2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-9-2000

In Re Montgomery Cty.

Precedential or Non-Precedential:

Docket 99-1371

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Recommended Citation

"In Re Montgomery Cty." (2000). 2000 Decisions. Paper 125.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/125
Filed June 9, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 99-1371 and 99-1379 

IN RE: MONTGOMERY COUNTY; MONTGOMERY COUNTY 

COMMISSIONERS; MARIO MELE; RICHARD BUCKMAN; 

JOSEPH M. HOEFFEL, III 

 Petitioners, No. 99-1371 

ROBERT E. WRIGHT, SR. 

v. 

MONTGOMERY COUNTY; MONTGOMERY COUNTY 

COMMISSIONERS; MARIO MELE; RICHARD BUCKMAN; 

JOSEPH HOEFFEL; MAILLIE FALCONIERO & COMPANY 

LLP; GEORGE FALCONERO 

 Montgomery County; Montgomery County 

 Commissioners; Mario Mele; Richard Buckman, 

 Joseph Hoeffel, 

 Appellants, No. 99-1379 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. No. 96-cv-04597) 

District Judge: The Honorable Herbert J. Hutton 

ARGUED July 27, 1999 

BEFORE: SLOVITER, NYGAARD, and McKEE, 

Circuit Judges. 

(Filed June 9, 2000) 
 Timothy T. Myers, Esq. (Argued) 

 John M. Elliott, Esq. 

 Eric J. Bronstein, Esq. 

 Krista K. Beatty, Esq. 

 Elliott, Reihner, Siedzikowski 

 & Egan 

 925 Harvest Drive 

 Union Meeting Corporate Center 

 Blue Bell, PA 19422 

 Attorneys for Petitioners/ 

 Appellants/Cross Respondent/ 

 Appellee 

 Theodore Q. Thompson, Esq. 

 (Argued) 

 Theodore Q. Thompson & Associates 

 10 North Main Street 

 Ambler, PA 19002 

 Attorney for Respondent/Appellee/ 

 Cross Petitioners/Appellants 

OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

This is an interlocutory appeal from the District Court's 

pre-trial denial of the Appellants' claims to absolute and 

qualified immunity from suit. Although the District Court 

did not expressly address the Appellants' immunity claims, 

it denied the motions for summary judgment in which

those claims were asserted. We hold that this implicit 

denial of the Appellants' immunity claims is sufficient to 

confer appellate jurisdiction. We will affirm. 

I. Facts and Procedure 

In July 1994, Montgomery County's Salary Board 

promoted Robert Wright to Director of the County's 

Department of Housing Services. At the time, Wright had 

been a County employee for approximately 15 years, 

working first for its Redevelopment Authority, and then for 

 2 
the Department of Housing Services. Beginning in 1993, a 

number of Montgomery County homeowners contacted the 

United States Department of Housing and Urban 

Development to lodge complaints against Montgomery 

County's Department of Housing Services. The complaints 

accused Department officials of mismanagement, negligence 

and undue delay in their administration of the County's 

HUD-funded Home Improvement Program. The complaints

specifically mentioned Wright by name, as well as other 

Department employees and contractors. HUD forwarded the 

complaints to the County's Board of Commissioners and, 

ultimately, initiated an audit of the Department. 

Beginning in December 1995, HUD forwarded a series of 

draft audit findings to Wright in his capacity as Department 

Director. The draft findings identified a number of

deficiencies in the Department's administration of HUDfunded programs. In addition to more general shortfalls, the 

draft findings concluded that Wright, among others, had 

engaged in a number of transactions with HUD contractors 

involving impermissible conflicts of interest. HUD forwarded 

its final draft finding on April 19, 1996. 

On April 22, the Salary Board voted to suspend Wright, 

who is African-American, without pay.1 On May 20, HUD 

issued its final audit report which, like the draft findings, 

was highly critical of Wright's management of the 

Department, and of his personal dealings with HUD 

contractors. On June 13, the Salary Board voted to 

terminate Wright's employment. Two other Department

employees, both of whom were white, were also terminated. 

Wright ultimately responded to his termination byfiling a 

civil action against Montgomery County, the county 

commissioners as a group, and the three commissioners 

who served on the Salary Board -- Mario Mele, Richard S. 

