1

Plaintiff originally filed his complaint against James G.

Ledbetter in his individual capacity as Commissioner of the

Georgia Department of Human Resources. Pursuant to Fed.R.Civ.P.

25(a) and Fed.R.App.P. 43(c), Ledbetter's successor in office,

Tommy Olmstead, has been substituted as a party-defendant. 

United States Court of Appeals, Eleventh Circuit.

No. 95-9197.

VISTA COMMUNITY SERVICES, Movant,

James H. Narey, Plaintiff-Appellee,

v.

Darrell DEAN, Individually and in his official capacity as

Georgia Department of Human Resources, District One, District

Medical Director, John J. Gates, Individually and in his official

capacity as Georgia Department of Human Resources, Division of

Mental Health, Mental Retardation and Substance Abuse, Division

Director, James G. Ledbetter in his official capacity as

Commissioner of the Georgia Department of Human Resources, and

James K. Moss, Sr., Individually, Defendants-Appellants.

March 19, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 4:90-CV-063-HLM), Harold L. Murphy,

District Judge.

Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior

Circuit Judges.

FAY, Senior Circuit Judge:

Defendants appeal the district court's denial of their motion

for summary judgment based on qualified immunity. We vacate and

remand.

I.

James Narey ("Plaintiff") filed suit under 42 U.S.C. § 1983

against Darrel Dean, John Gates, Tommy Olmstead, 1 and James Moss

(collectively "Defendants"), alleging that Defendants violated his

Fifth and Fourteenth Amendment rights to due process by demoting

him from his tenured position as Director of the Northwest Georgia
Community Mental Health Center (the "Center") in Fort Oglethorpe,

Georgia. As the reason for Plaintiff's demotion, Defendants cited

numerous problems with Plaintiff's management of the Center,

including improper commingling of Center funds, improper handling

of client funds, misuse of state grant-in-aid funds, failure to

comply with accountant recommendations regarding fiscal

responsibility and drug inventory, and improper handling of leases.

Plaintiff countered, however, that Defendants had concocted these

"trivial, technical, minute and inconsequential" charges against

him merely to remove him from his position. At trial, Plaintiff

asserted two claims relevant to this appeal: First, Plaintiff

claimed that Defendants demoted him for pretextual reasons in

violation of his constitutional right to substantive due process.

Second, Plaintiff claimed that Defendants improperly failed to

satisfy the requirements of progressive discipline before demoting

him. Both claims were sent to the jury; the jury returned a $1.7

million verdict in Plaintiff's favor.

On appeal, this Court reversed that verdict, holding that our

decision in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994), cert.

denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995),

precluded Plaintiff from maintaining a substantive due process

claim based on pretextual firing. Narey v. Dean, 32 F.3d 1521,

1526-28 (11th Cir.1994). Prior to McKinney, the law of our Circuit

was that " "[a] violation of a public employee's right to

substantive due process occur[red] when an employer deprive[d] the

employee of a property interest for an improper motive and by means

that [were] pretextual, arbitrary and capricious, regardless of
 2

The district court also permitted Plaintiff to add an equal

protection claim, but it later granted Defendants' motion for

summary judgment as to that claim. The court's ruling on the

equal protection claim is not an issue in this appeal. 

whether or not a hearing was held.' " McKinney, 20 F.3d at 1558-59

(quoting Nolin v. Douglas County, 903 F.d. 1546, 1553-54 (11th

Cir.1990) (internal quotation marks omitted) (alterations not in

original)). In McKinney, we overruled the line of cases

establishing that law, and instead established that an allegation

of pretextual firing implicates only procedural, and not

substantive due process. Id. at 1564-65; see also Narey, 32 F.3d

at 1526 (discussing McKinney ). Thus, after McKinney, Plaintiff

was entitled to maintain only a procedural due process claim

against Defendants. Narey, 32 F.3d at 1527. In assessing that

claim, we found that Plaintiff had been afforded adequate

procedural protection both before and after his demotion; we

therefore ruled that Defendants had not deprived Plaintiff of his

right to procedural due process. Id. at 1528.

Defendants did not challenge the propriety of Plaintiff's

progressive discipline claim, but Plaintiff conceded that his

progressive discipline claim alone could not support the jury's

$1.7 million verdict. Id. We remanded the case to the district

court for further consideration of that claim. Id.

