                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

           __________

           No. 98-2691
           __________


John Pendleton; Russell Signorino,    *
                                      *
             Plaintiffs/Appellees,    *
                                      *
      v.                              *
                                      *
St. Louis County; Economic Council    *
of St. Louis County; Robert P.        *
McCulloch; James Redmond,             *
                                      *   Appeals from the United States
             Defendants,              *   District Court for the
                                      *   Eastern District of Missouri.
James E. Baker; Judith K. Parker;     *
Michael Baker; Ronald A. Battelle;    *
Harold Klein; Howard Eaton;           *
George Damos; Roger Melton,           *
                                      *
             Defendants/Appellants,   *
                                      *
Dennis Coleman, individually and in   *
their official capacities,            *
                                      *
             Defendant.               *
         __________

         No. 98-2738
         __________

John Pendleton; Russell Signorino,        *
                                          *
               Plaintiffs/Appellees,      *
                                          *
       v.                                 *
                                          *
St. Louis County; Economic Council        *
of St. Louis County;                      *
                                          *
               Defendants,                *
                                          *
Robert P. McCulloch; James Redmond, *
                                          *
               Defendants/Appellants,     *
                                          *
James E. Baker; Judith K. Parker;         *
Michael Baker; Ronald A. Battelle;        *
Harold Klein; Howard Eaton;               *
George Damos; Roger Melton;               *
Dennis Coleman, individually and in       *
their official capacities,                *
                                          *
               Defendants.                *
                                     ___________

                            Submitted: February 8, 1999

                                 Filed: June 2, 1999
                                  ___________




                                       -2-
Before WOLLMAN,1 LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________

WOLLMAN, Chief Judge.

       John Pendleton and Russell Signorino (Plaintiffs) brought this action under 42
U.S.C. § 1983 alleging that James E. Baker, Judith K. Parker, Michael Baker, Ronald
Battelle, Harold Klein, Howard Eaton, George Damos, Roger Melton, Robert P.
McCulloch, and James Redmond (Defendants)2 conspired to retaliate against them for
exercising rights protected by the First and Fourteenth Amendments. Defendants
moved to dismiss the action under Fed. R. Civ. P. 12(b)(6) on qualified immunity
grounds. The district court3 denied the motion, and Defendants appeal. We affirm.

                                         I.

       During the events that gave rise to this action, Pendleton was a member of the
St. Louis County Private Industry Council (PIC), a group that monitors employment
and training activities for low-income residents of the county. Signorino was a PIC
member from September 1994 to August 1995. PIC funds were disbursed through the
St. Louis County Department of Human Services (Department), which led to a
protracted dispute between Plaintiffs and Defendants James Baker, the Director of
Administration for St. Louis County, and Parker, the Director of the Department.
Plaintiffs supported the incorporation of PIC, which would have ended the county’s
control over PIC funds. James Baker and Parker opposed incorporation.

      1
        Roger L. Wollman became Chief Judge of the United States Court of Appeals
for the Eighth Circuit on April 24, 1999.
      2
      Dennis Coleman and the Economic Council of St. Louis County are also
defendants in the lawsuit but have not joined in the present appeal.
      3
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.

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       As a result of this dispute, on April 22, 1997, Plaintiffs sent an anonymous fax
from a copy center to members of the PIC and the local media. The fax criticized
Parker for hiring the spouse of Michael Baker, an assistant director of the Department.
It also stated that Michael Baker had instructed Department employees not to talk to
auditors during a federal investigation in March of 1997.

       After learning of the fax, Parker, James Baker, and Michael Baker contacted
Battelle, the St. Louis County Chief of Police, to bring criminal harassment charges
against the persons responsible for the fax. Battelle assigned Melton, Klein, Eaton, and
Damos, St. Louis County police officers, to investigate the identity of the fax senders
and whether harassment charges were warranted based on the contents of the fax.
During the investigation, Melton learned that the copy center’s surveillance cameras
were operating when the fax was sent. James Baker and at least one of the officers
contacted McCulloch and Redmond, St. Louis County prosecutors, and requested a
subpoena for the surveillance videotape. The subpoena was issued, and the officers
obtained the videotape and showed it to Parker, Michael Baker, and James Baker.
After identifying Plaintiffs, James Baker allegedly contacted their employers to have
them terminated or disciplined for sending the fax. Pendleton was not disciplined, but
Signorino allegedly was forced to resign. The criminal investigation was closed and
no further action was taken by the police department. Plaintiffs subsequently brought
this claim, asserting that Defendants’ actions violated the First and Fourteenth
Amendments.

                                          II.

       Initially, we must determine the extent of our jurisdiction over this appeal.
Generally, the denial of a motion to dismiss is not immediately appealable because it
is not a final order. However, the Supreme Court has carved out an exception to the
general rule in cases involving qualified immunity claims to protect state actors from
the burdens of litigation. In Behrens v. Pelletier, it stated that precedent “clearly

                                          -4-
establishes that an order rejecting the defense of qualified immunity at either the
dismissal stage or the summary-judgment stage is a ‘final’ judgment subject to
immediate appeal.” 516 U.S. 299, 307 (1996).