Buckman, and Joseph M. Hoeffel, III -- in their individual 

capacities ("Appellants").2 

_________________________________________________________________ 

1. The Salary Board consisted of three County Commissioners and the 

County Controller. 

2. Defendants Maillie Falconiero and Co. and George Falconiero are not 

County Commissioners and are not parties to this appeal. 

 3 
Wright's complaint included a wide range of claims. In 

Count One, he alleged that the Appellants discriminated 

against, retaliated against, and harassed him on account of 

his race. He based this Count on 42 U.S.C. SS 1981, 1982, 

1983, 1985(1-3), 1986, and 1988, but did not invoke Title 

VII. The remaining counts alleged a litany of state-law 

claims ranging from defamation to intentional and negligent 

infliction of emotional distress, as well as a variety of other 

tort claims. 

In September 1998, the Appellants filed three separate 

motions for summary judgment based on: (1) claims of 

absolute and qualified immunity; (2) flaws in Wright's statelaw claims; and (3) flaws in Wright's constitutional claims. 

In a December 22, 1998 Memorandum and Order, the 

District Court granted the unopposed motion to dismiss the 

state-law claims. See Wright v. Montgomery County, No. 96- 

CV-4597 (E.D. Pa. Dec. 22, 1998). In the same 

Memorandum and Order, the court erroneously 

characterized Count One of Wright's complaint as asserting 

claims under Title VII. See id., slip op. at 5-8. Finding that 

Wright had established a prima facie case of discrimination 

under Title VII, the court denied the Appellants' motion for 

summary judgment on Count One. 

Because the District Court had characterized Count One, 

now the only surviving count, as asserting claims under 

Title VII, the Appellants filed a fourth motion for summary 

judgment on January 28, 1999. This time, the Appellants 

argued that summary judgment was proper because Wright 

had failed "to exhaust his legally mandated administrative 

remedies as a condition precedent of commencing suit." 

App. at 1364a. Thereafter, Wright informed the court that 

the federal claims asserted in Count One of his complaint 

were not based on Title VII, but rather on, inter alia, 42 

U.S.C. S 1981. See A1389. The Appellants responded by 

filing yet another motion for summary judgment on 

February 16, asserting various grounds for summary 

judgment, and again asserting absolute immunity. See 

A1393-96 (motion); 1450-51 (Memorandum of Law). 

Subsequently, on February 19, the Appellants filed a 

motion to dismiss based on allegations that Wright was 

refusing to cooperate in discovery. See Fed. R. Civ. P. 37. 

 4 
On March 15, the District Court filed a second 

Memorandum and Order. Therein, the court corrected 

itself, noting that Wright's claims in Count One were not 

based on Title VII, but rather, inter alia, 42 U.S.C. S 1981. 

See Wright v. Montgomery County, No. 96-CV-4597, 1999 

WL 145205, at *1 (E.D. Pa. Mar. 15, 1999). In this second 

order, the court dismissed all claims asserted in Count One 

except Wright's retaliation claims. In the course of doing so, 

the District Court purported to address a number of

motions, including the Appellants' January 28th motion for 

summary judgment based on exhaustion. The court did not 

address the January 28th motion's immunity claims, 

however, nor did it acknowledge the subsequent February 

16th motion reasserting those claims. 

On April 29, 1999, the District Court set the case for trial 

on May 10. Appellants filed their first notice of appeal on 

May 7. On that day, the District Court entered a number of 

orders disposing of the parties' remaining motions,

including, apparently, Appellants' February 16th motion for 

summary judgment. Once more, however, the court did not 

address the Appellants' immunity claims. Instead, the court 

merely noted in a footnote that it had "already addressed 

the issues raised in this motion for summary judgment" in 

its March 15th Memorandum and Order. In response, 

Appellants filed an amended notice of appeal on May 11, 

indicating that they were also appealing from the May 7 

Order.3 

II. Standard of Review 

Absolute immunity is a purely legal question over which 

we exercise plenary review. See Carver v. Foerster, 102 F.3d 

96, 99 (3d Cir. 1996). Our review of the Appellants' 

qualified immunity claims is strictly limited to the legal 

questions involved. Therefore, our review of that issue is 

also plenary. See Abbott v. Latshaw, 164 F.3d 141, 145 (3d 

Cir. 1998), cert. denied, 119 S. Ct. 2393 (1999). 

