* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Richard Mills, United States Distri ct Judge for the Central District of Illinois, sitting by designatio n. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 23 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

K. DANIEL RUPP,

Plaintiff - Appellant, No. 99-3355

v. (D. Kansas) DAVID J. PHILLIPS, in his personal capacity, Defendant - Appellee. (D.C. No. CIV-99-2101-WEA)

ORDER AND JUDGMENT *

Before HENRY and MURPHY , Circuit Judges, and MILLS , District Judge. **

Daniel Rupp is a former employee of David Phillips, the Federal Public Defender (“FPD”) in Wichita, Kansas. Mr. Rupp brought this Bivens action against Mr. Phillips, arguing that when Mr. Phillip s terminated Mr. Rupp’s employment at the Wichita FPD office, he violated M r. Rupp’s First Amendment-2-

rights. The district court granted summary judgment to Mr. Phillips. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the judgment of the district

court.

I. BACKGROUND The Federal Public Defender represents indigent def endants in the federal courts. As FPD for the District of Kansas, Mr. Phi llips supervises an office that employs individuals with several types of skills (f or example, investigators and legal counsel), and handles a variety of federal ca ses ranging from parole violations to capital crimes. In December of 1994, Mr. Rupp was hired by the FPD’s Wichita office as an investigator. Mr. Rupp is an avid gun collector and frequently vi sits gun shows. Sometime during 1997, Mr. Rupp met a vendor named T imothy Tobiason at one of these shows. Mr. Tobiason was selling books that described how to manufacture biological and chemical weapons of mass destruction. After conversing with Mr. Tobiason, Mr. Rupp learned thatMr. Tobiason “was very disgruntled with regard to how he had been treated by the government in business and in his personal life.” Aplt’s App. at 433. On June 6, 1998, Mr. Rupp attended another weekend gun show, where he again encountered Mr. Tobiason. Mr. Tobiason was n ow selling a book entitled-3-

“Advanced Biological Weapons Design and Manufacture ,” which contained instructions on how to culture and spread deadly di seases, as well as language threatening the government. Id. at 432-36. Mr. Rupp talked with Mr. Tobiason, and became convinced that not only had Mr. Tobiasonactually begun to manufacture chemical weapons, but that he had plans to use them against agents of the government. According to Mr. Rupp, Mr. Tobi ason stated that the damage caused by “the Oklahoma City bombing would be nothi ng” compared to what he was prepared to do. Id. at 437-38. Mr. Rupp feared that the commission of these crimes was imminent, so on the next business day (June 8, 1998), he contacted federal law enforcement agents to report Mr. Tobiason. Mr. Rupp described Mr. Tob iason’s activities and threats to Paul Vick, an FBI agent. Mr. Rupp and Agent Vic k then discussed the possibility of Rupp being “a cooperating witness,” in which case Mr. Rupp might “volunteer to be wired” to record future conversations with Mr. Tobiason. Id. at 237. Mr. Rupp then contacted Mr. Phillips, and told him about his encounter with Mr. Tobiason and his conversation with Agent V ick. According to Mr. Phillips, he commended Mr. Rupp for telling the FBI about Mr. Tobiason, but said Mr. Rupp should not be involved in any FBI inv estigation, and asked Mr. Rupp to contact Cindy McNorton, Mr. Rupp’s supervis or. After Mr. Rupp told-4-

Ms. McNorton that he might “wear a wire” to tape Mr . Tobiason at an upcoming gun show, Ms. McNorton reported this to Mr. Phillips. Id. at 208. Mr. Phillips instructed Ms. McNorton to tell Mr. Rupp that becau se of conflicts of interest between the FPD and FBI, “we can’t have him working undercover for the FBI.” Id. at 209. Ms. McNorton stated that Mr. Rupp then to ld her that “he would not sneak around her.” Id. at 311. Mr. Rupp subsequently went back to Agent Vick to as k what the FBI would want from him. According to Mr. Rupp, Agent Vick s tated that it would be illegal for the FPD to terminate him for cooperatin g with the FBI. Mr. Rupp then asked Ms. McNorton what he could do for the FBI. A ccording to Mr. Rupp, Ms. McNorton told him he could not be a witness. Howev er, Mr. Phillips claims Ms. McNorton’s response was much stronger; in his accou nt, she told Mr. Rupp that he was “out” of the Mr. Tobiason investigation, that “there was nothing more that he could do on that case,” and that even if he was contacted again by Mr. Tobiason, he should discuss the situation with the FPD before resuming contact with the FBI. Id. at 213. Throughout that summer, without informing his emplo yer, Mr. Rupp continued to keep in touch with Agent Vick. At Age nt Vick’s request, on June 16, 1998, he wrote a letter to Mr. Tobiason, inquir ing whether he would be at a Wichita gun show in September. Near the end of that month, Mr. Rupp received a-5-

