                                                             PUBLISH

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT


                             No. 94-3179

                        D.C. No. 91-10121-MMP



GEORGE JOHNSON,

                                           Plaintiff,


SYLVIA HILL, RAYMOND GRIFFIN,

                                           Plaintiffs-Appellees,

                                versus


WAYLAND CLIFTON,

                                           Defendant-Appellant,


CITY OF GAINESVILLE,

                                           Defendant.




                             No. 94-3180

                        D.C. No. 91-10145-MMP


EUGENE ROSS,

                                           Plaintiff-Appellee,

                                versus


WAYLAND CLIFTON,
                                           Defendant-Appellant,
CITY OF GAINESVILLE,

                                           Defendant,
GEORGE JOHNSON,

                                           Respondent.



                             No. 94-3184

                       D.C. No. 91-10118-MMP


SYLVIA HILL,

                                           Plaintiff-Appellee,

                                versus

WAYLAND CLIFTON, individually and as the
Chief of Police and agent for the City of
Gainesville,

                                           Defendant-Appellant,


CITY OF GAINESVILLE,

                                           Defendant.




          Appeals from the United States District Court
               for the Northern District of Florida


                        (January 26, 1996)



Before ANDERSON and BLACK, Circuit Judges, and FAY, Senior
Circuit Judge.

FAY, Senior Circuit Judge:




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     This appeal arises from the District Court's denial of

qualified immunity and denial of summary judgment to Wayland

Clifton, Jr., the Police Chief for the City of Gainesville.

Three former police officers, Sylvia Hill, Eugene Ross, and

Raymond Griffin, brought suit against Clifton, alleging that they

were disciplined for testifying about Clifton before a grand

jury.   Because Clifton is entitled to qualified immunity, we

reverse.



                          I. BACKGROUND

     Hill, Ross, and Griffin worked together in Internal Affairs

at the Gainesville Police Department.     Hill was the Unit

Commander; Ross was Hill's immediate supervisor, while Griffin

reported to Hill.   Hill, Ross, and Griffin allege that Internal

Affairs began an investigation of alleged misconduct by a group

within the police department called Hallucinations 2000, and gave
proper notice to the City Manager that Clifton might be involved;

in response to this investigation, Clifton transferred the

plaintiffs from Internal Affairs; after an audit of Internal

Affairs revealed no wrongdoing, Clifton stated that the

investigation was concluded and nothing would come of it; Clifton

offered to transfer the plaintiffs to any position within the

department that they desired; State Attorney Len Register then

contacted Hill and asked who he should subpoena to enable the

grand jury to make a decision as to whether the police department

should be investigated regarding Hallucinations 2000; the

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plaintiffs testified before the grand jury regarding

Hallucinations 2000; in retaliation for the grand jury testimony,

Clifton re-opened the investigation into Internal Affairs and

then disciplined the plaintiffs.

     Clifton denies that he retaliated against the plaintiffs for

their testimony before the grand jury.   He claims that the

plaintiffs initiated a secret investigation without notifying the

City Manager; that he was not involved in any way with

Hallucinations 2000 and that the group turned out to be innocuous

in any event; that the grand jury and the independent

investigator concluded that he had done nothing wrong; that an

audit of Internal Affairs showed that investigative files were

missing, some cases had not been completed, some investigations

were untimely or unauthorized, and certain direct orders had been

ignored; that in response to that misconduct he disciplined the

plaintiffs; and that the plaintiffs had only gone to the grand

jury in order to gain leverage over him and prevent the deserved

discipline rather than out of any public concern about possible

corruption.

     It is undisputed that Hill was told in April of 1991, prior

to any allegations or investigation concerning Hallucinations

2000, that she would be transferred from Internal Affairs; that

in early April she was transferred; that in early April Ross and

Griffin were "locked out" of Internal Affairs so that an audit

could be conducted; that the audit was concluded in June; that in
July Clifton offered to transfer Hill to any position within the


                                   4
police department (except Internal Affairs) if that was the end

of the matter; that the plaintiffs went to the grand jury anyway;

that after the plaintiffs went to the grand jury, the audit

findings were reviewed and misconduct charges were filed.

     Hill, Ross, and Griffin brought suit against Clifton and the

City of Gainesville.   The District Court granted summary judgment

to the City on all charges, but denied Clifton's motion for

summary judgment based on qualified immunity.   Clifton

immediately appealed the denial of qualified immunity.


                       II. STANDARD OF REVIEW

     We review de novo a District Court's ruling that a public

official's conduct violated clearly established law so that the

official is not entitled to qualified immunity.   Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985).

     Summary judgment is proper if the pleadings, depositions,

and affidavits show that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a

matter of law.   Celotex Corporation v. Catrett, 477 U.S. 317, 322

(1986).   The evidence must be viewed in the light most favorable

to the non-moving party.   Augusta Iron and Steel Works, Inc. v.
Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.