On remand, however, the district court permitted Plaintiff to

amend his complaint to allege that Defendants terminated him

because of his speech in violation of his First Amendment rights.2

Once again Plaintiff claimed that Defendants' cited reasons for

demoting him were pretextual; this time, Plaintiff argued that
 3

The court's disposition of the progressive discipline claim

is also not an issue in this appeal. 

Defendants actually demoted him in retaliation for statements made

by Plaintiff to the Governor's Advisory Council on Mental

Health/Mental Retardation/Substance Abuse (the "Council"). During

a discussion with Council members, Plaintiff explained that his

program at the Center saved state funds by shifting local revenue

sources. Those comments followed a presentation by Plaintiff's

staff member regarding their program's significant accomplishments

without state funding. Plaintiff's statements apparently angered

and embarrassed Defendants because they were requesting $6-7

million in state appropriations. After Plaintiff made the

statements, Defendants became hostile toward him, and according to

Plaintiff, thereafter sought to remove him from his position.

Defendants moved for summary judgment on both the remanded

progressive discipline claim and the newly added First Amendment

claim; on the First Amendment claim, Defendants argued that they

were entitled to qualified immunity. The district court granted

Defendants' motion as to the progressive discipline claim,3

 but

denied the motion as to the First Amendment claim. In so doing,

however, the court explicitly stated that it did not reach the

qualified immunity issue. Instead, the court concluded that

Plaintiff had produced sufficient evidence to create a jury

question as to whether he was demoted for his speech, or for his

inappropriate actions as revealed by Defendants' investigation.

The existence of that jury question, according to the court,

obviated the need to address whether Defendants were entitled to
 4

We reject Defendants' contentions that these issues are

sufficiently intertwined with the qualified immunity issue to

warrant the exercise of pendent appellate jurisdiction. In Swint

v. Chambers County Commission, 514 U.S. 35, 115 S.Ct. 1203, 131

L.Ed.2d 60 (1995), the Supreme Court suggested that appellate

review might exist where an otherwise nonappealable question is

"inextricably interwoven" with an issue properly before us. Id.

at ----, 115 S.Ct. at 1212. The facts of this case do not

present us with such a situation. See also Haney v. City of

Cumming, 69 F.3d 1098, 1102 (11th Cir.1995) (refusing

jurisdiction under Swint because issues were not sufficiently

intertwined with defendants' qualified immunity defense). 

qualified immunity. Defendants now challenge that ruling.

Defendants also challenge the district court's decision to

permit Plaintiff to amend his complaint after this Court's remand

of the case. They argue that, in permitting the amendment, the

district court improperly expanded our mandate on remand. See

Litman v. Massachusetts Mut. Life Ins. Co., 825 F.2d 1506, 1511

(11th Cir.1987) (stating that district court acting under appellate

court's mandate cannot give any relief further than that necessary

to settle so much as has been remanded). Defendants further argue

that the doctrine of res judicata bars Plaintiff's First Amendment

claim, or in the alternative, that Plaintiff waived that claim in

the first trial of this case. Those issues, however, are not

appealable at this stage of the proceedings.4

 See Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-

44, 113 S.Ct. 684, 686-88, 121 L.Ed.2d 605 (1993); Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221,

1225-26, 93 L.Ed. 1528 (1949). We properly consider only whether

the district court erred in failing to decide if Defendant's were

entitled to qualified immunity. We hold that the court did so err.

II.
We review de novo a district court's ruling that a government

official's conduct violated clearly established law such that the

official is not entitled to qualified immunity. Johnson v.

Clifton, 74 F.3d 1087, 1090 (11th Cir.), cert. denied, --- U.S. ---

-, 117 S.Ct. 51, 136 L.Ed.2d 15 (1996) (citing 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 evidence, when viewed in the

light most favorable to the nonmoving party, shows that there is no

genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Celotex Corp. v.

Cartrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265

(1986).

III.

Qualified immunity shields government officials performing

discretionary functions from civil liability "insofar as their

conduct does not violate clearly established.... constitutional

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.

 Plaintiff contends that, under the Supreme Court's decision

in Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238

(1995), this Court does not have jurisdiction to hear Defendants'

interlocutory appeal of the denial of qualified immunity. We

disagree.

A government official may immediately appeal the denial of

qualified immunity when the issue appealed concerns whether or not
certain facts show a violation of "clearly established law."

Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86

L.Ed.2d 411 (1985). In Johnson, the Supreme Court further

elaborated on that concept by making it explicit that where the

only issue on appeal is a question of " "evidence sufficiency,'

i.e., which facts a party may or may not, be able to prove at

trial", the district court's ruling on qualified immunity is not

immediately appealable. Id. at ----, 115 S.Ct. at 2156. The issue

in Johnson was whether there was sufficient evidence to raise a

genuine issue of material fact as to whether the government

defendants had been involved in the plaintiff's beating. Id. at --

-- - ----, 115 S.Ct. at 2153-54. The defendants admitted both that

the beating was unconstitutional and that it violated clearly

established law; their only argument on appeal was that the

district court erred in finding an issue of material fact as to

their involvement in the unconstitutional conduct. Id. at ----,

115 S.Ct. at 2154. Based on those facts, the Supreme Court held

that the district court's ruling could not be immediately appealed.

Id. at ---- - ----, 115 S.Ct. 2156-58.

Defendants here make both evidence sufficiency arguments and

arguments aimed at the "clearly established law" inquiry. On the

evidence sufficiency front, they primarily argue that Plaintiff

presented no credible evidence that Plaintiff himself made any

public statements, that Defendant Gates was upset at those

statements, or that Defendant Dean—the person who actually proposed

the adverse action—had any knowledge of the events at the meeting

with Council members. Appellants' Initial Br. at 45. On the
 5

In arguing that Defendants actions did not violate clearly

established law, Defendants saved the bulk of their argument for

their reply brief. Defendants chose to do that apparently

because they did not feel Plaintiff had met its burden in coming

forward with relevant First Amendment case law. Although it may

have been Plaintiff's burden to establish that Defendants'

conduct violated clearly established law, it was Defendants'

burden to establish jurisdiction in our Court. Perhaps

Defendants should be more conscious of that in the future. 

clearly established law front, Defendants argue that Plaintiff

failed to cite any law with materially similar facts that would

have told Defendants their conduct was unconstitutional.5

 See

Appellants' Initial Br. at 47-9; Appellants' Reply Br. at 10-24.

Furthermore, as discussed in more detail below, Defendants also

challenge the district court's failure to apply the appropriate

legal analysis in determining whether their conduct violated

clearly established law. See Appellants' Initial Br. at 39-40.

Because Defendants challenge all of these issues, and not merely

the sufficiency of the evidence, we conclude that we have

jurisdiction to hear this appeal. See Foy v. Holston, 94 F.3d

1528, 1531-32 n. 3 (11th Cir.1996) (stating that we have

jurisdiction where both factual issue and clearly established law

issue are appealed); Cottrell v. Caldwell, 85 F.3d 1480, 1484-86

(11th Cir.1996) (same); Johnson v. Clifton, 74 F.3d 1087, 1091

(11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 51, 136 L.Ed.2d

15 (1996) (same).

B.

 In order to defeat Defendants' right to qualified immunity,

Plaintiff must have demonstrated (i) that Defendants' conduct
 6

Of course, at the summary judgment stage of the

proceedings, Plaintiff need not prove his case. He need only

proffer evidence sufficient to create a genuine issue of material

fact as to whether Defendants violated his clearly established

rights. 

violated his clearly established First Amendment rights,6 and (ii)

that a reasonable government official would have been aware of

those rights. Tindal v. Montgomery County Comm'n, 32 F.3d 1535,

1539 (11th Cir.1994). It was the district court's task to

ascertain whether Plaintiff had met its burden. See Clifton, 74

F.3d at 1091 (stating that district court must determine whether

there is genuine issue of material fact as to whether Defendant

committed conduct that violated clearly established law).

 In assessing the first part of the qualified immunity

analysis—i.e., in determining whether an employee's clearly

established First Amendment rights have been violated—we conduct a

four-part inquiry ("the Bryson test"). See Bryson v. City of

Waycross, 888 F.d. 1562, 1565 (11th Cir.1989); Clifton, 74 F.3d at

1092; Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d

1554, 1563 (11th Cir.1995); Tindal, 32 F.3d at 1539. First, we

determine whether the employee's speech may be "fairly

characterized as constituting speech on a matter of public

concern." Id. (quoting Rankin v. McPherson, 483 U.S. 378, 384, 107

S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987)). Second, if the speech

addresses a matter of public concern, we apply the Pickering

balancing test, "weighing the employee's first amendment interests

against "the interest of the state, as an employer, in promoting

the efficiency of the public services it performs through its

employees.' " Id. (quoting Pickering v. Board of Education, 391
U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)). If

the employee prevails on the balancing test, we next inquire as to

whether the employee's speech played a "substantial part" in the

challenged employment decision ("the Mt. Healthy causation

question"). Id. (citing Mt. Healthy City School District Bd. of

Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471

(1977)). Finally, if the employee shows that his speech was a

substantial motivating factor, we ask whether the employer would

have terminated the employee even in the absence of the protected

speech. Id. (citing Mt. Healthy, 429 U.S. at 286, 97 S.Ct. at 575-

76).

