*

Honorable Jerome Farris, Senior U.S. Circuit Judge for the

Ninth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit

No. 96-8338.

Michael WALKER, Plaintiff-Appellee,

v.

Robert SCHWALBE, individually, and in his official capacity;

Darrell Dean, individually and in his former official capacity;

Roy Parrish, individually and in his official capacity; David

Evans, in his official capacity only, Defendants-Appellants.

May 15, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 4:92-CV-010-HLM), Harold L. Murphy,

Judge.

Before BIRCH, Circuit Judge, and RONEY and FARRIS*

, Senior Circuit

Judges.

FARRIS, Senior Circuit Judge:

Defendants interlocutorily appeal the district court's holding

that they are not entitled to qualified immunity. We have

jurisdiction pursuant to 28 U.S.C. § 1291. Mitchell v. Forsyth,

472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (denial of

qualified immunity is immediately appealable under the collateral

order doctrine). We affirm.

BACKGROUND

Vista Community Programs provides social services for Walker,

Chattooga, Catoosa, and Dade counties in northern Georgia. Vista

is funded by the Walker County Board of Health through a contract

with the Georgia Department of Human Resources. Michael Walker was

hired by Vista in 1982. In 1986 he was promoted to supervise all
Vista services for the developmentally disabled. He was

responsible for all budgetary issues pertaining to mental

retardation programs. Throughout his career he received excellent

performance reviews.

Darrell Dean was in charge of overseeing Vista as the

Department of Human Resources District Health Director. In 1988 he

hired Robert Wesley as Vista's Area Director and Tom Nickell as

Vista's business manager. Wesley was Walker's superior at Vista.

During Wesley and Nickell's tenure, Vista budget information

supplied to employees became less accurate. Walker complained to

Wesley and Nickell that some budget practices violated Department

regulations and prevented Walker from effectively managing the

budgets for which he was responsible. After Walker and others

voiced these concerns, Wesley and Nickell began to withhold budget

information from Vista employees.

Walker also expressed concern to Wesley that (1) the garage

Vista used to service its vehicles (chosen by Wesley without

receiving bids) charged exorbitant prices and was not properly

fixing the vehicles, (2) Wesley had directed all employees to have

their Vista vehicles cleaned at a business run by Vista employees

and their relatives, and (3) employee committees, which met during

work hours, conducted fund-raising in the community to raise money

allegedly for Vista but instead used the money for weekend social

activities.

In July 1991 Georgia's governor directed all state agencies to

submit budget reduction proposals. Walker learned that Wesley and

Nickell had proposed closing Vista's Chattooga County Service
Center. Walker urged them to reconsider because he believed the

proposed closure was inconsistent with the Department of Human

Resources' budget proposal request. The defendants claim that

Walker also learned that there was a proposal to cut his position.

When Walker's efforts with Wesley and Nickell failed he sought

assistance from state legislators. In August 1991 high-level Vista

employees Ernest Taylor, Nora Swafford, and Walker met with several

state representatives and senators. They discussed Walker's

budgetary concerns and a three-page list of "possible

improprieties" at Vista. When Walker had knowledge of a particular

impropriety he shared that information. He was primarily concerned

with budget expenditures, the car wash service, and the car repair

service. Walker stated in his deposition that he never feared that

Wesley's budget proposal would cost him his job because he believed

he was protected by the state merit system policies. The

defendants claim that Taylor had prepared the list of improprieties

and was the person primarily concerned about the improprieties,

that Walker did not know about the list and was only involved to

protect his job, and that the legislators already knew of these

problems.

As a result of the meeting with state legislators, the

Department of Human Resources began an investigation of impropriety

at Vista. David Nave conducted the investigation, assisted by

Robert Schwalbe. In October, Dean (the Department of Human

Resources employee who oversaw Vista) informed Vista staff that

Wesley and Nickell were being dismissed, that Dean would be

assuming the responsibilities of Area Director, and that Schwalbe
would be assuming Nickell's former position. Dean delegated

responsibility to Schwalbe for most daily administrative activities

at Vista.

