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D ock e t 99-1371

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. e du/thir dc ir c uit_2000/125Filed 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 C ourt's pre-trial denial of the Appellants' claims to absol ute 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 impli cit denial of the Appellants' immunity claims is suffic ient 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

2the Department of Housing Services. Beginning in 19 93, a

number of Montgomery County homeowners contacted th e United States Department of Housing and Urban Development to lodge complaints against Montgomery County's Department of Housing Services. The compla ints accused Department officials of mismanagement, negl igence and undue delay in their administration of the Coun ty's HUD-funded Home Improvement Program. The complaints specifically mentioned Wright by name, as well as o ther Department employees and contractors. HUD forwarded the complaints to the County's Board of Commissioners a nd, 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 D epartment Director. The draft findings identified a number of deficiencies in the Department's administration of HUDfunded programs. In addition to more general shortf alls, the draft findings concluded that Wright, among others, had engaged in a number of transactions with HUD contra ctors involving impermissible conflicts of interest. HUD forwarded its final draft finding on April 19, 1996.

On April 22, the Salary Board voted to suspend Wrig ht, 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 termi nated. Wright ultimately responded to his termination byfi ling a civil action against Montgomery County, the county commissioners as a group, and the three commissione rs who served on the Salary Board -- Mario Mele, Richa rd S. Buckman, and Joseph M. Hoeffel, III -- in their ind ividual capacities ("Appellants").2

___________________________________________________ ______________

1. The Salary Board consisted of three County Commi ssioners and the County Controller.

2. Defendants Maillie Falconiero and Co. and George Falconiero are not County Commissioners and are not parties to this ap peal.

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

Count One, he alleged that the Appellants discrimin ated against, retaliated against, and harassed him on ac count 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 n egligent infliction of emotional distress, as well as a vari ety of other

tort claims.

In September 1998, the Appellants filed three separ ate motions for summary judgment based on: (1) claims o f absolute and qualified immunity; (2) flaws in Wrigh t's statelaw claims; and (3) flaws in Wright's constitutiona l claims. In a December 22, 1998 Memorandum and Order, the District Court granted the unopposed motion to dism iss 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 as serting claims under Title VII. See id., slip op. at 5-8. F inding that Wright had established a prima facie case of discri mination under Title VII, the court denied the Appellants' m otion for summary judgment on Count One.

Because the District Court had characterized Count One, now the only surviving count, as asserting claims u nder Title VII, the Appellants filed a fourth motion for summary judgment on January 28, 1999. This time, the Appell ants argued that summary judgment was proper because Wri ght had failed "to exhaust his legally mandated adminis trative remedies as a condition precedent of commencing sui t." App. at 1364a. Thereafter, Wright informed the cour t that

the federal claims asserted in Count One of his com plaint were not based on Title VII, but rather on, inter a lia, 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. Se e 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.

4On March 15, the District Court filed a second

Memorandum and Order. Therein, the court corrected itself, noting that Wright's claims in Count One we re not based on Title VII, but rather, inter alia, 42 U.S. C. S 1981. See Wright v. Montgomery County, No. 96-CV-4597, 19 99 WL 145205, at *1 (E.D. Pa. Mar. 15, 1999). In this second order, the court dismissed all claims asserted in C ount One except Wright's retaliation claims. In the course o f doing so, the District Court purported to address a number of motions, including the Appellants' January 28th mot ion 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 Febr uary 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 a ppeal on May 7. On that day, the District Court entered a nu mber of orders disposing of the parties' remaining motions, including, apparently, Appellants' February 16th mo tion for summary judgment. Once more, however, the court did not address the Appellants' immunity claims. Instead, t he court merely noted in a footnote that it had "already add ressed the issues raised in this motion for summary judgme nt" 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 M ay 7

Order.3

II. Standard of Review

Absolute immunity is a purely legal question over w hich 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 th e legal questions involved. Therefore, our review of that i ssue 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 P etition for Writ of Mandamus, asking us to order the District Court to address the immunity issue. Because we determine that the issue s are properly before us, we will deny the Petition by separate or der.

