United States Court of Appeals For the First Circuit

No. 05-1195

RONALD JORDAN, ROBERT MACKAY AND THE MBTA POLICE PATROLMAN'S UNION,

Plaintiffs, Appellees,

v.

JOSEPH C. CARTER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Howard, Circuit Judge.

Mark W. Batten, with whom Proskauer Rose LLP was on brief, for appellant. James W. Simpson, Jr., with whom Douglas I. Louison and Merrick, Louison & Costello, LLP, were on brief, for appellees.

November 4, 2005 COFFIN, Senior Circuit Judge. Appellant Joseph C. Carter is

chief of the Massachusetts Bay Transit Authority (MBTA) police

department. Two officers (plaintiffs-appellees) sued Carter in

both his individual and official capacities, alleging, inter alia,

that he violated their First Amendment rights by disciplining them

for comments they made to each other and to other officers about

various police department matters. As part of a motion seeking

judgment on the pleadings, Carter moved to dismiss the individual

claims on the ground that he was immune from suit under the

doctrine of qualified immunity. The district court’s denial of

that motion, in a ruling from the bench following oral argument, is

the sole subject of this interlocutory appeal.1

In reviewing the disposition of a motion for judgment on the

pleadings under Fed. R. Civ. P. 12(c), we may consider only the

facts as alleged in the complaint, viewed in the light most

favorable to the appellees. Pasdon v. City of Peabody,

(lst Cir. 2005). With that constraint on our analysis, we

conclude that the district court reached the correct result.

1 The two officers, along with the MBTA Police Patrolman’s Union, sued the MBTA as well as Carter, and also alleged violations of the officers’ rights to due process and freedom of association under state and federal law, and additionally asserted state law claims for intentional infliction of emotional distress. The MBTA voluntarily dismissed all of its claims, and the individual plaintiffs voluntarily dismissed their due process claims. The district court dismissed the freedom of association claims and granted judgment for defendant on the emotional distress claims.

-2- I. Background

The pertinent facts are few, as we are limited to the

allegations in the complaint and the complaint is sparsely drafted.

It states that the plaintiffs, Ronald Jordan and Robert McKay, were

suspended with pay in the spring of 2004 after the defendants

“illegally search[ed] and analyz[ed] recorded telephone

conversations between other officers and superiors.”2 The

conversations at issue, which were recorded on the MBTA’s telephone

system, pertained to four matters:

(1) requesting criminal offender record information (“CORI”) about several individuals; (2) criticizing the deputy chief and other department management; (3) discussing the chief’s absenteeism and referring to him as “No Show Joe”; (4) discussing safety issues concerning the Dudley Station of the MBTA.

Plaintiffs alleged that appellant Carter “personally disciplined

and caused damages to the plaintiffs because of their criticism of

his job performance and the job performance of his deputies,” in

violation of their First Amendment right to free speech.

As noted above, the district court rejected appellant’s

qualified immunity defense, which shields government actors from

damages based on their conduct unless a reasonable official would

have known, in light of clearly established law, that he was acting

2 Defendants submitted transcripts of the recorded conversations to the district court for possible consideration in connection with their motion, but both sides on appeal treat the transcripts as outside the record, and thus so do we.

-3- unconstitutionally. See, e.g., Harlow v. Fitzgerald,

(1982); Wagner v. City of Holyoke,

(lst Cir.

2005) (per curiam), petition for cert. filed,

(U.S. Aug. 17, 2005) (No. 05-234); Dirrane v. Brookline Police

Dep’t,

(lst Cir. 2002). On appeal, appellant

continues to pursue such protection, emphasizing that immunity is

the norm in public employee First Amendment cases because the

constitutional question requires fact-intensive balancing – making

it unlikely that a reasonable official “must have known that he was

acting unconstitutionally,” Dirrane,

(emphasis in

original).

Although appellant is correct that the relevant qualified

immunity case law is generally in his favor, his argument fails to

appreciate that, because this case comes before us at such a

preliminary stage, the immunity analysis is weighted toward the

plaintiffs’ version of events, as depicted by the allegations in

the complaint. See Pasdon,

(motion for judgment on

the pleadings should not be granted “‘unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief’”) (citation omitted).

As we review below the legal frameworks that govern our decision,

it will become apparent why appellant’s immunity defense must at

this point be rejected.

