UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRENDHAN B. HARRIS,

Plaintiff-Appellee,

v.

CITY OF VIRGINIA BEACH,

Defendant-Appellant,

and

G. M. VAN AUKEN, III, Lieutenant;

M. E. BEANE, Captain; W. W.

BAKER, Captain; D. G. MCCLOUD,

Major; CHARLES R. WALL, Chief,

No. 96-1743

individually and as Officers of the

Department of Police, City of

Virginia Beach, Virginia; FAGAN D.

STACKHOUSE, individually and as the

Director of the Department of

Human Resources, City of Virginia

Beach, Virginia; JAMES K. SPORE,

individually and in his official

capacity as City Manager of the

City of Virginia Beach, Virginia,

Defendants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

(CA-93-1151-2)

Argued: January 28, 1997

Decided: March 31, 1997

Before HALL, LUTTIG, and WILLIAMS, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Lawrence Steven Emmert, CITY ATTORNEY'S

OFFICE, Virginia Beach, Virginia, for Appellant. Abram W. VanderMeer, Jr., CLARK & STANT, P.C., Virginia Beach, Virginia, for

Appellee. ON BRIEF: Richard Jay Beaver, CITY ATTORNEY'S

OFFICE, Virginia Beach, Virginia, for Appellant. Timothy W. Dorsey, CLARK & STANT, P.C., Virginia Beach, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The City of Virginia Beach appeals an order of the district court,

on remand from this court, reentering a judgment against it and in

favor of Brendhan Harris in Harris' suit alleging wrongful

discharge

under Virginia common law. We reverse the judgment and remand

for a new trial.

I.

Brendhan Harris was a police officer for the City of Virginia

Beach. On August 28, 1992, Harris was dispatched to an apartment

complex to investigate an unauthorized entry. On arrival, he spoke

to

the complainant, Terry Grey, and he concluded that the "intruder"

was

likely just the complex's maintenance man. He and Grey then went

to see the apartment manager, Colette Goodfellow, in an attempt to

confirm Harris' conclusion.

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Goodfellow produced a written work order for repairs to Grey's

apartment. Grey snatched the order from Goodfellow's hand and

refused to return it. Harris grabbed Grey's wrist in an attempt to

retrieve the paper. At this point, Harris was accosted by a

bystander,

Deidre Gamble, who is Grey's sister. Harris and Gamble struggled

briefly, until Harris sprayed Gamble with pepper gas.

At some point during the altercation, another officer, Anthony

Ortiz, arrived on the scene. Ortiz reported to Harris' supervisor,

Lieutenant Gary Van Auken, that Harris had acted improperly. Harris

also

reported the incident to Van Auken while he was transporting Gamble

to the hospital.

After Gamble was treated, Harris took her to a magistrate to have

her charged with assault and battery. There was a message waiting

for

him at the magistrate's office to call Van Auken. Van Auken

instructed Harris to release Gamble so that she could file a

complaint

against Harris with the department's Internal Affairs Division and

to

do nothing further in the matter.

Harris consulted a lawyer. He then gave a statement to Internal

Affairs, and immediately thereafter swore out warrants against Gamble and Grey. The warrant against Gamble was served, but, on the

order of Captain E. E. Rorrer, Harris relinquished the Grey warrant

to Van Auken. Van Auken placed the warrant in his desk drawer.

On September 30, 1992, Gamble's case was called for trial. Van

Auken appeared and produced a letter he had prepared and initialed

for Captain M. E. Beane. The letter stated that the City desired to

nolle prosequi the case. The case was dismissed without prejudice.

Internal Affairs then released a report critical of Harris'

actions,

finding in particular that his use of pepper spray on Gamble was an

excessive use of force. Based on the Internal Affairs report, the

department suspended Harris for four hours, with an additional four

hours for disobeying Van Auken's order not to pursue further

charges

against Gamble.

In a letter dated September 30, Capt. Rorrer instructed Harris to

discontinue his personal investigation of Grey and Gamble during

office hours and not "to pursue this matter further as a police

officer."

