               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0085n.06
                          Filed: February 2, 2009

                                         No. 08-5213

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


WAYNE JAGGERS; MABELLE JAGGERS;                        )
SPEEDWAY SUPERAMERICA LLC,                             )
                                                       )       ON APPEAL FROM THE
       Plaintiffs-Appellees,                           )       UNITED STATES DISTRICT
                                                       )       COURT FOR THE EASTERN
v.                                                     )       DISTRICT OF KENTUCKY
                                                       )
CITY OF ALEXANDRIA ALEXANDRIA CITY                     )                        OPINION
COUNCIL,                                               )
                                                       )
       Defendant,                                      )
                                                       )
and                                                    )
                                                       )
STACEY GRAUS, in his individual capacity as            )
Council member for the Alexandria City Council;        )
WILLIAM RACHFORD, in his individual capacity           )
as Council member for the Alexandria City Council;     )
BOBBI JO FARMER, in her individual capacity as         )
Council member for the Alexandria City Council;        )
BARBARA WEBER, in her individual capacity as           )
Council member for the Alexandria City Council,        )
                                                       )
       Defendants-Appellants.                          )
                                                       )
                                                       )


BEFORE:       COLE and COOK, Circuit Judges; and EDMUNDS,* District Judge.




       *
       The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 08-5213
Wayne Jaggers, et al. v. City of Alexandria, et al.

       COLE, Circuit Judge. This interlocutory appeal arises from a suit by Plaintiffs-Appellees

Wayne and Mabelle Jaggers and Speedway SuperAmerica LLC. Plaintiffs brought suit under 42

U.S.C. § 1983 against Defendants-Appellants City Council Members Stacey Graus, William

Rachford, Bobbi Jo Farmer and Barbara Weber (collectively, “Council Members”) in their individual

and official capacities, alleging, inter alia, that the council members violated plaintiffs’ rights to

procedural and substantive due process under the United States and Kentucky Constitutions by

denying their proposed site development plan for a Speedway gas station/convenience store on a tract

of land owned by plaintiffs. The Council Members moved to dismiss plaintiffs’ claims against them

in their individual capacities under Federal Rules of Civil Procedure 12(c), arguing that these claims

were barred by legislative immunity. The district court concluded that a decision with respect to

legislative immunity would be premature prior to further discovery and denied the motion. On

interlocutory appeal, the Council Members argue that the district court erred because their

entitlement to legislative immunity is present on the face of the plaintiffs’ complaint. We disagree.

Accordingly, for the reasons set forth below, we DISMISS the interlocutory appeal for lack of

appellate jurisdiction and REMAND the case for further proceedings consistent with this opinion.

                                       I. BACKGROUND

A. Factual Background

       The complaint, the factual allegations of which must be accepted as true for purposes of

deciding or reviewing a motion for judgment on the pleadings pursuant to Federal Rules of Civil

Procedure 12(c), alleges the following events. Wayne and Mabelle Jaggers (collectively, “the



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Wayne Jaggers, et al. v. City of Alexandria, et al.

Jaggers”) own a parcel of property located within the City of Alexandria, Campbell County,

Kentucky.    They entered into a land purchase contract with Speedway SuperAmerica LLC

(“Speedway”), which would allow Speedway to build a gas station and convenience store on U.S.

Highway 27. Speedway and the Jaggers then sought approval for a zoning map amendment and

development plan from the Alexandria Planning and Zoning Commission (the “Commission”) and

Alexandria City Council (“City Council”) under City of Alexandria Zoning Ordinance § 14.01. The

proposed amendment and plan would permit a zone change for the portion of the property not

already zoned Highway Commercial. On May 16, 2006, after a public hearing, the Commission

recommended approving both the zoning amendment and the development plan. On July 20, 2006,

after considering the Commission’s recommendation, the City Council voted to approve the zoning

change but rejected the development plan.

       After the City Council rejected the development plan, representatives for the Jaggers and

Speedway met with the Mayor of Alexandria, Dan McGinley, City Attorney, Mike Duncan and the

Commission Chair, John Jewell, to discuss the development plan. During this meeting, Mayor

McGinley and Duncan advised the Jaggers and Speedway that development could proceed after a

site plan was submitted solely to the Commission. The Jaggers then submitted the requested site

plan to the Commission for review and approval. Afterwards, the Commission held a public hearing

on the site plan, now termed a development plan. During the hearing, Council Members Stacey

Graus and Barbara Weber objected to the development plan, but the City of Alexandria’s City

Engineer, Mark Brueggman, recommended approving the plan. Ultimately, the Commission

recommended approving the development plan.