-4- II. Discussion

A. Qualified Immunity

In deference to the sensitive discretionary judgments that

government officials are obliged to make, qualified immunity

safeguards even unconstitutional conduct if a reasonable officer at

the time and under the circumstances surrounding the action could

have viewed it as lawful. See Malley v. Briggs,

(1986); Wagner,

. The ultimate question before

us, therefore, is not whether appellant Carter committed an

unconstitutional act, but whether his disciplinary action against

the plaintiffs is entitled to immunity from liability even if that

action violated plaintiffs’ First Amendment rights.

To answer the immunity question, we employ a three-part test

that examines both the state of the relevant law and the nature of

the alleged conduct. Mihos v. Swift,

(lst Cir.

2004). First, we consider whether plaintiffs' allegations, if

true, establish a constitutional violation. Second, we look at

whether the right allegedly violated was clearly established at the

time of the challenged conduct. Finally, if the prior two

questions are answered affirmatively, we determine “whether a

similarly situated reasonable official would have understood that

the challenged action violated the constitutional right at issue.”

If the final answer is “no,” a defendant will be entitled to

-5- qualified immunity notwithstanding constitutional injury to the

plaintiff.

The Supreme Court has directed us, in the absence of special

circumstances, to take up these questions in order, even though it

might be easier at times to bypass the substantive constitutional

question and conclude that, at a minimum, the law was not clearly

established when the challenged conduct occurred. See Saucier v.

Katz,

, 200-01 (2001); Fabiano v. Hopkins,

(lst Cir. 2003). With such a sequential approach, the law

continues to develop and become more “clearly established” over

time. Saucier, 533 U.S. at 201 (“This is the process for the law’s

elaboration from case to case, and it is one reason for our

insisting upon turning to the existence or nonexistence of a

constitutional right as the first inquiry. The law might be

deprived of this explanation were a court simply to skip ahead [to

the other questions].”).

Thus, we turn first to the first question: do plaintiffs’

allegations establish a constitutional violation? Our review is de

novo. See Mihos,

.

B. First Amendment

To determine whether the facts as alleged state a violation of

the plaintiffs’ First Amendment rights, we confront a second three-

part inquiry:

(1) whether the speech involves a matter of public concern; (2) whether, when balanced against each other,

-6- the First Amendment interests of the plaintiff and the public outweigh the government’s interest in functioning efficiently; and (3) whether the protected speech was a substantial or motivating factor in the adverse action against the plaintiff.

Id.(noting that these inquiries derive, respectively, from the

Supreme Court’s decisions in Connick v. Myers,

(1983);

Pickering v. Bd. of Educ.,

(1968); and Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle,

(1977)); see

also Fabiano,

; Mullin v. Town of Fairhaven,

(lst Cir. 2002). We need address only the first two

questions, as appellant acknowledges that the complaint satisfies

the third element by alleging that appellant disciplined plaintiffs

in retaliation for protected speech.

(1) Matter of Public Concern

Our first step is to determine, based on “‘the content, form,

and context of a given statement, as revealed by the whole record,’

whether the employee was speaking ‘as a citizen upon matters of

public concern,’ or, alternatively, ‘as an employee upon matters

only of personal interest,’” O’Connor v. Steeves,

(lst Cir. 1993) (quoting Connick,

). See also,

Tripp v. Cole,

(lst Cir. 2005); Mihos,

. If only personal speech is involved, “‘then its First

Amendment value is low, and a “federal court is not the appropriate

forum in which to review the wisdom” of internal decisions arising

therefrom.’” Fabiano,

(citations omitted).

-7- In some instances, the subject matter of the speech, alone,

may resolve the “public concern” question, as when the employee

“expresses himself on a subject that is ‘clearly a legitimate

matter of inherent concern to the electorate,’”

at 454 (quoting

O’Connor,

). In other instances,

public-employee speech on a topic which would not necessarily qualify, on the basis of its content alone . . . (e.g., internal working conditions, affecting only the speaker and co-workers), may require a more complete Connick analysis into the form and context of the public- employee expression . . . .

O’Connor,

(emphasis in original).

The terseness of the instant complaint precludes us from

performing a close analysis of the targeted speech. We have

available only the general subject matter of the statements at

issue, plus the fact that they were made in conversations with

“other officers and superiors” on a police department telephone

line. Nonetheless, working with what we have, our task is to

consider whether the categories of statements listed in the

complaint qualify as addressing matters of public concern.

