United States Court of Appeals,

Eleventh Circuit.

Nos. 94-3179, 94-3180 and 94-3184.

George JOHNSON, Plaintiff,

Sylvia Hill, Raymond Griffin, Plaintiffs-Appellees,

v.

Wayland CLIFTON, Defendant-Appellant,

City of Gainesville, Defendant.

Eugene ROSS, Plaintiff-Appellee,

v.

Wayland CLIFTON, Defendant-Appellant,

City of Gainesville, Defendant,

George Johnson, Respondent.

Sylvia HILL, Plaintiff-Appellee,

v.

Wayland CLIFTON, individually and as the Chief of Police and

agent for the City of Gainesville, Defendant-Appellant,

City of Gainesville, Defendant.

Jan. 26, 1996.

Appeals from the United States District Court for the Northern

District of Florida. (No. 91-10121 MMP) Maurice Mitchell Paul,

Chief Judge.

Before ANDERSON and BLACK, Circuit Judges, and FAY, Senior Circuit

Judge.

FAY, Senior Circuit Judge:

This appeal arises from the District Court's denial of

qualified immunity and denial of summary judgment to Wayland

Clifton, Jr., the Police Chief for the City of Gainesville. Three

former police officers, Sylvia Hill, Eugene Ross, and Raymond
Griffin, brought suit against Clifton, alleging that they were

disciplined for testifying about Clifton before a grand jury.

Because Clifton is entitled to qualified immunity, we reverse.

I. BACKGROUND

Hill, Ross, and Griffin worked together in Internal Affairs at

the Gainesville Police Department. Hill was the Unit Commander;

Ross was Hill's immediate supervisor, while Griffin reported to

Hill. Hill, Ross, and Griffin allege that Internal Affairs began

an investigation of alleged misconduct by a group within the police

department called Hallucinations 2000, and gave proper notice to

the City Manager that Clifton might be involved; in response to

this investigation, Clifton transferred the plaintiffs from

Internal Affairs; after an audit of Internal Affairs revealed no

wrongdoing, Clifton stated that the investigation was concluded and

nothing would come of it; Clifton offered to transfer the

plaintiffs to any position within the department that they desired;

State Attorney Len Register then contacted Hill and asked who he

should subpoena to enable the grand jury to make a decision as to

whether the police department should be investigated regarding

Hallucinations 2000; the plaintiffs testified before the grand

jury regarding Hallucinations 2000; in retaliation for the grand

jury testimony, Clifton re-opened the investigation into Internal

Affairs and then disciplined the plaintiffs.

Clifton denies that he retaliated against the plaintiffs for

their testimony before the grand jury. He claims that the

plaintiffs initiated a secret investigation without notifying the

City Manager; that he was not involved in any way with
Hallucinations 2000 and that the group turned out to be innocuous

in any event; that the grand jury and the independent investigator

concluded that he had done nothing wrong; that an audit of

Internal Affairs showed that investigative files were missing, some

cases had not been completed, some investigations were untimely or

unauthorized, and certain direct orders had been ignored; that in

response to that misconduct he disciplined the plaintiffs; and

that the plaintiffs had only gone to the grand jury in order to

gain leverage over him and prevent the deserved discipline rather

than out of any public concern about possible corruption.

It is undisputed that Hill was told in April of 1991, prior to

any allegations or investigation concerning Hallucinations 2000,

that she would be transferred from Internal Affairs; that in early

April she was transferred; that in early April Ross and Griffin

were "locked out" of Internal Affairs so that an audit could be

conducted; that the audit was concluded in June; that in July

Clifton offered to transfer Hill to any position within the police

department (except Internal Affairs) if that was the end of the

matter; that the plaintiffs went to the grand jury anyway; that

after the plaintiffs went to the grand jury, the audit findings

were reviewed and misconduct charges were filed.

Hill, Ross, and Griffin brought suit against Clifton and the

City of Gainesville. The District Court granted summary judgment

to the City on all charges, but denied Clifton's motion for summary

judgment based on qualified immunity. Clifton immediately appealed

the denial of qualified immunity.

II. STANDARD OF REVIEW
 We review de novo a District Court's ruling that a public

official's conduct violated clearly established law so that the

official is not entitled to qualified immunity. Mitchell v.

Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411

(1985).

 Summary judgment is proper if the pleadings, depositions, and

affidavits show that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law.

Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (1986). The evidence must be viewed in the

light most favorable to the non-moving party. Augusta Iron and

Steel Works, Inc. v. Employers Insurance of Wausau, 835 F.2d 855,

856 (11th Cir.1988).