1988).


                            III. ANALYSIS

                 A. Jurisdiction: Johnson v. Jones


                                  5
       Public officials are entitled to qualified immunity from

"liability for civil damages insofar as their conduct does not

violate clearly established ... rights of which a reasonable person

would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

A public official may immediately appeal a denial of qualified

immunity where the disputed issue involves whether or not the

defendant's conduct constitutes a violation of clearly established

law.       Mitchell, 472 U.S. at 528.           The public official may appeal

such a decision because it is considered a final, collateral order

regarding qualified immunity.              Id. at 528.

       In Johnson v. Jones, 115 S.Ct. 2152 (1995), the Supreme Court

further addressed the law of summary judgment in the context of

qualified immunity.             The issue in Johnson was whether there was any

evidence in the record to support the District Court's ruling that

a reasonable fact finder could find that the public officials were
                                                   1
involved in the plaintiff's beating.                     Id. at 2153-54.           The

defendants admitted that such a beating was unconstitutional and

violated         clearly    established    law;   they      only   argued   that   the

District Court had erred when it found a genuine issue of material

fact       in    regard    to   their   involvement    in    the   unconstitutional

conduct.          Id. 2154.     The Supreme Court held that such a ruling by

the District Court could not be appealed as a final, collateral

order.          Id. at 2156-58.

       It seems clear to us that the Supreme Court was not changing

       1
      Or phrased another way, whether there was enough evidence
to create a genuine issue of material fact as to whether the
public officials were involved in the beating.

                                            6
the well-established law of qualified immunity in the context of

summary judgment, just elaborating on it. When faced with a motion

for summary judgment based on qualified immunity, the District

Court must determine whether there is a genuine issue of material

fact as to whether the defendant committed conduct that violated

clearly established law. This analysis can be broken down into two

parts.   First, what was the official's conduct, based on the

pleadings, depositions, and affidavits, when viewed in the light

most favorable to the non-moving party? Second, could a reasonable

public official have believed that such conduct was lawful based on

clearly established law?

     The resolution of the second issue constitutes a final,

collateral order.    Mitchell at 528.   A ruling on such an issue is

immediately appealable. Id. When such a ruling is appealable, the

first issue -- the factual issue -- may be addressed by an

appellate court because it is a part of the core qualified immunity

analysis.   See Anderson v. Creighton, 483 U.S. 635, 641 (1987).

However, if only the first issue is appealed, namely what conduct

the defendant engaged in based on the evidence viewed in the light

most favorable to the plaintiff, and not the second issue, namely

whether that conduct violated clearly established law, then the

appellate court has no jurisdiction to hear the case. See Johnson,
115 S.Ct. at 2159.    The first issue -- the 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 the core qualified immunity issue is not


                                  7
appealed, then the factual issue may not be either.            Id.

       When the core qualified immunity issue is raised on appeal,

the appellate court has two options regarding how to deal with the

factual issue.      "When faced with an argument that the district

court mistakenly identified clearly established law, the court of

appeals can simply take, as given, the facts that the district

court assumed when it denied summary judgment for that (purely

legal) reason."    Id. at 2159.       Or, the court of appeals can conduct

its own review of the record in the light most favorable to the

nonmoving party.     First, the appellate court may have to do so

because the trial court failed to state the facts it assumed.             Id.

Second, the appellate court can do so because such a determination

is part of the core qualified immunity analysis, as discussed

above.     See Anderson, 483 U.S. at 641.           Third, even if such a

determination     were   not   part    of   the   core   qualified   immunity

analysis, it would be "inextricably intertwined" with that analysis

and within the appellate court's pendent jurisdiction.               Swint v.

Chambers, 115 S.Ct. 1203, 1209 (1995). See also Johnson, 115 S.Ct.

at 2159.    Of course, if there is any evidence in the record to

support the District Court's ruling that there was a genuine issue

of material fact as to whether the official actually engaged in the

conduct that violated clearly established law, the District Court's

factual ruling will not be disturbed.             See Celotex, 477 U.S. at
322.


                          B. Qualified Immunity


                                        8
       In the qualified immunity context, the plaintiffs have the

burden of proving that a reasonable public official would not have

believed         that   his     actions   were    lawful,       in    light    of       clearly

established law.             Anderson, 483 U.S. at 641.              Clifton argues both

that the District Court wrongly applied the clearly established law

to the facts it found and that the record does not support some of

the facts the District Court found, even when viewed in the light

most favorable to the plaintiffs.



