NOT RECOMMENDED F OR P UBLICATION File Na me: 13a0113n.06 No. 11-3415 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT KAY A. KI

NGSL EY; MUNI CI PAL CONSTRUCTI ON EQU I PMENT OPERATORS L AB OR COUNCI L , Plaintiffs-Appellants,

v. N. EUGEN E BRUN DI GE; MI CHAEL VERI CH; ROBERT SPADA; J AMES SPR AGUE; SHERRI E J . PASS MORE; J

. RUSS EL LKEI TH, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FRO M THE UNI TED STATE S DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OHI O

BEFORE: SILER and WHITE , Circuit Judges; REEVES, District Judge. * HELE NE N. WHITE , Circuit Judge. Kay King sley , a former Administrative L aw J udg e at Ohio’s State Employ

ment Relations Boa

rd (SERB), and the Municipal Construction Equipment Oper ators L abor Council ( the Union), which repr esents members in labor -re lations matters befor e the SERB, appeal t h e d istrict court’s dismiss al of their amende d complaint. The g rava men of Plaintiffs’ amende d complaint was that Def endants, SERB Boa

rd members and office rs, terminated King sley ’s employ

ment beca

use, having issued a discovery order in the Union’s favor in an unfairlabor case , she ref

used Def endants’ reque st to retra ct the order and s u b s t i t ute an order with the opposite outcome. We AF FI RM.

The Honora

ble Danny C. Reeve s, Uni t ed S t at es District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.No. 11-3415

Kingsley, et al. v. Brundige e t al. I. SERB is a quasi-judicial state ag ency that overse es public-sec tor labor issues in Ohio. Ohio Rev. Code § 4117.02(A). King sley was appointed as a ful l -time SERB administrative law judge (AL J ) in 1999, at which time SERB AL J s wer e in Ohio’s classified civil service

. At pertinent times, King sley was the only

full-time AL J at SERB. King sley was assig ned an unfair labor prac tice (UL P) claim broug ht by the Union ag ainst the City of Cleveland, which alleg ed that Cleveland’s May or met with barg aining -uni t members, threatened to fire employ ees and privat i ze their jobs, and attempted to intimi date and unfairly circ umvent the barg aining proce ss. SERB v. City of Cleveland , Case No

. 2 0 0 7 -UL P-04-0156. King sley issued a discovery order g ranting the Union’s application for a subpoena duces tecum that the Mayor be de posed and pr oduce phone and other rec ords. The City appea led King sley ’s discovery order to the three -member SERB Boa rd, composed of Def endants N. Eug ene Br

undige , Chairper son; Michae l Ver ich, Vice-Chairper son; and Robert Spada, Boa

rd member. For rea sons not appar ent in the rec ord, the SERB Boa rd rema nded the case to Def endant J ames Sprague, Chief ALJ , an d King sley for further revie w and order ed Def endant Sprague to re port the outcome. I n the meantime, SERB AL J s wer e remove d from classified service eff ective J uly 17, 2009. See O.R.C. § 4117.02(H) as amende d by H.B

. 1, § 101.01. The same amendment that decla ssified SERB AL J s also authorized SERB’s Chairpe rson (De fenda nt Brundig e) to a

ppoint and fire A L J s. On Aug ust 26, 2009, Chief AL J Def endant Sprague approa ched King sley and “sug g ested” that she chang e her discovery order by rewriting it with a differ ent outcome. King sley declined, but

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Kingsley, et al. v. Brundige e t al. offe red to set up a telephone confe renc e with counsel to attempt to resolve the discovery issue. Def endant Spra g ue agree d with the decision to hold a telephone confe renc e. The following day , afte r a meeting betwee n D efe ndants Sprague and Br undige , Br

undige and Sherrie Passmore , SERB’s Executive Dire ctor, infor med King sley

that she wa s being laid off. At a September 3, 2009, SERB Boa rd meeting , the Boa

rd g rante d the City ’s motion for

rec onsideration of King sley ’s discovery o rd er i n the UL P case , g rante d the City ’s reque st for a protec tive order , and tra

nsfer red the case from the he aring s section to the B oard. By letter dated October 26, 2009, Def endants Br

undige and Passmore notified King sley that her la y -off would take e ffe ct on Octobe r 30, 2009. A. I n November 2009, King sley appea led her term i n at i o n to the State Personnel Boa rd of Review (SPBR) (administrative appea l), and filed a petition for writ of mandamus in the Ohio Court of Appe als ag ainst SERB to declar e H.B . 1 unconstitutional on it s fac e and a s applied to her. Soon afte r, Plaintiffs filed the instant suit on November 30, 2009, seeking decla rations that H.B