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Wayne Jaggers, et al. v. City of Alexandria, et al.

        Later, however, Duncan reversed his earlier statements indicating that the development plan

need not be submitted to the City Council, and stated that a new development plan must be submitted

to the City Council for its approval. Before submitting the development plan to the City Council,

the Jaggers and Speedway sent a letter to Duncan inquiring as to the reason they were not allowed

to proceed with development on the basis of the Commission’s review and approval of the

development plan alone. They did not receive a response to this letter. The development plan was

then submitted to the City Council for review. On April 19, 2007, after a public hearing on the

matter, the Council Members rejected the development plan.

B. The Lawsuit

        Two lawsuits arose from the City Council’s denial of plaintiffs’ proposed site development

plan. First, the Jaggers filed suit in Kentucky state court against the City of Alexandria and Council

Members Stacey Graus, William Rachford, Bobbi Jo Farmer and Barbara Weber in both their official

and individual capacities. The Jaggers alleged that, under 42 U.S.C. § 1983, the City and the

Council Members individually violated the Jaggers’s right to procedural and substantive due process

under the United States and Kentucky Constitutions by rejecting their site development plan, and that

the Council Members individually engaged in arbitrary and capricious action. The Jaggers also

alleged that the Council Members violated the Kentucky Open Meetings Act. Speedway was named

as a real party in interest to the Jaggers’s suit. Thereafter, Speedway filed a similar suit in Kentucky

federal court, naming the Jaggers as real parties in interest. In addition to the claims asserted in the

Jaggers’s complaint, Speedway also alleged that the City violated its rights to equal protection under

the United States and Kentucky Constitutions. Because the actions asserted federal claims under §

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No. 08-5213
Wayne Jaggers, et al. v. City of Alexandria, et al.

1983, the defendants removed the action to the United States District Court for the Eastern District

of Kentucky. Shortly after removal to federal court, the Council Members filed a motion to dismiss

both suits pursuant to Federal Rules of Civil Procedure 12(c), arguing that the individual-capacity

claims were barred by absolute legislative immunity. The Council Members also filed a motion to

consolidate the Jaggers’s suit with the Speedway action.

       After hearing oral argument on the motions, the district court denied the Council Members’

motion to dismiss without prejudice, and granted the motion to consolidate the two actions. With

respect to the motion to dismiss, the district court decided that there were issues of material fact

pertaining to legislative immunity. The district court also concluded that it would need to: (1) review

the zoning ordinance to determine the basis of the Council Members’ review of the development

plan; (2) determine the procedures used throughout the decision-making process by the Council

Members in rejecting the development plan; and (3) determine the actions taken by the Council

Members to reach their decision. The Council Members filed this timely interlocutory appeal.

                                       II. JURISDICTION

       In this interlocutory appeal, which is limited to the Council Members’ assertions of

legislative immunity, the Council Members contend that the district court erred in ruling that

additional information is necessary to determine whether the plaintiffs’ claims against the Council

Members in their individual capacities are barred by state and federal legislative immunity.

Ordinarily, appellate courts do not have jurisdiction over interlocutory appeals, like the Council

Members’ appeal of the district court’s denial of their motion to dismiss, because such decisions are

not final judgments. 28 U.S.C. § 1291; see Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d

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Wayne Jaggers, et al. v. City of Alexandria, et al.

432, 434 (6th Cir. 2006) (stating the denial of a motion to dismiss pursuant to Rule 12(c) is

ordinarily considered non-final, and, therefore, not immediately appealable to this Court).

       The parties assert that we have appellate jurisdiction under the collateral-order doctrine,

which permits interlocutory appellate review of a narrow class of non-final orders that “finally

determine claims of right separable from, and collateral to, rights asserted in the action, too

important to be denied review and too independent of the cause itself to require the appellate

consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949). Under the collateral-order doctrine, however, an “order denying

a motion to dismiss a complaint against a[n] . . . official when the dismissal motion is based on the

official’s assertion of absolute or qualified immunity is immediately reviewable to the extent that

the denial turns on issues of law.” State Employees Bargaining Agent Coalition v. Rowland, 494

F.3d 71, 82 (2d. Cir. 2007). Conversely, appellate courts will not review the district court’s decision

“if a factual determination is a necessary predicate to the resolution of whether . . . [absolute]

immunity is a bar” to suit. Id. Here, the district court determined that further discovery is necessary

to determine whether the Council Members are entitled to legislative immunity. We agree. As such,

for the reasons set forth below, the collateral-order doctrine does not confer appellate jurisdiction

on this Court.

