                                                                                 [PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT


                                          No. 96-6111


                             D. C. Docket No. CV-95-AR-0387-S



WILLIAM C. MARTIN,

                                                                             Plaintiff-Appellee,

                                             versus



VICTOR BAUGH, individually and in his official capacity,

                                                                          Defendant-Appellant.




                          Appeal from the United States District Court
                             for the Northern District of Alabama




Before TJOFLAT and DUBINA, Circuit Judges, and STAGG*, Senior District Judge.


____________________________________________________
*Honorable Tom Stagg, Senior U.S. District Judge for the Western District of Louisiana, sitting
by designation.
TJOFLAT, Circuit Judge:

        In this case, a radio technician contends that his employer (the city of Birmingham), his

supervisor, and Birmingham’s mayor violated the First and Fourteenth Amendments by

retaliating against him for his criticism of the manner in which the city awarded a contract.

Seeking both legal and equitable relief, he has sued all three parties under 42 U.S.C. § 1983

(1994), the supervisor in both his official and individual capacities.

        The interlocutory appeal before us is from the district court’s order rejecting the

supervisor’s defense of qualified immunity and denying him summary judgment on the

plaintiff’s claim for money damages. The appeal thus presents only one question: whether the

supervisor, in his individual capacity, is entitled to qualified immunity from suit under section

1983. We answer that question in the affirmative and therefore reverse the judgment of the

district court.



                                                 I.



        The salient facts are as follows. William C. Martin was hired by the City of Birmingham

in 1979 as a communications technician in the City’s Department of Communications. His job

responsibilities included maintenance of the communications equipment used by Birmingham

police and fire personnel. Defendant Victor Baugh was head of the Communications

Department and Martin’s supervisor at all times relevant to this litigation.

         In the spring of 1993, Birmingham solicited bids for an upgrade of its existing

communications system. Ericsson General Electric (“GE”) submitted a bid in August of 1993 to


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install a system based on an “APCO 16" standard.1 It was the only company to submit an APCO

16 bid. Motorola submitted a bid based on the “APCO 25" standard. Motorola was likewise the

only company to submit a bid on its chosen standard. GE’s bid was lower than Motorola’s; the

City, however, rejected both offers and then entered into private negotiations with Motorola for

an APCO 25 system. Birmingham concluded a contract with Motorola in spring of 1994.

       The GE-Motorola bidding process was surrounded by considerable controversy. Martin

was particularly concerned that an APCO 25 system would be inferior to an APCO 16 system for

Birmingham’s needs. He therefore aired his opinions to a member of the Birmingham city

council, Jimmy Blake, and the Birmingham chapter of the Fraternal Order of Police (the “FOP”).

Martin disseminated technical information concerning the two systems to Councilman Blake and

the FOP and questioned the bidding standards upon which Motorola had submitted its bid.

Eventually, Martin gave sworn testimony concerning the systems in a suit between GE and

Motorola that arose out of the bidding process.2

       Martin conducted his speech activities without notifying his supervisor, Baugh. After

Baugh learned of Martin’s activism, he called upon Martin to answer for his conduct. Baugh told

Martin he was insubordinate for “going outside the chain of command” and strongly suggested

that Martin resign. Baugh also gave Martin written reprimands for his activities and


       1
        The APCO designation refers to the Associated Public-Safety Communications
Officials, Inc., an organization that promulgates and reviews industry standards against which
communications systems are tested.
       2
         That suit is otherwise unrelated to this litigation. This court recently reversed the district
court’s decision in the case and remanded with instructions to dismiss for lack of jurisdiction.
See Ericsson GE Mobile Communications, Inc. v. Motorola Communications & Elecs., Inc., 120
F.3d 216 (11th Cir.), reh’g and suggestion for reh’g en banc denied, 130 F.3d 446 (1997).


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assigned some of Martin’s duties to another employee. As a result of his conflict with Baugh,

Martin became depressed, and, on the advice of his physician, took a leave of absence.3 He then

brought this suit against the City, Mayor Richard Arrington, and Baugh.

       Martin’s complaint alleges that his statements to Councilman Blake and the FOP

constituted speech protected by the First and Fourteenth Amendments.4 Consequently, he

alleges that when Baugh disciplined him for making those statements, Baugh exposed himself to

liability in both his official and individual capacities under 42 U.S.C. § 1983. Martin claims that

the City and the Mayor are answerable for Baugh’s conduct, and he seeks legal and equitable

relief against all three defendants. As noted supra, the only claim before us is Martin’s damages

claim against Baugh in his individual capacity.

       Baugh moved the district court to dismiss Martin’s claim under Federal Rule of Civil

Procedure 12(b)(6) on the ground that the allegations of the complaint demonstrated that he was

entitled to qualified immunity. The court denied his motion. Baugh did not appeal the court’s

ruling; instead, he raised his qualified immunity defense anew in a motion for summary

judgment. The district court again rejected Baugh’s defense, stating that “[t]his court cannot

now say, any more than it was able to say on 12(b)(6) consideration, that the pertinent law was

not established, or that a controlling and well-understood principle inherent in the First

Amendment protected Martin’s right to express himself as he did.”5 Baugh now appeals to this

       3
       The record does not indicate whether Martin is still employed by the City of
Birmingham.
       4
         The district court dismissed Martin’s original complaint for failure to state a claim for
relief. The complaint referred to in this opinion is Martin’s amended complaint.
       5
          The district court may have caused confusion with this statement. As discussed infra,
the test for determining, in a case such as this, whether a motion for summary judgment based on

                                                  4
court under 28 U.S.C. § 1291 (1994), asserting that the district court incorrectly denied his

motion for summary judgment.6



                                                 II.