. 1 is unconstitutional and that actions of SERB are void, a restra ining order prohibiting SERB from hearing any matter unti l p ro cedures allowing challeng es t o Boa rd m ember s’ i mpartiality are

enac ted, damage s ag ainst Def endants in their i ndividual capa cities, Ki n gsley ’s reinstatement, and

a re straining order

prohibiting SERB f

rom dec iding the Union’s UL P complaint. B. The SPBR deter

mined that King sley was an unclassified emplo y ee and dismiss ed her administrative appe al for la ck of subjec t-matter jurisdiction. See Kingsley v . Ohio State Pers. Bd. of Rev iew , No. 10AP -875, 2011 WL 1782208 (Ohio C t. App. M ay 1 0, 2011). The Ohio Court of
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Kingsley, et al. v. Brundige e t al. Appea ls dismiss ed King sley ’s petition for writ of mandamus. Kingsley v. State Emp’t Relations Bd. , No. 09AP-1085, 2011 WL 335033 (Ohio C t

. Ap p . Fe b

. 1, 2011). King sley appea led to the Ohio Supreme Court which, while the instant appea l was pending , aff irmed the dismiss al of her petition for writ of mandamus. Kingsley v. State Emp’t Relations Bd. , 958 N.E.2d 169, 172-73 (Ohio 2011), recon. de nied , 959 N.E.2d 1058 (Ohio 2012)

. II. This court revie ws de novo the g rant of a Rule 12(b)( 6) motion. Savoie v. Martin , 673 F.3d 488, 492 (6th Cir. 2012). “To survive a Rule 12(b)( 6) motion to dismiss , a complaint need contain only enoug h fac ts to state a claim to r elief that is pla usible on its fa ce.” Fed.-M ogul U.S. Asbestos Pers. Injury Trust v. Cont’l Cas. Co. , 666 F.3d 384, 387 ( 6th Cir. 2011) (interna l quotation marks and citation omitted). All well-plea ded fac ts in the complaint must be acc epted as true. Savoie , 673 F.3d at 492. A. Claim s dismissed on jurisdi ctional ground s 1. Y ounger abstention (counts 4, 5, 6, 7, 10 a nd 11) 1 The district c ourt invoked Y ounger abstention to dismiss six counts of Plaintiffs’ amende d complaint that soug ht e quitable relief : the Union’s Due Process claims, the Union and King sley ’s claims that conflicts of interest at SPBR and SERB deprive d them of Due Process, King sley ’s claims that H.B

. 1 violates the Ohio C o n s t i t u t ion and was unlawfully applied to her retroa ctively , and violation of the Ohio open mee ting statute.

Y ounger v. H

arris , 401 U.S. 37 (1971). 1 -4-No. 11-3415

Kingsley, et al. v. Brundige e t al. Y ounger abstention is based on conce rn for comity

. I f a S t at e’ s i n t er ests in pending civil proce eding s are so important that exercise of the fede ral judicial power would disreg ard the comity betwee n the States and the National Gover nment, Y ounger abstention is appropr iate. Pennzoil Co.

v. Texaco, Inc. , 481 U.S. 1, 11 (1987) (citing Huffman v. Pursue, Ltd. , 420 U.S. 592, 603–05 (1975))

