Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2000

In Re Montgomery Cty.
Precedential or Non-Precedential:

Docket 99-1371




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Filed June 9, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 99-1371 and 99-1379

IN RE: MONTGOMERY COUNTY; MONTGOMERY COUNTY
COMMISSIONERS; MARIO MELE; RICHARD BUCKMAN;
JOSEPH M. HOEFFEL, III

       Petitioners, No. 99-1371

ROBERT E. WRIGHT, SR.

v.

MONTGOMERY COUNTY; MONTGOMERY COUNTY
COMMISSIONERS; MARIO MELE; RICHARD BUCKMAN;
JOSEPH HOEFFEL; MAILLIE FALCONIERO & COMPANY
LLP; GEORGE FALCONERO

       Montgomery County; Montgomery County
       Commissioners; Mario Mele; Richard Buckman,
       Joseph Hoeffel,
       Appellants, No. 99-1379

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 96-cv-04597)
District Judge: The Honorable Herbert J. Hutton

ARGUED July 27, 1999

BEFORE: SLOVITER, NYGAARD, and McKEE,
Circuit Judges.

(Filed June 9, 2000)
       Timothy T. Myers, Esq. (Argued)
       John M. Elliott, Esq.
       Eric J. Bronstein, Esq.
       Krista K. Beatty, Esq.
       Elliott, Reihner, Siedzikowski
        & Egan
       925 Harvest Drive
       Union Meeting Corporate Center
       Blue Bell, PA 19422

        Attorneys for Petitioners/
       Appellants/Cross Respondent/
       Appellee

       Theodore Q. Thompson, Esq.
        (Argued)
       Theodore Q. Thompson & Associates
       10 North Main Street
       Ambler, PA 19002

        Attorney for Respondent/Appellee/
       Cross Petitioners/Appellants

OPINION OF THE COURT

NYGAARD, Circuit Judge.

This is an interlocutory appeal from the District Court's
pre-trial denial of the Appellants' claims to absolute and
qualified immunity from suit. Although the District Court
did not expressly address the Appellants' immunity claims,
it denied the motions for summary judgment in which
those claims were asserted. We hold that this implicit
denial of the Appellants' immunity claims is sufficient to
confer appellate jurisdiction. We will affirm.

I. Facts and Procedure

In July 1994, Montgomery County's Salary Board
promoted Robert Wright to Director of the County's
Department of Housing Services. At the time, Wright had
been a County employee for approximately 15 years,
working first for its Redevelopment Authority, and then for

                                2
the Department of Housing Services. Beginning in 1993, a
number of Montgomery County homeowners contacted the
United States Department of Housing and Urban
Development to lodge complaints against Montgomery
County's Department of Housing Services. The complaints
accused Department officials of mismanagement, negligence
and undue delay in their administration of the County's
HUD-funded Home Improvement Program. The complaints
specifically mentioned Wright by name, as well as other
Department employees and contractors. HUD forwarded the
complaints to the County's Board of Commissioners and,
ultimately, initiated an audit of the Department.

Beginning in December 1995, HUD forwarded a series of
draft audit findings to Wright in his capacity as Department
Director. The draft findings identified a number of
deficiencies in the Department's administration of HUD-
funded programs. In addition to more general shortfalls, the
draft findings concluded that Wright, among others, had
engaged in a number of transactions with HUD contractors
involving impermissible conflicts of interest. HUD forwarded
its final draft finding on April 19, 1996.

On April 22, the Salary Board voted to suspend Wright,
who is African-American, without pay.1 On May 20, HUD
issued its final audit report which, like the draft findings,
was highly critical of Wright's management of the
Department, and of his personal dealings with HUD
contractors. On June 13, the Salary Board voted to
terminate Wright's employment. Two other Department
employees, both of whom were white, were also terminated.
Wright ultimately responded to his termination byfiling a
civil action against Montgomery County, the county
commissioners as a group, and the three commissioners
who served on the Salary Board -- Mario Mele, Richard S.
Buckman, and Joseph M. Hoeffel, III -- in their individual
capacities ("Appellants").2
_________________________________________________________________

1. The Salary Board consisted of three County Commissioners and the
County Controller.

2. Defendants Maillie Falconiero and Co. and George Falconiero are not
County Commissioners and are not parties to this appeal.

                               3
Wright's complaint included a wide range of claims. In
Count One, he alleged that the Appellants discriminated
against, retaliated against, and harassed him on account of
his race. He based this Count on 42 U.S.C. SS 1981, 1982,
1983, 1985(1-3), 1986, and 1988, but did not invoke Title
VII. The remaining counts alleged a litany of state-law
claims ranging from defamation to intentional and negligent
infliction of emotional distress, as well as a variety of other
tort claims.