III. ANALYSIS

A. Jurisdiction: Johnson v. Jones

 Public officials are entitled to qualified immunity from

"liability for civil damages insofar as their conduct does not

violate clearly established ... rights of which a reasonable person

would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A public official may

immediately appeal a denial of qualified immunity where the

disputed issue involves whether or not the defendant's conduct

constitutes a violation of clearly established law. Mitchell, 472

U.S. at 528, 105 S.Ct. at 2816-17. The public official may appeal

such a decision because it is considered a final, collateral order

regarding qualified immunity. Id. at 528, 105 S.Ct. at 2816-17.

In Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132
 1

Or phrased another way, whether there was enough evidence

to create a genuine issue of material fact as to whether the

public officials were involved in the beating. 

L.Ed.2d 238 (1995), the Supreme Court further addressed the law of

summary judgment in the context of qualified immunity. The issue

in Johnson was whether there was any evidence in the record to

support the District Court's ruling that a reasonable fact finder

could find that the public officials were involved in the

plaintiff's beating.1 Id. at ---- - ----, 115 S.Ct. at 2153-54.

The defendants admitted that such a beating was unconstitutional

and violated clearly established law; they only argued that the

District Court had erred when it found a genuine issue of material

fact in regard to their involvement in the unconstitutional

conduct. Id. at ----, 115 S.Ct. at 2154. The Supreme Court held

that such a ruling by the District Court could not be appealed as

a final, collateral order. Id. at ---- - ----, 115 S.Ct. at 2156-

58.

 It seems clear to us that the Supreme Court was not changing

the well-established law of qualified immunity in the context of

summary judgment, just elaborating on it. When faced with a motion

for summary judgment based on qualified immunity, the District

Court must determine whether there is a genuine issue of material

fact as to whether the defendant committed conduct that violated

clearly established law. This analysis can be broken down into two

parts. First, what was the official's conduct, based on the

pleadings, depositions, and affidavits, when viewed in the light

most favorable to the non-moving party? Second, could a reasonable

public official have believed that such conduct was lawful based on
clearly established law?

 The resolution of the second issue constitutes a final,

collateral order. Mitchell at 528, 105 S.Ct. at 2816-17. A ruling

on such an issue is immediately appealable. Id. When such a

ruling is appealable, the first issue—the factual issue—may be

addressed by an appellate court because it is a part of the core

qualified immunity analysis. See Anderson v. Creighton, 483 U.S.

635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). However,

if only the first issue is appealed, namely what conduct the

defendant engaged in based on the evidence viewed in the light most

favorable to the plaintiff, and not the second issue, namely

whether that conduct violated clearly established law, then the

appellate court has no jurisdiction to hear the case. See Johnson,

--- U.S. at ----, 115 S.Ct. at 2159. The first issue—the factual

issue—can only be heard because it is a necessary part of the core

qualified immunity analysis, the resolution of which constitutes a

final, collateral order; when the core qualified immunity issue is

not appealed, then the factual issue may not be either. Id.

 When the core qualified immunity issue is raised on appeal,

the appellate court has two options regarding how to deal with the

factual issue. "When faced with an argument that the district

court mistakenly identified clearly established law, the court of

appeals can simply take, as given, the facts that the district

court assumed when it denied summary judgment for that (purely

legal) reason." Id. at ----, 115 S.Ct. at 2159. Or, the court of

appeals can conduct its own review of the record in the light most

favorable to the nonmoving party. First, the appellate court may
have to do so because the trial court failed to state the facts it

assumed. Id. Second, the appellate court can do so because such

a determination is part of the core qualified immunity analysis, as

discussed above. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-

40. Third, even if such a determination were not part of the core

qualified immunity analysis, it would be "inextricably intertwined"

with that analysis and within the appellate court's pendent

jurisdiction. Swint v. Chambers County Com'n, --- U.S. ----, ----,

115 S.Ct. 1203, 1209, 131 L.Ed.2d 60 (1995). See also Johnson, ---

U.S. at ----, 115 S.Ct. at 2159. Of course, if there is any

evidence in the record to support the District Court's ruling that

there was a genuine issue of material fact as to whether the

official actually engaged in the conduct that violated clearly

established law, the District Court's factual ruling will not be

disturbed. See Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

B. Qualified Immunity

 In the qualified immunity context, the plaintiffs have the

burden of proving that a reasonable public official would not have

believed that his actions were lawful, in light of clearly

established law. Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40.

Clifton argues both that the District Court wrongly applied the

clearly established law to the facts it found and that the record

does not support some of the facts the District Court found, even

when viewed in the light most favorable to the plaintiffs.

1. The Factual Issue

Even when viewing the record in the light most favorable to

the plaintiffs, there is no genuine dispute regarding the following
 2

It is true that Clifton had offered at least Hill the

chance to be transferred anywhere she wanted other than Internal

Affairs. However, Hill wanted to be transferred back into

Internal Affairs, and neither she nor the other plaintiffs

reached any agreement with Clifton. The only chance for the

plaintiffs to receive what they wanted, then, was through a grand

jury indictment or report. 

