co., 398 U.S. 144, 168, 90 S.Ct.

1598, 1614, 26 L.Ed.2d 142 (1970); see also

Garner v. Memphis Police Department, 600 F.2d

52, 54-55, and n. 4 (CA6 1979) (discussing proof of

custom in light of Monell).

Whatever the prevailing standard at the time concerning liability for failure to train, respondent thus

had every incentive to adduce proof at trial of a pattern of violations to support her claim that the city

had an unwritten custom of denying medical care to

emotionally ill detainees. In fact, respondent

presented no testimony from any witness indicating

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that there had been past incidents of “deliberate indifference” to the medical needs of emotionally disturbed detainees or that any other circumstance had

put the city on actual or constructive notice of a

need for additional training in this *399 regard. At

trial, David Maser, who was Chief of Police of the

city of Canton from 1971 to 1980, testified without

contradiction that during his tenure he received no

complaints that detainees in the Canton jails were

not being accorded proper medical treatment. Tr.

4-347-4-348. Former Officer Cherry, who had

served as a jailer for the Canton Police Department,

indicated that he had never had to seek medical

treatment for persons who were emotionally upset

at the prospect of arrest, because they usually

calmed down when a member of the department

spoke with them or one of their family members arrived. Id., at 4-83-4-84. There is quite simply nothing in this record to indicate that the city of Canton

had any reason to suspect that failing to provide

this kind of training would lead to injuries of any

kind, let alone violations of the Due Process

Clause. None of the Courts of Appeals that already

apply the standard we adopt today would allow respondent to take her claim to a jury based on the

facts she adduced at trial. See Patzner v. Burkett,

supra, at 1367 (summary judgment proper under

“deliberate indifference” standard where evidence

of only single incident adduced); Languirand v.

Hayden, supra, at 229 (reversing jury verdict

rendered under failure to train theory where there

was no evidence of prior incidents to support a

finding that municipal policymakers were

“consciously indifferent” to constitutional rights);

Wellington v. Daniels, supra, at 937 (affirming

judgment notwithstanding the verdict for municipality under “deliberate indifference” standard where

evidence of only a single incident was presented at

trial); cf. Fiacco v. Rensselaer supra, at 328-332

(finding evidence of “deliberate indifference” sufficient to support jury verdict where a pattern of similar violations was shown at trial).

Allowing an inadequate training claim such as this

one to go to the jury based upon a single incident

would only invite jury nullification of Monell. “To

infer the existence of a city policy from the isolated

misconduct of a single, low-level officer, and then

to hold the city liable on the basis of that policy,

*400 would amount to permitting precisely the theory of strict respondeat superior liability rejected in

Monell.” Oklahoma City v. Tuttle, 471 U.S. 808,

831, 105 S.Ct. 2427, 2440, 85 L.Ed.2d 791 (1985)

(BRENNAN, J., concurring in part and concurring

in judgment). As the authors of the Ku Klux Act

themselves realized, the resources of local government are not inexhaustible. The grave step of shifting those resources to particular areas where constitutional violations are likely to result through the

deterrent power of § 1983 should certainly not be

taken on the basis of an isolated incident. If § 1983

and the Constitution require the city of Canton to

provide detailed medical and psychological**1211

training to its police officers, or to station paramedics at its jails, other city services will necessarily

suffer, including those with far more direct implications for the protection of constitutional rights. Because respondent's evidence falls far short of establishing the high degree of fault on the part of the

city required by our decision today, and because

there is no indication that respondent could produce

any new proof in this regard, I would reverse the

judgment of the Court of Appeals and order entry

of judgment for the city.

U.S.,1989.

City of Canton, Ohio v. Harris

489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412, 57

USLW 4270

END OF DOCUMENT

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Gold v. City of Miami

C.A.11 (Fla.),1998.

United States Court of Appeals,Eleventh Circuit.

Michael C. GOLD, Plaintiff-Appellee,

v.

CITY OF MIAMI, Defendant-Appellant.

No. 96-5395.

Aug. 27, 1998.

Arrestee brought § 1983 action against city in connection with his arrest for disorderly conduct. The

United States District Court for the Southern District of Florida, No. 92-1673-CV-JWK, James W.

Kehoe, J., entered judgment on jury verdict for arrestee, and city appealed. The Court of Appeals,

Hull, Circuit Judge, held that: (1) arrestee failed to

show city policy of inadequate training and supervision of police officers in connection with arrests

made under disorderly conduct statute, and, thus,

city could not be held liable under § 1983 on false

arrest claim, and (2) arrestee failed to show city

policy of inadequate training and supervision in

connection with handcuff complaints, thus preventing imposition of municipal liability for excessive

force claim.

Reversed.

