Abdur-Rahman v. Walker

567 F.3d 1278, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20105, 29 I.E.R. Cas. (BNA) 11, 2009 U.S. App. LEXIS 10027, 2009 WL 1270864
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 11, 2009
Docket08-12345
StatusPublished
Cited by44 cases

This text of 567 F.3d 1278 (Abdur-Rahman v. Walker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abdur-Rahman v. Walker, 567 F.3d 1278, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20105, 29 I.E.R. Cas. (BNA) 11, 2009 U.S. App. LEXIS 10027, 2009 WL 1270864 (11th Cir. 2009).

Opinions

PRYOR, Circuit Judge:

This appeal presents the question whether reports by compliance inspectors of a water and sewer department that “owe[ their] existence” to investigative duties assigned to the inspectors are protected by the First Amendment from managerial discipline. Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006). Daisy Abdur-Rahman and Ryan Petty, inspectors formerly employed by the Department of Public Works of DeKalb County, Georgia, appeal a judgment on the pleadings against their complaint and in favor of their former supervisors, John Walker and Chester Gudewicz, Jr. The inspectors complained that their employment was terminated in retaliation for reporting to their supervisors about the compliance of the county with the Clean Water Act, in violation of rights secured by the whistleblower provision of the Act, 33 U.S.C. § 1367(a), and the First Amendment, 42 U.S.C. § 1983. The inspectors’ reports to their supervisors were based on investigations of sewer overflows the inspectors performed as part of their assigned duties. The district court concluded that section 1983 does not provide a private right of action for violations of the Clean Water Act and the job-related reports of the inspectors were not citizen speech protected by the First Amendment. We affirm.

I. BACKGROUND

In August and September 2004, Abdur-Rahman and Petty commenced work as Compliance Inspectors in the Compliance Unit of the Water & Sewer Department [1280]*1280of the Department of Public Works of DeKalb County, Georgia. They were supervised by Gudewicz, who was in turn supervised by Walker. The supervisors instructed the inspectors to write ordinances for the county about the disposal of fat, oil, and grease. Although this responsibility did not require the inspectors to review data about sanitary sewer overflows, the inspectors wanted to inspect that data as part of their work. . The inspectors requested the data, but their supervisors resisted their requests. When the inspectors complained, the supervisors accused them of being “too scientific” and “too thorough.” Nevertheless, the inspectors persisted in their requests and commenced field inspections of sewer overflows. In November 2004, the supervisors told the inspectors that they were “ruffling too many feathers.”

In early 2005, the department expanded the job duties of the inspectors and assigned them the task of “investigating [sanitary sewer overflows] ... to determine whether grease was the cause.” In January and February 2005, the inspectors investigated two sewer overflows: one at Panthersville Road and another at Fair-lake Drive. The inspectors allege that, “during the course of their employment, [they] articulated concerns” that sewer overflows “were not being properly reported” to state authorities and were not cordoned off or bioremediated as required by state and federal laws, and they specifically reported their concerns in January and February 2005 about the sewer overflows at Panthersville Road and Fairlake Drive.

On January 26, 2005, Gudewicz recommended that the employment of the inspectors be terminated because of unsatisfactory work performance. On February 8, Walker approved Gudewicz’s recommendation, and on March 11, the inspectors were fired. On April 11, 2005, the inspectors filed a complaint with the Department of Labor against DeKalb County, the supervisors, and other defendants and alleged a violation of the whistleblower provision of the Clean Water Act, 33 U.S.C. § 1367(a). On September 22, 2006, an administrative law judge dismissed all defendants except the county.

In January 2007, the inspectors filed a complaint against the supervisors. 42 U.S.C. § 1983. The inspectors alleged that their supervisors had violated the whistleblower provision of the Clean Water Act, 33 U.S.C. § 1367(a), and the First Amendment. The inspectors alleged that the county “commissioned” them to report about “the causation of [sewer overflows], but not regarding the reporting, remediation, or posting of [sewer overflows].” The inspectors sought constitutional protection for their statements about reporting, bioremediation, and posting.

The supervisors moved for judgment on the pleadings on the grounds that section 1983 does not provide a remedy for violation of the Clean Water Act, the complaint failed to state a claim under the First Amendment, and the supervisors were immune from suit. The district court stayed proceedings pending the outcome of the administrative action. The administrative law judge denied relief on the ground that the inspectors had not proved that they were terminated because they engaged in activity protected by the Clean Water Act. The inspectors appealed to the Administrative Review Board of the Department of Labor, and the district court again stayed proceedings. The supervisors then renewed their motion for judgment on the pleadings, and the district court granted judgment on the pleadings in favor of the supervisors.

II. STANDARD OF REVIEW

“We review de novo a district court’s entry of judgment on the pleadings, [1281]*1281accepting the facts in the complaint as true and viewing them in the light most favorable to the nonmoving party.” Horsley v. Feldt, 304 F.3d 1125, 1131 (11th Cir.2002).

III. DISCUSSION

Our discussion is divided in two parts. We first discuss why section 1983 does not provide a private right of action for violations of the Clean Water Act. We then discuss our conclusion that the reports of the inspectors were not protected by the First Amendment because the inspectors did not speak as “ ‘eitizen[s] on a matter of public concern.’ ” Battle v. Bd. of Regents for the State of Ga., 468 F.3d 755, 760 (11th Cir.2006) (per curiam) (quoting Garceta, 547 U.S. at 418, 126 S.Ct. at 1958).

A. Section 1983 Does Not Provide a Right of Action for Violations of the Clean Water Act.

The inspectors’ first argument is foreclosed by a longstanding decision of the Supreme Court. In Middlesex County Seiuerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981), the Supreme Court held that the comprehensive remedies of the Clean Water Act foreclose a private right of action under section 1983. Although section 1983 provides a right of action for violations of rights secured by the Constitution and laws of the United States and authorizes suits to redress violations by state officials of rights created by federal statutes, Maine v. Thiboutot,

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Bluebook (online)
567 F.3d 1278, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20105, 29 I.E.R. Cas. (BNA) 11, 2009 U.S. App. LEXIS 10027, 2009 WL 1270864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abdur-rahman-v-walker-ca11-2009.