In November 1991 Nave completed the investigative report. It

concluded that Vista had been mismanaged, that there had been

misconduct and violations of Georgia law, and that Vista

administration had shown little regard for Department policy. The

report included investigations of several alleged instances of

nepotism and concluded that at least one was a clear violation.

The investigation and report generated a great deal of media

attention in northwest Georgia. Dean ultimately resigned his

position at the Department of Human Resources due to the

investigation and media attention.

Some Walker County Board of Health members were upset that the

legislators, not the Board, had been contacted about the

improprieties. The Board was also embarrassed about the negative

publicity. It considered refusing to renew the county's status as

lead funding county for Vista. Members of the Board were aware

that Walker was among those who had complained to the legislators.

In 1990 and 1991 Walker's wife, Crystal Walker, served as a

Vista teacher consultant. Her immediate supervisor was Amanda

Boyd, Director of the Walker County Service Center. Walker was

Boyd's superior in the Vista mental retardation program. Prior to

hiring Mrs. Walker, Walker and Boyd reviewed all available written

policies regarding employment of relatives to ensure that it was

permitted. Walker suggested that Boyd contact the personnel office

regarding the issue. The Georgia Department of Human Resources
Administrative Policy and Procedures Manual stated that employment

of relatives, which includes spouses, is not precluded, but that

relatives shall not be employed in situations in which a direct

superior-subordinate relationship would exist.

Walker and Boyd concluded that Mrs. Walker could be hired, and

agreed that Boyd would be wholly responsible for all supervision,

terms, and conditions of her employment. Walker, Wesley, and Dean

each signed Mrs. Walker's contract.

Defendants have produced documents, which they allege were the

applicable policies, that prohibit the employment of any relatives

in an employee's entire chain of command.

After the release of the investigative report, Schwalbe met

with Walker and stated that a member of the Walker County Board of

Health had asked Schwalbe to review the Vista contracts with Mrs.

Walker. The next day Schwalbe gave Walker a notice of proposed

demotion and disciplinary salary reduction. The notice charged

that Walker had violated Vista conflict of interest policies by

hiring his wife. It also stated that Walker was "negligent and

inefficient" for directing a subordinate to obtain approval from

Walker's superior for the contract with his wife.

Walker pursued a written appeal to Dean on December 16, 1991.

Dean upheld the proposed demotion and salary reduction, which

amounted to almost $3,200 a year. Schwalbe and Dean each knew that

Walker had been one of the employees who had spoken with the

legislators. On December 19 Dean informed Walker he would be

transferred to another Vista center forty miles from his home.

Walker later applied for a promotion to his previous position but
was denied without an interview. He subsequently abandoned his

career at Vista. Defendants presented evidence that other Vista

employees were disciplined for violating anti-nepotism policies.

After the meeting with the legislators, Taylor (the Vista

employee who had prepared the list of improprieties) was removed

from the management team at Vista and placed under the authority of

one of his subordinates. After the investigation, Swafford (the

third Vista employee who met with the legislators) was removed from

the management team at Vista and transferred from the office where

she had worked for twelve years. No justifications were given for

these actions.

Walker filed suit under 42 U.S.C. § 1983 against Schwalbe and

Dean for violating his right to First Amendment speech by demoting

him in retaliation for his conversation with the legislators.

Defendants moved for summary judgment. The district court held

that Walker had established a genuine issue of material fact that

he was demoted in retaliation for his speech and that the

defendants were therefore not entitled to a ruling of qualified

immunity prior to trial. The defendants appeal interlocutorily.

DISCUSSION

QUALIFIED IMMUNITY

A. Standard of Review

 A district court's ruling that an official's conduct violated

clearly established law so that the official is not entitled to a

ruling of qualified immunity prior to trial is reviewed de novo.

Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86

L.Ed.2d 411 (1985); Johnson v. Clifton, 74 F.3d 1087, 1090 (11th
Cir.), cert. denied sub nom Hill v. Clifton, --- U.S. ----, 117

S.Ct. 51, 136 L.Ed.2d 15 (1996).