        The Court has warned, however, that the scope of such appellate review is
narrow. An order denying qualified immunity is immediately appealable only “to the
extent it turns on an ‘issue of law.’” Id. at 311 (citing Mitchell v. Forsyth, 472 U.S.
511, 530 (1985)). Specifically, there will be immediate appellate jurisdiction if the
order is based on a legal determination that certain facts show a violation of “‘clearly
established’” law. See Johnson v. Jones, 515 U.S. 304, 311 (1995) (quoting Mitchell,
472 U.S. at 528). The order will not be immediately appealable if it turns on an issue
of evidence sufficiency, “i.e., which facts a party may, or may not, be able to prove at
trial.” Id. at 313. See also Mueller v. Tinkham, 162 F.3d 999, 1004 (8th Cir. 1998)
(finding no appellate jurisdiction over a denial of qualified immunity because the
defendants were arguing that insufficient evidence linked them to a conspiracy); Collins
v. Bellinghausen, 153 F.3d 591, 595 (8th Cir. 1998) (limiting appellate jurisdiction over
denials of qualified immunity to review of whether, accepting all of the plaintiffs’
factual allegations as true, the defendants reasonably believed their conduct did not
violate clearly established law); Miller v. Schoenen, 75 F.3d 1305, 1308-09 (8th Cir.
1996) (stating that no jurisdiction exists “if the issues relate to whether the actor
actually committed the act of which he is accused”).

       We are therefore precluded from reviewing Defendants’ claims that insufficient
evidence links them to a conspiracy to retaliate against Plaintiffs for sending the fax.
Our jurisdiction is limited to determining whether Defendants objectively could have
believed that the conduct in which they allegedly engaged did not violate clearly
established law. In making this determination, we assume that all facts alleged in the
complaint are true and liberally construe the complaint in the light most favorable to
Plaintiffs. See Doe v. Norwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir.
1997) (reciting the standard of review for a motion to dismiss).

                                          -5-
        Plaintiffs allege that all Defendants “entered into a conspiracy to injure, oppress,
threaten and intimidate Plaintiffs because of their exercise of protected rights and
privileges secured to Plaintiffs by the First and Fourteenth Amendments . . . to exercise
their rights of freedom of speech and association.” First Am. Compl. ¶ 38, J.A. at 48.
Specifically, Plaintiffs allege that Parker, Michael Baker, James Baker, and Battelle
fabricated a criminal investigation in furtherance of the conspiracy. Id. ¶ 39, J.A. at 48.
Melton allegedly attempted to obtain the surveillance videotape in furtherance of the
conspiracy. Id. ¶ 41, J.A. at 48-49. McCulloch and Redmond allegedly prepared and
authorized a subpoena for the videotape in furtherance of the conspiracy. Id. ¶ 44, J.A.
at 49. Damos, Klein, and Eaton allegedly showed the videotape to Parker, Michael
Baker, and James Baker in furtherance of the conspiracy. Id. ¶¶ 49-50, J.A. at 50-51.

        Assuming, as we must, that Defendants engaged in this conduct in furtherance
of a conspiracy to retaliate against Plaintiffs for exercising their First Amendment
rights, Defendants could not have reasonably believed that their actions comported with
clearly established law. This Court repeatedly has held that retaliation against the
exercise of First Amendment rights is a basis for section 1983 liability. See Helvey v.
City of Maplewood, 154 F.3d 841, 844 (8th Cir. 1998); Barnard v. Jackson County,
Mo., 43 F.3d 1218, 1222-23 (8th Cir. 1995); Shands v. City of Kennett, 993 F.2d 1337,
1342 (8th Cir. 1993). Accord Barrett v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997),
cert. denied, 118 S. Ct. 1517 (1998) (recognizing that “it is well-established that a
public official’s retaliation against an individual exercising his or her First Amendment
rights is a violation of § 1983”); Fraternal Order of Police Hobart Lodge No. 121, Inc.
v. City of Hobart, 864 F.2d 551, 553 (7th Cir. 1988) (stating that “retaliation by public
officials against the exercise of First Amendment rights is itself a violation of the First
Amendment”).

       Defendants claim that they cannot be held liable under section 1983 for
retaliation carried out by a private employer. Our cases have held, however, that
retaliation against protected speech can result in section 1983 liability even if it

                                            -6-
ultimately is carried out by a private actor. See Helvey, 154 F.3d at 844 (citing Korb
v. Lehman, 919 F.2d 243, 244-45 (4th Cir. 1990)); Mershon v. Beasley, 994 F.2d 449,
451 (8th Cir. 1993) (citing Dennis v. Sparks, 449 U.S. 24, 27 (1980)). To consider a
private employer a state actor for section 1983 purposes, a plaintiff “must allege, at the
very least, that there was a mutual understanding, or a meeting of the minds, between
the private party and the state actor.” Mershon, 994 F.2d at 451, quoted in Miller v.
Compton, 122 F.3d 1094, 1098 (8th Cir. 1997). Plaintiffs alleged such a meeting of
the minds between Coleman, the private employer who allegedly forced Signorino to
resign, and James Baker, a state actor. See First Am. Compl. ¶¶ 56-58, J.A. at 52-53.

      On the narrow question of law over which we have jurisdiction, we therefore
conclude that Plaintiffs have alleged facts which, if proved, could result in liability
under section 1983 for all Defendants. Accordingly, the district court’s order is
affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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