5III. Discussion

The Appellants raise a number of issues in this app eal. As a threshold matter, we must first determine whic h of those issues, if any, we have jurisdiction to revie w. We conclude that we have jurisdiction to consider the Appellants' claims to absolute and qualified immuni ty, but lack jurisdiction to consider their remaining claim s. We next consider whether the District Court erred by i mplicitly denying the Appellants' immunity claims. We hold th at 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 noti ce of appeal within the 30-day limit established by Feder al 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"a ll appealable orders, including collateral orders, spe cifically orders denying immunity." Weir v. Propst, 915 F.2d 283, 286 (7th Cir. 1990); see also Kenyatta v. Moore , 7 44 F.2d 1179, 1186-87 (5th Cir. 1984). In Weir, the court h eld that, "[i]f the deadline is missed, the order is not appe alable. The defendant must then wait until another appealable o rder (normally, the final judgment) is entered, upon app eal 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 M arch 15th Order denying the Appellants' various motions for s ummary 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, 19 98 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 capacit y only,

6making the doctrine of qualified immunity, which pr otects

only against personal liability, inapplicable. See Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir. 1990) ("Becau se the doctrine of qualified immunity protects a public of ficial from liability for money damages in her individual capac ity only, the doctrine is inapplicable in the Title VII conte xt."). When

the District Court corrected itself in its March 15 th Order, the original motion for summary judgment on immunit y grounds was still properly before it.

The Appellants were entitled to believe that the Di strict Court would eventually address their immunity claim s at

least until the court had denied all of their outst anding

motions and set the case for trial. The District Co urt set the case for trial on April 29, and denied all of the A ppellants' outstanding motions on May 7. The Appellants clearl yfiled their May 7th notice of appeal, as well as their Ma y 11th amended notice of appeal, within 30 days of those d ates, 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 A ppellants' 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 as serted a claim to, and appeal from the denial of, absolute i mmunity.

As a general rule, the federal appellate courts hav e no jurisdiction under 28 U.S.C. S 1291 to review inter locutory decisions such as a denial of summary judgment. Nevertheless, the collateral-order doctrine excepts a narrow range of interlocutory decisions from the general r ule. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). To fall within the doctrine, an interlocutory decis ion must conclusively determine the disputed issue, the issu e must be completely separate from the merits of the actio n, and the decision must be effectively unreviewable on ap peal from a final judgment. See Coopers & Lybrand v. Liv esay, 437 U.S. 463, 468 (1978).

7The Supreme Court has repeatedly applied the collat eralorder doctrine to hold that orders denying absolute immunity are reviewable on interlocutory appeal. Se e, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690 (1982) (finding appellate jurisdiction over denial of pres ident's claim to absolute immunity); Helstoski v. Meanor , 442 U.S. 500 (1979) (reviewing claim of immunity under Speec h and Debate Clause); Abney v. United States, 431 U.S. 65 1 (1977) (reviewing claim of immunity under Double Je opardy Clause); see also Carver v. Foerster, 102 F.3d 96, 98-99 (3d Cir. 1996). In doing so, the Court has explained th at 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 fina l judgment on the merits of the underlying action bef ore seeking appellate review, the appellant would irret rievably lose the right not to stand trial in the first plac e. See id. Thus, interlocutory review of the Appellants' absol ute immunity claims is necessary to preserve the protec tions such immunity affords.

In Mitchell, the Supreme Court extended the collate ralorder doctrine to include denial of claims to quali fied 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-orde r doctrine only to the extent the denial turns on an issue of law. See Johnson v. Jones, 515 U.S. 304, 313 (1995); see als o Grant v. City of Pittsburgh, 98 F.3d 116, 119-20 (3d Cir. 1996) ("To the extent they turn on an issue of law , deci sions denying public officials qualified immunity are con sidered final under the collateral order doctrine.") (empha sis added). Generally, the relevant issue of law is whe ther the right the defendant is alleged to have violated was "clearly

established" at the time the defendant acted or fai led to act. See Behrens v. Pelletier, 516 U.S. 299, 313 (1996). Where, however, denial turns on the sufficiency of the evi dence, it may not be appealed until the district court enters final judgment in the case. See Johnson, 515 U.S. at 313.

Wright argues that the Appellants' qualified immuni ty claims are not reviewable on interlocutory appeal b ecause the District Court's December 18, 1998, Memorandum and

8Order "sets forth the clearly established right whi ch the

Appellants violated and therefore denied them the protection of qualified immunity." Appellee's Br. a t 13 (citing App. at 1779a). But this argument demonstra tes a complete failure to understand the collateral-order doctrine,

as well as the nature of our review. Had the Distri ct Court actually ruled that Wright had alleged a violation of a clearly established right, that would be exactly th e type of ruling we would have jurisdiction to review on inte rlocutory appeal.