In September 1998, the Appellants filed three separate
motions for summary judgment based on: (1) claims of
absolute and qualified immunity; (2) flaws in Wright's state-
law claims; and (3) flaws in Wright's constitutional claims.
In a December 22, 1998 Memorandum and Order, the
District Court granted the unopposed motion to dismiss the
state-law claims. See Wright v. Montgomery County, No. 96-
CV-4597 (E.D. Pa. Dec. 22, 1998). In the same
Memorandum and Order, the court erroneously
characterized Count One of Wright's complaint as asserting
claims under Title VII. See 

at 5-8. Finding that
Wright had established a prima facie case of discrimination
under Title VII, the court denied the Appellants' motion for
summary judgment on Count One.

Because the District Court had characterized Count One,
now the only surviving count, as asserting claims under
Title VII, the Appellants filed a fourth motion for summary
judgment on January 28, 1999. This time, the Appellants
argued that summary judgment was proper because Wright
had failed "to exhaust his legally mandated administrative
remedies as a condition precedent of commencing suit."
App. at 1364a. Thereafter, Wright informed the court that
the federal claims asserted in Count One of his complaint
were not based on Title VII, but rather on, inter alia, 42
U.S.C. S 1981. See A1389. The Appellants responded by
filing yet another motion for summary judgment on
February 16, asserting various grounds for summary
judgment, and again asserting absolute immunity. See
A1393-96 (motion); 1450-51 (Memorandum of Law).
Subsequently, on February 19, the Appellants filed a
motion to dismiss based on allegations that Wright was
refusing to cooperate in discovery. See Fed. R. Civ. P. 37.

                               4
On March 15, the District Court filed a second
Memorandum and Order. Therein, the court corrected
itself, noting that Wright's claims in Count One were not
based on Title VII, but rather, inter alia, 42 U.S.C. S 1981.
See Wright v. Montgomery County, No. 96-CV-4597, 

, at *1 (E.D. Pa. Mar. 15, 1999). In this second
order, the court dismissed all claims asserted in Count One
except Wright's retaliation claims. In the course of doing so,
the District Court purported to address a number of
motions, including the Appellants' January 28th motion for
summary judgment based on exhaustion. The court did not
address the January 28th motion's immunity claims,
however, nor did it acknowledge the subsequent February
16th motion reasserting those claims.

On April 29, 1999, the District Court set the case for trial
on May 10. Appellants filed their first notice of appeal on
May 7. On that day, the District Court entered a number of
orders disposing of the parties' remaining motions,
including, apparently, Appellants' February 16th motion for
summary judgment. Once more, however, the court did not
address the Appellants' immunity claims. Instead, the court
merely noted in a footnote that it had "already addressed
the issues raised in this motion for summary judgment" in
its March 15th Memorandum and Order. In response,
Appellants filed an amended notice of appeal on May 11,
indicating that they were also appealing from the May 7
Order.3

II. Standard of Review

Absolute immunity is a purely legal question over which
we exercise plenary review. See Carver v. Foerster, 

, 99 (3d Cir. 1996). Our review of the Appellants'
qualified immunity claims is strictly limited to the legal
questions involved. Therefore, our review of that issue is
also plenary. See Abbott v. Latshaw, 

, 145 (3d
Cir. 1998), cert. denied, 

(1999).
_________________________________________________________________

3. In addition to this appeal, Appellants filed a Petition for Writ of
Mandamus, asking us to order the District Court to address the
immunity issue. Because we determine that the issues are properly
before us, we will deny the Petition by separate order.

                               5
III. Discussion

The Appellants raise a number of issues in this appeal.
As a threshold matter, we must first determine which of
those issues, if any, we have jurisdiction to review. We
conclude that we have jurisdiction to consider the
Appellants' claims to absolute and qualified immunity, but
lack jurisdiction to consider their remaining claims. We
next consider whether the District Court erred by implicitly
denying the Appellants' immunity claims. We hold that it
did not.

A. Jurisdiction

1. Timeliness of Appeal

Wright contends that we lack jurisdiction to review the
Appellants' claims because they failed to file notice of
appeal within the 30-day limit established by Federal Rule
of Appellate Procedure 4(a). See Fed. R. App. P. 4(a)(1). We
disagree.

