1

The administrative employees were Robert Lawton, Tace

Crouse, Everett Whitehead and Stevan McCrory; the Trustees were

Patrick Healy, John Jones, Rachel Moehle, Bernard Simpkins and

Frank Williams. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-2278.

Alan THORNQUEST; Marion Brady; Thomas S. Ward, PlaintiffsAppellants,

v.

Maxwell C. KING, individually and in his official capacity as

Administrative Employee of Brevard Community College; Robert E.

Lawton, individually and in his official capacity as Administrative

Employee of Brevard Community College; Tace T. Crouse,

individually and in his official capacity as Administrative

Employee of Brevard Community College, et al., DefendantsAppellees.

Aug. 17, 1995.

Appeal from the United States District Court for the Middle

District of Florida. (No. 92-709-Civ-Orl-18), G. Kendall Sharp,

Judge.

Before BLACK and BARKETT, Circuit Judges, and RONEY, Senior Circuit

Judge.

BARKETT, Circuit Judge:

Professors Marion Brady, Thomas Ward and Alan Thornquest

appeal from summary judgments entered in favor of Brevard Community

College administrators, College President Maxwell King, and the

individuals comprising the College Board of Trustees (collectively

"defendants").1 The professors claimed that defendants fired them

to retaliate for their union activity and criticism of the

administration in violation of their federal and state rights to

free expression, petition, assembly and due process; and that the

College's policy on "dissent" violated their first amendment
 2

The allegations against Brady included his failures to

attend meetings with his dean, prepare proper course syllabi, and

observe required office hours; his improper use of class time to

rights; in addition, Brady claimed that the Board of Trustees

deprived him of federal and state procedural due process.

Upon review, we conclude that the district court correctly

found insufficient admissible evidence of unlawful motivation to

support Ward's and Thornquest's unlawful discharge claims and

affirm as to those claims without further discussion. See 11th

Cir.Rule 36-1. However, for the reasons discussed below, we

reverse the judgment as to Brady's claims and as to the challenge

to the dissent policy.

BACKGROUND

Marion Brady began teaching at the College as a sociology

professor in 1976. Between 1988 and 1992, he was a vocal critic of

the College administration and Board. In letters to the editor,

public officials and the Board, Brady criticized the administration

for, among other things, its expenditure of funds to build the King

Performing Arts Center, its emphasis on public relations at the

expense of education, and its budget process. He criticized the

Board for, among other things, its inaction on his complaints of

improprieties.

In 1992, the administration notified Brady that he would be

transferred away from the main campus. President King then filed

a petition with the Board for Brady's dismissal, pursuant to Rule

6A-14.0411(6), Florida Administrative Code, alleging that he was

guilty of misconduct, gross insubordination and willful neglect of

duty.2 Brady responded that the petition was filed to retaliate
criticize the administration; his recommendation that the entire

administration be replaced in response to an official request for

suggestions; and his refusal to observe the established chain of

administrative authority in presenting job-related complaints. 

against him for exercising his federal and state rights to petition

and engage in union activity, free speech, assembly and work.

Believing the Board to be biased against him, Brady requested

that the Board permit the petition to be heard by a Hearing Officer

of the Florida Division of Administrative Hearings; the Board

denied his request. Brady (along with Ward and Thornquest) then

filed a lawsuit in state court, asserting claims, under both state

law and 42 U.S.C. § 1983, that his transfer and impending discharge

violated his statutory and constitutional rights. In addition to

damages, Brady unsuccessfully sought an injunction prohibiting the

Board from hearing the discharge petition. By letter, Brady asked

the Board to disqualify itself from hearing the petition because

all of its members were biased against him. After only two of the

five Trustees disqualified themselves, Brady filed a formal

Suggestion for Disqualification of the remaining Trustees, pursuant

to Section 120.071, Florida Statutes, which the Trustees denied.