The fact is, however, the District Court never rend ered any such ruling, nor addressed the Appellants' immu nity claims in any manner. Indeed, although the court be gan its December 18th Memorandum and Order by stating that it was addressing, among other things, Appellants'"Mot ion for Summary Judgment Concerning Their Immunity," th e court did not analyze the immunity issue, and inste ad 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 address ed the Appellants' immunity claims, we must decide whether we have interlocutory jurisdiction to review an implie d denial of those claims. We join the other Circuit Courts o f 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. 1 987); Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1 986) (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 qualifi ed immunity in the District Court."). Allowing this ca se to proceed to trial without considering the Appellants ' immunity claims would irreversibly deprive them of any right to avoid trial.

9Of course, the fact that we have jurisdiction to re view the

Appellants' immunity claims does not automatically mean that we should also decide them. Some courts confro nted with this situation have simply remanded the case f or the

district court to rule on the claims in the first i nstance. See, e.g., Musso, 836 F.2d at 742; Craft v. Wipf, 8 10 F.2d at 173; Helton v. Clements, 787 F.2d at 1017. Witho ut 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 b ased not on the individual's desire to avoid the personal costs and aggravations of presenting a defense. Rather, the r ight 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 govern ment. 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 b e diverted from important public issues. Additionally, qualifi ed 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 i d. at

814.

The Appellants in this case have already been distr acted for nearly four years by the need to defend themsel ves 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 an d responded to the District Court's disposition of th ose motions, energetically pursued an appeal in this co urt, and awaited our decision. Where, as here, the issues ar e 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 co urt's ultimate decision lead to a subsequent appeal.

3. Jurisdiction Over Remaining Issues

In addition to their claims of absolute and qualifi ed immunity, the Appellants ask us to dismiss Wright's race-

10based 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 tha t 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 pro ve that a majority of the Salary Board members "voted to terminate Plaintiff for the improper purpose of ret aliating against him for protesting mistreatment because he is black." Id. at 42 (internal quotation marks and cit ations omitted).

Appellants next argue that we must dismiss Wright's S 1981 claim because he cannot establish a prima fa cie

case of retaliation under that statute. See id. at 45. More specifically, they argue that Wright cannot, as a m atter of law, demonstrate that the activity for which the Ap pellants allegedly retaliated was a "protected" activity. Se e id. at 46. They similarly argue that Wright cannot establish a causal link between the activity in question and his subse quent termination. See id. at 48. Finally, the Appellants argue that even if Wright could establish a prima facie c ase of retaliation, they have presented "multiple legitima te, nondiscriminatory reasons for [his] termination." Id.

We express no opinion on the merits of these argume nts. Unlike absolute and qualified immunity, Appellants' remaining claims do not fall within the collateral- order doctrine. Indeed, they do not satisfy any of the do ctrine'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 f rom the merits of the action. And, finally, they will not e ffectively be unreviewable on appeal from a final judgment. Consequently, the collateral-order doctrine confers no jurisdiction to consider Appellants' non-immunity b ased claims on interlocutory appeal.

The Appellants suggest that we have discretion to consider their additional claims under pendent appe llate

11jurisdiction. In fact, we have previously recognize d 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 "sparing ly," and only where there is a sufficient overlap in the facts relevant to both the appealable and nonappealable i ssues to warrant plenary review. See id. We have also sta ted 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, Ro binson & 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 pen dent appellate jurisdiction, and overturning the Elevent h 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 d epend on questions of fact that the District Court has ye t to resolve. Consequently, plenary review of those clai ms would be inappropriate. Additionally, the Appellants' imm unity claims are entirely susceptible to meaningful revie w without any consideration of their non-immunity claims. Accordingly, we decline to exercise pendent appella te jurisdiction over the non-immunity claims.

B. The Immunity Claims

1. Absolute Immunity

The Appellants claim that they are entitled to abso lute immunity from suit. Their decision to terminate Wri ght, they argue, is "precisely" the type of policy-makin g decision the Supreme Court has held to be " `in the sphere o f legitimate legislative activity' and entitled to ab solute immunity." Appellants' Br. at 29 (quoting Bogan v. ScottHarris, 523 U.S. 44, 54-55 (1998)). We disagree.