_________________________________________________________________ 

3. In addition to this appeal, Appellants filed a Petition for Writ of 

Mandamus, asking us to order the District Court to address the 

immunity issue. Because we determine that the issues are properly 

before us, we will deny the Petition by separate order. 

 5 
III. Discussion 

The Appellants raise a number of issues in this appeal. 

As a threshold matter, we must first determine which of 

those issues, if any, we have jurisdiction to review. We 

conclude that we have jurisdiction to consider the 

Appellants' claims to absolute and qualified immunity, but 

lack jurisdiction to consider their remaining claims. We 

next consider whether the District Court erred by implicitly 

denying the Appellants' immunity claims. We hold that it 

did not. 

A. Jurisdiction 

1. Timeliness of Appeal 

Wright contends that we lack jurisdiction to review the 

Appellants' claims because they failed to file notice of 

appeal within the 30-day limit established by Federal Rule 

of Appellate Procedure 4(a). See Fed. R. App. P. 4(a)(1). We 

disagree. 

The Rule 4(a) deadline for civil cases applies to"all 

appealable orders, including collateral orders, specifically 

orders denying immunity." Weir v. Propst, 915 F.2d 283, 

286 (7th Cir. 1990); see also Kenyatta v. Moore , 744 F.2d 

1179, 1186-87 (5th Cir. 1984). In Weir, the court held that, 

"[i]f the deadline is missed, the order is not appealable. The 

defendant must then wait until another appealable order 

(normally, the final judgment) is entered, upon appeal of 

which he can challenge any interlocutory order that has not 

become moot." Weir, 915 F.2d at 286. 

Wright argues that this appeal should be deemed as 

arising from, at the latest, the District Court's March 15th 

Order denying the Appellants' various motions for summary 

judgment. That argument overlooks one critical fact, 

however. The District Court did not explicitly rule on the 

Appellants' immunity claims in its March 15th Order, nor 

at any time before or after. In its December 22, 1998 Order, 

the court characterized Wright's federal claims as arising 

under Title VII. This, of course, temporarily took the 

immunity issues out of contention. Under Title VII, a public 

official may be held liable in her official capacity only, 

 6 
making the doctrine of qualified immunity, which protects 

only against personal liability, inapplicable. See Harvey v. 

Blake, 913 F.2d 226, 227-28 (5th Cir. 1990) ("Because the 

doctrine of qualified immunity protects a public official from 

liability for money damages in her individual capacity only, 

the doctrine is inapplicable in the Title VII context."). When 

the District Court corrected itself in its March 15th Order, 

the original motion for summary judgment on immunity 

grounds was still properly before it. 

The Appellants were entitled to believe that the District 

Court would eventually address their immunity claims at 

least until the court had denied all of their outstanding 

motions and set the case for trial. The District Court set the 

case for trial on April 29, and denied all of the Appellants' 

outstanding motions on May 7. The Appellants clearlyfiled 

their May 7th notice of appeal, as well as their May 11th 

amended notice of appeal, within 30 days of those dates, 

and thus within Rule 4(a)'s time limit. Accordingly, we 

reject Wright's argument that we must dismiss the 

Appellants' appeal as untimely. 

2. Jurisdiction over an Interlocutory Appeal 

Wright also raises an alternative challenge to our 

jurisdiction over this appeal. He argues that the Appellants' 

claims to qualified immunity do not fit within the collateralorder doctrine. We find his arguments on this point

unpersuasive, however. Moreover, Wright ignores or 

overlooks the fact that the Appellants have also asserted a 

claim to, and appeal from the denial of, absolute immunity. 

As a general rule, the federal appellate courts have no 

jurisdiction under 28 U.S.C. S 1291 to review interlocutory 

decisions such as a denial of summary judgment. 

Nevertheless, the collateral-order doctrine excepts a narrow 

range of interlocutory decisions from the general rule. See 

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). 

