* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 15, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60924

Summary Calendar

 

BARBARA BURGE,

Plaintiff-Appellee,

versus

PEARL RIVER COUNTY, Mississippi; ET AL., 

Defendants,

DAVID EARL JOHNSON, In his Official and Individual Capacity,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:02-CV-668

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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Defendant-appellee David Earl Johnson, Chancery Clerk for

Pearl River, Mississippi, appeals from the district court’s order

rejecting his claim of qualified immunity as to First Amendment

claims made by plaintiff-appellee Barbara Burge, a former deputy

clerk under Johnson. Burge does not appeal from the district

court’s denial of her other claims.
No. 03-60924

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Burge alleged in her 42 U.S.C. § 1983 complaint, inter alia,

that Johnson had unconstitutionally terminated her from her job,

which she worked for 11 years without disciplinary action, based

on negative comments made by her husband in public about Johnson,

in violation of her First Amendments rights of free speech and

free association. Johnson and other defendants had filed a

“Motion to Dismiss” that was supported by an affidavit from

Johnson. Although the district court rejected Burge’s request

that this motion be treated as a motion for summary judgment, and

the court did not encourage Burge to file her own summaryjudgment evidence, the district court, in addressing the “Motion

to Dismiss,” considered Johnson’s affidavit and a deposition of

Johnson. When a court considers matters outside the pleadings,

it should treat a motion to dismiss as a motion for summary

judgment. See Burns v. Harris County Bail Bond Bd., 139 F.3d

513, 517 (5th Cir. 1998); FED. R. CIV. P. 12(b). In reviewing the

denial of qualified immunity, this court must treat the motion to

dismiss as a motion for summary judgment under FED. R. CIV. P. 56. 

See Bolen v. Dengel, 340 F.3d 300, 312 (5th Cir. 2003),

cert. denied, 124 S. Ct. 1714 (2004). Burge has not explicitly

challenged the district court’s consideration of materials

outside the pleadings, and she agrees in large part with the

factual assertions Johnson has made in those pleadings.

Although an appellate court ordinarily does not have

jurisdiction to review a denial of summary judgment, see Palmer

v. Johnson, 346, 350-51 (5th Cir. 1999), the court retains

jurisdiction to determine as a matter of law whether a defendant
No. 03-60924

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is entitled to qualified immunity, after accepting all of the

plaintiff’s factual allegations as true, by determining whether

these facts show that the defendant’s conduct was objectively

reasonable under clearly established law. Behrens v. Pelletier,

516 U.S. 299, 313 (1996); Colston v. Barnhart, 130 F.3d 96, 98-99

(5th Cir. 1997), reh’g denied, 146 F.3d 282 (5th Cir. 1998). 

Although the district court concluded that “specific factual

issues” remained and denied Johnson’s qualified-immunity

assertion on this basis, a review of the pleadings and the record

reflects that the district court based its qualified-immunity

ruling on a set of factual allegations with which Burge

essentially agrees. In such circumstances, this court has

jurisdiction to review the denial of qualified immunity. 

See Behrens, 516 U.S. at 312; Colston, 146 F.3d at 284. 

This court reviews de novo the grant of a motion for summary

judgment predicated on qualified immunity. Cousin v. Small,

325 F.3d 627, 637 (5th Cir.), cert. denied, 124 S. Ct. 181

(2003). Summary judgment is proper if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with any affidavits filed in support of the motion,

show that there is no genuine issue as to any material fact and

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

law. FED. R. CIV. P. 56(c). Government officials performing

discretionary functions are protected from civil liability under

the doctrine of qualified immunity if their conduct violates no

“clearly established statutory or constitutional rights of which
No. 03-60924

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1 Officials “can still be on notice that their conduct

violates clearly established law even in novel circumstances.” 

Hope v. Pelzer, 536 U.S. 730, 741 (2002). “Although earlier

cases involving ‘fundamentally similar’ facts can provide

especially strong support for a conclusion that the law is

clearly established, they are not necessary to such a finding.” 

Id.

a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). 

Federal courts review claims of qualified immunity under

a two-step analysis. See Saucier v. Katz, 533 U.S. 194, 201

(2001). First, a court asks whether, “[t]aken in the light most

favorable to the party asserting the injury, do the facts alleged

show the officers’ conduct violated a constitutional right?” 

Id. “If the allegations do not establish the violation of a

constitutional right, the officer is entitled to qualified

immunity. . . . If the allegations make out a constitutional

violation, we must ask whether the right was clearly established

--that is, whether ‘it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.’”1

Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (quoting

Saucier, 533 U.S. at 201); Wilson v. Layne, 526 U.S. 603, 614

(1999) (“whether an official protected by qualified immunity may

be held personally liable for an allegedly unlawful official

action generally turns on the ‘objective legal reasonableness’

of the action, assessed in light of the legal rules that were

‘clearly established’ at the time it was taken” (internal

quotation marks and citations omitted)). 

Johnson argues that the district court erred in denying his

qualified-immunity defense with respect to Burge’s claim that
No. 03-60924

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Johnson’s termination of her violated her First Amendment right

to free speech. The parties essentially agree that Burge

complained about her job to her husband in the privacy of their

home and that the husband then made negative comments, while in a

local coffee shop, about Johnson’s prospects of being re-elected;

a friend of Johnson’s reported the husband’s comments back to

Johnson, who then confronted Burge. A public employer “may not

discharge an employee on a basis that infringes that employee’s

constitutionally protected interest in freedom of speech.” 