 3Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct.

1731, 20 L.Ed.2d 811 (1968). 

material facts: 1) while the plaintiffs were still in Internal

Affairs, Clifton told Hill that he was not happy with some of the

work product coming out of Internal Affairs; 2) Clifton

transferred the plaintiffs out of Internal Affairs prior to the

point at which they testified before the grand jury; 3) Clifton,

in consultation with City Manager White, ordered an audit of

Internal Affairs prior to the plaintiffs testifying before the

grand jury; 4) the plaintiffs knew they were being investigated;

5) the plaintiffs went to the grand jury after they knew they were

being investigated; 6) the plaintiffs would likely be in a better

employment position if the grand jury indicted Clifton.2

2. Clearly Established Law

 A government employer may not retaliate against a public

employee for engaging in protected speech. Bryson v. City of

Waycross, 888 F.2d 1562, 1565 (11th Cir.1989). Where the public

employer denies that the employee was disciplined in violation of

that employee's first amendment rights, the court engages in a

four-stage analysis: 1) the employee's speech must involve a

matter of public concern in order for it to be protected, 2) the

employee's first amendment interests must outweigh the public

employer's interest in efficiency (the Pickering3

 balancing test),
3) the employee must have been disciplined, in substantial part,

because of the protected speech, and 4) the public employer must

not be able to prove by a preponderance of the evidence that it

would have disciplined the employee even without the protected

speech. Bryson, 888 F.2d at 1565-66.

 Whether a statement involves a matter of public concern is a

question of law for the judge, who must consider the purpose of the

employee's speech by analyzing "the content, form, and context" of

the statement. Id. See also Ferrara v. Mills, 781 F.2d 1508, 1513

(11th Cir.1986). If the relevant speech was motivated by personal

concerns instead of public concerns then it is not protected by the

First Amendment in this context. Connick v. Myers, 461 U.S. 138,

147-48, 103 S.Ct. 1684, 1690-91, 75 L.Ed.2d 708 (1983). The issue

here is not whether the employee is entitled to make the statement,

but rather whether the employee is entitled to retain employment

and avoid discipline after making the statement. The Supreme Court

has decided that only statements motivated by public concern

deserve such protection because otherwise every criticism of a

public official and every employment dispute would "plant the seed

of a constitutional case." Id. at 149, 103 S.Ct. at 1691.

"[G]overnment officials should enjoy wide latitude in managing

their offices, without intrusive oversight by the judiciary in the

name of the First Amendment." Id. at 146, 103 S.Ct. at 1690.

 Furthermore, even if the employee's speech touches upon a

matter of public concern, a Pickering balancing must be conducted

to determine whether the government office was justified in

discharging the employee. Connick, 461 U.S. at 149, 103 S.Ct. at
1691. A public official is entitled to qualified immunity, except

in "the extraordinary case where the Pickering balancing would lead

to the inevitable conclusion that the discharge of the employee was

unlawful." Dartland v. Metropolitan Dade County, 866 F.2d 1321,

1323 (11th Cir.1989).

In Morgan v. Ford, 6 F.3d 750 (11th Cir.1993), an employee was

fired after complaining about sexual harassment. This Court

concluded that her statement regarding sexual harassment did not

involve a matter of public concern because, even though sexual

harassment is a matter of "important social interest," the purpose

of the statement was not to raise issues of public concern, but

rather to further her own "entirely rational self-interest." Id.

at 755.

 In the instant case, possible police corruption is obviously

a matter of important social interest; however, in this qualified

immunity context, we must focus on what Clifton knew. Even when

viewing the evidence in the light most favorable to the plaintiffs,

it is clear that Clifton knew the plaintiffs went to the grand jury

after they knew they were being investigated, and hoped to gain

from a grand jury indictment or report. It is obvious to us that

Clifton viewed their actions as intended to put pressure on him to

prevent him from following through with the investigation which had

already commenced and which led to the ultimate discipline. In

light of the information available to Clifton, we cannot conclude

that clearly established law told him that the plaintiffs' grand

jury testimony was a matter of public concern rather than personal

gain. We know of no case which might have clearly told Clifton
that he could not take the disciplinary action indicated by an

investigation which was initiated before he even knew about the

allegedly protected speech, and in circumstances where the public

concern implication was doubtful. Thus, we conclude that Clifton

is entitled to qualified immunity.

IV. CONCLUSION

Applying the analysis required by Supreme Court precedent, we

conclude that Clifton's conduct did not violate clearly established

law and so he is entitled to the protection provided by qualified

immunity. We vacate the order of the District Court and remand

with instructions that summary judgment be entered in favor of the

appellant.

VACATED and REMANDED with instructions.