To fall within the doctrine, an interlocutory decision must 

conclusively determine the disputed issue, the issue must 

be completely separate from the merits of the action, and 

the decision must be effectively unreviewable on appeal 

from a final judgment. See Coopers & Lybrand v. Livesay, 

437 U.S. 463, 468 (1978). 

 7 
The Supreme Court has repeatedly applied the collateralorder doctrine to hold that orders denying absolute

immunity are reviewable on interlocutory appeal. See, e.g., 

Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690 (1982) 

(finding appellate jurisdiction over denial of president's 

claim to absolute immunity); Helstoski v. Meanor , 442 U.S. 

500 (1979) (reviewing claim of immunity under Speech and 

Debate Clause); Abney v. United States, 431 U.S. 651 

(1977) (reviewing claim of immunity under Double Jeopardy 

Clause); see also Carver v. Foerster, 102 F.3d 96, 98-99 (3d 

Cir. 1996). In doing so, the Court has explained that 

absolute immunity creates not only protection from liability, 

but also a right not to stand trial. See Mitchell v. Forsyth, 

472 U.S. 511, 525 (1985). If required to await final 

judgment on the merits of the underlying action before 

seeking appellate review, the appellant would irretrievably 

lose the right not to stand trial in the first place. See id. 

Thus, interlocutory review of the Appellants' absolute 

immunity claims is necessary to preserve the protections 

such immunity affords. 

In Mitchell, the Supreme Court extended the collateralorder doctrine to include denial of claims to qualified 

immunity. See id.; see also Brown v. United States, 851 

F.2d 615, 619 (3d Cir. 1988). Nevertheless, denial of 

qualified immunity falls within the collateral-order doctrine 

only to the extent the denial turns on an issue of law. See 

Johnson v. Jones, 515 U.S. 304, 313 (1995); see also Grant 

v. City of Pittsburgh, 98 F.3d 116, 119-20 (3d Cir. 1996) 

("To the extent they turn on an issue of law , decisions 

denying public officials qualified immunity are considered 

final under the collateral order doctrine.") (emphasis 

added). Generally, the relevant issue of law is whether the 

right the defendant is alleged to have violated was"clearly 

established" at the time the defendant acted or failed to act. 

See Behrens v. Pelletier, 516 U.S. 299, 313 (1996). Where, 

however, denial turns on the sufficiency of the evidence, it 

may not be appealed until the district court entersfinal 

judgment in the case. See Johnson, 515 U.S. at 313.

Wright argues that the Appellants' qualified immunity 

claims are not reviewable on interlocutory appeal because 

the District Court's December 18, 1998, Memorandum and 

 8 
Order "sets forth the clearly established right which the 

Appellants violated and therefore denied them the 

protection of qualified immunity." Appellee's Br. at 13 

(citing App. at 1779a). But this argument demonstrates a 

complete failure to understand the collateral-order doctrine, 

as well as the nature of our review. Had the District Court 

actually ruled that Wright had alleged a violation of a 

clearly established right, that would be exactly the type of 

ruling we would have jurisdiction to review on interlocutory 

appeal. 

The fact is, however, the District Court never rendered 

any such ruling, nor addressed the Appellants' immunity 

claims in any manner. Indeed, although the court began its 

December 18th Memorandum and Order by stating that it 

was addressing, among other things, Appellants'"Motion 

for Summary Judgment Concerning Their Immunity," the 

court did not analyze the immunity issue, and instead 

limited its discussion to the viability of Wright's substantive 

claims. In its March 15th Memorandum and Order, the

court again addressed the substantive issues only. 

Because the District Court never explicitly addressed the 

Appellants' immunity claims, we must decide whether we 

have interlocutory jurisdiction to review an implied denial 

of those claims. We join the other Circuit Courts of Appeals 

that have addressed this issue and hold that we do. See 

Lowe v. Town of Fairland, 143 F.3d 1378, 1380 (10th Cir. 

1998); Zayas-Green v. Casaine, 906 F.2d 18, 23 (1st Cir. 

1990); Musso v. Hourigan, 836 F.2d 736, 741 (2d Cir. 

