                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 07a0167n.06
                               Filed: March 1, 2007

                                         Case Nos. 05-2067, 05-2276

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

 DENNIS GARY WHITTIE,                                          )
                                                               )
            Plaintiff-Appellee,                                )
                                                               )        ON APPEAL FROM THE
                   v.                                          )        UNITED STATES DISTRICT
                                                               )        COURT FOR THE EASTERN
 JAMES DOYLE, et al.,                                          )        DISTRICT OF MICHIGAN
                                                               )
       Defendants-Appellants.                                  )
 _______________________________________                       )
                                                               )

                                          ORDER AND OPINION

BEFORE: BATCHELDER and GRIFFIN, Circuit Judges, and PHILLIPS,* District Judge.

         THOMAS W. PHILLIPS, District Judge. This court entered an order on September 29,

2005, consolidating the two appeals from defendant, James Doyle (Docket No.05-2067) and

defendants Louis H. Schimmel and Melvin E. Turner (Docket No.05–2276) for purposes of briefing

and submission. The individual defendants appeal the District Court’s denial of their motion for

summary judgment on grounds of qualified immunity in this First Amendment retaliation case

brought under 42 U.S.C. § 1983. In addition to briefing the issues raised by the individual

defendants’ appeal, plaintiff also filed a motion to dismiss the appeals or, in the alternative, to strike

portions of the defendants’ briefs. In an order dated June 6th, 2006, plaintiff’s motion to dismiss the



        *
           The Honorable Thomas W . Phillips, United States District Judge for the Eastern District of Tennessee,
sitting by designation.
appeals or, in the alternative, to strike portions of the defendants’ briefs, was referred to this merits

panel.

         In its decision, this court noted that, “[A] District Court’s denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the

meaning of 28 U.S.C. §1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth,

472 U.S. 511, 530 (1985). “However,” this court noted, “issues regarding the sufficiency of the

evidence are not immediately appealable under Forsyth. Johnson v. Jones, 515 U.S. 304 (1995).

This court concluded that it appeared defendants had raised questions of law for the court’s

consideration and that the plaintiff’s motion was more suitable for consideration by the panel that

would be assigned to decide the merits of the instant appeal, pointing out that experience had

demonstrated to the court that which side of the fact - law line an individual case falls on may

become clear only after the parties have fully briefed the case. See Berryman v. Rieger, 150 F. 3d

561, 563 (6th Cir. 1998).

         The case has now been fully briefed and oral arguments presented to the court. Upon careful

consideration of the briefs of both defendants-appellants and the plaintiff-appellee, as well as the

motion to dismiss the appeals or, in the alternative, to strike portions of the defendants’ briefs, it is

the conclusion of this court that it does not have jurisdiction over the qualified immunity issues in

this appeal because the defendants-appellants are simply contesting the sufficiency of evidence

presented to the District Court rather than raising an issue of law. Johnson v. Jones, 515 U.S. 304,

319-20 (1995). In addition, this court declines to exercise jurisdiction over the interpretation of the

Michigan Whistleblowers’ Protection Act because there are no exceptional circumstances or


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compelling reasons for this court to exercise pendent appellant jurisdiction at this juncture of the

proceedings in this case.



                                       I. Background

       Plaintiff-Appellee commenced employment as a police officer with defendant City of

Hamtramck’s Police Department in August of 2001. Aside from his duties as a police officer,

plaintiff-appellee also maintained an active interest in municipal politics. In the spring of 2003,

plaintiff-appellee wrote city, county, and state authorities reporting that defendant-appellant Melvin

E. Turner, who is employed as the Public Safety Director, held two municipal positions in violation

of the Michigan Incompatible Offices Act. Furthermore, later that year, plaintiff-appellee discovered

that the city’s building superintendent, Steve Shaya, had concealed the fact that he was a convicted

felon and that he was thereby employed in contravention of the city’s charter. Plaintiff-appellee then

began a private investigation into Mr. Shaya’s activities that culminated in a report which was

submitted to a number of government officials.