The Rule 4(a) deadline for civil cases applies to"all
appealable orders, including collateral orders, specifically
orders denying immunity." Weir v. Propst, 

,
286 (7th Cir. 1990); see also Kenyatta v. Moore , 

, 1186-87 (5th Cir. 1984). In Weir, the court held that,
"[i]f the deadline is missed, the order is not appealable. The
defendant must then wait until another appealable order
(normally, the final judgment) is entered, upon appeal of
which he can challenge any interlocutory order that has not
become moot." 

.

Wright argues that this appeal should be deemed as
arising from, at the latest, the District Court's March 15th
Order denying the Appellants' various motions for summary
judgment. That argument overlooks one critical fact,
however. The District Court did not explicitly rule on the
Appellants' immunity claims in its March 15th Order, nor
at any time before or after. In its December 22, 1998 Order,
the court characterized Wright's federal claims as arising
under Title VII. This, of course, temporarily took the
immunity issues out of contention. Under Title VII, a public
official may be held liable in her official capacity only,

                               6
making the doctrine of qualified immunity, which protects
only against personal liability, inapplicable. See Harvey v.
Blake, 

, 227-28 (5th Cir. 1990) ("Because the
doctrine of qualified immunity protects a public official from
liability for money damages in her individual capacity only,
the doctrine is inapplicable in the Title VII context."). When
the District Court corrected itself in its March 15th Order,
the original motion for summary judgment on immunity
grounds was still properly before it.

The Appellants were entitled to believe that the District
Court would eventually address their immunity claims at
least until the court had denied all of their outstanding
motions and set the case for trial. The District Court set the
case for trial on April 29, and denied all of the Appellants'
outstanding motions on May 7. The Appellants clearlyfiled
their May 7th notice of appeal, as well as their May 11th
amended notice of appeal, within 30 days of those dates,
and thus within Rule 4(a)'s time limit. Accordingly, we
reject Wright's argument that we must dismiss the
Appellants' appeal as untimely.

2. Jurisdiction over an Interlocutory Appeal

Wright also raises an alternative challenge to our
jurisdiction over this appeal. He argues that the Appellants'
claims to qualified immunity do not fit within the collateral-
order doctrine. We find his arguments on this point
unpersuasive, however. Moreover, Wright ignores or
overlooks the fact that the Appellants have also asserted a
claim to, and appeal from the denial of, absolute immunity.

As a general rule, the federal appellate courts have no
jurisdiction under 28 U.S.C. S 1291 to review interlocutory
decisions such as a denial of summary judgment.
Nevertheless, the collateral-order doctrine excepts a narrow
range of interlocutory decisions from the general rule. See
Cohen v. Beneficial Indus. Loan Corp., 

(1949).
To fall within the doctrine, an interlocutory decision must
conclusively determine the disputed issue, the issue must
be completely separate from the merits of the action, and
the decision must be effectively unreviewable on appeal
from a final judgment. See Coopers & Lybrand v. Livesay,

, 468 (1978).

                               7
The Supreme Court has repeatedly applied the collateral-
order doctrine to hold that orders denying absolute
immunity are reviewable on interlocutory appeal. See, e.g.,
Nixon v. Fitzgerald, 

, 

(1982)
(finding appellate jurisdiction over denial of president's
claim to absolute immunity); Helstoski v. Meanor , 

(1979) (reviewing claim of immunity under Speech and
Debate Clause); Abney v. United States, 

(1977) (reviewing claim of immunity under Double Jeopardy
Clause); see also Carver v. Foerster, 

, 98-99 (3d
Cir. 1996). In doing so, the Court has explained that
absolute immunity creates not only protection from liability,
but also a right not to stand trial. See Mitchell v. Forsyth,

, 525 (1985). If required to await final
judgment on the merits of the underlying action before
seeking appellate review, the appellant would irretrievably
lose the right not to stand trial in the first place. See 

review of the Appellants' absolute
immunity claims is necessary to preserve the protections
such immunity affords.

In Mitchell, the Supreme Court extended the collateral-
order doctrine to include denial of claims to qualified
immunity. See id.; see also Brown v. United States, 

, 619 (3d Cir. 1988). Nevertheless, denial of
qualified immunity falls within the collateral-order doctrine
only to the extent the denial turns on an issue of law. See
Johnson v. Jones, 

, 313 (1995); see also Grant
v. City of Pittsburgh, 

, 119-20 (3d Cir. 1996)
("To the extent they turn on an issue of law , decisions
denying public officials qualified immunity are considered
final under the collateral order doctrine.") (emphasis
added). Generally, the relevant issue of law is whether the
right the defendant is alleged to have violated was"clearly
established" at the time the defendant acted or failed to act.
See Behrens v. Pelletier, 

, 313 (1996). Where,
however, denial turns on the sufficiency of the evidence, it
may not be appealed until the district court entersfinal
judgment in the case. See 

.