Over Brady's objections, the Board ultimately held a public

hearing at which Brady was represented by counsel. The three

Trustees who had not recused themselves sustained the petition's

allegations of misconduct and gross insubordination, rejected

Brady's charges of unconstitutional retaliation, and discharged

Brady. The Board also voted to deny Brady accumulated sick leave.

Brady did not appeal the Board's decision in state court.

Meanwhile, defendants removed Brady's pending state suit to
federal district court. As amended, the section 1983 suit made the

following claims: that defendants, in transferring and discharging

Brady, as well as denying him accumulated sick leave, violated his

federal and state constitutional rights to free speech, petition,

assembly and due process; that the College's policy on "dissent"

was unconstitutional; and that the Board deprived Brady of

procedural due process because it failed to give him notice and an

opportunity to be heard on the recommended denial of his sick

leave, and because the Board and its legal adviser were biased

against him due to the fact that they were defending against his

section 1983 lawsuit. The lawsuit requested damages, a declaration

that defendants had violated Brady's rights, and an injunction

requiring immediate reinstatement and prohibiting enforcement of

the "dissent" policy.

Following discovery, the district court granted summary

judgment against Brady, determining that principles of res judicata

precluded federal review of all his claims because the Board

already had considered them. The court did not address the

challenge to the College's policy on "dissent," but entered final

judgment in favor of defendants on all claims.

DISCUSSION

We review de novo the trial court's determination that it was

precluded by the Board's action from considering Brady's claims and

its failure to address the challenge to the dissent policy. See

Clark v. Coats & Clark, Inc., 929 F.2d 604, 609 (11th Cir.1991).

Preclusion of Brady's Claims

 In section 1983 actions, federal courts must afford the same
preclusive effect to unreviewed state administrative agency

factfinding to which it would be entitled in the state's courts,

provided the state agency was "acting in a judicial capacity," and

"resolve[d] disputed issues of fact properly before it which the

parties ... had an adequate opportunity to litigate." University

of Tennessee v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 3226,

92 L.Ed.2d 635 (1986) (quotations & citations omitted); see also

Gjellum v. City of Birmingham, 829 F.2d 1056, 1070 (11th Cir.1987).

Thus, before a federal court may look to state law to determine if

agency factfinding is entitled to preclusive effect, the court must

determine (1) that the agency was performing a judicial function;

(2) that the parties had an adequate opportunity to litigate the

issues; and (3) that the issues were properly before the agency.

 Brady argues that the district court erred in finding his

claims precluded by the Board's review for three reasons. First,

he argues that his appearance before the Board did not constitute

an adequate and fair opportunity to be heard because the Trustees

were biased against him and had prejudged the case. Thus, the

Board's review cannot be given any preclusive effect whatsoever.

Second, Brady asserts that only administrative factfinding is

entitled to preclusive effect. Therefore, the district court was

not precluded from reviewing the Board's legal conclusions as to

his constitutional claims. Finally, Brady contends that the Board

proceedings cannot preclude his claims against the Board itself

because the actions underlying these claims, to wit, his actual

termination and the Board proceedings, were not complete at the

time of the hearing and thus were not "before" the Board. Brady
 3

We initially reject defendants' arguments that Brady waived

his claims by failing to appeal the Board's decision in state

court and by appearing before the Board. First, a section 1983

claim cannot be barred by a plaintiff's failure to exhaust state

remedies with respect to an unreviewed administrative action. 

See Patsy v. Board of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557,

2568, 73 L.Ed.2d 172 (1982); Gjellum, 829 F.2d at 1070. Second,

Brady alleged bias and took legal action to avoid appearing

before the Board from the outset, and had he not appeared, the

Board could have considered the petition in his absence. The

record contains no suggestion of the "sandbagging" found in

Duffield v. Charleston Area Med. Cent., Inc., 503 F.2d 512, 515

(4th Cir.1974), cited by defendants, where plaintiff alleged bias

only after losing at the administrative level. 

