Appeal the United States District Court for the Western District Court of Pennsylvania. (D.C. Civil No. 87-02606)
Before: Sloviter, Chief Judge, Scirica and Nygaard, Circuit Judges
This appeal presents the question whether county officials have qualified immunity against claims by deputy sheriffs and a state-employed paramedic who allege they were dismissed by the officials solely for their political activity in violation of their rights under the First Amendment. The defendants' motion for summary judgment on the grounds, inter alia, of qualified immunity, was denied by the district court. On interlocutory review of the district court's order, we address only the issue of qualified immunity.
Defendant Jay Roberts was elected Sheriff of Cambria County, Pennsylvania, in December 1985. It is undisputed that on January 2, 1986, the Cambria County Salary Board, which consisted of defendants County Commissioners Joseph Roberts, Ron Stephenson, T.T. Metzger, Jr., County Controller Robert McCormick, and former Acting Sheriff Thomas Burns, voted to remove deputy sheriffs Eugene Burns, John Mutsko and Roy Plummer from the payroll of Cambria County, along with Ron Snyder, a clerk-investigator in the County Public Defender's Office, at the direction of Sheriff-elect Roberts.*fn1 Upon taking office on January 6, 1986, Sheriff Roberts officially revoked their employment and did not call plaintiff Beaujon, who was a part-time, per diem, employee of the sheriff's office, to work again. Plaintiff Evelyn Ardini was fired in December 1985, by defendants Wendell Davis and Jeffrey Saintz from her job as a paramedic and coordinator of patient transportation for Laurel Crest Manor, a Cambria County Agency.
The plaintiffs alleged in their complaint that the dismissals were in retaliation for their failure to support Jay Roberts in the sheriff's election and/or their support of candidates who opposed him. Ardini, whose supervisor, William Tomallo, also ran against Jay Roberts in the election, testified in deposition that she was asked by Jay Roberts and his father Joseph Roberts to give them a list of the persons who telephoned Tomallo so they could know who Tomallo's political backers were, and when she didn't come up with the list she was fired. The plaintiffs seek, inter alia, compensatory damages, punitive damages, and reinstatement.
The district court initially dismissed Counts II, III, and VI of the complaint.*fn2 On June 4, 1991, the district court granted summary judgment to all of the defendants as to Counts IV and V.*fn3 It also granted summary judgment for defendants against plaintiffs Snyder and Eugene Burns on all counts.*fn4
At the same time, the court denied the defendants' motion for summary judgment as to the remaining plaintiffs' claim that the defendants had violated their rights under the First Amendment. Burns v. County of Cambria, 764 F. Supp. 1031 (W.D. Pa. 1991). The court found that the right of public employees not to be discharged in retaliation for exercising their rights under the First Amendment was clearly established. Id. at 1036. The court found that there was a material issue of fact as to whether the plaintiffs' political activities were substantial or motivating factors for their discharge. Id. at 1037. Finally, in considering the qualified immunity defense of the two Roberts defendants, the court held that they were not entitled to qualified immunity as a matter of law. Id.
Preservation of Issue in the District Court
Defendants Jay Roberts, Joseph Roberts, Thomas Burns, Ron Stephenson, T.T. Metzger, Jr., Robert McCormick, and Jeffrey Saintz have appealed the denial of summary judgment. We consider first the extent to which we can hear their appeal. Under the authority of Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985), the denial of summary judgment on grounds of qualified immunity is appealable under the collateral order doctrine. However, we have held that we will review a claim of qualified immunity only if it was raised in the district court. See Brown v. United States, 851 F.2d 615, 620 (3d Cir. 1988) (it would be "within our power . . .but inappropriate" to address the issue of qualified immunity if the district court has not addressed it "even if the record provided a sufficient basis for its resolution"); see also Chinchello v. Fenton, 805 F.2d 126, 130 (3d Cir. 1986).
It is clear from the record that both Sheriff Jay Roberts and Commissioner Joseph Roberts raised the issue of qualified immunity as a basis for their motions for summary judgment. There is no evidence, however, that any of the other defendants did. The defendants claim that they incorporated the Roberts's qualified immunity defense into their own motions for summary judgment at oral argument in May 1990, but fail to point to any particular place in the record to substantiate that claim. Significantly, in a memorandum order continuing the trial pending the interlocutory appeal of the two Roberts defendants, the district court specifically stated that the other defendants had not raised qualified immunity in connection with their summary judgment motions. The court stated "that neither the notes of the Court nor its law clerk, present at argument on the motions, include any such incorporation." App. at 117. The defendants have offered nothing to contradict the district court's finding that such incorporation never took place. Our independent review of the record has also failed to locate any motion or incorporation of qualified immunity by these other defendants.
In an attempt to salvage their appeal, these defendants direct us to other defenses they raised in support of their summary judgment motions. For example, in Burns's motion he argued that the Sheriff had the sole statutory right to revoke the appointments of plaintiffs; Burns also argued that there is no evidence to establish that he engaged in conduct that deprived anyone of rights, privileges, or immunities secured by the Constitution or laws of the United States. Similarly, the other defendants claimed that each of them was powerless to terminate sheriff's deputies.
In order to determine whether these assertions constituted a defense of qualified immunity, we must decide whether defendants were simply "attempting to show only that [they] did not engage in the conduct of which [the] plaintiffs complain," Chinchello, 805 F.2d at 131 (also known as the "I didn't do it" defense), or whether defendants "can accurately be described as [contending] that [they] violated no clearly established legal norm." Id. Unlike in Chinchello, where the defendant based his summary judgment motion on the "legal proposition that the alleged failure to adequately train . . . even if true, did not constitute a breach of clearly established legal norms," id., the claims by the non-Roberts defendants were that they were not responsible for firing the plaintiffs. They did not claim that even if they had fired the plaintiffs, that action would not have violated the plaintiffs' clearly established constitutional rights. Only the latter contention would have invoked the qualified immunity defense. The former statement is simply the "I didn't do it" defense and therefore not cognizable as an assertion of qualified immunity.
Consistent with our prior prudential rulings, we decline to exercise jurisdiction over the appeals of defendants Stephenson, Metzger, McCormick, Burns, and Saintz. We note in passing, however, that the qualified immunity claim of these defendants would not differ in substance from that which we do address hereafter.
There is one other preliminary matter. The rationale for the Supreme Court's holding in Mitchell on the appealability of an order denying a motion for summary judgment on the grounds of qualified immunity was that qualified immunity provides protection not only against liability for money damages but also against standing trial. 472 U.S. at 524-30. The Court left open the question whether the denial of qualified immunity is also an appealable collateral order when the plaintiff states a claim not only for damages but also for injunctive relief. Id. at 519 n.5. In Prisco v. U.S. Dept. of Justice, 851 F.2d 93 (3d Cir. 1988), cert. denied, 490 U.S. 1089, 104 L. Ed. 2d 985, 109 S. Ct. 2428 (1989), this court held that because qualified immunity does not apply to claims for prospective ...