response from Mr. Tobiason, indicating that Mr. Tob iason would be at that September show. Mr. Rupp turned that letter over t o Agent Vick, who asked him to attend the show and assess Mr. Tobiason’s “state of mind.” Id. at 119. In September, Mr. Rupp mentioned to an FPD co-worke r that he would be attending the upcoming gun show in order to “do a favor for the FBI.” Id. at 439. The co-worker suggested that Mr. Rupp contact Ms. M cNorton and tell her about this plan. Mr. Rupp did so on Sept. 10. Ms. McNorton then conferred with Mr. Phillips and Charles Dedmon, an FPD attorney from T opeka. According to Mr. Phillips, the three of them decided the FPD could n o longer trust Mr. Rupp, as he had in their view chosen to be involved in the inve stigation after he had been instructed not to be, and after he said he would no t be. They also decided that his actions “disrupted” the operation of the FPD office. Id. at 335. As a result, Mr. Phillips terminated Mr. Rupp’s employment. The parties agree that following his termination, Mr. Rupp subsequently exhausted all th e administrative remedies that were available to him, but was unable to regain his job. He then filed this suit against Mr. Phillips. The district court granted summary judgment in favo r of Mr. Phillips. It assumed for the sake of the summary judgment motion that a Bivens action could be maintained against Mr. Phillips, and then consid ered the question of whether Mr. Phillips had violated Mr. Rupp’s First Amendment rights. Citing Cragg v.-6-

City of Osawatomie, Kan. , 143 F.3d 1343 (10th Cir. 1998) , the court stated that that question was governed by the four part test set forth in Pickering v. Board of Educ. , 391 U.S. 563 (1968), and Connick v. Myers , 461 U.S. 138 (1983) (the “Pickering /Connick balancing test”). The court found that Mr. Rupp’s initial contact wit h the FBI, in which he reported his concerns regarding Mr. Tobiason, “clearly [involved] matters of public concern and an expression of free speech.” Aplt’s App. at 530 (Dist. Ct. Order, dated Oct. 19, 1999). However, it continued , Mr. Rupp was not reprimanded or terminated for this initial contact. Rather, he was praised for his efforts, but advised that he co uld no longer continue assisting the FBI in its investigation and work with the FPD’s office due to potential conflicts of interest, office disr uption, and loss of credibility. Id. at 530-31. The court stated that Mr. Rupp “agreed to cease his involvement,” but in spite of this agreement, “continued to assist the FBI.” Id. at 531. The court then found that Mr. Rupp’s continued invo lvement in the investigation was “unnecessary for the investigatio n” and thus “not, in this Court’s opinion, an expression of free speech prote cted by the First Amendment.” Id. In the alternative, even if Mr. Rupp’s involvemen t had been an activity protected by the First Amendment, the court found that “the FPD’s interest in restricting [Mr. Rupp’s] expression outweighs his constitutional rights.” Id. at 532. Applying the Pickering /Connick balancing test, it found that Mr. Phillips-7-

had advanced “substantial evidence of disruption,” and shown that his decision to terminate Mr. Rupp “was not based on mere speculati on, but on evidentiary support including his personal opinion and loss of trust, the opinion of [Mr. Rupp’s] immediate supervisor, and an attorney within the office.” Id. at 535-36. The court concluded that Mr. Rupp’s actions “disobe ying specific instructions” and “concealing his involvement until he knew his assistance would be discovered,” as well as “the nature of his posit ion within the FPD and the knowledge of Mr. Mr. Tobiason concerning [Mr. Rupp’ s] employment, render [Mr. Phillips’s] interest much greater than those o f [Mr. Rupp] in continuing his role in the investigation.” Id. at 537. It also ruled that even if Mr. Phillips h ad committed a constitutional violation, he enjoyed qu alified immunity for his actions.

