                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 09-12468         ELEVENTH CIRCUIT
                                                     FEB 18, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                        CLERK

                  D.C. Docket No. 07-21043-CV-WMH

BMI SALVAGE CORPORATION,
a Florida Corporation,
                                                    Plaintiff-Appellant,

                                 versus

GEORGE MANION,
CHRIS MCARTHUR,
JOHN O'NEAL,
GREGORY OWENS,
MIGUEL SOUTHWELL,
MIAMI-DADE COUNTY, FLORIDA

                                                    Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                           (February 18, 2010)

Before CARNES, MARCUS and COX, Circuit Judges.

PER CURIAM:
       BMI Salvage Corporation appeals the dismissal of its 42 U.S.C. § 1983 First

Amendment retaliation claims against Miami-Dade County, Florida and individual

employees of the Miami-Dade County Aviation Department (“Department”) for

failure to state a claim upon which relief can be granted. After thorough review, we

affirm.

                                        I. Background

       We base our review of the facts of this case on BMI’s First Amended

Complaint. (R.2-31.) BMI salvages and demolishes out-of-service aircraft, and it

leased aircraft parking space from the Department at the Opa Locka Airport. BMI

voiced numerous objections to the management of the airport and complained of

various acts of Department employees.1 It sent a series of letters to Department

director Angela Gittens and others protesting that non-tenants salvaged aircraft at the

airport in competition with BMI. The letters asserted that the non-tenants did not

clean up unsalvageable materials, pay rent, taxes, unemployment insurance, or

workman’s compensation insurance. (Id. at 12, 16, 17, 20; Exs. 1, 2, 5.) It sent a

letter to the Department, to the president of the airport tenants association, and others


       1
         In addition to listing BMI’s objections to airport management, the First Amended Complaint
also alleges that Blueside Services, Inc., an affiliate of BMI under common ownership, expressed
concerns and filed a lawsuit against Miami-Dade County. (R.2-31 at 26, 40; Ex. 7.) Because
Blueside Services is not a party to this case, we do not consider these allegations in analyzing
whether BMI has stated a claim for relief.

                                                2
regarding an improperly shored aircraft that fell on a ramp and spilled jet fuel. (Id.

at 19; Ex. 3.) BMI also sent letters to Department employee George Manion and

others objecting to lax after hours security at the airport. (Id. at 19; Ex. 4.) In

addition, it sent e-mails to the Department objecting to a proposed rent increase (id.

at 22); complaining of a lack of adequate signage directing visitors to tenants on its

side of the airport (id. at Ex. 6); complaining of illegal fueling operations at the

airport (id. at 27); and complaining that Department employee George Manion

smoked cigarettes next to an aircraft parked on BMI’s leasehold. (Id. at 29.) Further,

BMI complained of Miami-Dade County policemen conducting motorcycle training

classes on taxi lanes inside the airport, (id. at 30) and it filed an economic

discrimination complaint against the Department with the Federal Aviation Authority.

(Id. at 34.) Last, it wrote a letter to the Department’s county manager complaining

that Department employee Gregory Owens made a false statement regarding BMI’s

efforts to renegotiate its lease, delayed the issuance of a permit for installation of a

fence on BMI’s leasehold, and intercepted BMI’s rent checks in an effort to cause

BMI to default on its rent obligations. (Id. at 39.)

      BMI alleges that the Department and its employees George Manion, Chris

McArthur, John O’Neal, Gregory Owens, and Miguel Southwell retaliated against it

for voicing these complaints. Alleged acts of retaliation include: sending BMI letters

                                           3
stating it violated its lease by storing a work dive boat and a non-flyable aircraft on

its leasehold (id. at 15, 30); supporting “fly-by-night” operators, who unfairly

competed with BMI in the aircraft salvage business (id. at 16); obstructing BMI’s

efforts to obtain development privileges and attempting to exclude it from the airport

(id. at 17-18, 28, 34); ignoring requests by BMI to downsize its leasehold (id. at 21);

failing to add BMI’s name to the sign at the front entrance to the airport (id. at 23);

threatening a BMI customer with liability for any damage done by its aircraft in the

event of a hurricane (id.); issuing a notice of violation for BMI’s failure to obtain a

building permit before constructing a modular office and trailer (id. at 26);

withholding a letter of concurrence for a leasehold expansion and fence permit (id.

at 27); lodging a complaint against BMI for abandoning a garbage container off its

leasehold (id. at 32); attempting to restrict the number of aircraft BMI could receive

and salvage (id. at 33); directing a competitor of BMI to park an aircraft to block

BMI’s access to its leasehold; (id. at 34) proposing unreasonable lease terms to BMI

(id. at 37); and, ultimately refusing to negotiate a new lease with BMI. (Id. at 41.)