See also: 121 F.3d 1442.

West Headnotes

[1] Disorderly Conduct 129 1

129 Disorderly Conduct

129k1 k. Nature and Elements of Offenses. Most

Cited Cases

Florida's disorderly conduct statute applies only

when speech by its very utterance inflicts injury or

tends to incite an immediate breach of the peace,

and speakers do not violate statute merely by annoying those around them or by employing profane

language to express outrage. West's F.S.A. §

877.03.

[2] Civil Rights 78 1348

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1348 k. Criminal Law Enforcement;

Prisons. Most Cited Cases

(Formerly 78k206(2.1))

There is no respondeat superior liability making

municipality liable for wrongful actions of its police officers in making false arrest. 42 U.S.C.A. §

1983.

[3] Civil Rights 78 1351(4)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1351 Governmental Ordinance,

Policy, Practice, or Custom

78k1351(4) k. Criminal Law Enforcement; Prisons. Most Cited Cases

(Formerly 78k206(3))

Municipality may be held liable under § 1983 for

actions of police officer only when municipal

“official policy” causes constitutional violation. 42

U.S.C.A. § 1983.

[4] Civil Rights 78 1352(1)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1352 Lack of Control, Training, or Supervision; Knowledge and Inaction

78k1352(1) k. In General. Most Cited

Cases

(Formerly 78k206(4))

Allegation of failure to train or supervise can be

basis for municipal liability under § 1983 only

where municipality inadequately trains or supervises its employees, this failure to train or supervise

is a city policy, and that policy causes employees to

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violate citizen's constitutional rights. 42 U.S.C.A. §

1983.

[5] Civil Rights 78 1352(1)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1352 Lack of Control, Training, or Supervision; Knowledge and Inaction

78k1352(1) k. In General. Most Cited

Cases

(Formerly 78k206(4))

Since municipality rarely will have express written

or oral policy of inadequately training or supervising its employees, § 1983 plaintiff may prove

city policy by showing that municipality's failure to

train evidenced a “deliberate indifference” to rights

of its inhabitants, and, to establish a “deliberate or

conscious choice” or such “deliberate indifference,”

plaintiff must present some evidence that municipality knew of need to train and/or supervise in particular area and the municipality made deliberate

choice not to take any action. 42 U.S.C.A. § 1983.

[6] Civil Rights 78 1352(4)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1352 Lack of Control, Training, or Supervision; Knowledge and Inaction

78k1352(4) k. Criminal Law Enforcement; Prisons. Most Cited Cases

(Formerly 78k206(4))

Arrestee failed to show city policy of inadequate

training and supervision of police officers in connection with arrests made under disorderly conduct

statute, and, thus, city could not be held liable under § 1983 on false arrest claim; arrestee did not

present evidence of prior constitutional violations

or false arrests involving disorderly conduct statute,

but instead submitted evidence only that there were

8,201 disorderly conduct arrests in five year period

and that 601 such arrests were dismissed and 700

nol prossed, with no evidence as to reasons for

those dispositions or that any such dispositions

were due to false arrests for only protected speech.

42 U.S.C.A. § 1983.

[7] Civil Rights 78 1420

78 Civil Rights

78III Federal Remedies in General

78k1416 Weight and Sufficiency of Evidence

78k1420 k. Criminal Law Enforcement;

Prisons. Most Cited Cases

(Formerly 78k242(5))

Evidence that other officers often loosened handcuffs upon request and evidence of one injury due

to handcuffing, without any showing of excessive

force involved, did not show city policy of inadequate training and supervision of police officers in

connection with handcuff complaints, thus preventing imposition of § 1983 liability on city for arrestee's claim that officers acted with excessive

force by ignoring his complaints that handcuffs

were too tight, where arrestee presented no evidence of any prior incident in which city police officer caused injury by excessive force in handcuffing. 42 U.S.C.A. § 1983.

[8] Civil Rights 78 1352(4)

78 Civil Rights

78III Federal Remedies in General

78k1342 Liability of Municipalities and Other Governmental Bodies

78k1352 Lack of Control, Training, or Supervision; Knowledge and Inaction

78k1352(4) k. Criminal Law Enforcement; Prisons. Most Cited Cases

(Formerly 78k206(4))

Arrestee's contentions that police officers were inadequately trained and/or supervised regarding disorderly conduct statute and proper response to

handcuff complaints were not the kind of “obvious”

need for training that would support finding of deliberate indifference by city to constitutional rights,

as required for municipal liability under § 1983;

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ous in the abstract. 42 U.S.C.A. § 1983.