II. DISCUSSION We review de novo the district court’s grant of sum mary judgment, viewing the record in the light most favorable to Mr. Rupp, as the party opposing summary judgment. See McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). “In cases involving the First Amendment, the de novo standard is appropriate . . . for the further reason that . . . an appellate court has an obligation to make an independent examination of the whole rec ord in order to make sure-8-

that the judgment does not constitute a forbidden i ntrusion on the field of free expression.” Horstkoetter v. Dep’t of Public Safety , 159 F.3d 1265, 1270 (10th Cir. 1998) (internal quotation marks omitted). Sum mary judgment is appropriate if there is no genuine issue of material fact and t he moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(c). On appeal, Mr. Rupp asserts three errors by the dis trict court. First, he argues that the court was incorrect when it found that his continued contact with the FBI did not pertain to a matter of public conce rn, and thus was not protected by the First Amendment. Second, he argues that the district court’s balancing of the parties’ interests was mistaken, and that any d isruption of FPD activities was outweighed by Mr. Rupp’s First Amendment interests in cooperating with the FBI. Finally, Mr. Rupp contends that because Mr. P hillips’ conduct violated clearly established law, the court should not have found Mr. Phillips qualifiedly immune from suit. We consider these arguments in turn.

A. Speech on a Matter of Public Concern When acting as an employer, the government may cons titutionally restrict the speech of its employees to a greater degree tha n when it acts in its general capacity as the sovereign. The Supreme Court has e xplained that:-9-

Government agencies are charged by law with doing p articular tasks. Agencies hire employees to help do those tasks as e ffectively and efficiently as possible. When [an employee] . . . begins to do or say things that detract from the agency’s effective ope ration, the government employer must have some power to restrai n [him]. Waters v. Churchill , 511 U.S. 661, 674-75 (1994). However, this powerto restrain government employees’ First Amendment rights is not absolute. To determine whether Mr. Phillips’s actions have infri nged upon Mr. Rupp’s freedom of speech and expression, we apply the Pickering /Connick test. See Jantzen v. Hawkins , 188 F.3d 1247, 1257 (10th Cir. 1999). The test is as follows: (1) Does the speech in que stion involve a matter of public concern? If so, (2) we must weigh the emplo yee’s interest in the expression against the government employer’s intere st in regulating the speech of its employees so that it can carry on an efficient and effective workplace. These first two parts of the test are questions of law. If the employee prevails on both these questions, we proceed to the remaining two st eps, which are questions of fact. In part (3), the employee must show the spee ch was a substantial factor driving the challenged governmental action. If the employee succeeds, (4) the employer, in order to prevail, must in turn show th at it would have taken the same action against the employee even in the absence of the protected speech. Id. ; see also Horstkoetter , 159 F.3d at 1271.-10-

In the first part of the test, we must inquire whet her Mr. Rupp’s actions constituted speech involving a matter of public con cern. We have held that “[m]atters of public concern are those of interest to the community, whether for social, political, or other reasons.” Lytle v. City of Haysville, Kan. , 138 F.3d 857, 863 (10th Cir. 1998) (citing Connick , 461 U.S. at 145-49). It is absolutely clear, as both parties agree, that Mr. Rupp’s initi al contact with the FBI was speech that involved a matter of public concern, an d was protected by the First Amendment. The district court correctly found in f avor of Mr. Rupp on this issue. Aplt’s App. at 530. However, the district court also found that Mr. Rup p’s subsequent involvement with the FBI was outside the protectionof the First Amendment. Citing Curtis v. Oklahoma City Pub. Schools Bd. of Educ. , 147 F.3d 1200, 1212 (10th Cir. 1998), Mr. Rupp challenges this finding. In Curtis , we noted that “‘[i]n deciding how to classify particular speech, courts focus on the motive of the speaker and attempt to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.’” Id. (quoting Gardetto v. Mason , 100 F.3d 803, 812 (10th Cir. 1996)). Mr. Rupp ar gues that his continued cooperation with the FBI “was clearlya matter of grave public concern,” due to the seriousness of the crimes thre atened by Mr. Tobiason, and was not motivated by personal grievances. Aplt’s B r. at 29. Mr. Rupp contends-11-