Rankin v. McPherson, 483 U.S. 378, 383 (1987). Determining

whether the employer has properly terminated the employee for

engaging in protected speech requires “‘a balance between the

interests of the [employee], as a citizen, in commenting on

matters of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services it

performs through its employees.’” Id. at 384 (quoting Pickering

v. Board of Educ. of Tp. High Sch. Dist., 391 U.S. 563, 568

(1968)). Under Pickering, such a claim requires the employee to

establish four elements: (1) an adverse employment decision; 

(2) speech by the plaintiff that involves a matter of “public

concern”; (3) that the plaintiff’s interest in commenting on

such matters outweigh the defendants’ interests in promoting

efficiency; and (4) that the plaintiff’s speech motivated the

adverse action. Teague v. City of Flower Mound, Tex., 179 F.3d

377, 379 (5th Cir. 1999).

“Matters of public concern are those which can ‘be fairly

considered as relating to any matter of political, social, or
No. 03-60924

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other concern to the community.’” Branton v. City of Dallas,

272 F.3d 730, 739 (5th Cir. 2001) (quoting Connick, 461 U.S.

at 146). “[S]peech pertaining to internal personnel disputes and

working conditions ordinarily will not involve public concern.” 

Id. Such matters do not involve public concern simply “by virtue

of a manager’s status as an arm of government.” Id. at 740. 

Burge has not explicitly asserted that her own speech involved

anything more than complaints about her job and working

conditions, which are not matters of “public concern.” 

Burge cannot establish a viable First Amendment claim with

respect to her own speech.

Burge has emphasized that her husband’s speech involved

matters of “public concern” because it involved political speech

regarding a public election. See Wiggins v. Lowndes County,

Miss., 363 F.3d 387, 390 (5th Cir. 2004). Burge, however, has

not addressed whether she has standing to bring such a claim on

behalf of her husband. See Powers v. Ohio, 499 U.S. 400, 410

(1998) (litigant ordinarily must assert her own legal rights

rather than those of a third party). Although “third party

standing” exists in certain circumstances, see Campbell v.

Louisiana, 523 U.S. 392, 397 (1998), the district court cited no

decisional authority, and we are aware of none, to suggest that a

right to raise a First Amendment claim based on a third party’s

“public concern” speech was “clearly established” for qualifiedimmunity purposes. See Price, 256 F.3d at 369. Accordingly, the

district court erred in denying Johnson’s “Motion to Dismiss”
No. 03-60924

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2 In Roberts v. United States Jaycees, 468 U.S. 609 (1984),

the Supreme Court observed that the “freedom of association”

takes on two forms. First, the Court identified “a right to

associate for the purpose of engaging in those activities

protected by the First Amendment--speech, assembly, petition for

the redress of grievances, and the exercise of religion.” Id. at

618. Second, there is a certain right of “intimate association,”

based on the reasoning that “choices to enter into and maintain

certain intimate human relationships must be secured against

undue intrusion by the State because of the role of such

relationships in safeguarding the individual freedom that is

central to our constitutional scheme.” Id. at 617-18. Marriage

falls into the second group.

The Supreme Court has also observed “that the right to marry

is part of the fundamental ‘right of privacy’ implicit in the

Fourteenth Amendment’s Due Process Clause.” See Zablocki v.

Redhail, 434 U.S. 374, 384 (1977). Burge has not specifically

asserted such a claim. 

Burge’s First Amendment free-speech claim on qualified-immunity

grounds.

The other qualified-immunity contention rejected by the

district court concerned Burge’s claim that Johnson’s termination

of her violated her First Amendment to freely associate in

her marriage. The First Amendment protection of freedom of

association applies to the States through the Fourteenth

Amendment.2 Elfbrandt v. Russell, 384 U.S. 11, 18 (1966). When,

as here, “a plaintiff’s claims arise under both freedom of speech

and freedom of association, . . . the freedom of association

claims are analyzed under the same Pickering balancing test used

to determine the success of the freedom of speech claims.” 

Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 444 (5th

Cir. 1999) (citing O’Hare Truck Serv., Inc. v. City of Northlake,

518 U.S. 712 (1996)). A claim predicated on the right to free

association, however, “‘is not subject to the threshold public

concern requirement.’” Breaux v. City of Garland, 205 F.3d 150,
No. 03-60924

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157 n.12 (5th Cir. 2000) (quoting Boddie v. City of Garland,

Miss., 989 F.2d 745, 747 (5th Cir. 1993)). 

The factual allegations underlying Burge’s freedom-ofassociation claim are essentially no different from those

underlying her free-speech claim. The claim is based in no way

on who Burge’s husband is or on his status, but, as with her

free-speech claim, is based on what he said. Cf. Sowards v.

Loudon County, Tenn., 203 F.3d 426, 430, 434 (6th Cir. 2000)

(plaintiff was jailer whose husband ran for the office of sheriff

against the incumbent sheriff who had been plaintiff’s employer

and who fired plaintiff). Even if it is arguable whether Burge

stated a viable freedom-of-association claim under the First

Amendment, the district court cited no decisional authority, and

we are aware of none, which suggested that Johnson violated a

“clearly established” right of Burge to freely associate with her

husband. The district court thus erred in denying Johnson’s

qualified-immunity defense with respect to this claim as well.

For reasons discussed above, we REVERSE the district court’s

determinations in regard to defendant-appellant Johnson, and

RENDER judgment in Johnson’s favor on plaintiff-appellee Burge’s

claims against him.