B. Method of Review

 A defendant may interlocutorily appeal a district court's

holding that he is not entitled to qualified immunity. Mitchell v.

Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411

(1985). Where this occurs there are effectively two issues on

appeal: (1) whether the district court's holding that a genuine

issue exists as to what conduct the official engaged in was

correct, and (2) whether the official is entitled to qualified

immunity for that conduct. The first issue is factual, the second

legal. Johnson v. Jones, --- U.S. ----, ---- - ----, 115 S.Ct.

2151, 2156-59, 132 L.Ed.2d 238 (1995).

 Where, as here, the defendants contest the district court's

legal holding, we may also consider the factual issue because it is

part of the core qualified immunity analysis. Johnson v. Clifton,

74 F.3d at 1091. We do so, and "simply take, as given, the facts

that the district court assumed when it denied summary judgment for

that (purely legal) reason." Id.; see Cooper v. Smith, 89 F.3d

761, 762 (11th Cir.1996) (in most qualified immunity interlocutory

appeals the appellate court accepts the facts that the district

court assumed).

C. Genuine Issue of Material Fact as to Defendants' Conduct

 We analyze First Amendment retaliatory demotion claims under

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

matter of public concern, (2) whether the employee's interest in

speaking outweighs the government's legitimate interest in
efficient public service; (3) whether the speech played a

substantial part in the government's challenged employment

decision, and (4) whether the government would have made the same

employment decision in the absence of the protected conduct.

Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1563-64

(11th Cir.1995) (citing Bryson v. City of Waycross, 888 F.2d 1562,

1565-66 (11th Cir.1989)).

First, we examine the content, form, and context of the

employee's speech to determine whether it addresses a matter of

public concern. Bryson, 888 F.2d at 1565. Viewing the evidence in

the light most favorable to Walker, Walker spoke with the

legislators because he was concerned with how Vista funds were

being spent. "[A] core concern of the first amendment is the

protection of the "whistle-blower' attempting to expose government

corruption." Id. at 1566. Walker spoke at a meeting with elected

public officials about improving the services Vista provides to the

public. His speech was on a matter of public concern.

Second, Walker had a significant interest in speaking with the

legislators in order to prevent harm to the Vista program and the

community it serves. Defendants argue they have a significant

interest in enforcing the anti-nepotism policy. This is beside the

point. The issue is whether the government has an interest in

preventing the speech. Whether the government had valid reasons

for its actions is only relevant to the third part of the test.

Defendants have no legitimate reason for preventing Walker's

speech. The second element of the Bryson test is satisfied.

Third, an employee's initial burden to demonstrate that a
retaliatory intent was a substantial factor behind the government's

employment decision is not a heavy one. Beckwith, 58 F.3d at 1565.

Walker has produced evidence that Dean had a motive to retaliate

against Walker because his speech led to the investigation that led

to Dean's resignation. The investigation embarrassed members of

the Walker County Board of Health. The Board asked Schwalbe to

investigate Mrs. Walker's contract. Schwalbe had a motive to

retaliate because he answered to Dean and the Board.

There is a genuine issue as to which nepotism policy was in

effect when Mrs. Walker was hired. Viewing the evidence in a light

most favorable to Walker, he did not violate any applicable policy.

Even if the broader anti-nepotism policy was in effect, Walker

still received a severe penalty where it appears he did everything

he could to make sure he was acting within Vista regulations. In

addition, the second of the two reasons given for the demotion,

that Walker was "negligent and inefficient" for having a

subordinate check with a superior about the proper regulations, is

illogical considering the situation. Walker may well have been

attempting to make sure that there was no actual impropriety and no

appearance of it, but we do not resolve questions of fact.

Finally, adverse employment actions were also taken against

Taylor and Swafford, the other two Vista employees who met with the

legislators. From this evidence a factfinder could reasonably

conclude that the people who spoke with the legislators were

punished for doing so.