also contends that due process concerns prohibit the Board from

resolving his claims against the Board for its own wrongdoing.3

Bias on the Part of the Board

 Before a federal court may look to state law to determine if

agency factfinding is entitled to preclusive effect, the court must

determine, among other things, that the parties had an "adequate

opportunity" to litigate the issues before the administrative

agency. Elliott, 478 U.S. at 799, 106 S.Ct. at 3226. An adequate

opportunity means a "full and fair opportunity," Kremer v. Chemical

Constr. Corp., 456 U.S. 461, 480-81, 102 S.Ct. 1883, 1896-98, 72

L.Ed.2d 262 (1982) (quotation omitted). An administrative hearing

cannot be deemed fair if there was "actual bias" on the part of the

administrative decisionmaker. Burney v. Polk Community College,

728 F.2d 1374, 1378 n. 11 (11th Cir.1984); see Hall v. Marion

School Dist. No. 2, 31 F.3d 183, 191 (4th Cir.1994).

 Thus, when an adequate claim alleging a biased factfinder or

decisionmaker has been made, the district court must determine

whether bias existed on the part of the factfinder or decisionmaker

before any preclusive effect can be accorded. See id. Obviously,
 4

For example, in response to a Board request for specific

incidents of faculty harassment and intimidation, Brady submitted

a letter listing 22 instances in which he felt he had been

harassed, "to suggest the possibility that a pattern exists." 

The letter criticized the Trustees for their inaction on past

allegations of administrative misconduct and for threats and

harassment he had received for past attempts to bring misconduct

to the Board's attention. The letter also declared that he had

received information concerning improper conduct by the College

administration, but that he had not informed the Board because of

the harassment that had resulted from his past criticism. 

if the tribunal is found to have been biased, the person appearing

before it would not have had an adequate opportunity to be heard

and the tribunal's findings would be entitled to no preclusive

effect at all. As the Supreme Court has explained, "even when

issues have been raised, argued, and decided in a prior proceeding,

and are therefore preclusive under state law, redetermination of

the issues may nevertheless be warranted if there is reason to

doubt the quality, extensiveness, or fairness of procedures

followed in prior litigation." Haring v. Prosise, 462 U.S. 306,

317-18, 103 S.Ct. 2368, 2375-76, 76 L.Ed.2d 595 (1983) (quotation

& citation omitted).

 We find that Brady presented an adequate claim of bias to the

district court, as the record on summary judgment contained

numerous allegations from which a court could find actual bias on

the part of the three Trustees who heard the discharge

petition—Simpkins, Moehle and Healy. This evidence, in summary,

reflects the following: that Brady had publicly criticized not

only President King and the administration, but the Board itself at

times when one or all of the three Trustees were serving;4

 that

President King had excoriated Brady before the Board on more than
 5

At a Board meeting attended by Trustees Moehle, Simpkins

and Healy, President King expressed outrage at Brady's letter to

the Board. Labelling Brady's charges of mismanagement as

"innuendoes," "wild allegations," and "lie[s]," King complained

that the criticism came at a time "when we're working so hard to

have a positive image ... in the legislature." Explaining that

he wanted to "use this board meeting" to present various

administrators to refute Brady's charges, King expressed hope

that the Trustees "already know in their own mind[s]" that

Brady's criticisms were unfounded; if so, he said, "[t]hen the

administration's job has been done." 

 6Addressing Brady's critical letter to President King,

Moehle declared that "something needs to be done to put a stop"

to Brady's complaints; and Simpkins, referring to Brady's

absence, stated that "that speaks for itself, the fact that he's

not here." 