      BMI brought this 42 U.S.C. § 1983 First Amendment retaliation claim based

on these allegations against Miami-Dade County, Florida and the aforementioned

Department employees. The defendants filed a motion to dismiss, which the court

granted without prejudice, and it granted BMI leave to file an amended complaint.

                                          4
BMI then filed a seven-count First Amended Complaint (“Complaint”). Counts I-V

assert that each employee violated BMI’s First Amendment free speech rights by

retaliating against it for objecting to airport management and operations. (See id. at

42-52 (listing alleged acts of retaliation attributable to each defendant).) Counts VI

and VII raise municipal liability claims, alleging that the employees’ acts of

retaliation are attributable to the County because it failed to adequately train and

discipline the employees and because it adopted an unofficial practice of depriving

outspoken tenants of opportunities to expand their businesses at the airport. The

defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure on the grounds that (1) BMI failed to allege facts sufficient to

create a claim of municipal liability against the County; and (2) the individual

defendants are entitled to qualified immunity. (R.2-34.) The court granted the

motion to dismiss without prejudice, and it granted BMI leave to amend its Complaint

within twenty days. (R.2-40.) BMI elected not to amend, and the dismissal order

became a final judgment. BMI appeals.

                                   II. Discussion

      We accept as true the allegations contained in the Complaint and consider

whether BMI has stated a claim upon which relief can be granted. The parties frame

the issues on appeal as questions of qualified immunity and municipal liability.

                                          5
Central to both of these issues, and central to any claim under 42 U.S.C. § 1983, is

whether the Complaint alleges a constitutional violation. See Albright v. Oliver, 510

U.S. 266, 271, 114 S. Ct. 807, 811 (1994) (“The first step in any [section 1983] claim

is to identify the specific constitutional right allegedly infringed.”) Because we

conclude BMI has failed to allege a violation of its First Amendment right to free

speech, we affirm the dismissal of its Complaint.

        The First Amendment protects independent contractors, like BMI, from

adverse actions taken by the government in retaliation for the exercise of the freedom

of speech. Bd. of County Comm’rs, Wabaunsee County, Kansas v. Umbehr, 518 U.S.

668, 673, 116 S. Ct. 2342, 2344 (1996). But, the First Amendment does not

guarantee contractors “absolute freedom of speech.” Id. 518 U.S. at 675, 116 S. Ct.

at 2347. Rather, the balancing test commonly applied in the employment context and

first set forth in Pickering v. Board of Education of Township High School District

205, Will County, 391 U.S. 563, 88 S. Ct. 1731 (1968), determines the extent of their

protection. Umbehr, 518 U.S. at 673, 116 S. Ct. at 2346. The initial inquiry under

Pickering is whether the contractor “spoke as a citizen on a matter of public concern.”

Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 1958 (2006) (citing

Pickering, 391 U.S. at 568, 88 S. Ct. at 1731). If the answer is no, the contractor has

no First Amendment cause of action based on the government’s reaction to the

                                           6
speech. Id. If the answer is yes, a First Amendment claim may arise; we then

consider whether the government took an adverse action against the contractor

because of the protected speech and whether the government “had an adequate

justification for treating the [contractor] differently from any other member of the

general public.” Id.

      In this case, we address only the first step of the Pickering analysis, whether

BMI spoke as a citizen on a matter of public concern in objecting to the management

and operations of the airport. Because we conclude BMI spoke as a lessee, and its

objections amounted to an airing of personal grievances related to its leasehold rather

than protected speech on matters of public concern, we hold BMI has not stated a

First Amendment retaliation claim. We do not consider whether the defendants took

an adverse action against BMI, whether they took this action to retaliate against

BMI’s speech, or whether they had an adequate justification for doing so.