Wright argues that the Appellants' qualified immunity
claims are not reviewable on interlocutory appeal because
the District Court's December 18, 1998, Memorandum and

                               8
Order "sets forth the clearly established right which the
Appellants violated and therefore denied them the
protection of qualified immunity." Appellee's Br. at 13
(citing App. at 1779a). But this argument demonstrates a
complete failure to understand the collateral-order doctrine,
as well as the nature of our review. Had the District Court
actually ruled that Wright had alleged a violation of a
clearly established right, that would be exactly the type of
ruling we would have jurisdiction to review on interlocutory
appeal.

The fact is, however, the District Court never rendered
any such ruling, nor addressed the Appellants' immunity
claims in any manner. Indeed, although the court began its
December 18th Memorandum and Order by stating that it
was addressing, among other things, Appellants'"Motion
for Summary Judgment Concerning Their Immunity," the
court did not analyze the immunity issue, and instead
limited its discussion to the viability of Wright's substantive
claims. In its March 15th Memorandum and Order, the
court again addressed the substantive issues only.

Because the District Court never explicitly addressed the
Appellants' immunity claims, we must decide whether we
have interlocutory jurisdiction to review an implied denial
of those claims. We join the other Circuit Courts of Appeals
that have addressed this issue and hold that we do. See
Lowe v. Town of Fairland, 

, 1380 (10th Cir.
1998); Zayas-Green v. Casaine, 

, 23 (1st Cir.
1990); Musso v. Hourigan, 

, 741 (2d Cir.
1988); Craft v. Wipf, 

, 173 (8th Cir. 1987);
Helton v. Clements, 

, 1017 (5th Cir. 1986)
(per curiam); see also Nelson v. Jashurek, 

,
146-147 (3d Cir. 1997) (suggesting interlocutory
jurisdiction might exist where denial of qualified immunity
claim can be inferred); Ryan v. Burlington County, 

, 1203 (3d Cir. 1988) (holding that a district court's
"order is `final' and immediately reviewable under Mitchell if
[the appellants] properly raised a claim of qualified
immunity in the District Court."). Allowing this case to
proceed to trial without considering the Appellants'
immunity claims would irreversibly deprive them of any
right to avoid trial.

                               9
Of course, the fact that we have jurisdiction to review the
Appellants' immunity claims does not automatically mean
that we should also decide them. Some courts confronted
with this situation have simply remanded the case for the
district court to rule on the claims in the first instance.
See, e.g., 

; Craft v. 

; Helton v. 

. Without
establishing a fixed rule, we conclude that remand on the
immunity claims would not be appropriate given the
particular circumstances of this case.

The Supreme Court's decisions in this area make it clear
that an immune official's right to avoid trial is based not on
the individual's desire to avoid the personal costs and
aggravations of presenting a defense. Rather, the right not
to stand trial is based on far broader concerns for avoiding
the social costs of the underlying litigation, and for
ensuring and preserving the effectiveness of government.
See Harlow v. Fitzgerald, 

, 806 (1982). The
concern is that, absent immunity from suit as well as
liability, the attention of public officials will be diverted
from important public issues. Additionally, qualified
individuals might avoid public service altogether, while the
threat of litigation may undermine the willingness of those
who do serve to act when action is necessary. See 

The Appellants in this case have already been distracted
for nearly four years by the need to defend themselves in
this action. They have presented the District Court with
numerous motions, including multiple assertions of their
claims to immunity from suit. They have received and
responded to the District Court's disposition of those
motions, energetically pursued an appeal in this court, and
awaited our decision. Where, as here, the issues are purely
legal and ripe for review, we see little benefit in requiring
these Appellants to press their claims anew in the District
Court, and to risk yet further delay should that court's
ultimate decision lead to a subsequent appeal.

3. Jurisdiction Over Remaining Issues

In addition to their claims of absolute and qualified
immunity, the Appellants ask us to dismiss Wright's race-

                               10
based retaliation claims, asserted under S 1981, on three
alternative grounds. First, they argue that Wright'sS 1981
claim must be dismissed because he has admitted that
three of the four Salary Board members who voted to
terminate him did not act with improper motive. See
Appellants' Br. at 42-45. To hold the County or the
Commissioners liable, they contend, Wright must prove
that a majority of the Salary Board members "voted to
terminate Plaintiff for the improper purpose of retaliating
against him for protesting mistreatment because he is
black." 

(internal quotation marks and citations
omitted).