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

legislators, are absolutely immune from liability f or 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 b oth substantively and procedurally legislative in natur e. 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 proc edurally legislative if it is undertaken "by means of establ ished legislative procedures." Id.

The Appellants' decision to terminate Wright fails the substantively-legislative test. The decision did no t involve a matter of general policy, applicable to a variety o f 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 de cision held to be legislative in Bogan. Even a passing rev iew of the Supreme Court's decision in that case belies the ar gument,

however.

In Bogan, the act at issue involved the elimination of the plaintiff 's position as part of a larger, city-wid e downsizing prompted by declining financial resources. See Boga n, 523 U.S. at 46; see also Aitchison, 708 F.2d at 97 (hol ding that borough council members who voted to abolish assist ant building inspector position on efficiency and econo my grounds had absolute immunity from S 1983 claims brought by employee who held the position). This ca se, in contrast, involves a decision to eliminate a partic ular employee rather than the position that employee hap pens to hold. Indeed, as the Court expressly noted in Bo gan, the

act at issue in that case

reflected a discretionary, policymaking deci sion implicating the budgetary priorities of the city and the services the city provides to its constituen ts. Moreover, it involved the termination of a position, w hich, unlike the hiring or firing of a particular employe e, may have prospective implications that reach well bey ond the particular occupant of the office.

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

In short, we need not consider whether the act offi ring Wright by vote of the Salary Board was procedurally legislative. Regardless of the procedure, the act w as not legislative in substance. Firing a particular emplo yee is a personnel decision that does not involve general po licy making. Appellants' firing of Wright did not reach beyond "the particular occupant of the office." Nor was th eir action an "integral step[ ] in the legislative process." I d. 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 mispl aced and their claim of absolute immunity must be denied.

2. Qualified Immunity

Appellants claim that in addition to absolute immun ity, they are also entitled to qualified immunity. As th ey correctly note, the doctrine of qualified immunity shields government officials from personal liability to the extent the conduct at issue "does not violate clearly establis hed statutory or constitutional rights of which a reaso nable 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 termi nate Wright was based on HUD's audit report, which sugge sted, at best, that he was a poor manager, and, at worst, that he was guilty of potentially criminal conflicts of int erest. They further contend that their reliance on the report, whether or not mistaken, was not unreasonable under the circumstances. They conclude, therefore, that becau se Wright "cannot demonstrate that the individual Defe ndants were `plainly incompetent' or `knowingly violating the law' when they terminated him, [his] claims . . . must b e dismissed on grounds of qualified immunity." Appell ants' Br. at 42. As we have already suggested, the argume nt is misplaced.

14Wright has not alleged that the Appellants' relianc e on

the audit report was unreasonable. Quite to the con trary, he alleges that the Appellants' claimed reliance on the report is merely a pretext. The Appellants terminat ed him, Wright alleges, in retaliation for speaking out aga inst the County's allegedly racially discriminatory employme nt 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., Liot ta v. National Forge Co., 629 F.2d 903, 907 (3d Cir. 1980 ) (holding that appellant had submitted sufficient ev idence of race-based retaliation to survive summary judgment on his S 1981 claim), cert. denied, 451 U.S. 970 (1981); P atrick v. Miller, 953 F.2d 1240, 1249-50 (10th Cir. 1992) (ho lding

that six cited cases "were sufficient to inform a r easonable government official in 1988" that racially based re taliatory actions "may violate the employee's rights as enume rated in S 1981.").

Whether the Appellants' decision to terminate Wrigh t was made in response to HUD's audit findings as they cl aim, or in retaliation as Wright alleges, is a question of fact to be

decided in the District Court. Our review on interl ocutory appeal is strictly limited to determining whether t he right alleged to have been violated was clearly establish ed at the time of the act in question. Until the District Cou rt has entered a final judgment, we do not consider whethe r the plaintiff has produced sufficient evidence to prove his allegations. Holding as we do that Wright has alleg ed the violation of a clearly established right, we must a lso hold that the Appellants are not entitled to qualified i mmunity 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

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4. Appellants cite Swineford v. Snyder County Pa., 15 F.3d 1258, 1271 (3d Cir. 1994), for the proposition that "speech in tended to air personal grievances" is not protected by the First Amendment . That, of course, is inapposite to the question of whether retaliation f or such speech violates

42 U.S.C. S 1981.

15to address the Appellants remaining claims, and wil l

remand the case for further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

16