that at the time Agent Vick asked him to write a le tter to Mr. Tobiason, he understood Agent Vick to have implied that Mr. Rupp ’s continued involvement was necessary to the investigation. Id. at 30. This, Mr. Rupp proposes, demonstrates both that the FBI deemed the investigation to be a matter of public concern, and that he was not acting for merely pers onal reasons. In contrast, Mr. Phillips urges that although Mr. Rupp’s initial contact with the FBI may be called speech, his further cooperati on may not, because he was neither “expressing his views” nor “commenting upona matter of public concern.” Aple’s Br. at 22. In support of this contention, Mr. Phillips cites Koch v. City of Hutchinson , 847 F.2d 1436, 1447 (10th Cir. 1988), for the pro position that Mr. Rupp’s cooperation was not speech relating to a matter of public concern because it was not intended to inform the public atlarge. In essence, Mr. Phillips would have us hold that, although initially informi ng a law enforcement agency about a possible crime may be protected speech, sub sequent cooperation with the agency is not necessarily protected. Mr. Rupp’s conduct does not readily compare to thatof employees in our previous Pickering /Connick cases. Where we have held that speech did not involve a matter of public concern, that speech has essentially involved matters that were not of general public interest because th ey related only to the internal operations of an employee’s workplace. See , e.g. , Koch , 847 F.2d at 1447-491 There is also some question as to whether Mr. Rup p’s later actions may

be characterized as “speech.” See Horstkoetter , 159 F.3d at 1272 n.3. -12- (fire investigation report was routine work productthat was not intended to inform public); see also Connick , 461 U.S. at 146-47 (holding that employee speech “upon matters only of personal interest” is unprotected). Mr. Rupp’s continued cooperation with the FBI cannot be charac terized as having only been related to personal grievances or the routine inter nal operations of the FPD. But where we have held that employees’ speech did invol ve a matter of public concern, employees generally spoke in order to info rm the public about some matter of public interest involving the workplace. See , e.g. , Curtis , 147 F.3d at 1206, 1211-12 (public school employee, whose job wa s to help public schools achieve “equity,” spoke on matter of public concern in discussing whether school district was meeting that goal); Gardetto , 100 F.3d at 812-13 (speech of public college employee discussing matters including quest ionable academic credentials of college president involved public concern). Mr. Rupp’s continued cooperation with the FBI did not reveal anything to the public about the FPD. 1 However, as the district court correctly noted, anyambiguity as to the status of Mr. Rupp’s actions under the first part of the Pickering /Connick test is of limited significance, because there is no uncert ainty regarding the legal resolution of the second part of that test. As suc h, we will now turn to that-13-

second part. See Horstkoetter , 159 F.3d at 1272-73 (holding that “even assuming [a plaintiff] can survive the first hurdle,” he mus t also overcome the second before he can prevail).

B. Balancing the interests of Mr. Rupp and the FPD With regard to the second part of the Pickering /Connick test, the district court found that the interests of the FPD in regulating Mr. Rupp’s speech outweighed Mr. Rupp’s interest in that speech. Aplt’s App. at 530 . Mr. Rupp challenges this finding on several grounds. He states that his speech was a matter of serious, weighty public concern; that as a conse quence, Mr. Phillips should be required to make a “stronger showing” of the necess ity of a speech restriction; and that Mr. Phillips has failed to make this showi ng, as Mr. Rupp’s speech “caused no actual disruption to client services at the public defender’s office.” Aplt’s Br. at 37, 39. In order to establish the seriousness of the public concern with his speech, Mr. Rupp essentially equates the object of his spee ch with the object of the FBI investigation. He states that “[i]t is hard to ima gine a more substantial public concern than the one in this case,” namely that of saving the lives potentially threatened by Mr. Tobiason, and that his speech “sh ould be entitled to greater weight because he was acting at the request of the FBI trying to save lives.”-14-

