                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 13a0113n.06

                                         No. 11-3415
                                                                                      FILED
                         UNITED STATES COURT OF APPEALS
                                                                                  Jan 31, 2013
                                                                            DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

KAY A. KINGSLEY; MUNICIPAL                         )
CONSTRUCTION EQUIPMENT                             )
OPERATORS LABOR COUNCIL,                           )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR
       Plaintiffs-Appellants,                      )   THE SOUTHERN DISTRICT OF
                                                   )   OHIO
v.                                                 )
                                                   )
N. EUGENE BRUNDIGE; MICHAEL                        )
VERICH; ROBERT SPADA; JAMES                        )
SPRAGUE; SHERRIE J. PASSMORE; J.                   )
RUSSELL KEITH,                                     )
                                                   )
       Defendants-Appellees.                       )



BEFORE: SILER and WHITE, Circuit Judges; REEVES,* District Judge.

       HELENE N. WHITE, Circuit Judge. Kay Kingsley, a former Administrative Law Judge

at Ohio’s State Employment Relations Board (SERB), and the Municipal Construction Equipment

Operators Labor Council (the Union), which represents members in labor-relations matters before

the SERB, appeal the district court’s dismissal of their amended complaint. The gravamen of

Plaintiffs’ amended complaint was that Defendants, SERB Board members and officers, terminated

Kingsley’s employment because, having issued a discovery order in the Union’s favor in an unfair-

labor case, she refused Defendants’ request to retract the order and substitute an order with the

opposite outcome. We AFFIRM.




       *
       The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 11-3415
Kingsley, et al. v. Brundige et al.

                                                 I.

       SERB is a quasi-judicial state agency that oversees public-sector labor issues in Ohio. Ohio

Rev. Code § 4117.02(A). Kingsley was appointed as a full-time SERB administrative law judge

(ALJ) in 1999, at which time SERB ALJs were in Ohio’s classified civil service. At pertinent times,

Kingsley was the only full-time ALJ at SERB.

       Kingsley was assigned an unfair labor practice (ULP) claim brought by the Union against the

City of Cleveland, which alleged that Cleveland’s Mayor met with bargaining-unit members,

threatened to fire employees and privatize their jobs, and attempted to intimidate and unfairly

circumvent the bargaining process. SERB v. City of Cleveland, Case No. 2007-ULP-04-0156.

Kingsley issued a discovery order granting the Union’s application for a subpoena duces tecum that

the Mayor be deposed and produce phone and other records.

       The City appealed Kingsley’s discovery order to the three-member SERB Board, composed

of Defendants N. Eugene Brundige, Chairperson; Michael Verich, Vice-Chairperson; and Robert

Spada, Board member. For reasons not apparent in the record, the SERB Board remanded the case

to Defendant James Sprague, Chief ALJ, and Kingsley for further review and ordered Defendant

Sprague to report the outcome.

       In the meantime, SERB ALJs were removed from classified service effective July 17, 2009.

See O.R.C. § 4117.02(H) as amended by H.B. 1, § 101.01. The same amendment that declassified

SERB ALJs also authorized SERB’s Chairperson (Defendant Brundige) to appoint and fire ALJs.

       On August 26, 2009, Chief ALJ Defendant Sprague approached Kingsley and “suggested”

that she change her discovery order by rewriting it with a different outcome. Kingsley declined, but




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offered to set up a telephone conference with counsel to attempt to resolve the discovery issue.

Defendant Sprague agreed with the decision to hold a telephone conference.

       The following day, after a meeting between Defendants Sprague and Brundige, Brundige and

Sherrie Passmore, SERB’s Executive Director, informed Kingsley that she was being laid off.

       At a September 3, 2009, SERB Board meeting, the Board granted the City’s motion for

reconsideration of Kingsley’s discovery order in the ULP case, granted the City’s request for a

protective order, and transferred the case from the hearings section to the Board.

       By letter dated October 26, 2009, Defendants Brundige and Passmore notified Kingsley that

her lay-off would take effect on October 30, 2009.

                                                A.

       In November 2009, Kingsley appealed her termination to the State Personnel Board of

Review (SPBR) (administrative appeal), and filed a petition for writ of mandamus in the Ohio Court

of Appeals against SERB to declare H.B. 1 unconstitutional on its face and as applied to her.