1988); Craft v. Wipf, 810 F.2d 170, 173 (8th Cir. 1987); 

Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986) 

(per curiam); see also Nelson v. Jashurek, 109 F.3d 142, 

146-147 (3d Cir. 1997) (suggesting interlocutory 

jurisdiction might exist where denial of qualified immunity 

claim can be inferred); Ryan v. Burlington County, 860 F.2d 

1199, 1203 (3d Cir. 1988) (holding that a district court's 

"order is `final' and immediately reviewable under Mitchell if 

[the appellants] properly raised a claim of qualified 

immunity in the District Court."). Allowing this case to 

proceed to trial without considering the Appellants' 

immunity claims would irreversibly deprive them of any 

right to avoid trial. 

 9 
Of course, the fact that we have jurisdiction to review the 

Appellants' immunity claims does not automatically mean 

that we should also decide them. Some courts confronted 

with this situation have simply remanded the case for the 

district court to rule on the claims in the first instance. 

See, e.g., Musso, 836 F.2d at 742; Craft v. Wipf, 810 F.2d 

at 173; Helton v. Clements, 787 F.2d at 1017. Without 

establishing a fixed rule, we conclude that remand on the 

immunity claims would not be appropriate given the 

particular circumstances of this case. 

The Supreme Court's decisions in this area make it clear 

that an immune official's right to avoid trial is based not on 

the individual's desire to avoid the personal costs and 

aggravations of presenting a defense. Rather, the right not 

to stand trial is based on far broader concerns for avoiding 

the social costs of the underlying litigation, and for 

ensuring and preserving the effectiveness of government. 

See Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). The 

concern is that, absent immunity from suit as well as 

liability, the attention of public officials will be diverted 

from important public issues. Additionally, qualified 

individuals might avoid public service altogether, while the 

threat of litigation may undermine the willingness of those 

who do serve to act when action is necessary. See id. at 

814. 

The Appellants in this case have already been distracted 

for nearly four years by the need to defend themselves in 

this action. They have presented the District Court with 

numerous motions, including multiple assertions of their 

claims to immunity from suit. They have received and 

responded to the District Court's disposition of those 

motions, energetically pursued an appeal in this court, and 

awaited our decision. Where, as here, the issues are purely 

legal and ripe for review, we see little benefit in requiring 

these Appellants to press their claims anew in the District 

Court, and to risk yet further delay should that court's 

ultimate decision lead to a subsequent appeal. 

3. Jurisdiction Over Remaining Issues 

In addition to their claims of absolute and qualified 

immunity, the Appellants ask us to dismiss Wright's race- 

 10 
based retaliation claims, asserted under S 1981, on three 

alternative grounds. First, they argue that Wright'sS 1981 

claim must be dismissed because he has admitted that 

three of the four Salary Board members who voted to

terminate him did not act with improper motive. See

Appellants' Br. at 42-45. To hold the County or the

Commissioners liable, they contend, Wright must prove 

that a majority of the Salary Board members "voted to 

terminate Plaintiff for the improper purpose of retaliating 

against him for protesting mistreatment because he is 

black." Id. at 42 (internal quotation marks and citations 

omitted). 

Appellants next argue that we must dismiss Wright's

S 1981 claim because he cannot establish a prima facie 

case of retaliation under that statute. See id. at 45. More 

specifically, they argue that Wright cannot, as a matter of 

law, demonstrate that the activity for which the Appellants 

allegedly retaliated was a "protected" activity. See id. at 46. 

They similarly argue that Wright cannot establish a causal 

link between the activity in question and his subsequent 

termination. See id. at 48. Finally, the Appellants argue 

that even if Wright could establish a prima facie case of 

retaliation, they have presented "multiple legitimate, nondiscriminatory reasons for [his] termination." Id. 

We express no opinion on the merits of these arguments. 

Unlike absolute and qualified immunity, Appellants'

remaining claims do not fall within the collateral-order 

doctrine. Indeed, they do not satisfy any of the doctrine's 

three requirements. See Transtech Indus., Inc., v. A&Z 

Septic Clean, 5 F.3d 51, 55 (3d Cir. 1993) (citing Coopers & 

Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). The District 

Court's denial of their motion for summary judgment has 

not conclusively resolved the issues the Appellants raise on 

appeal. Those issues are not completely separable from the 

merits of the action. And, finally, they will not effectively be 

unreviewable on appeal from a final judgment. 