Defendants have presented credible evidence that Walker only

talked with the legislators out of concern for his own job and that
he was only fired for violating the anti-nepotism policy. However,

viewed in the light most favorable to Walker, there is a genuine

issue of material fact as to whether his speech played a

substantial role in his demotion. Walker has satisfied the third

element of the Bryson test.

Fourth, reasonable inferences from the same evidence also

create a genuine issue as to whether the defendants would have

taken the same action had Walker not spoken out.

The district court properly concluded that the circumstantial

and direct evidence produced by Walker satisfied his burden of

creating a genuine issue of material fact that he was demoted in

retaliation for his speech.

D. Qualified Immunity

 Even though Walker has established a genuine issue of

material fact, the defendants may be protected from liability by

the doctrine of qualified immunity. Qualified immunity "protects

government officials ... from liability if their conduct violates

no "clearly established statutory or constitutional rights of which

a reasonable person would have known.' " Lassiter v. Alabama A &

M University, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73

L.Ed.2d 396 (1982)).

 "When considering whether the law applicable to certain facts

is clearly established, the facts of cases relied upon as precedent

are important. The facts need not be the same as the facts of the

immediate case. But they do need to be materially similar."

Lassiter, 28 F.3d at 1150 (quoting Adams v. St. Lucie County
Sheriff's Dept., 962 F.2d 1563, 1573, 1575 (11th Cir.1992)

(Edmonson, J., dissenting), approved en banc, 998 F.2d 923 (11th

Cir.1993)). Qualified immunity focuses on the actual, specific

details of concrete cases. Lassiter, 28 F.3d at 1149-50.

Plaintiffs may not discharge their burden by referring to general

rules and abstract rights. Id. at 1150. "Only in the rarest of

cases will reasonable government officials truly know that the

termination or discipline of a public employee violated "clearly

established' federal rights." Hansen v. Soldenwagner, 19 F.3d 573,

576 (11th Cir.1994).

Defendants contend that the qualified immunity doctrine

requires an objective analysis that does not consider a defendant's

state of mind. Therefore, defendants argue, they are entitled to

qualified immunity because Walker's violation of the anti-nepotism

policy was an objectively valid reason to demote him, and the

defendants' subjective, allegedly retaliatory, intent in doing so

is irrelevant. See id. at 578 (subjective motivation of officials

is irrelevant to whether qualified immunity exists).

 Defendants are correct that there is generally no subjective

component to qualified immunity analysis and that the test is based

on objective legal reasonableness. Anderson v. Creighton, 483 U.S.

635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987);

Lassiter, 28 F.3d at 1150. However, in the cases that held there

should not be subjective analysis, the official's state of mind was

not an essential element of the underlying constitutional

violation. Tompkins v. Vickers, 26 F.3d 603, 607-08 (5th

Cir.1994). Where the official's state of mind is an essential
element of the underlying violation, the state of mind must be

considered in the qualified immunity analysis or a plaintiff would

almost never be able to prove that the official was not entitled to

qualified immunity.

 We hold, as every Circuit that has considered this issue has

held, that where subjective motive or intent is a critical element

of the alleged constitutional violation the intent of the

government actor is relevant. See Tompkins, 26 F.3d at 608 (5th

Cir.) (subjective intent must be considered in qualified immunity

analysis where the official's motive or intent is a critical

element of the constitutional violation); Branch v. Tunnell, 937

F.2d 1382 (9th Cir.1991) (same); Siegert v. Gilley, 895 F.2d 797

(D.C.Cir.1990) (same), aff'd on other grounds, 500 U.S. 226, 111

S.Ct. 1789, 114 L.Ed.2d 277 (1991); Pueblo Neighborhood Health

Centers v. Losavio, 847 F.2d 642 (10th Cir.1988) (same); Poe v.

Haydon, 853 F.2d 418 (6th Cir.1988); Musso v. Hourigan, 836 F.2d

736 (2d Cir.1988) (same); see also Ratliff v. DeKalb County, 62

F.3d 338, 341 (11th Cir.1995) (subjective intent is relevant to

qualified immunity analysis if discriminatory intent is a specific

element of the constitutional tort).