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Harris then filed his own Internal Affairs complaint against Van

Auken and Rorrer. While the investigation of this complaint was

proceeding, Harris was transferred into a different precinct in order

to

relieve tensions. On January 19, 1993, Internal Affairs found

Harris'

claims to be unfounded.

On July 30, 1993, after midnight, Harris appeared before a magistrate. He was in uniform and on duty. He testified that Van Auken

had

illegally directed the release of Gamble, illegally withheld

service of

the Grey warrant, and illegally submitted a false letter to the

court in

order to secure the dismissal of the charges Harris brought against

Gamble. Based solely on Harris' testimony, the magistrate issued a

summons charging Van Auken with obstruction of justice and corruptly failing to serve a warrant.

As one might expect, the summons caused quite a stir within the

department. On August 6, the chief of police called a meeting,

which

was attended by Van Auken and Captains Rorrer, Beane, and Baker.

A consensus was reached that Harris should be discharged. Captain

Beane prepared the formal Personal Conduct Report stating the reasons for Harris' termination -- disobedience of orders and abuse of

position. The termination was effective August 19.

Harris appealed his dismissal to the City Personnel Review Board.

A full hearing was held September 2. The Board upheld the dismissal

on September 7, in a letter containing one sentence of analysis:

"The

Board found that the City proved its case."

Harris filed this suit in district court on November 23, 1993,

against the City, Van Auken, Beane, and other individual city officials. He pled a 42 U.S.C. § 1983 First Amendment retaliatory discharge claim and a supplemental common-law claim for wrongful

discharge in violation of the public policy of Virginia.

A jury trial was held in July 1994, with equitable issues (e.g.

reinstatement) tried simultaneously to the court. At the close of

Harris'

case, the court dismissed his § 1983 claim against the individual

defendants (but not the City) as barred by qualified immunity, but

he

permitted Harris to proceed against all defendants on his state law

claim.

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The jury found for Harris on both claims. Against the City, the

jury

awarded $41,712 in compensatory damages on the § 1983 claim and

$125,000 compensatory (for "loss of professional opportunity") and

$200,000 punitive damages on the wrongful discharge claim. The

individual defendants were assessed punitive damages of $100 each.

The court, ruling on the equitable issues, ordered Harris

reinstated

and granted back pay of $43,000. The court also struck the punitive

damages against the individuals. In a later order following a

motion

by the City, the court struck the punitive damages against the City

and

reduced the award of compensatory damages for loss of professional

opportunity to its present value of $99,188.

Both Harris and the City appealed. The case was heard by a panel

of this court, which reversed and remanded. Harris v. City of

Virginia

Beach, No. 94-2091(L) (4th Cir. Oct. 30, 1995). We held that, as a

matter of law, Harris' speech was simply a private employmentrelated grievance and not speech as a citizen on matters of public

concern. Therefore, the § 1983 judgment could not stand.

Rather than rule on the issues raised by the parties concerning the

common-law wrongful discharge claim, we remanded for the district

court to consider the continuing vitality of that claim in light of

the

reversal on the § 1983 judgment.

On remand, the City moved to dismiss the claim. It argued that the

decision of the grievance board was final and binding and thereby

precluded any tort claim based on the discharge. It also argued

that

our ruling that Harris' speech to the magistrate was not protected

by

the First Amendment required the same ruling with regard to its

violating Virginia public policy. In the alternative, the City moved

for a

new trial on the ground that the jury's finding of a violation of

public

policy was unfairly influenced, if not practically compelled, by

the

trial court's erroneous ruling that the statements were protected

by the

First Amendment.

The district court denied the City's motions, and reentered judgment for Harris. The City appeals. We review the district court's

legal
conclusions de novo and its denial of a new trial for abuse of

discretion.

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II.

At the time of Harris' discharge, Virginia law provided for local

governments to have personnel grievance boards. The decisions of

these boards were "final and binding" and were required to be "consistent with law and policy." Va. Code § 2.1-114.5(d)(4)(d) (Michie

Supp. 1993; repealed 1995). The Virginia Supreme Court has

enforced grievance board decisions in the face of arguments that

they

are non-binding recommendations. Zicca v. City of Hampton, 240 Va.

