FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 15, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11498

________________________

D.C. Docket No. 06-00544-CV-A-E

DAVID DAVIS,

Plaintiff–Appellant,

versus

PHENIX CITY, ALABAMA,

H. H. ROBERTS, City Manager of

Phenix, in his individual and

official capacities,

WALLACE HUNTER, Chief of the

City's Fire Department, in his

individual and official capacities,

Defendants–Appellees,

JEFFREY HARDIN, Mayor

of the City, in his individual

and official capacities, et al.,

Defendants.
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Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(October 15, 2008)

Before BARKETT and WILSON, Circuit Judges, and GOLDBERG, Judge.

*

PER CURIAM:

David Davis appeals from an adverse final judgment after a jury verdict on

his claim that he was unlawfully terminated as a firefighter for Phenix City,

Alabama for exercising his First Amendment rights. He also argues that the city’s

rules and regulations, which require following a specified procedure before

speaking to the media or elected officials, constitute a prior restraint in violation of

his First Amendment rights.

We find no error in the application of the law to the jury verdict in this case.

The jury concluded that Davis violated fire department policies when he contacted

the Phenix City mayor without first notifying others within the chain of command,

as required by the rules, and that this violation resulted in the disruption or

likelihood of disruption within the fire department. Given these findings, the

district court correctly applied the test established in Pickering v. Board of

 Honorable Richard W. Goldberg, Judge, United States Court of International Trade,

*

sitting by designation.

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Education of Township High School District 205, Will County, 391 U.S. 563

(1968), finding there was no constitutional violation as a result of Davis’s

termination because the interest of Phenix City in promoting the efficiency of the

public services it provides through its fire department outweighed Davis’s First

Amendment interests in this case.

Essentially, Davis argues that the regulations, on their face, preclude a city

employee from speaking with public officials on matters of public importance.

However, the regulations at issue do not so constrain a city employee. First, the

regulations apply to only work-related issues. More importantly, as the jury found,

city employees may speak to public officials without obtaining prior permission,

but only after they have given the chain of command notice of their intent to do so.

We find no error in the district court’s application of the principles announced in

United States v. National Treasury Employees Union, 513 U.S. 454 (1995), in

concluding that the regulations did not constitute a prior restraint based on the

jury’s determination that a firefighter who had noticed the chain of command could

address elected officials directly without obtaining permission.

We have further reviewed this record and find no merit to Davis’s other

arguments that 1) the district court abused its discretion in admitting at trial certain

evidence of Davis’s past conduct within the fire department; 2) the district court

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erred in failing to remove defense counsel following allegations of misconduct

made by the plaintiff; and 3) the district court abused its discretion in granting the

defendants’ motion to amend their answer to plead the affirmative defense of

qualified immunity after the deadline for amendment of pleadings and erred in

granting qualified immunity to the two individual defendants prior to trial.

Accordingly, the judgment below is

AFFIRMED.

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