. For a district cour

t to invoke Y

ounger abstention: 1) there must be on-g oing state judicial proce eding s; 2) those proce eding s must implicate important state interests; and 3) there must be an adequa te opportunity

in the state proce eding s to raise constitutional challeng es. Squire v. Coughlan , 469 F.3d 551, 555 (6th Cir. 2006) (quotation marks and citation omitted). I f these prer equisites are satisfied and “so long as there i s n o s h owing of bad faith, haras s m ent, or som e other extraordinary circ umstance that would make abstention inappropriate, the fede ral courts should a bstain.” Id. (quoting Middlesex Cnty. Ethics Comm. v. Garde n State Bar Ass’n , 457 U.S. 423, 435 (1982)). Am. Family Pre

paid Legal Corp. v. Col umbus Bar Ass’n , 498 F.3d 328, 332- 33 (6th Cir. 2007). We revie w de novo the di strict court’s decision to invoke Y ounger abstention. Id . at 333. The proper time of ref

ere nce for de termining Y

ounger -abstention applica bility is when the fe dera l complaint is f

iled. Zalman v. Armstrong , 802 F.2d 199, 204 (6th Cir. 1986)

. In this c ase that date is November 30, 2009. First, both K in g sley and the Union had ong oing state judicial proce eding s: King sley ’s appea l
to the S PBR and her mandamus action in the Ohio Court of Appeals, and the Un i o n ’s UL P claim b ef o re S ERB. Second, the ong oing state proce eding s implicated important state interests, i.e., Ki n gl ey ’s claims arose from termination of her employ ment from a state ag ency , and included wh et h er the Ohio statute that remove d her from classified civil service violated the Ohio Constit ution, and whether SERB violated other Ohio statutes when it terminated her employ ment. The Union’s claims involved SERB proce dures to adjudicate UL P claims ag ai n s t state or local

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Kingsley, et al. v. Brundige e t al. employ ers. See Ohio Civil Rights Comm’n v. Dayton Christ ian Schs., Inc. , 477 U.S. 619, 627 (1986) ( Y ounger doctrine is applicable to state administrative proce eding s in which important state interests

are vindicated)

. Finally , Plaintiffs had adequate opportunity to raise constitutional challeng es in the
state proce eding s. As to this third require ment, contra ry to Plaintiffs’ argument, Y ounger does not 2 require a district cou rt t o deter mine whether state proce eding s in which constitutional challeng es could have been raised would have “cur ed” constituti onal vi olations, but rathe r whethe r t h e p arty had adequate opportunity to raise such violations. See Am. Family Prepaid Legal Corp. , 498 F.3d at 332–33. The three Y

ounger require ments having been met, the district court proper l y d i s m i s sed Plaintiffs’ claims seekingequitable r elief. 2. Supplemental J urisdiction (counts 8, 9, and 2, in par t) “[W ]hen fac ed with a claim of immunit y to a pendent state claim, fede ral courts look to the appropr iate state law to asce rtain the nature of the immunit y g iven.” Hayne s v. Marshall , 887 F.2d 700, 704 (6th Cir. 1989). Under O.R.C. § 2743.03, Ohio’s Court of Claims has exclusive, orig inal jurisdiction of all civil actions aga in s t t h e s t at e permitted by the waiver of immunit y contained in O.R.C. § 2743.02. GLA W ater Mgmt. v. Univ. of Toledo , 963 N.E.2d 207, 211–12 (Ohio Ct. App.

We do not addre ss two arguments Plaintiffs raise for the first time in their Reply Br ief: 1) 2 that even had King sley been allowed to prese nt her fac ial constitutional challeng e to the SPBR, the Ohio Court of Appea ls would lack jurisdiction to rende r an opinion on the constitutional challeng e, and 2) that the Union’s Due-Process claims are not subject to Y ounger abstention beca

use bias (SERB’s) is an exception t o Y o u nger . Nonethele ss, we observe that the Supreme Court of Ohio addre ssed and re

j ec ted the first argument during the pendenc y of this appea l in Kingsley v. State Emp’t Relations Bd. , 958 N.E.2d 169, 172–73 (Ohio 2011), recon. denied, 959 N.E.2d 1058 (Ohio 2012) (table dispositi on). -6-No. 11-3415