Consequently, the collateral-order doctrine confers no 

jurisdiction to consider Appellants' non-immunity based 

claims on interlocutory appeal. 

The Appellants suggest that we have discretion to 

consider their additional claims under pendent appellate 

 11 
jurisdiction. In fact, we have previously recognized a 

discretionary, though "narrow," doctrine of pendent

appellate jurisdiction. See United States v. Spears, 859 F.2d 

284, 287 (3d Cir. 1988) (citation omitted). But we have also 

concluded that the doctrine should be used "sparingly," 

and only where there is a sufficient overlap in the facts 

relevant to both the appealable and nonappealable issues 

to warrant plenary review. See id. We have also stated that 

" `pendent appellate jurisdiction over an otherwise

unappealable order is available only to the extent necessary 

to ensure meaningful review of an appealable order.' " 

National Union Fire Ins. v. City Sav., F.S.B., 28 F.3d 376, 

382 (3d Cir. 1994) (quoting Hoxworth v. Blinder, Robinson 

& Co., 903 F.2d 186, 209 (3d Cir. 1990)); see also Swint v. 

Chambers County Comm'n, 514 U.S. 35 44-50 (1995) 

(cautioning against an expansive application of pendent 

appellate jurisdiction, and overturning the Eleventh 

Circuit's decision to review a county commission's 

summary judgment motion as pendent to its review of the 

qualified immunity claims asserted by individual 

defendants). 

In this case, the Appellants' non-immunity claims depend 

on questions of fact that the District Court has yet to 

resolve. Consequently, plenary review of those claims would 

be inappropriate. Additionally, the Appellants' immunity 

claims are entirely susceptible to meaningful review without 

any consideration of their non-immunity claims. 

Accordingly, we decline to exercise pendent appellate 

jurisdiction over the non-immunity claims. 

B. The Immunity Claims 

1. Absolute Immunity 

The Appellants claim that they are entitled to absolute 

immunity from suit. Their decision to terminate Wright, 

they argue, is "precisely" the type of policy-making decision 

the Supreme Court has held to be " `in the sphere of 

legitimate legislative activity' and entitled to absolute 

immunity." Appellants' Br. at 29 (quoting Bogan v. ScottHarris, 523 U.S. 44, 54-55 (1998)). We disagree. 

 12 
It is true that local legislators, like federal and state 

legislators, are absolutely immune from liability for their 

legislative activities. See Bogan, 523 U.S. at 49; see also 

Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983). To be 

legislative, however, the act in question must be both 

substantively and procedurally legislative in nature. See 

Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996). An act 

is substantively legislative if it involves "policy-making of a 

general purpose" or "line-drawing." Id. It is procedurally 

legislative if it is undertaken "by means of established 

legislative procedures." Id. 

The Appellants' decision to terminate Wright fails the 

substantively-legislative test. The decision did not involve a 

matter of general policy, applicable to a variety of 

circumstances, nor to a range of County employees. Quite 

to the contrary, the decision targeted a particular employee 

suspected of specific acts of mis- and malfeasance. Urging 

the opposite conclusion, the Appellants argue that their 

decision to terminate Wright is analogous to the decision 

held to be legislative in Bogan. Even a passing review of the 

Supreme Court's decision in that case belies the argument, 

however. 

In Bogan, the act at issue involved the elimination of the 

plaintiff 's position as part of a larger, city-wide downsizing 

prompted by declining financial resources. See Bogan, 523 

U.S. at 46; see also Aitchison, 708 F.2d at 97 (holding that 

borough council members who voted to abolish assistant 

building inspector position on efficiency and economy 

grounds had absolute immunity from S 1983 claims 

brought by employee who held the position). This case, in 

contrast, involves a decision to eliminate a particular 

employee rather than the position that employee happens 

to hold. Indeed, as the Court expressly noted in Bogan, the 

act at issue in that case 

 reflected a discretionary, policymaking decision 

 implicating the budgetary priorities of the city and the 

 services the city provides to its constituents. Moreover, 

 it involved the termination of a position, which, unlike 

 the hiring or firing of a particular employee, may have 

 prospective implications that reach well beyond the 

 particular occupant of the office. 