[9] Civil Rights 78 1420

78 Civil Rights

78III Federal Remedies in General

78k1416 Weight and Sufficiency of Evidence

78k1420 k. Criminal Law Enforcement;

Prisons. Most Cited Cases

(Formerly 78k242(5))

Expert's conclusory testimony that need for training

and/or supervision of police officers regarding disorderly conduct statute and proper response to

handcuff complaints should have been obvious to

city, and that city was deliberately indifferent in not

responding, did not control court's legal analysis of

whether any need to train and/or supervise was obvious enough to trigger municipal liability without

any evidence of prior incidents putting municipality

on notice of that need. 42 U.S.C.A. § 1983.

[10] Civil Rights 78 1429

78 Civil Rights

78III Federal Remedies in General

78k1425 Questions of Law or Fact

78k1429 k. Criminal Law Enforcement;

Prisons. Most Cited Cases

(Formerly 78k244)

City's failure to investigate false arrest complaints

did not raise jury issue regarding whether city was

deliberately indifferent to obvious need to supervise

its police officers, so as to preclude judgment as

matter of law for city on issue of municipal liability

under § 1983. 42 U.S.C.A. § 1983.

[11] Civil Rights 78 1420

78 Civil Rights

78III Federal Remedies in General

78k1416 Weight and Sufficiency of Evidence

78k1420 k. Criminal Law Enforcement;

Prisons. Most Cited Cases

(Formerly 78k242(5))

Record did not support arrestee's contention that

city's method of record-keeping prevented any attempts to prove prior incident of false arrest for

protected speech, as would support arrestee's attempt to establish city policy or custom that was

moving force behind violation of his constitution

rights; it was undisputed that city did document all

citizens' false arrest complaints, and, although classified as “non-complaints,” these reports nevertheless were retained by city for several years. 42

U.S.C.A. § 1983.

*1347 Kathryn S. Pecko,Christopher F. Kurtz, Asst.

City Attys., A. Quinn Jones, Theresa L. Girten,

Robert S. Glazier, Miami, FL, for Defendant-Appellant.

Charles Michael Baron, North Miami Beach, FL,

for Plaintiff-Appellee.

Appeal from the United States District Court for the

Southern District of Florida.

Before COX and HULL, Circuit Judges, and FAY,

Senior Circuit Judge.

HULL, Circuit Judge:

Appellant Michael C. Gold (“Gold”) brought a false

arrest claim under state law and civil rights actions

based on excessive force and arrest without probable cause under section 1983. 42 U.S.C. § 1983.

Gold originally sued the City of Miami (the

“City”), three City police officers, and the City Police Chief. In an earlier appeal, this Court held that

the three City police officers and the City Police

Chief were entitled to qualified immunity. Gold v.

City of Miami, 121 F.3d 1442 (11th Cir.1997)

(“Gold I ”).

While the earlier appeal was pending, Gold's case

against the City proceeded to trial. The jury returned a verdict for Gold on both his federal and

state claims. The City challenges the jury's verdict

on only Gold's section 1983 claims, contending that

the district court erred in not granting the City's

motions for judgment as a matter of law. After review, we agree and set aside the verdict against the

City on Gold's section 1983 claims.

I. FACTUAL BACKGROUND

A. The Arrest

Gold pulled into a congested bank parking lot so

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that his passenger could use the bank's *1348 automated teller machine (“ATM”).FN1 While waiting

for a parking space to open up, Gold noticed a uniformed police officer nearby. Gold also noticed a

woman who did not appear to be handicapped walk

to her car parked in a handicapped space, get in,

and start to drive away. Disturbed by this, Gold

yelled to the officer, “Aren't you supposed to give

her a ticket for something like that?” FN2 The officer did not respond. Gold then found a parking

space, parked his car, walked toward the ATM, and

loudly remarked to no one in particular, “Miami police don't do shit.”

FN1. The evidence at trial, construed in the

light most favorable to Gold, is similar in

all material respects to the facts recited in

Gold I. See 121 F.3d at 1444. Thus we repeat Gold I 's recitation of the facts except

where the evidence at trial was different.

FN2. Gold's trial statement is slightly different from his deposition statement at the

summary judgment stage, which was,

“Aren't you supposed to give them a ticket

for parking in a handicapped spot?” See

Gold I, 121 F.3d at 1444.

Upon hearing Gold's remark, a plainclothes officer

who had been standing in the ATM line stated to

the uniformed officer, “Hey, I think he's got a problem.” FN3 Gold replied, “I don't have a problem.

I'm just saying that Miami police don't do shit.” A

different plainclothes officer who had been standing next to the uniformed officer then approached

Gold and asked him for identification. After Gold

produced his Florida driver's license and Florida

Bar membership card, the officer headed toward the

uniformed officer's patrol car to do a radio-check

on the identification. The officer soon was joined

by the uniformed officer and the other plainclothes

officer.