Drawing all inferences in favor of the plaintiffs, we cannot

reject the possibility that at least some of the speech would fall

within an area of public concern. Indeed, appellant admits as

much. Criticism of the chief and other management, as well as

expressions of concern about safety at one of the MBTA passenger

stations, could – depending upon the particulars of content, form

and context – constitute “a matter of legitimate public concern,”

-8- O’Connor,

.3 Certainly, if either official

misconduct or neglect of duties was asserted to be responsible for

unsafe conditions for the general public, this would be a matter of

public importance. If, however, the performance critiques

concerned only matters of internal working conditions, and the

discussion of “safety issues” at the Dudley Station likewise

reflected an employee workplace concern rather than the public

interest, plaintiffs’ constitutional claim would falter at the

threshold inquiry. With the record undeveloped, and the facts thus

still capable of tilting in either direction, we accept for present

purposes that the public concern prong is satisfied.

(2) Balancing the Interests

The second step in determining whether appellant committed a

First Amendment violation is to balance the plaintiffs’ and

public’s interests in the plaintiffs’ speech against the “‘interest

of the State, as an employer, in promoting the efficiency of the

public services it performs through its employees . . . ,’”

Pickering,

. Although this is intended to be a

“particularized” inquiry, see Fabiano,

(“[I]f the

3 We do not address the first category of conversations – “[r]equesting CORI records.” Putting aside the question whether such requests would constitute relevant “speech,” plaintiffs appear to acknowledge that they would not implicate a matter of public concern. In addition, the complaint explicitly attributes the discipline imposed by appellant Carter to plaintiffs’ criticism of appellant’s job performance and the job performance of his deputies, and not to the records requests.

-9- plaintiff’s constitutional claim is relatively weak, . . . the

government need show less to counter it.”), we have little to

assess at this point on either side of the scale.

On plaintiffs’ side, our inquiry considers their interests in

communicating the safety concerns and performance criticism that we

have deemed potentially of public concern, as well as the interests

of the public in receiving such information. See Mihos,

. While our starting point is that such information about

public welfare and public officials is of significant weight, we

must factor in particulars such as the nature of the comments and

the motivation behind the speech. For example, when public-

employee expression is done in a “‘vulgar, insulting, and defiant’

manner,” Stanley v. City of Dalton, Ga.,

(llth

Cir. 2000), or is motivated by self-interest rather than by a

desire to serve the public interest, see O’Connor,

,

it is entitled to less weight in the Pickering balance. On the

other hand, the fact that statements are made in private

conversations and not disseminated to the public at large does not

necessarily weigh against them. See

. Here, we have

no information about the particulars of plaintiffs’ comments, other

than that they were made on MBTA phone lines; we thus have no basis

for discounting plaintiffs’ and the public’s interests.

Meanwhile, in examining appellant’s side of the balance, we

acknowledge that the government’s interest “is particularly acute

-10- in the context of law enforcement, where there is a ‘heightened

interest . . . in maintaining discipline and harmony among

employees,’” Moore v. Wynnewood,

, 934 (l0th Cir. 1995)

(citation omitted); see also, Oladeinde v. City of Birmingham,

(llth Cir. 2000); Kokkinis v. Ivkovich,

(7th Cir. 1999); O’Donnell v. Barry,

(D.C. Cir. 1998). But motivation is important here, too, and the

allegations of the complaint tell us that appellant retaliated

because of plaintiffs’ criticism of his and his deputies’ job

performance. If appellant did so entirely out of self-interest to

silence legitimate criticism, the government interest would be

weakened.

We believe our discussion makes it evident that, without the

particulars relevant to both sides of the balance, we cannot

definitively resolve the constitutional question. Still, given

that we must at this juncture indulge all inferences in favor of

the plaintiffs, we conclude that, on the record before us, the

complaint sufficiently states a constitutional violation. Having

so resolved, and with appellant’s concession that plaintiffs’

allegations satisfy the “substantial factor” prong of the

constitutional inquiry, we now return to the qualified immunity

inquiry and the question whether plaintiffs’ First Amendment rights

were clearly established at the time appellant disciplined them for

their speech.

-11- C. Clearly Established Right

The second stage of the qualified immunity inquiry requires us

to determine whether the right we have identified was “‘reasonably

well settled at the time of the challenged conduct,’” Mihos,

(quoting Martinez v. Colon,

(lst Cir.

1995)). Because that analysis “‘must be undertaken in light of the

specific context of the case, not as a broad general proposition,’”

Suboh v. Dist. Attorney’s Office of Suffolk Dist.,

(lst Cir. 2002) (quoting Saucier, 533 U.S. at 201), we again

encounter the undeveloped state of the record as an obstacle. If

we simply considered whether the law clearly established that a

public employer may not penalize an employee for speech about a

matter of public concern, it would be beyond debate that ample

legal precedent existed to guide appellant’s conduct. But using

such a broad formulation to deny immunity is precisely what we have

been told not to do. See, e.g., Wagner,

(“The

general right invoked by Wagner – to engage in speech on matters of

public concern without retaliation – was clearly established prior

to 1994. But qualified immunity requires that the general right be

placed in a reasonably specific context . . . .”).