                                        III. DISCUSSION

A. Standard of Review

       We review the district court’s denial of absolute immunity de novo. Brookings v. Clark, 389

F.3d 614, 617 (6th Cir. 2004) (citing Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997)).

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No. 08-5213
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Further, we review a motion for judgment on the pleadings pursuant to Federal Rules of Civil

Procedure 12(c) under the same de novo standard as applies to review of a motion to dismiss under

Rule 12(b)(6) of the Federal Rules of Civil Procedure. Penny/Ohlmann/Nieman, Inc. v. Miami

Valley Pension Corp., 399 F.3d 692, 697 (6th Cir. 2005) (hereinafter “PONI”). In reviewing a

motion for judgment on the pleadings, we must accept as true all well-pleaded allegations of fact

in the plaintiff’s complaint, construe the complaint in the light most favorable to the plaintiff, and

determine whether the plaintiff undoubtedly can prove no set of facts in support of his claim that

would entitle him to relief. Id. at 697. We may also consider matters of public record, orders,

exhibits attached to the complaint and items appearing in the record of the case. Id. We, however,

need not accept as true legal conclusions or unwarranted factual inferences. Id. A motion brought

under Rule 12(c) is appropriately granted only when no issue of material fact exists and when the

moving party is entitled to judgment as a matter of law. JPMorgan Chase Bank, N.A. v. Winget, 510

F.3d 577, 582 (6th Cir. 2007).

B. Legislative Immunity Under Federal Law

       Here, the Council Members contend that they have legislative immunity as a matter of law.

They assert that in rejecting the plaintiffs’ development plan, they were engaging in acts that were

legislative in nature, thereby entitling them to absolute immunity for those acts. In support of this

argument, the Council Members maintain that they engaged in legislative functions when they

debated the effects of the Jaggers’s proposed site plan development on the Alexandria community

as a whole. If true, the Council Members’ actions may bar claims against them in their personal

capacity inasmuch as those actions were legislative, rather than administrative.           Bogan v.

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No. 08-5213
Wayne Jaggers, et al. v. City of Alexandria, et al.

Scott-Harris, 523 U.S. 44, 49 (1998); R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 437

(6th Cir. 2005). That is, individual members of local governmental bodies, like the Council

Members, are absolutely immune from suit for damages under 42 U.S.C. § 1983 when conducting

legitimate legislative activity. Bogan, 523 U.S. at 49. Not all governmental acts by local

government bodies are necessarily legislative in nature, and “[t]he various activities of most local

or municipal officials cannot be characterized as only administrative, legislative, or judicial.”

Haskell v. Washington Twp., 864 F.2d 1266, 1277-78 (6th Cir. 1988). Here, the Council, whose

members are elected, is a local governmental body that has a combination of both legislative and

administrative powers. Ky. Rev. Stat. § 83A.130. It is only with respect to the legislative powers

delegated to them that the members of local boards, like the City Council, are entitled to absolute

immunity. Bogan, 523 U.S. at 54. Therefore, the burden rests on the Council Members “to establish

the existence of absolute legislative immunity.” Canary v. Osborn, 211 F.3d 324, 328 (6th Cir.

2000). And the existence of that immunity “ turns on the nature of the act,” not “the motive or intent

of the official performing it.” Bogan, 523 U.S. at 54. The question before us, therefore, is whether

the Council Members’ actions, when “stripped of all considerations of intent and motive,” were

legislative rather than administrative or executive. Id. at 55.

        In Bogan, the Supreme Court set forth the necessary considerations to decide whether a

defendant’s acts are legislative, and, therefore, protected by the doctrine of absolute immunity.

According to the Bogan Court, two factors are relevant to determine whether a defendant’s acts fall

within the sphere of legitimate legislative activity. Id. at 54. First, we must consider whether a

defendant’s actions were legislative in form., i.e., whether “they were integral steps in the legislative

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No. 08-5213
Wayne Jaggers, et al. v. City of Alexandria, et al.

process.” Id. at 55. Second, we must ask whether a defendant’s actions were “legislative in

substance,” i.e., whether the actions “bore all the hallmarks of traditional legislation,” including

whether they “reflected discretionary, policymaking decisions implicating the budgetary priorities”

of the government and the services the government provides to its constituents. Id. at 55-56.