                                   1. The Factual Issue

       Even when viewing the record in the light most favorable to

the plaintiffs, there is no genuine dispute regarding the following

material facts: 1) while the plaintiffs were still in Internal

Affairs, Clifton told Hill that he was not happy with some of the

work product coming out of Internal Affairs; 2) Clifton transferred

the plaintiffs out of Internal Affairs prior to the point at which

they testified before the grand jury; 3) Clifton, in consultation

with City Manager White, ordered an audit of Internal Affairs prior

to   the        plaintiffs      testifying   before       the    grand      jury;       4)   the

plaintiffs knew they were being investigated; 5) the plaintiffs

went       to    the    grand      jury   after   they     knew       they     were       being

investigated;           6)   the   plaintiffs     would    likely      be     in    a    better

employment position if the grand jury indicted Clifton.2

       2
      It is true that Clifton had offered at least Hill the
chance to be transferred anywhere she wanted other than Internal
Affairs. However, Hill wanted to be transferred back into
Internal Affairs, and neither she nor the other plaintiffs
reached any agreement with Clifton. The only chance for the

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                        2. Clearly Established Law

      A government employer may not retaliate against a public

employee for engaging in protected speech.                 Bryson v. City of

Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989).              Where the public

employer denies that the employee was disciplined in violation of

that employee's first amendment rights, the court engages in a

four-stage analysis: 1) the employee's speech must involve a matter

of   public   concern   in   order   for    it   to   be   protected,   2)   the

employee's first amendment interests must outweigh the public

employer's interest in efficiency (the Pickering3 balancing test),

3) the employee must have been disciplined, in substantial part,

because of the protected speech, and 4) the public employer must

not be able to prove by a preponderance of the evidence that it

would have disciplined the employee even without the protected

speech.   Bryson, 888 F.2d at 1565-66.

      Whether a statement involves a matter of public concern is a

question of law for the judge, who must consider the purpose of the

employee's speech by analyzing "the content, form, and context" of

the statement.    Id.    See also Ferrara, 781 F.2d 1508, 1513 (11th

Cir. 1986).      If the relevant speech was motivated by personal

concerns instead of public concerns then it is not protected by the

First Amendment in this context.           Connick v. Myers, 461 U.S. 138,
147-48 (1983).     The issue here is not whether the employee is



plaintiffs to receive what they wanted, then, was through a grand
jury indictment or report.
      3
       Pickering v. Board of Education, 391 U.S. 563 (1998).

                                     10
entitled to make the statement, but rather whether the employee is

entitled to retain employment and avoid discipline after making the

statement.       The Supreme Court has decided that only statements

motivated    by    public    concern     deserve   such     protection    because

otherwise every criticism of a public official and every employment

dispute would "plant the seed of a constitutional case."                   Id. at

149.      "[G]overnment      officials    should    enjoy     wide   latitude     in

managing    their    offices,       without   intrusive     oversight     by     the

judiciary in the name of the First Amendment."                Id. at 146.

       Furthermore, even if the employee's speech touches upon a

matter of public concern, a Pickering balancing must be conducted

to   determine     whether    the    government    office     was    justified    in

discharging the employee. Connick, 461 U.S. at 149.                      A public

official    is    entitled    to    qualified     immunity,    except    in    "the

extraordinary case where the Pickering balancing would lead to the

inevitable conclusion that the discharge of the employee was

unlawful."       Dartland v. Metropolitan Dade County, 866 F.2d 1321,

1323 (11th Cir. 1989).

       In Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993), an employee

was fired after complaining about sexual harassment.                   This Court

concluded that her statement regarding sexual harassment did not

involve a matter of public concern because, even though sexual

harassment is a matter of "important social interest," the purpose

of the statement was not to raise issues of public concern, but

rather to further her own "entirely rational self-interest."                     Id.
at 755.


                                         11
     In the instant case, possible police corruption is obviously

a matter of important social interest; however, in this qualified

immunity context, we must focus on what Clifton knew.    Even when

viewing the evidence in the light most favorable to the plaintiffs,

it is clear that Clifton knew the plaintiffs went to the grand jury

after they knew they were being investigated, and hoped to gain

from a grand jury indictment or report.    It is obvious to us that

Clifton viewed their actions as intended to put pressure on him to

prevent him from following through with the investigation which had

already commenced and which led to the ultimate discipline.     In

light of the information available to Clifton, we cannot conclude

that clearly established law told him that the plaintiffs' grand

jury testimony was a matter of public concern rather than personal

gain.   We know of no case which might have clearly told Clifton

that he could not take the disciplinary action indicated by an

investigation which was initiated before he even knew about the

allegedly protected speech, and in circumstances where the public

concern implication was doubtful.    Thus, we conclude that Clifton

is entitled to qualified immunity.


                          IV. CONCLUSION

     Applying the analysis required by Supreme Court precedent, we

conclude that Clifton's conduct did not violate clearly established

law and so he is entitled to the protection provided by qualified

immunity.   We vacate the order of the District Court and remand
with instructions that summary judgment be entered in favor of the


                                12
appellant.

     VACATED and REMANDED with instructions.




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