Appellant, however, urges us to award him immunity based on a

similarly generic argument. He emphasizes the abundant case law

recognizing that it is rare for immunity to be denied when the

constitutional right at issue involves weighing various factors.

-12- We and other circuits have noted that the Pickering balancing is

“‘subtle, yet difficult to apply, and not yet well defined,’” Pike

v. Osborne,

(4th Cir. 2002) (citation omitted),

and that, consequently, only in the extraordinary case will it have

been clearly established that a public employee’s speech merited

constitutional protection. See, e.g., Fabiano,

;

Chesser v. Sparks,

(llth Cir. 2001); Bartlett

v. Fisher,

(8th Cir. 1992) (citing similar

cases); O’Connor,

n.11.

Appellant claims that this cannot be the rare case because the

complaint depicts disciplinary conduct imposed for a mixture of

protected and unprotected speech, a combination that would engender

uncertainty in any attempt to balance interests. In support, he

cites our decision in Dirrane,

, and asserts that

it similarly involved “arguably protected statements ‘nestled in a

morass of complaints’ that were not protected speech.” In Dirrane,

the plaintiff had complained over a number of years about abuses in

the Brookline police force, ranging from minor issues to serious

charges of falsification and destruction of evidence. He alleged

that his supervisors had failed to seriously investigate his

complaints and transferred him in retaliation for making them. We

held that the plaintiff had made out “a colorable First Amendment

violation,”

, but because his years of petty complaints

gave his superiors a basis for distrusting his judgment – and in

-13- the absence of equivalent precedent – we found the individual

defendants entitled to qualified immunity. See

.

Although Dirrane also presented an appeal of a motion to

dismiss, it provides limited support for appellant’s immunity

request. We described the complaint there as “very lengthy,”

, and we noted allegations detailing the statements that

plaintiff made, to whom, and, at least to some extent, their

timing. We have none of those particulars here. Appellant could

have, but did not, move for a more definite statement. See Fed. R.

Civ. P. 12(e); Educadores Puertorriqueños En Acción v. Hernández,

(lst Cir. 2004). We therefore cannot eliminate the

possibility that the facts once developed will show a violation of

clearly established law. As we have intimated above, if

plaintiffs’ criticism consisted of serious expressions of concern,

voiced in an appropriate manner, about the effect of their

supervisors’ poor performance on public safety or other public

matters, and appellant’s retaliation was primarily aimed at

silencing their criticism for his own advantage, precedent would

have clearly established that the balance of interests tipped

decisively in plaintiffs’ favor. Appellant is thus not entitled to

immunity based on prong two.

(3) The Understanding of a Reasonable Official

In the third step of the qualified immunity analysis, we

consider whether an objectively reasonable officer in the

-14- defendant’s position would have understood his action to violate

the plaintiff’s rights. Mihos,

; Suboh,

. At this stage, as we have noted, the record requires us to

look upon plaintiffs’ speech as significantly involving matters of

public concern. Similarly, we must assess and balance the

interests of the parties, favoring plaintiffs in our reading of the

allegations. And, since appellant concedes that the allegations

establish that plaintiffs’ speech was the motivating factor for

imposing sanctions, the required inquiry leads to but one result.

We cannot award immunity to appellant on the basis that a

reasonable officer would not have realized the impropriety of his

conduct.

III. Conclusion

We are fully aware that the doctrine of qualified immunity is

intended to protect government officials not only from personal

liability but also from the burdens of litigation, see Saucier, 533

U.S. at 200-01, and that immunity is often appropriate in cases

involving public employee speech. It is not an automatic

entitlement, however, and a court may not cut off a plaintiff’s

claims based simply on the odds. Here, the record is

insufficiently developed to permit a reasoned assessment of either

the speech or conduct at issue, and we accordingly must draw all

inferences in the plaintiffs’ favor. From that perspective, we

conclude that the district court properly denied appellant’s motion

-15- for dismissal of the individual claims based on the defense of

qualified immunity. We do not mean to imply any likely outcome as

this case further proceeds.4

Affirmed.

4 As we noted in Mihos, denial of immunity at the motion-to-dismiss stage does not preclude renewal of the defense in a subsequent motion for summary judgment or at trial. See

n.16. If, however, “the trial court denies the request for summary judgment because of a genuine issue as to any material fact, including motive, that ruling would not permit an interlocutory appeal.”

-16-