       Soon after, Plaintiffs filed the instant suit on November 30, 2009, seeking declarations that

H.B. 1 is unconstitutional and that actions of SERB are void, a restraining order prohibiting SERB

from hearing any matter until procedures allowing challenges to Board members’ impartiality are

enacted, damages against Defendants in their individual capacities, Kingsley’s reinstatement, and

a restraining order prohibiting SERB from deciding the Union’s ULP complaint.

                                                B.

       The SPBR determined that Kingsley was an unclassified employee and dismissed her

administrative appeal for lack of subject-matter jurisdiction. See Kingsley v. Ohio State Pers. Bd.

of Review, No. 10AP-875, 2011 WL 1782208 (Ohio Ct. App. May 10, 2011). The Ohio Court of

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Appeals dismissed Kingsley’s petition for writ of mandamus. Kingsley v. State Emp’t Relations Bd.,

No. 09AP-1085, 2011 WL 335033 (Ohio Ct. App. Feb. 1, 2011). Kingsley appealed to the Ohio

Supreme Court which, while the instant appeal was pending, affirmed the dismissal of her petition

for writ of mandamus. Kingsley v. State Emp’t Relations Bd., 958 N.E.2d 169, 172-73 (Ohio 2011),

recon. denied, 959 N.E.2d 1058 (Ohio 2012).

                                                 II.

       This court reviews de novo the grant of a Rule 12(b)(6) motion. Savoie v. Martin, 673 F.3d

488, 492 (6th Cir. 2012). “To survive a Rule 12(b)(6) motion to dismiss, a complaint need contain

only enough facts to state a claim to relief that is plausible on its face.” Fed.-Mogul U.S. Asbestos

Pers. Injury Trust v. Cont’l Cas. Co., 666 F.3d 384, 387 (6th Cir. 2011) (internal quotation marks

and citation omitted). All well-pleaded facts in the complaint must be accepted as true. Savoie, 673

F.3d at 492.

                          A. Claims dismissed on jurisdictional grounds

1. Younger1 abstention (counts 4, 5, 6, 7, 10 and 11)

       The district court invoked Younger abstention to dismiss six counts of Plaintiffs’ amended

complaint that sought equitable relief: the Union’s Due Process claims, the Union and Kingsley’s

claims that conflicts of interest at SPBR and SERB deprived them of Due Process, Kingsley’s claims

that H.B. 1 violates the Ohio Constitution and was unlawfully applied to her retroactively, and

violation of the Ohio open meeting statute.




       1
           Younger v. Harris, 401 U.S. 37 (1971).

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       Younger abstention is based on concern for comity. If a State’s interests in pending civil

proceedings are so important that exercise of the federal judicial power would disregard the comity

between the States and the National Government, Younger abstention is appropriate. Pennzoil Co.

v. Texaco, Inc., 481 U.S. 1, 11 (1987) (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 603–05 (1975)).

       For a district court to invoke Younger abstention:

       1) there must be on-going state judicial proceedings; 2) those proceedings must
       implicate important state interests; and 3) there must be an adequate opportunity in
       the state proceedings to raise constitutional challenges. Squire v. Coughlan, 469 F.3d
       551, 555 (6th Cir. 2006) (quotation marks and citation omitted). If these
       prerequisites are satisfied and “so long as there is no showing of bad faith,
       harassment, or some other extraordinary circumstance that would make abstention
       inappropriate, the federal courts should abstain.” Id. (quoting Middlesex Cnty. Ethics
       Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435 (1982)).

Am. Family Prepaid Legal Corp. v. Columbus Bar Ass’n, 498 F.3d 328, 332-33 (6th Cir. 2007).

       We review de novo the district court’s decision to invoke Younger abstention. Id. at 333.

The proper time of reference for determining Younger-abstention applicability is when the federal

complaint is filed. Zalman v. Armstrong, 802 F.2d 199, 204 (6th Cir. 1986). In this case that date

is November 30, 2009.