 13 
Brogan, 523 U.S. at 55-56 (emphasis added). 

In short, we need not consider whether the act offiring 

Wright by vote of the Salary Board was procedurally

legislative. Regardless of the procedure, the act was not 

legislative in substance. Firing a particular employee is a 

personnel decision that does not involve general policy 

making. Appellants' firing of Wright did not reach beyond 

"the particular occupant of the office." Nor was their action 

an "integral step[ ] in the legislative process." Id. Actions of 

an executive or administrative nature such as this are not 

entitled to absolute immunity. See Carver, 102 F.3d at 100. 

As a result, Appellants' reliance on Bogan is misplaced and 

their claim of absolute immunity must be denied. 

2. Qualified Immunity 

Appellants claim that in addition to absolute immunity, 

they are also entitled to qualified immunity. As they 

correctly note, the doctrine of qualified immunity shields 

government officials from personal liability to the extent the 

conduct at issue "does not violate clearly established 

statutory or constitutional rights of which a reasonable 

person would have known." See Appellants' Br. at 37 (citing 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 

Unfortunately, the Appellants' attempt to establish that 

their decision to terminate Wright did not violate a clearly 

established right wholly misunderstands the limited nature 

of our interlocutory review. 

The Appellants contend that their decision to terminate 

Wright was based on HUD's audit report, which suggested, 

at best, that he was a poor manager, and, at worst, that he 

was guilty of potentially criminal conflicts of interest. They 

further contend that their reliance on the report, whether 

or not mistaken, was not unreasonable under the 

circumstances. They conclude, therefore, that because 

Wright "cannot demonstrate that the individual Defendants 

were `plainly incompetent' or `knowingly violating the law' 

when they terminated him, [his] claims . . . must be 

dismissed on grounds of qualified immunity." Appellants' 

Br. at 42. As we have already suggested, the argument is 

misplaced. 

 14 
Wright has not alleged that the Appellants' reliance on 

the audit report was unreasonable. Quite to the contrary, 

he alleges that the Appellants' claimed reliance on the 

report is merely a pretext. The Appellants terminated him, 

Wright alleges, in retaliation for speaking out against the 

County's allegedly racially discriminatory employment 

practices. There is no question that such racially-based 

retaliation would violate a right that was clearly established 

at the time Wright was terminated.4 See, e.g., Liotta v. 

National Forge Co., 629 F.2d 903, 907 (3d Cir. 1980) 

(holding that appellant had submitted sufficient evidence of 

race-based retaliation to survive summary judgment on his 

S 1981 claim), cert. denied, 451 U.S. 970 (1981); Patrick v. 

Miller, 953 F.2d 1240, 1249-50 (10th Cir. 1992) (holding 

that six cited cases "were sufficient to inform a reasonable 

government official in 1988" that racially based retaliatory 

actions "may violate the employee's rights as enumerated in 

S 1981."). 

Whether the Appellants' decision to terminate Wright was 

made in response to HUD's audit findings as they claim, or 

in retaliation as Wright alleges, is a question of fact to be 

decided in the District Court. Our review on interlocutory 

appeal is strictly limited to determining whether the right 

alleged to have been violated was clearly established at the 

time of the act in question. Until the District Court has 

entered a final judgment, we do not consider whether the 

plaintiff has produced sufficient evidence to prove his 

allegations. Holding as we do that Wright has alleged the 

violation of a clearly established right, we must also hold 

that the Appellants are not entitled to qualified immunity at 

this stage of the proceedings. 

IV. Conclusion 

For the reasons stated, we will affirm the District Court's 

implicit denial of Appellants' immunity claims. We decline 

_________________________________________________________________ 

4. Appellants cite Swineford v. Snyder County Pa., 15 F.3d 1258, 1271 

(3d Cir. 1994), for the proposition that "speech intended to air personal 

grievances" is not protected by the First Amendment. That, of course, is 

inapposite to the question of whether retaliation for such speech violates 

42 U.S.C. S 1981. 

 15 
to address the Appellants remaining claims, and will 

remand the case for further proceedings. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 16