FN3. Gold's trial statement is slightly different from his deposition statement at the

summary judgment stage, which was, “I

think this guys [sic] got a problem.” See

Gold I, 121 F.3d at 1444.

[1] Upon observing all of this, a couple walking

away from the ATM machine made a comment on

the situation, and Gold responded, “They'll do what

they're going to do.” FN4 Gold then walked over to

the two plainclothes policemen and one uniformed

policeman now gathered around the squad car. He

asked the officer who had his ID, “What's going

on?” The officer said, “Shut up,” but Gold insisted,

“I'd like to know what's going on here.” The officers then placed Gold under arrest for disorderly

conduct.FN5 The City concedes that Gold's arrest

was without probable cause. See Gold I, 121 F.3d at

1445-46.FN6

FN4. Gold I states that the couple was in

line at the ATM and that Gold talked to the

couple for a few minutes. Gold I, 121 F.3d

at 1444. At trial, Gold testified that the

couple was walking away from the ATM

when the woman made a comment and

Gold responded as noted above. Also,

Gold I includes the substance of the

couple's comment. Id. At trial, the comment was excluded as hearsay.

FN5. Although Gold put his hands behind

his back without resistence, the officers

also charged him for “resisting arrest

without violence.” However, Gold did not

argue to the district court-and does not argue on appeal-that the officers violated his

constitutional rights by falsely charging

him with resisting arrest. Therefore, this

Court does not address this issue.

FN6. Florida's disorderly conduct statute

applies only when speech by its very utterance inflicts injury or tends to incite an immediate breach of the peace. Gold I, 121

F.3d at 1445-46. Speakers do not violate

the statute “merely by annoying those

around them or by employing profane language to express outrage.” Id. at 1445.

B. The Handcuffing

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After handcuffing Gold, the uniformed officer assisted Gold into the back of his patrol car. Some

moments later, Gold complained that the handcuffs

were so tight that he was in pain.FN7 The officer

did not loosen the handcuffs until roughly fifteen to

thirty minutes after Gold complained. As a result,

Gold claims that he had numbness on his right wrist

lasting a day or two. Gold admits that he did not

notice that his skin was broken until he left the jail

that day. Gold did not see a doctor regarding any

problems resulting from the incident. After five or

six hours in custody, Gold was released. The State

later dropped the criminal charges against him.

FN7. Rather than double-locking the metal

cuffs such that they would remain at a

fixed circumference, the officer had singlelocked them, so that they could ratchet

down and decrease in circumference while

on Gold's wrists.

*1349 C. The Police Officers' Training

At trial, the evidence showed that the City's police

officers underwent substantial training at the police

academy and afterwards on a wide variety of topics.

The City police department exceeded the State of

Florida's required number of training hours, and it

established departmental rules and regulations and

standard operating procedures. Each police officer

received a law enforcement handbook and significant instruction on the implementation of Florida

criminal law. Each police officer also received updates on recent changes in Florida statutory and

case law that the police department's legal advisor

thought would affect the officers' operations. Although no one recalls any specific training about

the disorderly conduct statute or the constitutional

limitations placed by the Florida Supreme Court on

that statute in State v. Saunders, 339 So.2d 641

(Fla.1976), the disorderly conduct statute was in the

officers' handbook for their review.FN8 The Police

Chief and the legal advisor testified that they were

not aware of any problem with arrests under the

Florida disorderly conduct statute or with the responses to handcuff complaints that would call for

any specialized training on these specific issues.

FN8. Florida's disorderly conduct statute

reads:

Whoever commits such acts as are of a

nature to corrupt the public morals, or outrage the sense of public decency, or affect

the peace and quiet of persons who may

witness them, or engages in brawling or

fighting, or engages in such conduct as to

constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree....

Fla. Stat. Ann. § 877.03 (1994).

Gold presented no evidence of any prior false arrest

for disorderly conduct or a prior citizen complaint

of such a false arrest. Gold presented evidence only

(1) that City officers often heard profanities and

verbal insults while on patrol; (2) that they brought

the incidents to the Police Chief's attention; and (3)

that they filed 8,201 disorderly conduct arrests

between 1986 and 1991 (not including sealed and

expunged cases). However, Gold presented no evidence connecting the profanities and insults to any

disorderly conduct arrests.

Gold also presented no evidence of any prior incidents of improper responses to handcuff complaints.

Gold presented only evidence that other officers often loosened handcuffs upon request and evidence

of one injury due to handcuffing but no showing

that this one injury was caused by excessive force

or improper handcuffing.