 The government official's state of mind is a critical element

in First Amendment retaliatory demotion claims. It must be

considered in this case. Because Walker has established a genuine

issue of material fact as to retaliation, it must be assumed at

this stage that the defendants did retaliate against him for his

speech.

At the time the defendants acted in 1991, clearly established
law informed reasonable government officials that Walker could not

be punished for his First Amendment speech. See Pickering v. Board

of Education of Township High School District 205, 391 U.S. 563, 88

S.Ct. 1731, 20 L.Ed.2d 811 (1968) (criticism of Board of Education

by employee for its allocation of school funds is a matter of

public concern and protected by the First Amendment); Bryson, 888

F.2d at 1566 (1989) (core concern of First Amendment is protection

of whistle-blower attempting to expose government corruption). The

facts of these cases are materially similar to the instant case.

Lassiter, 28 F.3d at 1150. The law against retaliation for

exercise of First Amendment rights was clearly established.

Defendants argue that denial of qualified immunity here would

be equivalent to the court's holding that once an employee has

engaged in First Amendment speech he may no longer be punished for

valid reasons. This argument misses the point. An employee may

still be punished for valid reasons. However, when the employee

can establish a genuine issue of material fact that the true reason

for the punishment was actually the speech, then the case must go

to trial.

Defendants spend a substantial portion of their briefs arguing

that they are entitled to qualified immunity because there is no

clearly established law that a demotion for violation of an

anti-nepotism policy violates a person's rights. This argument is

inapposite. Walker has established a genuine issue that he was

demoted in retaliation for his speech. The qualified immunity

analysis is therefore made under the assumption that he was demoted

for this reason.
A reasonable Vista official could not have thought that he

could retaliate against Walker for exercising his First Amendment

speech rights. Further, a reasonable official could not have

thought that he could retaliate against Walker for exercising his

rights under the guise of the anti-nepotism policy.

AFFIRMED.

RONEY, Senior Circuit Judge, concurring:

I concur. When the defendants first moved for qualified

immunity, the district court denied it as untimely. On appeal, a

panel of this Court issued a writ of mandamus directing the

district court to rule prior to trial on defendants' defense of

qualified immunity. The district court responded by deciding that

the defendants are not entitled to qualified immunity on this

record. It seems to me that we have jurisdiction and the

responsibility to decide, prior to trial, whether the district

court properly denied that motion. Even if we do not, no harm is

done. The trial would continue either way. I understand Judge

Farris's opinion as deciding only an issue of law, squarely

presented by the motion for qualified immunity, and although

evidentiary and factual issues may have been argued on this appeal,

the affirmance by this Court does not hinge on a resolution of

those factual issues.

BIRCH, Circuit Judge, concurring in part and dissenting in

part:

I agree with the majority's determination that the speech at

issue in this case fairly may be characterized as constituting

speech on a matter of public concern. I therefore concur in the

majority's conclusion that the facts presented, viewed in the light
most favorable to the plaintiff, sufficiently establish an

underlying First Amendment claim. I believe, however, that we lack

jurisdiction to review the remaining—and more fundamental—argument

advanced by the defendants on the issue of qualified immunity. For

this reason, I respectfully dissent from that portion of the

majority's decision discussing and concluding that the defendants

are not entitled to qualified immunity with respect to Walker's

retaliation claim.

The Supreme Court most recently articulated the jurisdictional

underpinnings of an interlocutory appeal based on qualified

immunity in Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132

L.Ed.2d 238 (1995) and Behrens v. Pelletier, --- U.S. ----, 116

S.Ct. 834, 133 L.Ed.2d 773 (1996). In Johnson, although the

defendants appealed the denial of their summary judgment motion

based on the assertion of a qualified immunity defense, the Supreme

Court found that they had failed to raise the purely legal question

of qualified immunity—that is, whether, viewing the facts in the

light most favorable to the plaintiff, the law was clearly

established that the defendants violated the plaintiff's

constitutional right. Rather, the Court found that the only issue

on appeal was whether the record thus far supported the plaintiff's

claim that the defendants had engaged in the conduct of which the

plaintiff accused them. The district court had found this factual

issue to be in dispute. The Court concluded that, although this

factual issue arose in the context of qualified immunity, it

nonetheless was nothing more than a question of evidentiary

sufficiency, "i.e. which facts a party may, or may not, be able to
prove at trial," Johnson, --- U.S. at ----, 115 S.Ct. at 2156, and

as such was not an appealable, final order. In reaching its

decision, the Court noted that " "a qualified immunity ruling ...

