                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2972
                                    ___________

Randall R. Bradford,                     *
                                         *
      Plaintiff - Appellee,              *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Mike Huckabee, Individually              * Eastern District of Arkansas.
and as Governor of the State             *
of Arkansas, et al.,                     *
                                         *
      Defendants - Appellants.           *
                                    ___________

                               Submitted: September 17, 2004
                                  Filed: January 10, 2005
                                   ___________

Before LOKEN, Chief Judge, BEAM and BYE, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Randall Bradford resigned from his policy-making position as Executive Chief
Information Officer (“ECIO”) of the State of Arkansas. Bradford’s letter to Governor
Mike Huckabee stated that the resignation would be effective two weeks later, as
Bradford intended to criticize the Governor’s administration to the press and to the
legislature while still serving as ECIO. Not surprisingly, Governor Huckabee instead
made the resignation effective immediately. Bradford then commenced this action
against Huckabee, three members of the Governor’s staff, and the Director of the
Arkansas Department of Information Systems. The complaint asserts numerous
claims for injunctive, declaratory, and damage relief under state and federal law,
including § 1983 damage claims alleging that Bradford was constructively discharged
in violation of his First Amendment free speech rights as a public employee.
Defendants appeal the district court’s denial of their motion to dismiss these § 1983
claims on qualified immunity grounds. Concluding that Bradford has failed to state
§ 1983 claims under the First and Fourteenth Amendments, we reverse.

                                  I. Background

      Created by statute in 2001, the ECIO is appointed by and serves at the will of
the Governor, Ark. Code § 25-33-103(a), and has broad responsibilities, including to
formulate and promulgate “policies . . . for information technology in the state,” to
develop “legislation and rules and regulations affecting electronic records
management,” to develop “information technology security policy for state agencies,”
and to “[a]dvise state agencies in acquiring information technology service.” Ark.
Code Ann. § 25-33-104(a). Bradford was appointed by Governor Huckabee in
October 2001. He was the first person to hold the ECIO position.

       As relevant here, Bradford’s 54-page complaint alleges that he was “retaliated
against for attempting to communicat[e] with or report to State Legislators having
oversight,” and was “stripped of his authority and reprimanded” for attempting to
comply with his statutory duty “to interface with and report to the legislature and
provide them with legislative oversight.” Consequently, Bradford alleges, he
“resigned as a result of being constructively discharged.” The complaint supports
these allegations by attaching a number of e-mail messages between Bradford and the
Governor’s staff between January and April 2002. In these messages, staff criticized
Bradford for “cozying up to the legislators” he had invited to a committee meeting,
and warned Bradford to “be careful about involving the [legislature] in your
meetings” because “[i]nviting them into the process blurs the lines of responsibility



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in state government.” The complaint also includes Exhibit Q, a copy of Bradford’s
June 13, 2002 resignation letter, in which he stated:

      Unfortunately, I have concluded that I must resign . . . for professional
      reasons. I do not believe that the current working environment within
      your staff is conducive to effective management. . . . In order to be
      effective, I would need to be allowed to work in a collaborative
      environment, with a spirit of cooperation, with my Information
      Technology Oversight Committee and the Joint Committee for
      Advanced Communications and Information Technology.1 Those
      relationships have been strained by your staff’s attempts to restrict
      communication to the point that my office cannot be as effective as it
      should be. . . . I am giving two weeks’ notice effective today . . . .

Upon receiving the letter, Governor Huckabee sent Bradford a notice terminating his
employment “effective 12:00 noon today, June 13, 2002.” The complaint alleges that
Bradford “intended to make a statement to the press and to the legislature [after
tendering his resignation]. As a result of his intended speech, Mr. Bradford was
terminated two weeks early.”

      Defendants moved to dismiss portions of the complaint under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. In an initial order, the district court recited that
defendants contended they are entitled to qualified immunity from Bradford’s § 1983
damage claims, but the court denied the motion to dismiss those claims without
discussing the qualified immunity issue. Defendants appealed the interlocutory order,
and we remanded because we lacked jurisdiction absent a qualified immunity
determination. Bradford v. Huckabee, 330 F.3d 1038 (8th Cir. 2003). On remand,

      1
        The Oversight Committee has 12 members appointed by the Governor from
the private sector and state and local government to “advise the [ECIO] on the
allocation of information technology resources in the state.” Ark. Code § 25-33-106.
The Joint Committee is a standing committee of the General Assembly with oversight
responsibilities on information technology issues. Ark. Code §§ 10-3-1703, -1704.