       First, both Kingsley and the Union had ongoing state judicial proceedings: Kingsley’s appeal

to the SPBR and her mandamus action in the Ohio Court of Appeals, and the Union’s ULP claim

before SERB. Second, the ongoing state proceedings implicated important state interests, i.e.,

Kingley’s claims arose from termination of her employment from a state agency, and included

whether the Ohio statute that removed her from classified civil service violated the Ohio

Constitution, and whether SERB violated other Ohio statutes when it terminated her employment.

The Union’s claims involved SERB procedures to adjudicate ULP claims against state or local



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employers. See Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 627 (1986)

(Younger doctrine is applicable to state administrative proceedings in which important state interests

are vindicated). Finally, Plaintiffs had adequate opportunity to raise constitutional challenges in the

state proceedings.2 As to this third requirement, contrary to Plaintiffs’ argument, Younger does not

require a district court to determine whether state proceedings in which constitutional challenges

could have been raised would have “cured” constitutional violations, but rather whether the party

had adequate opportunity to raise such violations. See Am. Family Prepaid Legal Corp., 498 F.3d

at 332–33.

       The three Younger requirements having been met, the district court properly dismissed

Plaintiffs’ claims seeking equitable relief.

2. Supplemental Jurisdiction (counts 8, 9, and 2, in part)

       “[W]hen faced with a claim of immunity to a pendent state claim, federal courts look to the

appropriate state law to ascertain the nature of the immunity given.” Haynes v. Marshall, 887 F.2d

700, 704 (6th Cir. 1989). Under O.R.C. § 2743.03, Ohio’s Court of Claims has exclusive, original

jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in

O.R.C. § 2743.02. GLA Water Mgmt. v. Univ. of Toledo, 963 N.E.2d 207, 211–12 (Ohio Ct. App.




       2
        We do not address two arguments Plaintiffs raise for the first time in their Reply Brief: 1)
that even had Kingsley been allowed to present her facial constitutional challenge to the SPBR, the
Ohio Court of Appeals would lack jurisdiction to render an opinion on the constitutional challenge,
and 2) that the Union’s Due-Process claims are not subject to Younger abstention because bias
(SERB’s) is an exception to Younger. Nonetheless, we observe that the Supreme Court of Ohio
addressed and rejected the first argument during the pendency of this appeal in Kingsley v. State
Emp’t Relations Bd., 958 N.E.2d 169, 172–73 (Ohio 2011), recon. denied, 959 N.E.2d 1058 (Ohio
2012) (table disposition).

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2011). Thus, under Ohio law, state employees may not be sued unless and until the Court of Claims

has determined that they are not entitled to immunity. Haynes, 887 F.2d at 704.

       Because Plaintiffs failed to obtain a determination from the Ohio Court of Claims that

Defendants are not entitled to immunity, the district court properly dismissed counts 8 and 9 of their

amended complaint, which sought damages under Ohio law for intentional infliction of emotional

distress and criminal conduct, and that part of count two arising under Ohio law, i.e., that Defendants

violated Kingsley’s liberty and property interests that guarantee her decisional independence under

the Ohio Constitution.

                                      III. First Amendment Claim

       The district court agreed with Defendants that under Garcetti v. Ceballos, 547 U.S. 410

(2006), Kingsley’s expressive activities were engaged in pursuant to her official ALJ duties and that

her amended complaint thus failed to state a First-Amendment violation.

       Garcetti held that “when public employees make statements pursuant to their official duties,

the employees are not speaking as citizens for First Amendment purposes, and the Constitution does

not insulate their communications from employer discipline.” Id. at 421. The Court explained:

       Respondent Richard Ceballos has been employed since 1989 as a deputy district
       attorney for the Los Angeles County District Attorney’s Office. During the period
       relevant to this case, Ceballos was a calendar deputy in the office’s Pomona branch,
       and in this capacity he exercised certain supervisory responsibilities over other
       lawyers. In February 2000, a defense attorney contacted Ceballos about a pending
       criminal case. The defense attorney said there were inaccuracies in an affidavit used
       to obtain a critical search warrant . . . [and] wanted Ceballos to review the case.
       According to Ceballos, it was not unusual for defense attorneys to ask calendar
       deputies to investigate aspects of pending cases.