468, 397 S.E.2d 882 (1990); Angle v. Overton, 235 Va. 103, 365

S.E.2d 758 (1988). The City argues that the binding nature of

Harris'

grievance board loss bars his wrongful discharge claim.

Harris counters that the City has waived this defense.1 We need not

consider this issue, because the decision of the grievance board

cannot be binding here.

The one-sentence board analysis -- "The Board found that the City

proved its case" -- tells us nothing about its findings of

historical

fact. Consequently, we cannot know whether its application of "law

and policy" to those facts was proper.

At the time of this board hearing and decision, the statute spoke

in

the conjunctive: the decision is "final and binding" and must be

consistent with "law and policy." The district court held that it had

at

least enough jurisdiction to inquire into the consistency with law

and

policy and to ignore any board decision it found wanting. In

neither

Zicca nor Angle, the two cases relied on by the City, was this

aspect

of the board's decision challenged.

We agree with the district court. Though we have upheld the Virginia grievance procedure against due process challenges arising

from

its failure to provide a judicial forum for or review of

factfinding, we

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1 While its answer invokes a pro forma Rule 12(b)(6) defense, the

City

did not, by motion or otherwise, expressly assert this legal theory

of

defense before trial. However, in its reply brief in this appeal,

the City

cites two excerpts from the discussion of the jury charge in which
it

refers -- albeit obliquely -- to the binding nature of grievance

board

decisions where there are no constitutional claims.

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have acknowledged that courts must occasionally play a role, e.g.

determining grievability, selecting a third member for the panel,

or

implementing the decision. Layne v. Campbell Co. Dep't of Social

Services, 939 F.2d 217, 221 (4th Cir. 1991). It follows that purely

legal defects in the grievance decision could be raised in court to

resist its implementation. Indeed, the Layne panel stated that the

grievance board decision "is final and binding, but it must be

consistent with law and written policies." Id. (emphasis added).

Finally, our understanding of the court's role is congruent with

the

personnel statute as rewritten by the Virginia General Assembly in

1995. Grievance boards are now expressly required to make findings

of fact and conclusions of law, and the decision is final and

binding

"if consistent with law and policy." Va. Code § 2.1-116.07(C)(iii)

(Michie 1995) (emphasis added).

There is simply no way that we can know whether this grievance

board decision was consistent with law and policy, and so we cannot

give it preclusive effect.

III.

We now turn to the substantive viability of the wrongful discharge

judgment in light of our reversal of the § 1983 judgment. At the

outset, we agree with Harris and the district court that our ruling

that

Harris' statements were not protected by the First Amendment does

not necessarily mean that they were not protected by Virginia or

City

public policy. For example, a police officer has a duty to report

crimes, e.g., Va. Code § 15.1-138 (Michie Supp. 1996) (listing

among

a policeman's duties that he "shall detect and arrest offenders

against

the [law]"), and a city ordinance expressly protects employee

whistleblowers from retaliation. Code of the City of Virginia Beach § 2-

129(a)(5). These policies obviously have purposes beyond protecting

free speech; just as obviously, and as is the case here, they are

often

implicated by and intertwined with speech issues.

At the very outset of trial, the district court informed the jury

that

it had already ruled that the statements were protected expression

under the First Amendment. This court ruled precisely the opposite

as a matter of law. We cannot envision how the jury, instructed as

it
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was, could have concluded anything else but that Harris' statements

were protected by public policy as well. Free speech and liberty of

conscience have been the public policy of Virginia for longer than

there has been a United States. Can we be confident that a jury of

Virginians, instructed that protected speech had occurred, both based

its

verdict on an ostensibly non-speech public policy and disregarded

the

protected nature of the speech in assessing Harris' actions

vis-a-vis

that policy? We surely cannot. The appropriate remedy is a new

trial.2

The judgment of the district court is reversed, and the case is

remanded. We leave to the district court's discretion whether to

continue to exercise supplemental jurisdiction under 28 U.S.C. § 1367.

The court may proceed to a new trial or dismiss the suit without

prejudice to its being refiled in state court. 3

REVERSED AND REMANDED

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2 The City also challenges several aspects of the damages awarded

to

Harris. Our grant of a new trial moots these issues.

3 See 28 U.S.C. § 1367(d).

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