D. Jury's Verdict

Answering special interrogatories, the jury found

that Gold's arrest was caused by a City policy that

reflected deliberate indifference by the City to

Gold's civil rights through a failure to train and/or

supervise police officers concerning the disorderly

conduct statute and the proper response to handcuff

complaints. The jury awarded Gold $26,000 in

damages on his section 1983 claim arising from the

disorderly conduct arrest, $500 in damages on his

section 1983 claim for excessive force in handcuffing, and $26,500 on his state law claim for false arrest. Since the federal and state claims involved the

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same damages, the district court entered judgment

against the City for total damages of $26,500. The

court also awarded Gold $59,420 in attorneys' fees

under 42 U.S.C. § 1988 and taxed $8,303.78 in

costs against the City.

The court denied the City's motion for judgment as

a matter of law, which was made at the close of

Gold's evidence, renewed at the close of all evidence, and made again post-trial.FN9 The City does

not contest the jury's verdict on the state law claim

for false arrest but challenges only the verdict on

Gold's section 1983 claims.

FN9. The district court also denied the

City's motion for summary judgment, but

the City did not appeal along with the other parties in Gold I. See 121 F.3d at 1444

& n. 2.

II. STANDARD OF REVIEW

This Court reviews de novo a district court's denial

of a motion for judgment as a matter of law. See

Hibiscus Assocs. v. Board of Trustees of the Policemen and Firemen Retirement Sys., 50 F.3d 908, 920

(11th Cir.1995). This Court employs the same

standard the district court applied, “review[ing] all

of the evidence in the light most *1350 favorable

to, and with all reasonable inferences drawn in favor of, the nonmoving party.” Walker v. NationsBank of Florida, N.A., 53 F.3d 1548, 1555 (11th

Cir.1995). Although the existence of a genuine issue of material fact precludes judgment as a matter

of law, “a jury question does not exist because of

the presence of a mere scintilla of evidence.” Id. A

motion for judgment as a matter of law will be

denied only if “reasonable and fair-minded persons

in the exercise of impartial judgment might reach

contrary conclusions.” Id.

III. DISCUSSION

A. Municipal Policy Requirement

[2][3] The Supreme Court has placed strict limitations on municipal liability under section 1983.

There is no respondeat superior liability making a

municipality liable for the wrongful actions of its

police officers in making a false arrest. See Monell

v. Department of Social Servs., 436 U.S. 658, 691,

98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Instead, a

municipality may be held liable for the actions of a

police officer only when municipal “official policy”

causes a constitutional violation. See id. at 694-95,

98 S.Ct. 2018. Gold must “identify a municipal

‘policy’ or ‘custom’ that caused [his] injury,”Board

of County Com'rs v. Brown, 520 U.S. 397, ----, 117

S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997) (citing

Monell, 436 U.S. at 694, 98 S.Ct. 2018); “It is only

when the ‘execution of the government's policy or

custom ... inflicts the injury’ that the municipality

may be held liable under § 1983.” City of Canton v.

Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103

L.Ed.2d 412 (1989).

[4] Thus, the City is not automatically liable under

section 1983 even if it inadequately trained or supervised its police officers and those officers violated Gold's constitutional rights. Instead, the Supreme Court has explained that there are only

“limited circumstances” in which an allegation of a

failure to train or supervise can be the basis for liability under § 1983. See City of Canton, 489 U.S.

at 387, 109 S.Ct. 1197. The Supreme Court has instructed that these “limited circumstances” occur

only where the municipality inadequately trains or

supervises its employees, this failure to train or supervise is a city policy, and that city policy causes

the employees to violate a citizen's constitutional

rights. Id. at 389-91, 109 S.Ct. 1197; see also Kerr

v. City of West Palm Beach, 875 F.2d 1546, 1555

(11th Cir.1989); Brown, at ----, ----, 117 S.Ct. at

1388, 1390.

[5] Since a municipality rarely will have an express

written or oral policy of inadequately training or supervising its employees, the Supreme Court has further explained that a plaintiff may prove a city

policy by showing that the municipality's failure to

train evidenced a “deliberate indifference” to the

rights of its inhabitants, as follows:

We hold today that the inadequacy of police training may serve as the basis for § 1983 liability only

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difference to the rights of persons with whom the

police come into contact. This rule is most consistent with our admonition ... that a municipality can

be liable under § 1983 only where its policies are

the “moving force [behind] the constitutional violation.” Only where a municipality's failure to train

its employees in a relevant respect evidences a

“deliberate indifference” to the rights of its inhabitants can such a shortcoming be properly thought of

as a city “policy or custom” that is actionable under

§ 1983.... “[M]unicipal liability under § 1983 attaches where-and only where-a deliberate choice to

follow a course of action is made from among various alternatives” by city policymakers. Only where

a failure to train reflects a “deliberate” or

“conscious” choice by a municipality-a “policy” as

defined by our prior cases-can a city be liable for

such a failure under § 1983.