Kingsley, et al. v. Brundige e t al. 2011). Thus, under Ohio law, state employ ees may not be sued unless and until the Court of Claims has dete rmined that they

are not entitled to imm unity

. Hayne s , 887 F.2d at 704. Be cause Plaintiffs failed to obtain a deter mination from the Ohio Court of Claims t h at Def endants are not entitled to immunit y , the district court proper ly dismiss ed counts 8 and 9 of their amende d complaint, which sought damag es under Ohio law for intentional inf liction of emotional distress and criminal conduct, and that part of count two arising under Ohio law, i.e., that Def endants violated King sley ’s liberty and proper ty interests that g uara

ntee her decisional independe nce under the Ohio Constitut ion. III. Fir st Am endm ent Claim The district court agree d with Def endants that under Garce tti v. C eb a l l o s , 547 U.S. 410 (2006), King sley ’s expressive activities wer e eng ag ed in pursuant to her officia l AL J duties and that her a mended c omplaint thus failed to state a F irst-Amendment violation. Garce tti held that “whe n public employ ees make statements pursuant to their officia l duties, the employ ees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications fr om employ er discipline.” Id. at 421. The Court e x plained: Respondent Richard C eb al l o s has been employ ed since 1989 as a deputy district attorney for the L os Ang eles Count y District Attorney ’s Off ice. During the period rele vant to this case , Ceballos was a cale ndar deputy in the office ’s Pomona branc h, and in this capa cit y he exercised cer tain supervisory responsibilities over other lawy ers. I n Fe bruar

y 2000, a defense attorney contac t ed Ceballos about a pending criminal case . The defe nse attorney said there wer e inacc urac ies in an aff idavit used t o o btain a critica l sear ch war rant

. . . [and] wanted Ceballos to revie w the case . Acc ording to Ceballos, it was not unusual for defe nse attorney s to ask ca lendar deputies to investiga

te aspe cts of pendingcase s. After examining the aff idavit and visiti ng th e l o ca tion it descr ibed, Ceballos deter mined the af

fidavit containe d serious misrepre sentations . . . .

-7-No. 11-3415

Kingsley, et al. v. Brundige e t al. Ceballos spoke on the telephone to the war rant aff iant

. . . but he did not rec eive a satisfac tory explanation for the perc eived inacc urac ies. He rela y ed his finding s to his supervisors, petiti o n er s C arol Najer a and Fr ank Sundstedt, and followed up by prepa ring a dispositi on memorandum. The memo explained Ceballos’ conce rns and rec ommended dismiss al of the case . On Marc h 2, 200 0 , Ceballos submitt ed the memo to Sundstedt for his review. Afewday s later, Ceballos prese nted Sundstedt wi th another memo, this one descr ibing a second telephone conver sation between Ceballos and the wa

rra nt affia nt.

. . . . Despite Ceba llos’ conce rns, Sundstedt decided to pr ocee d with the prosec ution . . . The trial court held a hear ing on the motion. Ceballos was called by the defe nse and rec ounted his observations about the aff idavit, b u t t h e trial court reje cted the challeng e to the wa

rra nt. Ceballos claims that in the afte rmath of these events he was subjected to a series of reta liatory employ

ment actions

. . . . [His complaint] alleg ed petitioners violated the First and F ourtee nth A mendments by reta liating ag ainst him ba sed on his memo of Marc h 2. [] Petitioners moved for summary judgme nt, and the Di s t ri ct C ourt g rante d their motion. Noting that Ceballos wrote his m em o p u rsuant to his employ ment duties, the cour t concluded he was not entitled to First Ame ndment protec tion . . . . The Court of Appea ls for the Ninth Circui t re v ersed, holding that “Ceba llos’s alleg ations of wrong doing in the memorandum constitute protec ted speec h under the First Amendme nt.” 361 F.3d 1168, 1173 ( C.A. 9 2004) . . . . Having c o n cluded that Ceballos’ memo satisfied the public-conc ern require ment, the Court of Appea l s p roceede d to balanc e Ceballos’ interest in his speec h ag ainst his supervisors’ i n t er est in responding to it. See Picke ring [ v. Bd. of Educ. , 391 U.S. 563] at 568. The court struck the balanc e in Ceballos’ favor , noting that petitioners “fa iled even to sug g est disruption or inef fi ci ency in the working s of the District Attorney ’s Off

ice” as a r esult of the memo. See 361 F.3d, at 1180.