is ... a legal issue that can be decided with reference only to

undisputed facts and in isolation from the remaining issues of the

case.' " Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 n.

10, 105 S.Ct. 2806, 2817 n. 10, 86 L.Ed.2d 411 (1985)) (omissions

in original). The Supreme Court subsequently clarified Johnson in

Behrens v. Pelletier, --- U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773

(1996). Although Behrens concerned primarily the propriety of

multiple interlocutory appeals on the issue of qualified immunity,

the Court explained:

Johnson held, simply, that determinations of evidentiary

sufficiency at summary judgment are not immediately appealable

merely because they happen to arise in a qualified-immunity

case; if what is at issue in the sufficiency determination is

nothing more than whether the evidence could support a finding

that particular conduct occurred, the question decided is not

truly "separable" from the plaintiff's claim, and hence there

is not a "final decision".... Johnson reaffirmed that

summary-judgment determinations are appealable when they

resolve a dispute concerning an "abstract issue of law"

relating to qualified immunity—typically, the issue whether

the federal right allegedly infringed was "clearly

established."

Behrens, --- U.S. at ----, 116 S.Ct. at 842 (citations and brackets

omitted). Bearing in mind the language of Johnson, our court has

been careful to construe narrowly our jurisdiction over

interlocutory appeals involving the qualified immunity question.

See, e.g., Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir.)

("[T]he factual issue ... can only be heard because it is a

necessary part of the core qualified immunity analysis, the

resolution of which constitutes a final, collateral order; when
 1

It is worth noting that our circuit precedent is not

entirely clear regarding the extent to which we may conduct

independent factual review of disputed issues of fact in an

interlocutory appeal based on qualified immunity. Compare

Ratliff v. DeKalb County, 62 F.3d at 341 ("[W]e decline to review

the denial of summary judgment on [the] ground ... [that] the

district court in considering defendant's motions assumed

erroneous facts or assumed facts which were unsupported by the

evidence in the record.") with Cottrell v. Caldwell, 85 F.3d

1480, 1486 (11th Cir.1996) ("In exercising our interlocutory

review jurisdiction in qualified immunity cases, we are not

the core qualified immunity issue is not appealed, then the factual

issue may not be either."), cert. denied, --- U.S. ----, 117 S.Ct.

51, 136 L.Ed.2d 15 (1996); Ratliff v. DeKalb County, 62 F.3d 338,

341 (11th Cir.1995) ("[W]e decline to review the denial of summary

judgment on [the] ground ... [that] the district court in

considering defendant's motions assumed erroneous facts or assumed

facts which were unsupported by the evidence in the record.").

The defendants submit that they demoted Walker for violating

a state anti-nepotism policy; according to the defendants' version

of events, the fact that Walker also may have exercised his rights

under the First Amendment (which they dispute) is irrelevant and

coincidental. In my view, the defendants do not posit the question

of whether, assuming that the defendants did fire Walker for

engaging in protected activity, the defendants are entitled

nonetheless to qualified immunity; rather, the defendants ask that

we assume all facts as the defendants allege them to be and find,

on that basis, that their conduct did not violate any clearly

established law. I believe that we do have jurisdiction to

determine whether the district court's factual findings support the

defendants' factual contention that Walker violated a valid

anti-nepotism policy in place at the time these events transpired.1
required to make our own determination of the facts for summary

judgment purposes; we have the discretion to accept the district

court's findings if they are adequate. But we are not required

to accept them") (citations and quotation omitted). 