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the district court held that the defendants are not entitled to immunity because
“Bradford’s right to speak about matters of public administration over which he had
supervision certainly outweigh[s] any interest defendants could assert in keeping the
information from the legislature and the public.” We review de novo the denial of a
motion to dismiss on the basis of qualified immunity. To prevail at this stage of the
proceedings, defendants must show that they are entitled to qualified immunity on the
face of the complaint. Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996), cert.
denied, 519 U.S. 1149 (1997). The exhibits Bradford attached to his complaint are
part of the complaint for this purpose. See Fed. R. Civ. P. 10(c); Meehan v. United
Consumers Club Franchising Corp., 312 F.3d 909, 913 (8th Cir. 2002).

                                   II. Discussion

       Qualified immunity protects public officials from § 1983 damage actions if
“their conduct does 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). “[T]he better approach to resolving cases in which the defense of
qualified immunity is raised is to determine first whether the plaintiff has alleged a
deprivation of a constitutional right at all.” County of Sacramento v. Lewis, 523 U.S.
833, 841 n.5 (1998); see Domina v. Van Pelt, 235 F.3d 1091, 1096 (8th Cir. 2000).

       It is now well established that “[a] State may not condition public employment
on an employee’s exercise of his or her First Amendment rights.” O’Hare Truck
Serv., Inc. v. City of Northlake, 518 U.S. 712, 717 (1996). But public employees do
not have an unlimited First Amendment right to say what they please, even on issues
of great public importance. For example,“the Governor of a State may appropriately
believe that the official duties of various assistants who help him write speeches,
explain his views to the press, or communicate with the legislature cannot be
performed effectively unless those persons share his political beliefs and party
commitments.” Branti v. Finkel, 445 U.S. 507, 518 (1980). As we said in Johnson

                                         -4-
v. City of West Memphis, 113 F.3d 842, 844 (8th Cir. 1997), personal loyalty is “an
appropriate requirement” if a public official “reports directly to the [governor] and
his duties include public relations and responsibility for . . . long-range planning.”

       Viewed from this perspective, we fail to discern any First Amendment content
to Bradford’s constructive discharge claim. The e-mail messages and Bradford’s
resignation letter reveal a not-uncommon executive branch power struggle between
an agency head who wanted to include key legislators in the agency’s day-to-day
affairs, and a governor’s office that insisted upon a more arms-length relationship
between the two branches of government. When Bradford did not get his way, he
declared his work environment intolerable and quit. To label his resignation a
constructive discharge seems a serious distortion of that term, as it has come to be
used in federal employment discrimination law. But even if the resignation could be
deemed a constructive discharge, Bradford resigned because of a policy dispute, not
because he had been punished for exercising or attempting to exercise his public
employee’s First Amendment right “as a citizen, in commenting upon matters of
public concern.” Pickering v. Board of Education, 391 U.S. 563, 568 (1968). As the
Supreme Court reminded us in Connick v. Myers, 461 U.S. 138, 143 (1983):

      The repeated emphasis in Pickering on the right of a public employee
      “as a citizen . . .” was not accidental. This language, reiterated in all of
      Pickering’s progeny, reflects . . . the common-sense realization that
      government offices could not function if every employment decision
      became a constitutional matter.

       This leaves Bradford’s claim that his First Amendment rights were violated
when he was terminated two weeks early because he “intended to make a statement
to the press and to the legislature” after tendering his resignation. In other words,
Bradford claims a constitutional right to retain his position as a policy-making agency
head while he publicly criticized the Governor after resigning. There is no such
constitutional right, at least not in the First Amendment to the United States

                                          -5-
Constitution. “[T]hough a private person is perfectly free to uninhibitedly and
robustly criticize a state governor’s legislative program, we have never suggested that
the Constitution bars the governor from firing a high-ranking deputy for doing the
same thing.” Waters v. Churchill, 511 U.S. 661, 672 (1994) (plurality opinion); see
Rose v. Stephens, 291 F.3d 917, 922-23 (6th Cir. 2002); Lewis v. Cohen, 165 F.3d
154, 168-69 (2d Cir. 1999) (Weinstein, J., concurring), and cases cited.

       For these reasons, we conclude that Bradford’s complaint fails to state a First
Amendment § 1983 claim against any defendant. Accordingly, defendants are
entitled to qualified immunity, and the district court erred in denying their motion to
dismiss these claims. See Siegert v. Gilley, 500 U.S. 226 (1991). The court also
erred in not dismissing the § 1983 claims against the defendants acting in their
official capacities. The court’s order dated July 8, 2003, is reversed, and the case is
remanded for further proceedings not inconsistent with this opinion.
                        ______________________________




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