. . . . We gr anted c ertiora

ri . . . and we now re verse .

. . . . The controlling factor in Ceballos’ case is that his expre ssions were made pursuant to his duties as a calendar deputy

. See Br ief for Respondent 4 (“Ceba llos doe s not dispute that he prepa

red the memorandum ‘pursua nt to his duties as a prosec utor’ ”). T h at co n sideration—the fac t that Ceballos spoke as a prosec utor fulfilling a responsibility to advise his su p er v isor about how best to proce ed with a pending case —distinguishes Ceballos’ case from those i n which the First Amendment provides protec tion ag ainst discipline. W e hold that when public employe es make

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Kingsley, et al. v. Brundige e t al.
statements pursuant to their official duties, the em p loyee s are not speaking as citizens for First Amendm ent purposes, and the Constit ution does not insulate their communic ations from employer discipline

. Garce tti , 547 U.S. at 414–17, 421 (empha sis added). A. Post- Gar ce t t i ca s es from this circ uit are few

. Def endants by notice of supplemental authority , Fe d. R. App. P. 28(j), cite Sa vage v. Gee , 665 F.3d 732 (6th Cir. 2012), in which we applied Garce tti and aff

irmed the g rant of summar y judgme nt ag ainst the plaintiff, a f ormer stateuniversity li b ra ri an who claimed that he was constructively discharg ed in reta liation for his First Amendment speec h. Observing that the plaintiff’s speec h commenting on a book rec ommendation

was not related to classroom instruction and “only loosely , if at all, related to aca demic scholarship,” this court held that his speec h was pursuant to his duties as head librarian and as a co m m ittee member selec ting books for fre shman students, and thus not protec ted under the First Amendment. Id. at 739. Savage relied on case s including Evans-M arshall v. Board of

Education of Tipp City , 624 F.3d 332, 342–44 (6th Cir. 2010) (holding that “the First Amendment does not protec t primary and seconda ry school teac hers’ in-class curr icular speec h

. . . . Even to the extent aca demic fre edom, as

a constitutional rule, could somehow apply to primary and seconda ry schools, that does not insulate

a teac her’ s curr icular and pedag og ical choice s from the school board’ s oversight, as opposed to the
teac her’ s rig ht to speak and write publicly about ac ademic issues outside of the classr oom.”). B. Dec isions of other Circuits applying Garce tti Two post- Garce tti circ uit court dec i s i o n s ar e more on point than our decision in Savage

. Compli cating matters, howeve r, is that t h e t wo ar ri ved at opposite conclusions on the question whether the plaintiff-g overnme nt employ ee who alleg e d h is e mp lo y me nt w a s te rminated for ref using
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Kingsley, et al. v. Brundige e t al. to make false statements had been acting pursuant to officia l duties and there fore was prec luded from bring ing a First Amendment reta liation c laim. The Supreme Court de nied cer tiorari in both case s. The Second Circuit in Jack ler v. Byrne , 658 F.3d 225 (2d Cir. 2011), cert. denied , 132 S. Ct. 1634 (2012), held that a probationar y police office r who alleg ed that he was discharg ed for ref using
to retra ct a true written repor t and substitut e a false repor t in an investiga

tion of a civilian complaint char g ing a

fellow police office r with e x cessive forc e had eng ag ed in pr otected spe ech, i.e ., speec h

as a citizen on a matter of public conce rn, and th at h i s re fu s al to make false statements was analog ous to a private citizen’s lawful ref usal to resc ind a true acc usation, make a false acc usation,

or file a false police repor t. As to the distincti o n b etween statements aff irmatively made by a g overnme nt employ ee and a g overnme nt employ ee’ s ref usal to e it h e r r e tr a ct such statements or make
untrue stateme nts, the Second Circuit observe d: There is cer