Moreover, were we to find conclusive evidentiary support for the

defendants' version of the facts in this case, our circuit

precedent suggests that we could exercise jurisdiction to resolve

the question presented by the defendants regarding qualified

immunity. This is not the circumstance presented here. The

district court found a predicate fact to be in dispute—that is, the

court found a question of fact to exist as to what specific state

regulation governing VISTA employees was in place at the time

Walker acted; we have not found that the district court erred with

respect to this finding. I do not believe that the posture of this

case as it has been framed by the defendants permits us to "assume"

either that Walker did, in fact, violate a state law or that the

defendants demoted him solely for asserting his right to free

speech. As a result, we cannot evaluate properly the extent to

which the application of materially similar facts to the law might

have clearly established that the defendants' conduct violated (or

did not violate) Walker's constitutional rights.

The defendants offer no justification for violating Walker's

First Amendment right on the basis that Walker's exercise of that

right affected their ability to "promote the efficiency of the

public services [the state] performs," Bryson v. City of Waycross,

888 F.2d 1562, 1565 (11th Cir.1989), because they contend that they

demoted him for an entirely different reason—i.e. the violation of

a valid state anti-nepotism policy. Indeed, the defendants do not
 2

See also Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir.1996)

("[I]nsofar [as] a genuine issue of material fact exists for

trial, namely whether Carnell informed the officers that she had

been raped, we conclude that we do not have jurisdiction [under

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

(1995) ] to address that issue. And the resolution of that

disputed issue of fact impacts the question whether reasonable

officials could have believed their conduct ... was lawful in

light of the circumstances") (citation omitted). 

argue in this appeal that, viewing the facts in the light most

favorable to the plaintiff, they nonetheless are entitled to

qualified immunity. Rather, the defendants argue, in essence, that

viewing the facts as the defendants allege them to be, they had

another legitimate reason for demoting Walker, separate and apart

from any First Amendment concerns. Because there is no conclusive

support for the defendants version of the facts, the defendants'

challenge effectively requires that we decide a factual

issue—whether there is conclusive foundation to confirm the

defendants' contention that Walker did violate state law—based

neither on the record nor the drawing of reasonable inferences

based on facts previously found. In my opinion, this type of

purely factual decision-making is not the proper subject of an

interlocutory appeal based on qualified immunity.2

This is not to say that we may never exercise jurisdiction

whenever the underlying intent of a state actor is intertwined with

the issue of qualified immunity; indeed, our circuit precedent

holds otherwise. See, e.g., McMillian v. Johnson, 88 F.3d 1554,

1566 (8th Cir.1996) ("[W]e have held that intent or motivation may

not be ignored when intent or motivation is an essential element of

the underlying constitutional tort.... When [defendants'] purpose

to punish [the plaintiff] is considered, there is no question that
their conduct violated clearly established law.") The question of

how to reconcile the subjective component of the intent

determination often implicated in a discrimination action with the

objective nature of qualified immunity was most recently addressed

in Foy v. Holston, 94 F.3d 1528 (11th Cir.1996). Foy involved the

state's removal of two children from a religious community to

foster care. The plaintiffs claimed the state's conduct was

motivated by religious discrimination; the state proffered

evidence to show that the children were being mistreated.

Acknowledging that the discriminatory-intent element "can cloud the

question of whether the official acted lawfully or unlawfully in

the circumstances," id. at 1534, we held that the defendants

nonetheless were entitled to qualified immunity:

One trigger to the doctrine's application depends upon whether

the record establishes that the defendant, in fact, did

possess a substantial lawful motive for acting as he did act.

At least when an adequate lawful motive is present, that a

discriminatory motive might also exist does not sweep

qualified immunity from the field even at the summary judgment

stage.... Where the facts assumed for summary judgment

purposes in a case involving qualified immunity show mixed

motives (lawful and unlawful motivations) and pre-existing law

does not dictate that the merits of the case must be decided

in plaintiff's favor, the defendant is entitled to immunity.

... [T]he record does show Defendants had, in fact, cause

to understand that [a child] was possibly being mistreated.

