                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3929
                                   ___________

Randall R. Bradford,                     *
                                         *
             Appellee,                   *
                                         *
      v.                                 *
                                         *
Mike Huckabee, Individually and as       *
Governor of the State of Arkansas;       *   Appeal from the United States
Kelly Boyd, Individually and as          *   District Court for the Eastern
Technology Liaison for the Office of     *   District of Arkansas.
the Governor; Brenda Turner,             *
Individually and as Chief of Staff for   *
the Governor; Doug Elkins,               *
Individually and as Director of the      *
State of Arkansas, Department of         *
Information Systems; Jim Harris,         *
Individually and Senior Staff for the    *
Governor;                                *
                                         *
             Appellants,                 *
                                         *
John Doe, #1 and #2,                     *
                                         *
             Defendant.                  *

                                   ___________

                             Submitted: May 14, 2003

                                  Filed: June 5, 2003
                                   ___________
Before WOLLMAN and BEAM, Circuit Judges, and NANGLE,1 District Judge.
                          ___________

BEAM, Circuit Judge.

       Mike Huckabee, Kelly Boyd, Brenda Turner, Doug Elkins, and Jim Harris
(collectively "Appellants") appeal the district court's order denying, in part, their
motion to dismiss based on qualified immunity. We find that the district court did not
rule on the qualified immunity issue, and therefore we remand.

I.    BACKGROUND

       Randall R. Bradford (Bradford) formerly worked for the State of Arkansas as
the Executive Chief Information Officer. He alleges that he resigned from this
position as a result of being "constructively discharged" on June 13, 2002. Upon
receipt of his resignation, Governor Huckabee terminated his employment. Bradford
filed a complaint under 42 U.S.C. § 1983 for alleged violations of his First
Amendment rights, as well as claims under the False Claims Act, 31 U.S.C. § 3730(h)
(FCA), the Arkansas Whistle-blower Act, Ark. Code Ann. § 21-1-602 et. seq., and
pendent state law claims for wrongful discharge and civil conspiracy. Bradford
named each appellant in both their individual and official capacities for each claim.

       Appellants filed a motion to dismiss on several grounds. Relevant to this
appeal is their contention that they were all entitled to qualified immunity for the
claims against them in their individual capacities. The district court granted the
motion to dismiss against the Appellants in their individual capacities under the FCA,
in their individual capacities under the Arkansas Whistle-blower Act, and in their



      1
       The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.

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individual capacities for wrongful discharge.2 He also ruled, correctly, that Bradford
would only be entitled to injunctive and declaratory relief on his claims against
Appellants in their official capacities, not to damages. These rulings leave Bradford
with claims against Appellants in their official capacities for all of the claims, and
against Appellants in their individual capacities for the First Amendment claim
(through section 1983) and the civil conspiracy claim. The district court did not
explicitly rule on whether Appellants were entitled to qualified immunity for these
two remaining individual capacity claims, but it did conclude its order with, "In all
other respects the motion to dismiss is denied." Appellants interpret this to mean that
their qualified immunity defense was denied. Thus, they appeal this aspect of the
district court's ruling.

II.   DISCUSSION

     Our jurisdiction to review the qualified immunity issue on interlocutory appeal
depends upon whether the district court actually ruled on the issue.3 Szwedo v.
Arkansas, 284 F.3d 826, 827 (8th Cir. 2002) ("[B]ecause the district court did not


      2
       The district court found that Appellants were not employers in their individual
capacities and thus Bradford's FCA, Arkansas Whistle-blower Act, and wrongful
discharge claims against Appellants in their individual capacities failed to state a
claim.
      3
        The denial of a motion to dismiss is not usually immediately appealable
because it is not a final order. Pendleton v. St. Louis County, 178 F.3d 1007, 1010
(8th Cir. 1999). The Supreme Court, however, has carved out an exception to this
rule for cases involving qualified immunity claims. Behrens v. Pelletier, 516 U.S.
299, 307 (1996). Thus, the order in the instant case would be considered a final order
subject to immediate appeal on the narrow issue of whether Appellants violated a
"clearly established law," if the district court ruled on the qualified immunity issue,
as Appellants contend it did. Johnson v. Jones, 515 U.S. 304, 313 (1995). An order
on qualified immunity is not appealable to the degree that it turns on an issue of
evidence sufficiency. Id. at 314.

                                         -3-
address the qualified immunity defense, it did not enter a final appealable order with
respect to qualified immunity [sufficient] to confer appellate jurisdiction."); Krein v.
Norris, 250 F.3d 1184, 1188 (8th Cir. 2001) ("Because there has been no decision,
conclusive or otherwise, rendered below on the disputed question of qualified
immunity, the defendants' appeal is premature."). We have examined every aspect of
the district court's opinion and have determined that there is no explicit determination
or analysis of Appellants' qualified immunity claim. The district court dealt with (and
rejected) Appellants' sovereign immunity defense against the First Amendment claim
against them in their official capacities, noting that the plaintiff "has stated a claim
for civil conspiracy," and that in "all other respects the motion to dismiss is denied."
While we understand the parties' contention that these statements imply a denial of
qualified immunity, we do not think that such an inference is sufficient for an
interlocutory appeal at this point in time.

         The district court needed to first determine whether the complaint alleged
enough facts to demonstrate the violation of a clearly established statutory or
constitutional right arising under the First Amendment and civil conspiracy statute.4
Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). "Dismissal is inappropriate
unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief." Id. (internal quotations omitted).
Public officials are entitled to qualified immunity in suits against them in their
individual capacity as long as their actions do not violate "clearly established
statutory or constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is an affirmative
defense, to be upheld in a motion to dismiss only when the immunity can be
established on the face of the complaint. Hafley, 90 F.3d at 266.



      4
       To this extent, the civil conspiracy claim relies upon the First Amendment
claim for its validity.

                                          -4-
       As part of this determination, the district court also needed to follow a two-step
inquiry to determine whether Bradford's purported speech, as a public employee, was
protected by the First Amendment. See Sparr v. Ward, 306 F.3d 589, 594 (8th Cir.
2002). First, Bradford's speech must be on a matter of public concern. Id. Second,
the district court must balance Bradford's right to speak against the interests of the
public employer. Sexton v. Martin, 210 F.3d 905, 910 (8th Cir. 2000). The district
court failed to apply either step of the analysis as outlined by Sparr. Additionally, the
district court should identify the actual "speech" that Bradford is alleging was
infringed upon by Appellants' actions. It is difficult to tell from the allegations
whether any specific statements made by Bradford, free or otherwise, were either
inhibited by the Appellants or became the source of the adverse employment action
claimed.

      The Supreme Court has emphasized that qualified immunity should be
addressed as early as possible in litigation. Hunter v. Bryant, 502 U.S. 224, 227
(1991). Thus, we raise this jurisdictional defect sua sponte, conclude that we have
no jurisdiction to hear this appeal, and remand for a proper determination of
Appellants' qualified immunity. See Krein, 250 F.3d at 1187-88.

III.   CONCLUSION

       Because there has been no determination on the qualified immunity issue raised
by Appellants, we lack jurisdiction to hear this appeal. Accordingly, we remand to
the district court for such a determination and further proceedings.

       A true copy.

             Attest:

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

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