       After examining the affidavit and visiting the location it described, Ceballos
       determined the affidavit contained serious misrepresentations . . . .



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       Ceballos spoke on the telephone to the warrant affiant . . . but he did not receive a
       satisfactory explanation for the perceived inaccuracies. He relayed his findings to his
       supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by
       preparing a disposition memorandum. The memo explained Ceballos’ concerns and
       recommended dismissal of the case. On March 2, 2000, Ceballos submitted the
       memo to Sundstedt for his review. A few days later, Ceballos presented Sundstedt
       with another memo, this one describing a second telephone conversation between
       Ceballos and the warrant affiant.
       ....
       Despite Ceballos’ concerns, Sundstedt decided to proceed with the prosecution . . .
       The trial court held a hearing on the motion. Ceballos was called by the defense and
       recounted his observations about the affidavit, but the trial court rejected the
       challenge to the warrant.

       Ceballos claims that in the aftermath of these events he was subjected to a series of
       retaliatory employment actions . . . . [His complaint] alleged petitioners violated the
       First and Fourteenth Amendments by retaliating against him based on his memo of
       March 2.

       [] Petitioners moved for summary judgment, and the District Court granted their
       motion. Noting that Ceballos wrote his memo pursuant to his employment duties,
       the court concluded he was not entitled to First Amendment protection . . . .

       The Court of Appeals for the Ninth Circuit reversed, holding that “Ceballos’s
       allegations of wrongdoing in the memorandum constitute protected speech under the
       First Amendment.” 361 F.3d 1168, 1173 (C.A. 9 2004) . . . .

       Having concluded that Ceballos’ memo satisfied the public-concern requirement, the
       Court of Appeals proceeded to balance Ceballos’ interest in his speech against his
       supervisors’ interest in responding to it. See Pickering [v. Bd. of Educ., 391 U.S.
       563] at 568. The court struck the balance in Ceballos’ favor, noting that petitioners
       “failed even to suggest disruption or inefficiency in the workings of the District
       Attorney’s Office” as a result of the memo. See 361 F.3d, at 1180.
       ....
       We granted certiorari . . . and we now reverse.
       ....
       The controlling factor in Ceballos’ case is that his expressions were made pursuant
       to his duties as a calendar deputy. See Brief for Respondent 4 (“Ceballos does not
       dispute that he prepared the memorandum ‘pursuant to his duties as a prosecutor’ ”).
       That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a
       responsibility to advise his supervisor about how best to proceed with a pending
       case—distinguishes Ceballos’ case from those in which the First Amendment
       provides protection against discipline. We hold that when public employees make

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       statements pursuant to their official duties, the employees are not speaking as
       citizens for First Amendment purposes, and the Constitution does not insulate their
       communications from employer discipline.

Garcetti, 547 U.S. at 414–17, 421 (emphasis added).

                                                  A.

       Post-Garcetti cases from this circuit are few. Defendants by notice of supplemental

authority, Fed. R. App. P. 28(j), cite Savage v. Gee, 665 F.3d 732 (6th Cir. 2012), in which we

applied Garcetti and affirmed the grant of summary judgment against the plaintiff, a former state-

university librarian who claimed that he was constructively discharged in retaliation for his First

Amendment speech. Observing that the plaintiff’s speech commenting on a book recommendation

was not related to classroom instruction and “only loosely, if at all, related to academic scholarship,”

this court held that his speech was pursuant to his duties as head librarian and as a committee

member selecting books for freshman students, and thus not protected under the First Amendment.

Id. at 739. Savage relied on cases including Evans-Marshall v. Board of Education of Tipp City, 624

F.3d 332, 342–44 (6th Cir. 2010) (holding that “the First Amendment does not protect primary and

secondary school teachers’ in-class curricular speech . . . . Even to the extent academic freedom, as

a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate

a teacher’s curricular and pedagogical choices from the school board’s oversight, as opposed to the

teacher’s right to speak and write publicly about academic issues outside of the classroom.”).

                          B. Decisions of other Circuits applying Garcetti

       Two post-Garcetti circuit court decisions are more on point than our decision in Savage.