        In April of 2003, plaintiff-appellee launched a website called “Inside Hamtramck” that

published information and commentary on a variety of municipal issues, including the plaintiff-

appellee’s opinions with regard to James Doyle, who was originally the Chief Deputy of Police and

later became the Police Chief. On July 18, 2003, then Deputy Chief Doyle sent plaintiff-appellee

a memorandum indicating that Mr. Shaya had filed a citizens complaint against plaintiff-appellee

and that the department was consequently conducting an investigation into plaintiff-appellee’s

preparation of the Shaya report.       The final line of the memorandum stated that “[a]ny


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communications regarding this matter are not to be released to any civilian personnel without

permission from the Director of Public Safety.” Shortly thereafter, plaintiff-appellee placed a

scanned copy of the Memorandum on the Inside Hamtramck website accompanied by commentary

against Chief Deputy Doyle, Mr. Turner, and Mr. Shaya. Subsequently, formal disciplinary

proceedings ensued against plaintiff-appellee.

         On September 8, 2003, Doyle, who had become the Police Chief, conducted the first

disciplinary hearing. As the result of the hearing, plaintiff-appellee was found to be in violation of

three departmental rules: (1) Public Statements and Appearances; (2) Unbecoming Conduct; and (3)

Dissemination of Information. As punishment, plaintiff-appellee was suspended for (10) days

without pay. The union filed a grievance on behalf of plaintiff-appellee, and the matter went to

arbitration. The arbitrator held that plaintiff-appellee’s statements did not constitute protected

speech and that the defendants had a basis for discipline, but reduced the punishment to a written

reprimand.

       Chief Doyle asserts, and plaintiff-appellee denies, that he gave a direct order to everyone

present during the arbitration proceeding that anything discussed was “department business” and,

therefore, would remain strictly confidential. Following the hearing, plaintiff-appellee sent an e-mail

to approximately eighteen individuals relaying the status of the website, the nature of the charges

against him, the procedural history of the hearing, and information that was presented during the

course of the arbitration proceeding. This e-mail came to Chief Doyle’s attention, and, consequently,

Chief Doyle initiated an investigation into plaintiff-appellee’s action with respect to the e-mail, and

ultimately had departmental charges issued against plaintiff-appellee for insubordination and for


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public dissemination of departmental information. Chief Doyle issued a letter terminating plaintiff-

appellee on October 7, 2003. Again, the matter went to arbitration and the arbitrator found that the

city had just cause to terminate plaintiff-appellee, but reduced his punishment to a sixteen month

suspension without pay or benefits. On October 15, 2003, plaintiff-appellee filed his complaint

regarding deprivation of his civil rights under 42 U.S.C. § 1983 claiming wrongful discharge in

retaliation for exercising his First Amendment Right to Free Speech. In accordance with the

arbitrator’s decision reducing the plaintiff-appellee’s termination to a suspension without pay or

benefits, plaintiff-appellee returned to work on January 24, 2005.

                                        II. Analysis

       The District Court below found that plaintiff-appellee had produced sufficient evidence to

resist summary judgment on the issue of qualified immunity when the evidence, when viewed in a

light most favorable to the plaintiff-appellee, indicated that defendants-appellants sought to

completely silence plaintiff’s whistleblowing activities by instituting two disciplinary hearings

against him and by ultimately terminating him. The District Court concluded that it would have been

clear to a reasonable official that he or she could not retaliate against plaintiff-appellee by

categorically prohibiting him from contacting the press or any government official. While the

defendants-appellants dispute this conclusion, it is clear to this court that the defendants-appellants

are merely contesting the sufficiency of the evidence presented to the trial court, and are not raising

an issue of law which is an appealable “final decision” within the meaning of 28 U.S.C. § 1291.

Mitchell v. Forsyth, 472 U.S. at 530.

       As pointed out by the United States Supreme Court in Behrens v. Pelletier, 516 U.S. 299,


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313 (1996), “Johnson held, simply, that determinations of evidentiary sufficiency at summary

judgment are not immediately appealable merely because they happen to arise in a qualified -

immunity case; if what is at issue in the sufficiency determination is nothing more than whether the

evidence could support a finding that particular conduct occurred, the question decided is not truly

‘separable’ from the plaintiff’s claim, and hence there is no ‘final decision’ under Cohen and

Mitchell. Plaintiff-Appellee asserts, and this court agrees, that in these appeals, defendants-

appellants essentially raise factual arguments to take exception to the trial court’s finding that

plaintiff-appellee produced sufficient evidence to resist summary judgment on the issue of qualified

immunity.

                                       III. Conclusion

       For the foregoing reasons, we grant the plaintiff-appellee’s motion to dismiss appeals for lack

of jurisdiction. The request of plaintiff-appellee for its cost and attorney fees incurred in having to

respond to the instant appeal shall be referred to the trial court for appropriate consideration upon

the completion of this case.




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