       First, the Council Members cannot establish that, as a matter of law, their actions were

legislative in form (“procedurally legislative”). Bogan, 523 U.S. at 55. Voting for an ordinance is

“quintessentially legislative” in form. Id. Similarly, introducing a budget and signing into law an

ordinance are legislative in form. Id. The Council Members do not maintain that their actions were

“quintessentially legislative.” According to the plaintiffs’ allegations, the Council Members

disapproved their development plan pursuant to Alexandria Zoning Ordinance § 14(1)(c), which

provides: “[t]he Alexandria City Council shall, within forty-five (45) consecutive days after

receiving the recommendations of the Planning Commission, review said recommendations and take

action to approve or disapprove the proposed Development Plan.” (Joint Appendix (“JA”) 11-12.)

While the Council Members’ actions to disapprove the plaintiffs’ development plan may have

complied with § 14(1)(c), there is nothing in the record indicating that the Council Members’

authority to do so stems from their legislative authority. That is, there is no allegation or evidence

in the record establishing that the procedures set forth in §14(1)(c) are the procedures Council

Members use to invoke their legislative, rather than their managerial or administrative powers.

Moreover, the Council Members do not contend that their decision was the result of legislative

powers delegated to them by Kentucky law or that the actions undertaken to reach their decision

were integral steps in the legislative process. Having no evidence before us establishing that the

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Wayne Jaggers, et al. v. City of Alexandria, et al.

Council Members’ actions were integral steps in the legislative process, we find that discovery is

necessary to determine whether the Council Members’ acts were procedurally legislative under

Bogan. In particular, the Council Members must put forth some evidence that they took their actions

under the legislative powers delegated to them under Kentucky law. Bogan, 523 U.S. at 55.



       Similarly, we conclude that further discovery is necessary before it can be determined

whether the Council Members’ actions were legislative in substance. Id. at 55-56. The Council

Members assert that they discussed the effects of the proposed map amendment and site plan on their

community, taking into account several factors, including the size of the development and the fact

that the development would require variances from the existing zoning code, and traffic safety

implications, indicating that their decision was the result of policy considerations. We disagree.

“Although zoning is ordinarily a legislative activity, it is not always legislative for the purposes of

[legislative] immunity.” Haskell, 864 F.2d at 1278. “If the underlying purpose of zoning activity

is to establish general policy, then it is legislative.” Id. If, however, the zoning action involves

applying existing zoning rules to a specific property, the question of legislative immunity becomes

more difficult because applying known rules and legislation to make a zoning decision in this way

is more likely to be administrative rather than legislative. See 8A Eugene McQuillian, The Law of

Municipal Corporations § 25.217 (3d ed. 2008) (“[A] zoning ordinance vesting in the municipal

council the power to determine whether a building permit should be granted . . . ordinarily is

regarded as administrative, rather than legislative in character.”). The question before us, then, is

whether we can conclude from the allegations set forth in the complaint that the Council Members’

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actions in reaching their decision evidenced broad-based policy decisions. Bogan, 523 U.S. at 54.

We cannot.

       Instead, those allegations, construed in the light most favorable to the plaintiffs, indicate that

a question of fact exists as to whether the Council Members’ decision resulted from larger policy

concerns or goals. In particular, the plaintiffs’ allegations—that Council Member Graus moved to

disapprove their development plan because, among other things, the development would be

oversized and would require variances, the entrance would be too close, there were safety and traffic

concerns during peak times, and patrons leaving the property may attempt to make an unlawful right-

hand turn (JA 17.)—are not wholly legislative in character. Rather, the bulk of these concerns,

construed in a light favorable to the plaintiffs, seem to center on the suitability of the Jaggers’s

property for its proposed use. While such concerns may stem from underlying policy considerations,

we see none on the face of the plaintiffs’ complaint. Given that further evidence is necessary to

determine whether these considerations were legislative in substance, we lack appellate jurisdiction

under the collateral-order doctrine to decide this interlocutory appeal. State Employees Bargaining

Agent Coalition, 494 F.3d at 82.

C. Legislative Immunity Under State Law

       Because we lack appellate jurisdiction to review this interlocutory appeal, we decline to

exercise pendent jurisdiction to review the district court’s denial of the Council Members’ motion

to dismiss on the ground of legislative immunity under Kentucky law. Brennan v. Twp. of

Northville, 78 F.3d 1152, 1157 (6th Cir. 1996).

                                       IV. CONCLUSION

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Wayne Jaggers, et al. v. City of Alexandria, et al.

       We DISMISS the Council Members’ interlocutory appeal, and REMAND the case to the

district court for proceedings consistent with this opinion.




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