 7

During a Board meeting, in response to King's repudiation

of Brady's charges, the Board's attorney, Joe Matheny, cautioned

Board members that they would be "prejudice[d] legally" and could

not adjudicate a discharge case against Brady if King had

convinced them that Brady's charges were false. In response to

one Trustee's query about whether Brady could be dismissed or

sued, Matheny advised the Trustees and King that Brady's letter

was not a "sufficient basis to dismiss a disruptive faculty

member." Matheny also said it would not be "proper for this

board to take it upon itself to terminate anybody, except based

on the recommendation of the college president." 

one occasion;5 that several Board members, including Simpkins and

Healy, had criticized Brady during Board meetings;6 that the Board

was considering discharging Brady even before President King filed

the petition for his dismissal;7 and that Brady's lawsuit against

President King, the administration and the Board was pending during

the hearing. See Burney, 728 F.2d at 1378 n. 11 (noting

materiality of evidence showing Board in "adversarial posture" to

plaintiff); see also Hall, 31 F.3d at 191-92.

Accordingly, we reverse and remand for a resolution of the

bias issue by the district court. If the court finds that the

Board was biased against Brady, the Board's actions are not

entitled to any preclusive effect.
Scope of Preclusion

If the trial court determines that the claim of bias is

unfounded, it must then review Brady's claims, affording whatever

preclusive effect Florida courts would afford to the Board's

factfinding. In Elliott, the Supreme Court held that "[w]hen a

state agency acting in a judicial capacity ... resolves disputed

issues of fact properly before it which the parties have had an

adequate opportunity to litigate, federal courts must give the

agency's factfinding the same preclusive effect to which it would

be entitled in the State's courts." Elliott, 478 U.S. at 799, 106

S.Ct. at 3226. (emphasis added). In Gjellum v. City of

Birmingham, 829 F.2d 1056 (11th Cir.1987), this court made clear

that under Elliott, only factual issues, not legal issues, may be

precluded from relitigation by a prior administrative decision.

See Gjellum, 829 F.2d at 1068 (emphasizing that "Elliott carefully

limited its holding to state agency factfinding ") (emphasis in

original).

The Board's consideration of the petition to dismiss Brady

involved both matters of fact and matters of law. For example, the

Board's determination of whether Brady was guilty of misconduct,

gross insubordination and willful neglect of duty "as alleged in

the petition," required factual determinations of the veracity of

the allegations, e.g., whether Brady criticized the administration

during class time, whether he suggested that the administration be

replaced, and whether he refused to abide by the chain of command

in presenting job-related complaints.

 Additional inquiries by the Board, however, necessarily
 8

We remind the district court that first amendment

retaliatory discharge cases are generally analyzed under the

following four-part test: (1) whether the employee's speech

involved a matter of public concern; (2) whether the employee's

interest in the speech outweighed the government's legitimate

interest in promoting efficient public service; (3) whether the

speech played a substantial part in the challenged employment

decision; and (4) whether the employer would have made the same

employment decision regardless of the protected speech. Tindal

v. Montgomery County Comm'n, 32 F.3d 1535, 1539-40 (11th

Cir.1994). 

implicated matters of law. For example, the Board's determination

of whether the petition was filed to retaliate against Brady for

publicly criticizing President King, the administration and the

Board required the Board to make two legal determinations: first,

whether Brady's speech "address[ed] a matter of public concern";

and if so, whether "the interest of the State, as an employer, in

promoting the efficiency of the public services it performs through

its employees," outweighed Brady's interest, "as a citizen, in

commenting upon matters of public concern." Rankin v. McPherson,

483 U.S. 378, 384, 107 S.Ct. 2891, 2896-97, 97 L.Ed.2d 315 (1987)

(quotation & citation omitted); Kurtz v. Vickrey, 855 F.2d 723,

726 (11th Cir.1988).8

 Although the Board may appear to have found as a factual

matter that the petition was not filed for an improper purpose, in

doing so the Board necessarily resolved, at least implicitly, the

critical legal issue of the nature and extent of the first

amendment protection due Brady's public criticism. Cf. Edmundson

v. Borough of Kennett Square, 4 F.3d 186, 191-93 (3d Cir.1993)

(finding that agency necessarily resolved this legal issue in

finding that plaintiff was not suspended in retaliation for

exercising first amendment rights). Although the Board may have
believed that Brady's speech was unprotected because it was

insubordinate or harmful to the College, or because Brady had

bypassed the chain of command, such a determination involved

precisely the balancing process that "is a question of law for the

court, not a question of fact for resolution by a fact finder,"

Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir.), cert. denied, 484

U.S. 830, 108 S.Ct. 102, 98 L.Ed.2d 62 (1987).