City of Canton, 489 U.S. at 388-89, 109 S.Ct. 1197

(internal citations omitted).

To establish a “deliberate or conscious choice” or

such “deliberate indifference,” a plaintiff must

present some evidence that the municipality knew

of a need to train and/or supervise in a particular

area and the municipality made a deliberate choice

not to take any action. See Board of County Com'rs

v. Brown, 520 U.S. 397, ---- - ----, 117 S.Ct. *1351

1382, 1390-91, 137 L.Ed.2d 626 (1997); Young v.

City of Augusta, Georgia, 59 F.3d 1160, 1171-72

(11th Cir.1995); Church v. City of Huntsville, 30

F.3d 1332, 1342-46 (11th Cir.1994); Wright v.

Sheppard, 919 F.2d 665, 674 (11th Cir.1990); Kerr

v. City of West Palm Beach, 875 F.2d 1546,

1556-57 (11th Cir.1989).FN10 This Court repeatedly has held that without notice of a need to

train or supervise in a particular area, a municipality is not liable as a matter of law for any failure to

train and supervise.FN11 For example, in Wright v.

Sheppard, 919 F.2d 665 (11th Cir.1990), this Court

held that a sheriff's department was not liable for a

deputy's acts when “no evidence of a history of

widespread prior abuse ... put the sheriff on notice

of the need for improved training or supervision.”

Id. at 674. Indeed, in Church v. City of Huntsville,

30 F.3d 1332 (11th Cir.1994), this Court reversed a

district court's preliminary injunction against the

City of Huntsville, holding that the plaintiffs were

not likely to succeed on the merits of their failureto-train claim without proof that the City was aware

of a prior incident in which constitutional rights

were similarly violated. Id. at 1342-46. See also

Popham v. City of Talladega, 908 F.2d 1561,

1564-65 (11th Cir.1990) (finding no liability for

failure to train when no pattern of incidents put the

City on notice of a need to train). More importantly, in Brooks v. Scheib, 813 F.2d 1191 (11th

Cir.1987), even though there had been ten citizen

complaints about police officer Scheib, this Court

held that the City did not have any notice of past

police misconduct because the plaintiff “never

demonstrated that past complaints of police misconduct had any merit.” Id. at 1193. This Court

aptly noted, “Indeed, the number of complaints

bears no relation to their validity.” Id.

FN10. This high standard of proof is intentionally onerous for plaintiffs; imposing liability on a municipality without proof that

a specific policy caused a particular violation would equate to subjecting the municipality to respondeat superior liability-a

result never intended by section 1983. As

the Supreme Court has explained,

[t]o adopt lesser standards of fault and

causation would open municipalities to unprecedented liability under § 1983. In virtually every instance where a person has

had his or her constitutional rights violated

by a city employee, a § 1983 plaintiff will

be able to point to something the city

“could have done” to prevent the unfortunate incident. Thus, permitting cases

against cities for their “failure to train”

employees to go forward under § 1983 on

a lesser standard of fault would result in de

facto respondeat superior liability on municipalities....

Id. at 391-92,109 S.Ct. 1197; see also

Brown, at ----, 117 S.Ct. at 1394 (“Where a

court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat su151 F.3d 1346 Page 7

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perior liability.”).

FN11. In granting qualified immunity to

Police Chief Ross, the Gold I court found

no evidence that the Police Chief was deliberately indifferent in failing to train the

three arresting officers because the court

found no indication in the summary judgment record “that a reasonable person in

Ross's position would have known that

such a failure infringed on constitutional

rights.” 121 F.3d at 1447.

B. Gold Presented No Evidence of Prior Incidents

[6] Gold admits that he presented no evidence of

prior constitutional violations or false arrests involving Florida's disorderly conduct statute. Instead, Gold submitted evidence only that there were

8,201 disorderly conduct arrests between 1986 and

1991 and that 601 such arrests were dismissed and

700 such arrests were nol prossed. There was no

evidence regarding the reasons for these dispositions or that any such dispositions were due to false

arrests for only protected speech. Gold, an attorney,

admitted that there can be many reasons why a

criminal case is dismissed, such as failure of witnesses or police officers to appear. Both the City's

Chief of Police and its Internal Affairs investigator

also testified that they could not recall any pattern

of complaints for false arrest under the disorderly

conduct statute.

[7] Similarly, Gold presented no evidence of a

single prior incident in which a City police officer

caused an injury by excessive force in handcuffing.

Gold presented only evidence that other officers often loosened handcuffs upon request and evidence

of one injury due to handcuffing, without any

showing of excessive force involved.