In the case at hand, the district court determined both that

Plaintiff's speech addressed a matter of public concern (part 1)

and that Plaintiff had presented sufficient evidence to establish

a genuine issue of material fact as to whether his speech was a

substantial factor in the actions taken against him (part 3). The

court did not, however, perform the Pickering balancing test (part

2) or ask if there was a genuine issue of material fact as to

whether Defendants would have terminated Plaintiff regardless of

his speech (part 4). According to the court, the Pickering

analysis is appropriate:

only when the state fires an employee for conduct that turns

out to be protected, but that the state as an employer has an

interest in not tolerating such conduct [sic]. The [c]ourt

may also conduct the Pickering analysis if the state claims

that, although the employee did engage in protected conduct,

it fired him for related unprotected conduct. However, if the

conduct for which the state claims to have fired the employee

is unrelated to the protected conduct, a Mt. Healthy causation

question is presented, and that question is for the jury.

Order dated August 28, 1995, at 14 (emphasis in original). Because
Defendants claimed they fired Plaintiff for reasons unrelated to

his speech, the court declined to apply Pickering to the facts of

this case. Further, the court stated that, "[b]ecause under the

circumstances of this case, Defendant[s'] alleged reasons for their

actions involve a Mt. Healthy causation question and not a

Pickering balancing, the [c]ourt does not reach the qualified

immunity issue." Id. (emphasis added).

As a preliminary matter, we note that the court's statement

that it did not reach the qualified immunity issue is not totally

accurate. The Mt. Healthy question is often a part of the

qualified immunity analysis, not always separate from it. See also

Foy v. Holston, 94 F.3d 1528, 1534 (11th Cir.1996) (recognizing

that Mt. Healthy-type concerns must not be overlooked in qualified

immunity analysis). By recognizing the existence of the Mt.

Healthy causation question, the court was addressing part 3 of the

Bryson test. Thus, the court did reach part of the qualified

immunity issue, but it failed to complete that inquiry because it

believed that the existence of the Mt. Healthy causation question

obviated the need to go further. That conclusion, however, is

simply not correct.

 The four-part inquiry—including the Pickering balancing

test—is to be applied in those cases "where the state denies

discharging the employee because of speech...." Bryson, 888 F.d.

at 1565. In those cases where the employer's claimed reasons are

unrelated to the speech, we still apply the Pickering balancing

test. See Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d

1554 (11th Cir.1995) (applying Pickering where employer's alleged
reason for firing employee was employee's violation of departmental

residency requirement); Tindal v. Montgomery County Comm'n, 32

F.3d 1535 (11th Cir.1994) (applying Pickering where employer's

alleged reason for firing employee was employee's failure to submit

to requested psychiatric evaluation). The Pickering balancing test

and the remainder of the qualified immunity inquiry must be done

before a case is sent to the jury for its determination of whether

a plaintiff was actually fired for his speech. To do otherwise

deprives defendants of the benefit of their qualified immunity

defense: "The entitlement is an immunity from suit rather than a

mere defense to liability; and like an absolute immunity, it is

effectively lost if a case is erroneously permitted to go to

trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806,

2815, 86 L.Ed.2d 411 (1985).

Based on the foregoing discussion, we conclude that the

district court erred in failing to apply the Pickering balancing

test to the facts of this case. The court further erred in not

performing the remainder of the qualified immunity analysis (part

4 of the Bryson test and the reasonable public official inquiry).

We make no comment on the correctness of the district court's

resolution of parts 1 and 3 of the Bryson test. We simply vacate

and remand so that the court may complete its inquiry and fully

determine whether Defendants are entitled to qualified immunity.

The order denying summary judgment is vacated and the matter

remanded with instructions.

Vacated and Remanded.