It was the responsibility of the district court, not the

Board, to resolve the legal question of whether Brady's discharge

violated his rights. As the Third Circuit has observed,

We see a profound difference in the ability of a

Commission composed of lay citizens to resolve matters of

credibility and fact—e.g., whether plaintiff actually made the

statements in the circumstances alleged despite his

denials—and the ability to determine the more complex question

of whether the statements are constitutionally protected in

accordance with the considerations articulated in [Supreme

Court caselaw].... The Commission simply does not have the

background or experience to finally decide issues that give

pause even to federal courts despite their familiarity with

that area of the law.

Edmundson, 4 F.3d at 192-93 (citations omitted).

The district court erred by finding Brady's constitutional

claims wholly precluded. On remand, if the court finds that

Brady's bias argument fails, it may then accord the Board's

factfinding the same preclusive effect to which it would be

entitled in Florida courts, except as discussed below.

Claims Against the Board Itself

 Finally, intertwined with the question of bias is whether the

Board's actions are entitled to any preclusive effect as to Brady's

claims against the Board itself. Brady argues that these claims

could not have been "before" the Board during its consideration of
 9

These allegations in large part are the same as the

allegations of bias. 

 10Although not argued by the defendants, we note that

Brady's procedural due process claim appears to be barred by

McKinney v. Pate, 20 F.3d 1550, 1563 (11th Cir.1994) (en banc),

cert. denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783

(1995) (stating that "even if McKinney suffered a procedural

deprivation at the hands of a biased Board at his termination

hearing, he has not suffered a violation of his procedural due

process rights unless and until the State of Florida refuses to

make available a means to remedy the deprivation") (emphasis in

original). 

the petition as required by Elliott because the actions underlying

the claims—his actual firing and the Board's proceedings—were not

complete at the time of the hearing. In addition, Brady contends

that due process concerns prohibit the Board from resolving any

questions of the constitutionality of its own actions.9

We find that even if Brady's claims against the Board were

"before" the Board as required by Elliott, the Board would be

patently unable to render a binding judgment on a claim against

itself, as "no man can be a judge in his own case," In re

Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942

(1955). Thus, the Board proceedings do not preclude any aspect of

Brady's claims against the Board for the Board's alleged

wrongdoing, and the district court therefore must resolve even the

factual issues underlying these claims.10

DISSENT POLICY

 Finally, we consider the court's failure to address the

challenge to the College's policy on dissent. The challenged

policy gave President King authority to manage dissent and

demonstrations, including the authority to "delineate types of

acceptable and unacceptable dissent." In furtherance of that
policy, the College administration created what was known as a

"designated demonstration area" located in a corner of campus

removed from the King Performing Arts Center. When this policy was

in place, Brady, Thornquest and a dozen other protesters sought to

conduct a peaceful demonstration in front of the Performing Arts

Center, rather than in the designated area, which resulted in the

arrest of two of the demonstrators.

In the amended complaint, the professors claimed that the

policy was unconstitutional on its face and as applied to them.

Although the district court did not address these claims in its

summary judgment order, it dismissed them upon entry of the final

judgment. On appeal, the professors argue that remand is necessary

due to the existence of genuine issues of material fact regarding

the constitutionality of the policy. The defendants respond that

remand is unnecessary because the record clearly indicates that

summary judgment was appropriate. According to defendants, the

propriety of summary judgment is demonstrated by evidence that the

College is not a public forum and that the dissent policy

reasonably regulates the time, place and manner of demonstrations.