C. No Obvious Need

Gold stresses that evidence of prior incidents is not

required to establish a city policy *1352 in this case

because the need to train and supervise in the particular areas in issue was so obvious and the likelihood of constitutional violations was highly predictable so that liability attaches for this single incident. In City of Canton v. Harris, 489 U.S. 378,

109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the Supreme Court in dictum left open the possibility that

a need to train could be “so obvious,” resulting in a

City's being liable without a pattern of prior constitutional violations. Id. at 390, 109 S.Ct. 1197. As

an example, the Supreme Court in City of Canton

referenced the obvious need to train police officers

on the constitutional limitations on the use of

deadly force, when the city provides the officers

with firearms and knows the officers will be required to arrest fleeing felons. Id. at 390 n. 10, 109

S.Ct. 1197.

Subsequently, in Board of County Commissioners

v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137

L.Ed.2d 626 (1997), the Supreme Court characterized the City of Canton 's leaving open such a possibility as simply hypothesizing in a narrow range

of circumstances that a plaintiff might succeed

without showing a pattern of constitutional violations, as follows:

In leaving open in Canton the possibility that a

plaintiff might succeed in carrying a failure-to-train

claim without showing a pattern of constitutional

violations, we simply hypothesized that, in a narrow range of circumstances, a violation of federal

rights may be a highly predictable consequence of a

failure to equip law enforcement officers with specific tools to handle recurring situations.

Brown, at ----, 117 S.Ct. at 1391 (emphasis added)

(holding isolated incident of sheriff's inadequate

screening of deputy did not create such an obvious

risk that it alone established the municipality's deliberate indifference to the risk that the deputy

would use excessive force). In short, to date, the

Supreme Court has given only a hypothetical example of a need to train being “so obvious” without

prior constitutional violations: the use of deadly

force where firearms are provided to police officers. See City of Canton, 489 U.S. at 390 n. 10,

109 S.Ct. 1197.

[8][9] In any event, Gold's contentions that the police officers were inadequately trained and/or su151 F.3d 1346 Page 8

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pervised regarding the disorderly conduct statute

and the proper response to handcuff complaints

“fall[ ] far short of the kind of ‘obvious' need for

training that would support a finding of deliberate

indifference to constitutional rights on the part of

the city.” City of Canton, 489 U.S. at 396-97, 109

S.Ct. 1197 (finding no obvious need for police officers to be trained in diagnosing mental illness)

(O'Connor, J., concurring in part and dissenting in

part); Young v. City of Augusta, Georgia, 59 F.3d

1160, 1171-72 (11th Cir.1995) (finding no obvious

need to train jail employees “to recognize the need

to remove a mentally ill inmate to a hospital or to

dispense medication as prescribed”).FN12 “Unlike

the risk from a particular glaring omission in a

training regimen,” the risk from these possible imperfections, if any, in the City police officers' training and supervision here “is not obvious in the abstract.” Brown, at ----, 117 S.Ct. at 1391.FN13

FN12. In Young v. City of Augusta, Georgia, 59 F.3d 1160, 1172 (11th Cir.1995),

this Court explained the notice requirement

as follows:

Before it may be said that a municipality

has made a deliberate choice among alternative courses of action, its policymakers

must have had “actual or constructive notice that the particular omission is substantially certain to result in the violation of

the constitutional rights of their citizens.”

This may be demonstrated in one of two

ways.

First, the need for a particular type of

training may be obvious where jailers face

clear constitutional duties in recurrent situations.

Alternatively, the need for more or better

training may be obvious where a pattern of

constitutional violations exists such that

the municipality knows or should know

that corrective measures are needed.

Id. at 1172 (internal citations and parentheticals omitted).

FN13. Gold presented expert testimony

that the need for training and/or supervision in these two areas should have been

obvious to the City and that the City was

deliberately indifferent in not responding.

However, an expert's conclusory testimony

does not control this Court's legal analysis

of whether any need to train and/or supervise was obvious enough to trigger municipal liability without any evidence of prior incidents putting the municipality on

notice of that need.

*1353 D. Vineyard Is Not Applicable

Gold also relies heavily on Vineyard v. County of

Murray, Georgia, 990 F.2d 1207, 1212 (11th

Cir.1993), but that decision is inapplicable. Vineyard was threatened and beaten repeatedly in the

head and chest by sheriff's deputies while handcuffed to a hospital bed. Id. at 1209. Vineyard's jaw

was broken, and he underwent two surgical operations and treatment for the pain associated with this

injury. Id. at 1212. Although “it was not unusual to

receive complaints” about deputies, “the dispatcher

or whoever answer[ed] the telephone ha[d] discretion about the initial handling of the complaint.” Id.