       To defeat a claim for qualified immunity, a plaintiff must show that the federal right he

accuses the defendant of violating was “clearly established” when the defendant acted. See Foy

v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996). In other words, the defendant must be on notice

that his actions are unlawful. See Beauregard v. Olson, 84 F.3d 1402, 1404 (11th Cir. 1996)

(stating that for a plaintiff’s claim to survive a defense of qualified immunity, it must be

“obvious to every reasonable person in [the defendant’s] place that [the defendant’s conduct]

would violate federal law”). Martin accuses Baugh of infringing upon his First Amendment

right to free speech. He must therefore show that it was “clearly established” at the time of

Baugh’s conduct that Martin had a constitutional right to speak as he did. We agree with Baugh

that Martin has not carried this burden.

       “[O]nly in exceptional cases will government actors have no shield against claims made

against them in their individual capacities.” Lassiter v. Alabama A&M Univ., 28 F.3d 1146,

1149 (11th Cir. 1994) (emphasis omitted). Martin’s case is especially difficult to maintain



qualified immunity should be granted is whether the plaintiff can show that it was clearly
established at the time of the defendant’s conduct that the plaintiff’s speech was protected. In
any event, we review the district court’s decision de novo.
       6
        Martin challenges our jurisdiction to hear this case under Johnson v. Jones, 515 U.S.
304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), because there are factual issues in dispute. We
refer Martin to our recent decision in Mencer v. Board of Education, – F.3d –, – (11th Cir. 1998)
(holding that the court has jurisdiction to review cases in which issues of “evidence sufficiency”
remain), and reject this argument.

                                                  5
because he bases his claim against Baugh on the First Amendment. See Dartland v.

Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir. 1989) (stating that the First

Amendment claim that survives a defense of qualified immunity is an “extraordinary” one). As

a government employee, Martin’s speech is not constitutionally protected unless it passes the test

set out by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731,

20 L.Ed.2d 811 (1968), and refined in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75

L.Ed.2d 708 (1983). Under Pickering-Connick, a plaintiff must show that 1) the speech at issue

involves a matter “of public concern,” and 2) the value of the speech outweighs its potential for

disruption of government workplace efficiency. See Goffer v. Marbury, 956 F.2d 1045, 1049

(11th Cir. 1992). Because both prongs involve legal determinations that are intensely fact-

specific and do not lend themselves to clear, bright-line rules, it is nearly impossible for a

reasonable person to predict how a court will weigh the myriad factors that inform an application

of the Pickering-Connick test. See id. at 1048-50 (detailing some of the “panoply of indicia” and

“numerous factors” involved in the determination). Consequently, a defendant in a First

Amendment suit will only rarely be on notice that his actions are unlawful. Unless the plaintiff

can either produce a case in which speech materially similar to his in all Pickering-Connick

respects was held protected, see Lassiter, 28 F.3d at 1149-50 (“Qualified immunity is a doctrine

that focuses on the actual, on the specific, on the details of concrete cases.”), or show that, on the

facts of his case, no reasonable person could believe that both prongs of the test had not been

met, he cannot defeat a defense of qualified immunity.

       Here, Martin has failed to satisfy this court that the law was “developed in such a

concrete and factually defined context” that Baugh should have known Martin’s speech was


                                                  6
constitutionally protected. See Beauregard, 84 F.3d at 1404. Martin points to no case, and we

find none after our own search, that would have made it obvious to a person in Baugh’s position

that Martin’s speech to Blake and the FOP was constitutionally protected.7 Nor does Martin

allege facts that, taken in a light most favorable to his claims, would make it clear to every

reasonable person that his speech must pass the Pickering-Connick test. Thus, it was not clearly

established when Baugh acted that he was violating Martin’s First Amendment right.



                                                III.

       For the above reasons, we reverse the district court’s judgment and direct it to grant

Baugh qualified immunity from Martin’s section 1983 suit.



       REVERSED.




       7
         The district court apparently considered the plaintiff’s speech in Martinez v. City of
Opa-Locka, 971 F.2d 708 (11th Cir. 1992), to be sufficiently similar to Martin’s speech as to
clearly establish that his speech was constitutionally protected. Martinez, however, is
distinguishable from Martin’s case. In Martinez, a city employee successfully sued her
supervisor because she was fired for testifying before the City Board, and to an investigator from
the State Attorney’s office, concerning her supervisor’s violations of city bidding law. The
Martinez court, however, repeatedly emphasized the fact that Martinez’ speech was required;
she was subpoenaed to speak by the same government body that then fired her for speaking. See
id. at 710, 712. In this case, Martin did not have to speak to Councilman Blake or the FOP; in
fact, Baugh presented evidence that such communication, without prior notification to Baugh,
was a violation of city policy. Thus, regardless of whether Martin’s speech actually deserves
protection under the First Amendment, Martinez did not clearly establish that it was protected
before Baugh disciplined Martin.


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