From the record before us, we cannot determine that there is

no genuine issue of material fact on relevant questions such as

whether the performance center is a public forum; if it is a

public forum, whether the regulations are narrowly drawn to

effectuate a compelling state interest; and if it is not a public

forum, whether the regulations are reasonable. Thus, we remand to

the district court for consideration of the claims against the

dissent policy.
 1

Although the majority opinion briefly addresses McKinney in

footnote 10 as an issue to be considered on remand, the issue

should be disposed of by this court. First, the fact that the

plaintiffs did not discuss McKinney in their briefs does not

vitiate this court's ability to base its holding on that case. 

See Ford v. United States, 989 F.2d 450, 453 (11th Cir.1993)

(stating that "[w]e have the discretion to consider a new theory

if the issue is a pure question of law and the court's failure to

consider it would result in a miscarriage of justice"). Second,

CONCLUSION

For the foregoing reasons, we affirm the district court's

judgment as to Ward's and Thornquest's unlawful discharge claims;

reverse the judgment as to Brady's claims and the claims against

the dissent policy; and remand for further proceedings consistent

with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

BLACK, Circuit Judge, concurring in part and dissenting in

part:

I agree with the majority's decision to remand this case as to

Brady's as-applied first amendment claim with respect to his

discharge and as to Appellants' facial first amendment claim with

respect to the dissent policy. I respectfully disagree, however,

with the majority's decision to entertain Brady's claim that his

procedural due process rights were violated because the individual

Trustees and the Board were biased against him.

It is undisputed that Brady failed to appeal the Board's

decision in state court. His procedural due process claim is

therefore squarely barred, as a matter of law, by this court's en

banc holding in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en

banc), cert. denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783

(1995).1

 In that case, Appellant Millard McKinney was also a state
our constitutional inquiry in procedural due process questions

focuses on the state's ability to provide either pre- or

post-deprivation process. See Parratt v. Taylor, 451 U.S. 527,

538, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981). Such an

inquiry can be answered as a matter of law by an appellate court. 

See Hudson v. Palmer, 468 U.S. 517, 533-537, 104 S.Ct. 3194,

3204-3205, 82 L.Ed.2d 393 (1984). 

employee challenging his termination, which was rendered by a state

administrative body. Id. at 1554-1555. Like Brady, McKinney's

procedural due process claim was not that he did not receive a

hearing, but that the hearing was before a biased decision maker.

Id. at 1562. Like Brady, McKinney did not appeal his termination

in the state court system, but instead filed a § 1983 suit. Id. at

1555.

The court held that McKinney did not state a procedural due

process claim because "due process is satisfied when the challenger

has an opportunity to present his allegations and to demonstrate

the alleged bias." Id. at 1562. The court reasoned that "even if

McKinney suffered a procedural deprivation at the hands of a biased

Board at his termination hearing, he has not suffered a violation

of his procedural due process rights unless and until the State of

Florida refuses to make available a means to remedy the

deprivation." Id. at 1563 (emphasis in original). Addressing

whether McKinney had remedies available, the court concluded that

"[e]ven if McKinney's bias allegations are true, the presence of a

satisfactory state remedy mandates that we find that no procedural

due process violation occurred." Id. at 1564.

Thus, pursuant to the holding of McKinney, even if Brady's

allegations of bias are true, he has not suffered a procedural due

process violation because state court remedies were available to
him after the Board rendered its decision. To clarify this point,

I agree with the majority's statement at footnote 3 that a § 1983

claim cannot be barred by a plaintiff's failure to exhaust state

remedies with respect to an unreviewed administrative action. It

should be noted, however, that neither this dissent nor the holding

in McKinney intends to create an exhaustion requirement. Instead,

these holdings go directly to the existence of a constitutional

violation in the first instance. See id. at 1564 n. 20. Brady,

like McKinney, had a state remedy to challenge the Board's

deprivation of his property rights. He simply does not have a

procedural due process claim unless and until the Florida courts

fail to provide him with that remedy.

For these reasons, I respectfully dissent from the majority's

decision to remand the case to determine whether Brady's procedural

due process rights were violated.