The record also shows Defendants were, in fact, aware of

information that would warrant investigation of other

children....

....

... Because, given the circumstances and the state of the law,

a reasonable child custody worker could have considered

Defendants' conduct arguably proper even if Defendants were

motivated in substantial part by unlawful motives, Defendants'

conduct was objectively reasonable for the purposes of

qualified immunity.

Foy, 94 F.3d at 1534-35. In Foy, unlike this case, "the record, in
 3

Again, I note that our precedent is ambiguous regarding the

correct analytical framework in a qualified-immunity context when

intent is an element of the cause of action. Compare McMillian,

88 F.3d 1554, in which the court assumed, for purposes of

qualified-immunity analysis, that the defendants possessed an

intent to punish the plaintiff, regardless of possible evidence

of a lawful motive on the part of the defendants, with Foy, 94

F.3d at 1534-35 ("[W]hen an adequate lawful motive is present,

that a discriminatory motive might also exist does not sweep

qualified immunity from the field ... Unless it, as a legal

matter, is plain under the specific facts and circumstances of

the case that the defendants' conduct—despite his having adequate

lawful reasons to support the act—was the result of his unlawful

motive, the defendant is entitled to immunity.").

There are other contexts in which the role of evidence

of subjective intent of a state actor complicates the

qualified-immunity question. Some courts have found, for

instance, that a finding of a genuine issue of fact with

respect to a defendant's subjective intent necessarily

precludes entitlement to qualified immunity when the claim

advanced is deliberate indifference to medical needs under

the Eighth Amendment. See, e.g., Weyant v. Okst, 101 F.3d

845, 858 (2nd Cir.1996) ("[W]hether it was reasonable for

the officers to believe their actions met the standard set

by those principles depends on whether one believes their

version of the facts. That version is sharply disputed, and

the matter of the officers' qualified immunity therefore

cannot be resolved as a matter of law."); Jackson v.

McIntosh, 90 F.3d 330, 332 (9th Cir.) (stating as follows:

The doctors further argue that Jackson failed to

show a genuine issue of material fact as to

whether they were deliberately indifferent, in

fact, to his medical needs. As to that question

fact, show[ed] substantial lawful intent, while not ruling out some

unlawful intent, too." Id. at 1535 n. 9. Moreover, even assuming

that the defendants in Foy acted with some discriminatory animus,

the law did not clearly establish that a reasonable social worker

faced with evidence of child abuse should not act to remove a

mistreated child from the abusive environment. These factors

critically distinguish Foy from the instant action; here, the

record does not show conclusively that the defendants possessed, at

least in part, a lawful motive for their conduct. 3

 Stated
we lack jurisdiction.... It is a question

reviewable after trial. We are instructed by the

Supreme Court [in Johnson v. Jones ] that

appellate jurisdiction is lacking.... Given the

district court's determination that there is a

triable issue as to deliberate indifference, the

doctors were not entitled to summary judgment on

the ground that they could reasonably believe

their conduct did not violate clearly-established

law.

cert. denied, --- U.S. ----, 117 S.Ct. 584, 136 L.Ed.2d 514

(1996) (citations omitted)). The claim of deliberate

indifference obviously is not at issue in this case. An

examination of this claim does serve to highlight, however,

the unsettled state of the law as it pertains to the court's

basis for jurisdiction—as well as its analytical approach—in

qualified-immunity cases when subjective intent is raised as

a disputed predicate question of fact. 

differently, because the record does not reveal definitively that

Walker violated a valid state anti-nepotism policy at the time the

relevant events occurred, it also does not explicitly show that the

defendants could have demoted Walker, at least in part, for

violating this policy. Indeed, because we cannot discern

conclusively at this juncture whether the defendants had some

lawful justification for their decision to demote Walker, we do not

know whether there exists an application of materially similar

facts to law that may or may not have placed the defendants on

notice that their conduct violated a clearly established right; in

other words, we cannot decide the core qualified immunity question.

For this reason, I believe that it is inappropriate to reach the

remaining issue raised in this appeal.