Aplt’s Br. at 37-38. Additionally, if his speech i nvolved matters of public concern, Mr. Rupp argues that under Cragg v. City of Osawatomie, Kan. , 143 F.3d 1343 (10th Cir. 1998), we should require Mr. P hillips to make a “stronger showing” of the necessity of infringing upon Mr. Rupp’s speech rights. Id. at 1346 (quoting Connick , 461 U.S. at 152). Mr. Rupp also contends that his employer’s interest s were not sufficiently weighty to justify his termination. Citing testimo ny by Mr. Phillips and Ms. McNorton, he argues that his cooperation with the F BI caused no real disruption in the FPD’s office. For instance, at one point in Ms. McNorton’s deposition, she stated that “[a]ny actual disruption that I can thi nk of was pretty minor.” Aplt’s App. at 224; see also Aplt’s App. at 257-67 (deposition testimony of Mr. Phillips). In light of this testimony, Mr. Rupp argues that under Wulf v. City of Wichita , 883 F.2d 842 (10th Cir. 1989), Mr. Phillips’s con cerns were “purely speculative,” and thus insufficient to outweigh Mr. Rupp’s interest in his speech. Id. at 862 (internal quotation marks omitted). In response, Mr. Phillips proposes that not only wa s the FPD not required “to wait for speech actually to disrupt core operat ions before taking action,” but that contrary to Mr. Rupp’s statements, it had show n actual disruption. Aple’s Br. at 26 (quoting Moore v. City of Wynnewood , 57 F.3d 924, 934 (10th Cir. 1995)). For example, Mr. Phillips cites the deposition of C harles Dedmon, who stated that-15-

the FPD’s office could not trust Mr. Rupp to perform his job function as a result of his contacts with the FBI; apparently, during th e time Mr. Rupp was interacting with the Wichita FBI office regarding Mr. Tobiason, the Wichita FBI office and the Wichita FPD office were working on opposite sid es of a capital case. Aplt’s App. at 335; see also Aplt’s App. at 293-94 (deposition of Cyd Gilman). Mr. Phillips further contends that Mr. Rupp was notterminated merely for speaking with the FBI, but for continuing to cooper ate with the FBI after he had indicated to the FPD that he would not do so. In M r. Phillips’s view, this increases the weight we should give to the FPD’s interest in regulating Mr. Rupp’s speech. He also argues that Mr. Rupp’s cont inued FBI cooperation was not weighty, i.e. that it was of limited public imp ortance, because the FBI was capable of carrying on the investigation without hi m. After reviewing the record, we hold that under the Pickering/Connick balancing test, the interests of the FPD outweigh those of Mr. Rupp. We cannot agree that Mr. Rupp’s continued cooperation with th e FBI should be characterized as involving the most substantial of public concern s. Although the ultimate object of the FBI’s investigation was important, the Pickering test asks us to balance not the general public concern with crimina l investigations, but the specific public concern with Mr. Rupp’s continued p articipation in this particular investigation.-16-

The FBI’s investigation of Mr. Tobiason had nothing to do with Mr. Phillips, or with wrongdoing at the FPD. While it is true that in Moore , we held that “[w]histleblowing, of course, is not the only form of public employee speech that is protected,” we added that the government’s relative burden “in justifying a particular discharge varies depending upon the natu re of the employee’s expression.” Moore , 57 F.3d at 933 (quoting Connick , 461 U.S. at 150) (internal quotation marks omitted). In Moore , the discharged employee “did not reveal any new information to the public about the operation o f the police department” that employed him. Id. We therefore held that the employee’s speech was “less important and less valuable to the public than is t he speech often at issue in public employee speech cases.” Id; cf. Cragg , 143 F.3d 1343, 1346-47 (10th Cir. 1998) (participation in public political discourse “at the core” of speech protected by the First Amendment). We conclude that, as with the speech at issue in Moore , Mr. Rupp’s continued cooperation with the FBI did not implicat e the same level of public concern as the speech of employees who expose offic ial wrongdoing, or who participate in protected political activity. Mr. Rupp’s initial contact with the FBI did reveal new information to the public, and so may have been entitled to greater weight under the balancing test. But once Mr. Rupp had tipped the FBI, it was certainly capable of carrying out an investigation of Mr. Tobiason with or without-17-