      We examine the “content, form, and context” of BMI’s speech to analyze

whether it is protected under the First Amendment. Connick v. Myers, 461 U.S. 138,

147-48, 103 S. Ct. 1684, 1690 (1983). A threshold question is whether BMI “spoke

as a citizen on a matter of public concern.” D’Angelo v. Sch. Bd. of Pok County, Fla.,

497 F.3d 1203, 1209 (11th Cir. 2007) (emphasis in original) (internal quotation and

citation omitted). If so, any statement involving a matter of political, social, or other

                                           7
concern to the community is protected. Connick, 461 U.S. at 146, 103 S. Ct. at 1689.

But, if BMI did not speak as a citizen,2 or if its speech “touches on items of private

concern, not on items of public relevance, it warrants no First Amendment

protection.” Tindal v. Montgomery County Com’n, 32 F.3d 1535, 1539 (11th Cir.

1994) (citation omitted).

       The allegations in the Complaint reflect that BMI’s speech concerned its

leasehold and the profitability of its business. Its most oft-repeated complaints

related to derelict conditions at the airport and the actions of non-tenant competitors,

who salvaged aircraft on neighboring leaseholds and engaged in questionable

business practices. BMI complained that these “bootleg operators” caused it to lose

at least $460,000 in revenue. (R.2-31 at Ex. 2.) When taken in isolation, several of

BMI’s statements appear to touch on matters of concern to the community. For

example, BMI complained that its competitors employed illegal aliens (id. at Ex. 1),

complained of airport security and safety issues (id. at Exs. 3, 4), and complained that



       2
         In Garcetti, an employment case, the Supreme Court explained that a court should make
separate inquiries—whether the speech was made in the plaintiff’s capacity as a citizen; and, whether
the plaintiff spoke on a matter of public concern. 547 U.S. at 415, 126 S. Ct. at 1956. Garcetti held
that “when public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes.” Id. at 422, 126 S. Ct. at 1960. As a tenant,
BMI had no “official duty” to speak, so the ultimate holding of Garcetti does not affect our analysis.
Nevertheless, Garcetti teaches that we must consider whether BMI spoke as a citizen. So, if BMI
spoke primarily in its role as lessee, addressing the terms of its lease and the conditions of its
leasehold—and not as a citizen—its speech is not protected.

                                                  8
its competitors improperly disposed of hazardous materials. (Id. at Ex. 6.) But, “[t]he

fact that such information may be of general interest to the public . . . does not alone

make it of ‘public concern’ for First Amendment purposes.” Morris v. Crow, 142

F.3d 1379, 1381 (11th Cir. 1998) (citations omitted). “Not only must the speech be

related to matters of public interest, but the purpose of the expression must be to

present such issues as matters of ‘public’ concern.” Id. at 1382. The purpose of

BMI’s statements was not to “‘bring to light actual or potential wrongdoing or breach

of public trust on the part of’ government officials,” Fikes v. City of Daphne, 79 F.3d

1079, 1084 (11th Cir. 1996) (quoting Connick, 461 U.S. at 148, 103 S. Ct. at 1691),

nor to report specific wrongs and abuses by the Department in an attempt to “improve

the quality of government.” Morris, 142 F.3d at 1382 (citation omitted). Rather, the

purpose was to air its individual grievances with the Department, to ensure the

profitability of its leasehold, and to promote the expansion of its business. In sum,

BMI spoke not in its role as a citizen, but in its role as a lessee. See D’Angelo, 497

F.3d at 1210 (finding employee’s speech unprotected because he did not speak as a

citizen, but to fulfill professional duties).

       Disputes commonly arise between landlords and tenants regarding commercial

leases. In some cases, particularly where the government is the lessor, a tenant’s

concerns regarding the lease or conditions of the leasehold could be of general

                                                9
interest to the community at large. This does not, however, transform the airing of

personal grievances into statements made as a citizen on matters of public concern.

Because BMI spoke as a lessee, not as a citizen, in objecting to the conditions at the

airport, its speech was not protected by the First Amendment. Therefore, its

Complaint fails to state a claim upon which relief can be granted as to the County or

the Department employee defendants.

      AFFIRMED.




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