Only the two deputies who committed the beating

were assigned to investigate Vineyard's complaints.

The sheriff's department did not log or document

citizens' complaints in any fashion, much less retain

records of such complaints. The two deputies never

completed an arrest report for Vineyard's arrest during which the beating occurred. The sheriff's department had no policies or procedures manual. Id.

Although there was no evidence of prior beatings

by the deputies in Vineyard, this Court found that

there was sufficient evidence from which the jury

could find that Murray County's not having a policy

and procedures manual, not requiring the deputies

to file an arrest report when beatings or confrontations occur, not logging in or documenting in any

way citizens' complaints, and not investigating any

complaints together were “the moving force” behind the deputies' “use of gratuitous force.” Id. at

1213. In contrast, the evidence here shows that the

City has policies and procedures, has extensive

training for its police officers, acquaints the officers

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with departmental policies and procedures, documents all citizens' false arrest complaints, and retains those records for a considerable period of

time.

[10] Gold stresses that the City's failure to investigate false arrest complaints raises a jury issue regarding whether the City was deliberately indifferent to an obvious need to supervise its police officers. However, false arrest complaints are documented but not investigated because the City's position is that the proper authority to investigate and

determine whether there was probable cause for an

arrest is the courts and not the police department.

Moreover, the City's Internal Affairs does investigate excessive force claims and certain other claims

of police misconduct. In any event, because Gold

presented no evidence of a prior false arrest for disorderly conduct or even a valid complaint of such

false arrest, there is no showing that the City's procedures for handling false arrest complaints affected the officers' conduct here. See Brooks v.

Scheib, 813 F.2d 1191, 1195 (11th Cir.1987)

(finding no evidence from which a jury could infer

a municipality's deficient procedures for handling

citizen complaints were the moving force of the

constitutional violation when the plaintiff failed to

show that the prior ten “complaints against [officer]

Scheib had some merit and that more effective citizens' complaint procedures would have prevented

his injuries”).

E. The City's Record-Keeping

[11] Lastly, Gold contends that he could not prove

a pattern of prior false arrests for disorderly conduct because the City kept no records or inadequate

records of citizens' false arrest complaints. At trial,

it was undisputed that the City does document all

citizens' false arrest complaints and then retains that

record as far back as 1985 or 1986. Indeed, when

Gold made his complaint, the City documented it,

and the contents of that record were introduced at

trial.

Although classified as “non-complaints,” these reports nevertheless are retained by the City and were

available as far back as 1985 or 1986. Thus, the

number and nature of the allegations of false arrest

for disorderly conduct received by the City since at

least 1986 could have been determined by pulling

these forms and reading the narratives. Therefore,

Gold's claim that the City's record keeping system

prevented him from presenting the necessary evidence is not supported by the record in this case. The

record also does not show any attempt by Gold to

obtain these “non-complaint” files or review them.

Gold has failed to establish that the City's method

of record-keeping prevented any attempts*1354 to

prove a prior incident of false arrest for protected

speech.FN14

FN14. Our discussion of this issue does not

imply that the City was obligated to keep

any such records for the purpose of enabling Gold to prove a claim. However,

since the City did document complaints of

false arrest, we discuss Gold's contentions

about the City's record-keeping system for

those documents.

IV. CONCLUSION

In sum, Gold has not presented any evidence from

which the jury could find that the existence of a

municipal policy or custom caused or was the moving force behind the violation of Gold's constitutional rights. No facts to sustain the jury's verdict

were offered.FN15

FN15. Because we find no evidence of a

City policy of inadequate training and supervision, we need not address the City's

contentions (1) that City policy was not the

moving force behind any constitutional violations, and (2) that the handcuffing injury was de minimus and not cognizable.

The district court erred in denying the City's motion

for judgment as a matter of law on Gold's section

1983 claims. Thus, the jury's verdict against the

City on Gold's section 1983 claims and the district

court's accompanying award of attorneys' fees and

costs under 42 U.S.C. § 1988 are set aside. On remand, the district court is directed to enter judg151 F.3d 1346 Page 10

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ment in favor of the City on Gold's section 1983

claims. The district court's judgment in the amount

of $26,500 in favor of Gold and against the City

and any costs awarded Gold by reason of that judgment are not affected by this appeal because they

remain supported by the jury's verdict on Gold's

state law claim for false arrest. The district court's

denial of the City's motion for judgment as a matter

of law on Gold's section 1983 claims is REVERSED, the jury's verdict on Gold's section 1983

claims is SET ASIDE, and the district court's award

of attorneys' fees and costs under section 1988 is

VACATED.

C.A.11 (Fla.),1998.

Gold v. City of Miami

151 F.3d 1346, 12 Fla. L. Weekly Fed. C 11

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