Mr. Rupp’s help. Indeed, Agent Vick testified to this fact. See Aplt’s App. at 247. Thus, even if we consider Mr. Rupp’s continue d speech to the FBI to be the equivalent of speaking to the public at large, it c annot be deemed either as new or as irreplaceable as the most protected types of spe ech. For the purpose of Pickering /Connick balancing, Mr. Rupp’s choice to continue his under cover role in the Mr. Tobiason investigation did not imbue his speech with the utmost constitutional protection. As a result, Mr. Philli ps’s burden is correspondingly less weighty. Objecting to this potential conclusion, Mr. Rupp cites Robinson v. Balog , 160 F.3d 183 (4th Cir. 1998), for the proposition that there will be “serious implications” if we hold that public employees may be fired “for assisting a . . . criminal investigation.” Id. at 188. But the facts of that case are distinguis hable. In Balog , the plaintiffs’ speech sought “to bring to light ‘actual or potential wrongdoing or breach of public trust’ on the part of government employees.” Id. (quoting Connick , 461 U.S. at 148). The employees who perpetrated the wrongdoing were the plaintiffs’ supervisors, and th e supervisors disciplined the plaintiffs for trying to correct the wrongdoing. B ecause this was not Mr. Rupp’s2 Mr. Rupp also contends that this holding will sen d “absolutely the wrong

signal” to individuals contemplating future cooperation with the FBI, and possibly endanger lives. Aplt’s Br. at 49. We emphasize ag ain that nothing in today’s decision discourages, much less prohibits, Mr. Rupp ’s original contact with the FBI. As such, it is unlikely to cause significant avoidance and error costs. In addition, if there had been some indication that Mr . Rupp’s continued assistance with the investigation was imperative, our balancin g assessment could well be different. -18- situation, a holding that his interests were of les s than maximal weight in no way calls into question the interests of employees in a case such as Balog

. 2 We also hold that Mr. Phillips’s interests in regul ating Mr. Rupp’s speech were substantial, and outweighed Mr. Rupp’s interes t in his speech. As noted above, contrary to Mr. Rupp’s assertion, Mr. Philli ps has introduced evidence that Mr. Rupp’s behavior created a disruption in the FPD office and disturbed its ability to carry out its mission. See Aplt’s App. at 293-94, 335. This is consistent with the Supreme Court’s rule that an employer’s decision should be based on a reasonable interpretation of the evidence available to it. See Waters , 511 U.S. at 676-77. Moreover, we agree with Mr. Ph illips that an agency such as the FPD, which in a sense works against law enforce ment agencies when it works on behalf of its clients, may legitimately have hei ghtened concerns about its employees’ involvement with law enforcement. See Rankin v. McPherson , 483 U.S. 378, 390 (1987) (“The burden of caution employ ees bear with respect to the-19-

words they speak will vary with the extent of autho rity and public accountability the employee’s role entails.”). Finally, Mr. Rupp’s own statements reveal that he d eliberately ignored the instructions of his supervisors. In his deposition , Mr. Rupp stated that although he had been told he would be fired if he continued to cooperate with the FBI, he did so anyway, because “knew” it “just had to be” i llegal for the FPD to fire him on this basis. Mr. Rupp did not consult an attorne y to verify this opinion. Aplt’s App. at 114-15. As we stated in Moore , “although government employers do not have a blanket license to retaliate against employees base d on unfounded fears or speculation about the harmful effects of employee s peech,” Mr. Phillips has gone beyond speculation and has “identified a reasonable basis” for his actions.
Moore , 57 F.3d at 935. The disturbance caused by Mr. Rupp’s actions might have been outweighed if his speech had been of the utmos t First Amendment importance. However, because it was not, we hold t hat the second part of the Pickering /Connick test clearly tips in favor of Mr. Phillips. As a result, we need not reach additional issues under that test.

C. Mr. Phillips’s Immunity-20-

Mr. Rupp also argues that the district court was in correct in finding that Mr. Phillips enjoyed qualified immunity with respec t to the termination. Because we have held that there was no constitutional violation, we have no reason to consider this issue. See Moore , 57 F.3d at 935-36 (concluding that, where the plaintiff failed to demonstrate that the defendant violated his First Amendment rights, the court need not reach the issue of quali fied immunity).

III. CONCLUSION For the reasons set forth above, we AFFIRM the judg ment of the district

court.

Entered for the Court,

Robert H. Henry Circuit Judge