Complicating matters, however, is that the two arrived at opposite conclusions on the question

whether the plaintiff-government employee who alleged his employment was terminated for refusing

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to make false statements had been acting pursuant to official duties and therefore was precluded from

bringing a First Amendment retaliation claim. The Supreme Court denied certiorari in both cases.

        The Second Circuit in Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), cert. denied, 132 S. Ct.

1634 (2012), held that a probationary police officer who alleged that he was discharged for refusing

to retract a true written report and substitute a false report in an investigation of a civilian complaint

charging a fellow police officer with excessive force had engaged in protected speech, i.e., speech

as a citizen on a matter of public concern, and that his refusal to make false statements was

analogous to a private citizen’s lawful refusal to rescind a true accusation, make a false accusation,

or file a false police report. As to the distinction between statements affirmatively made by a

government employee and a government employee’s refusal to either retract such statements or make

untrue statements, the Second Circuit observed:

        There is certainly some difference between compelled speech and compelled silence,
        but in the context of protected speech, the difference is without constitutional
        significance, for the First Amendment guarantees ‘freedom of speech,’ a term
        necessarily comprising the decision of both what to say and what not to say.

Jackler, 658 F.3d at 238 (quoting Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781,

796–97 (1988)) (emphasis in original).

        In contrast, the District of Columbia Circuit in Bowie v. Maddox, 642 F.3d 1122 (D.C. Cir.

2011), reh’g denied, 653 F.3d 45 (D.C. Cir. 2011), cert. denied, 132 S. Ct. 1636 (2012), held that

a former official of the District of Columbia Inspector General’s Office who alleged that he was fired

in retaliation for refusing to sign an affidavit that his employer drafted for him in response to a

former subordinate’s employment-discrimination claim, was acting pursuant to his official duties

as a government employee when he refused to sign the affidavit, and that Garcetti thus precluded



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his First-Amendment retaliation claim. On the plaintiff’s petition for rehearing, the Bowie court

remarked that the Second Circuit in Jackler got Garcetti “backwards,” and opined that “[a] test that

allows a First Amendment retaliation claim to proceed whenever the government employee can

identify a civilian analogue for his speech is about as useful as a mosquito net made of chicken wire:

All official speech, viewed at a sufficient level of abstraction, has a civilian analogue.” 653 F.3d at

48. The Bowie court observed that “[a]n utterance made pursuant to employment responsibilities

is unprotected even if the same utterance would be protected were the employee to communicate it

as a citizen,” and that, as the dissenting justices in Garcetti recognized, Garcetti “categorically”

denies recovery under the First Amendment to plaintiffs who spoke pursuant to official duties. Id.

(quotation marks and citation omitted).

        In the instant case, Kingsley was acting pursuant to her official duties as ALJ when she

refused to retract the discovery order and substitute an order reaching a different result. Further,

there is no civilian analogue to her speech. Although we do not endorse Defendants’ actions in the

instant case, we are bound to apply Garcetti, under which Kingsley’s First Amendment claim must

fail.

                                      IV. Due Process Claims

        Kingsley also challenges the district court’s dismissal of her Due Process claims on qualified

immunity grounds. Plaintiffs’ amended complaint alleged that Kingsley had a liberty interest under

the federal Constitution and liberty and property interests under the Ohio Constitution that guarantee

her the right of decisional independence as a fair and impartial hearing officer in an administrative

proceeding. In response to Defendants’ motion to dismiss, Kingsley argued that Defendants violated




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her substantive-due-process right to be free from conduct that shocks the conscience and violated

her right as a judge to decisional independence.

       The district court properly concluded that any such right was not clearly established at the

time Kingsley’s employment was terminated.

       Finally, the district court concluded that to the extent the amended complaint could be read

to assert a procedural-due-process claim, it was properly dismissed because Kingsley cited no

authority to support that she possessed a property interest in decisional independence arising under

Ohio law. As the district court observed, Kingsley’s reliance on Stephens v. Merit Systems

Protection Board, 986 F.2d 493, 497–98 (Fed. Cir. 1993), is misplaced, because that case assumed

without deciding that a federal administrative law judge had a cognizable property interest in

decisional independence.

                                                   V.

       For these reasons, we AFFIRM the district court’s dismissal of Plaintiffs’ amended

complaint.




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