tainly some differ ence betwee n compelled speec h and compelled silence, but in the context of protec ted speec h, the differ ence is without constitutional signific ance , for the First Amendment g uara ntees ‘fr eedom of speec h,’ a term nece ssarily

comprising the dec ision of both what to say and what not to say

. Jack l er , 6 5 8 F. 3 d at 238 (quoting Riley v. Nat’l Fed’n of the Blind of N.C., Inc. , 487 U.S. 781, 796–97 (1988)) (empha sis in original). I n contra st, the District of Columbi a Circuit in Bowie v. Maddox , 642 F.3d 1122 (D.C. Cir. 2011), reh’g de nied , 653 F.3d 45 (D.C. Cir. 2011), cert. denied , 132 S. Ct. 1636 (2012), held that

a former officia l of the District of Columbi a I nspector Gene ral’s Offic e who alleg ed that he was fired in reta liation for ref

using to sign an aff

idavit that h i s em p l o y er draf ted for him in response to a former subordinate’ s employ ment-discrimination claim, was acting pursuant to h is officia l duties

as a g overnme nt employ ee wh en he ref used t o sign the aff

idavit, and that Garce tti thus prec luded

-10-No. 11-3415

Kingsley, et al. v. Brundige e t al. his First-A mendment reta liation claim. On the plaintiff’s p et i tion for rehe aring , the Bowie court

rema rked that the Second Circuit in Jack ler g ot Garce tti “bac kwar ds,” and opined that “[a] test that all o ws a First Amendment reta liation claim to proce ed whene ver the g overnme nt employ ee can identify a civilian analogue for his speec h is about as useful as a mosquito net made of chicke n wire: All officia l speec h, viewed at a sufficie nt level of abstrac tion, has a civilian analogue.” 653 F.3d at 48. The Bowie court observed that “[a]n u t t erance made pursuant to employ ment responsibilities is unprotec ted even if the same utteranc e would be protec ted wer e the employ ee to communicate it

as a citizen,” and that, as the dissenting justices in Ga r ce t t i rec og nized, Garce tti “categ orica lly ” denies rec overy under the First Amendment to pla intiffs who spoke pursuant to officia l duties. Id. (quotation marks a

nd citation omitted). I n the instant case , King sley was acting pursuant to her officia l duties as AL J when s h e ref used to retra ct the discovery order and substitut e an order rea ching a differ ent result

. Fu rt h er , there is no civilian analogue to her speec h. Although we do not endorse Def endants’ actions in the instant case , we are bound to apply Garce tti , under which King sley ’s First Amendment claim must fail. IV. Due P roce ss Claim s King sley also challeng es the district court’s dismiss al of her Due Process claims on qualified immunit y g rounds. Plaintiffs’ amende d complaint alleg ed that King sley had a liberty interest under the fede ral Constit ution and liberty and proper ty interests under the Ohio Constit ution that g uara ntee her the rig ht of decisional independe nce as a fair and impartial hear ing office r in an administrative proce eding

. I n response to Def endants’ motion to dismiss , King sley argued that Def endants violated

-11-No. 11-3415

Kingsley, et al. v. Brundige e t al. her substantive-due-pr ocess right to be free from conduct that shocks t h e conscie nce and vi olated her r ight a s a judg e to dec isional independenc e. The dist rict court proper ly conclude d that any such righ t was not clea rly established at the time Kingsle y ’s employ

ment was ter

minated. Finally , the district court conclude d that to the extent the amende d complaint could be rea d
t o as sert a proce dural-due -proc ess claim, it was proper ly dismiss ed beca use King sley cited no authority to support that she possessed a proper ty interest in decisional independe nce arising under Ohio law. As the district court observe d, King sley ’s relianc e on Stephe n s v. Merit Systems Protection Board , 986 F.2d 493, 497–98 (F ed. Cir. 1993), is misplaced, beca use that case assumed without deciding that a fede ral administrative law judge had a cog nizab l e p ro p er ty interest in decisional indepe ndence

. V. For these rea sons, we AFF I RM the district court’s dismiss al of P l ai ntiffs’ amende d complaint.

-12-