Appellants next argue that we must dismiss Wright's
S 1981 claim because he cannot establish a prima facie
case of retaliation under that statute. See 

More
specifically, they argue that Wright cannot, as a matter of
law, demonstrate that the activity for which the Appellants
allegedly retaliated was a "protected" activity. See 

They similarly argue that Wright cannot establish a causal
link between the activity in question and his subsequent
termination. See 

Finally, the Appellants argue
that even if Wright could establish a prima facie case of
retaliation, they have presented "multiple legitimate, non-
discriminatory reasons for [his] termination." 

no opinion on the merits of these arguments.
Unlike absolute and qualified immunity, Appellants'
remaining claims do not fall within the collateral-order
doctrine. Indeed, they do not satisfy any of the doctrine's
three requirements. See Transtech Indus., Inc., v. A&Z
Septic Clean, 

, 55 (3d Cir. 1993) (citing Coopers &
Lybrand v. Livesay, 

, 468 (1978)). The District
Court's denial of their motion for summary judgment has
not conclusively resolved the issues the Appellants raise on
appeal. Those issues are not completely separable from the
merits of the action. And, finally, they will not effectively be
unreviewable on appeal from a final judgment.
Consequently, the collateral-order doctrine confers no
jurisdiction to consider Appellants' non-immunity based
claims on interlocutory appeal.

The Appellants suggest that we have discretion to
consider their additional claims under pendent appellate

                               11
jurisdiction. In fact, we have previously recognized a
discretionary, though "narrow," doctrine of pendent
appellate jurisdiction. See United States v. Spears, 

, 287 (3d Cir. 1988) (citation omitted). But we have also
concluded that the doctrine should be used "sparingly,"
and only where there is a sufficient overlap in the facts
relevant to both the appealable and nonappealable issues
to warrant plenary review. See 

also stated that
" `pendent appellate jurisdiction over an otherwise
unappealable order is available only to the extent necessary
to ensure meaningful review of an appealable order.' "
National Union Fire Ins. v. City Sav., F.S.B., 

,
382 (3d Cir. 1994) (quoting Hoxworth v. Blinder, Robinson
& Co., 

, 209 (3d Cir. 1990)); see also Swint v.
Chambers County Comm'n, 

44-50 (1995)
(cautioning against an expansive application of pendent
appellate jurisdiction, and overturning the Eleventh
Circuit's decision to review a county commission's
summary judgment motion as pendent to its review of the
qualified immunity claims asserted by individual
defendants).

In this case, the Appellants' non-immunity claims depend
on questions of fact that the District Court has yet to
resolve. Consequently, plenary review of those claims would
be inappropriate. Additionally, the Appellants' immunity
claims are entirely susceptible to meaningful review without
any consideration of their non-immunity claims.
Accordingly, we decline to exercise pendent appellate
jurisdiction over the non-immunity claims.

B. The Immunity Claims

1. Absolute Immunity

The Appellants claim that they are entitled to absolute
immunity from suit. Their decision to terminate Wright,
they argue, is "precisely" the type of policy-making decision
the Supreme Court has held to be " `in the sphere of
legitimate legislative activity' and entitled to absolute
immunity." Appellants' Br. at 29 (quoting Bogan v. Scott-
Harris, 

, 54-55 (1998)). We disagree.

                               12
It is true that local legislators, like federal and state
legislators, are absolutely immune from liability for their
legislative activities. See 

; see also
Aitchison v. Raffiani, 

(3d Cir. 1983). To be
legislative, however, the act in question must be both
substantively and procedurally legislative in nature. See
Carver v. Foerster, 

, 100 (3d Cir. 1996). An act
is substantively legislative if it involves "policy-making of a
general purpose" or "line-drawing." 

procedurally
legislative if it is undertaken "by means of established
legislative procedures." 

decision to terminate Wright fails the
substantively-legislative test. The decision did not involve a
matter of general policy, applicable to a variety of
circumstances, nor to a range of County employees. Quite
to the contrary, the decision targeted a particular employee
suspected of specific acts of mis- and malfeasance. Urging
the opposite conclusion, the Appellants argue that their
decision to terminate Wright is analogous to the decision
held to be legislative in Bogan. Even a passing review of the
Supreme Court's decision in that case belies the argument,
however.

In Bogan, the act at issue involved the elimination of the
plaintiff 's position as part of a larger, city-wide downsizing
prompted by declining financial resources. See 

; see also 

(holding that
borough council members who voted to abolish assistant
building inspector position on efficiency and economy
grounds had absolute immunity from S 1983 claims
brought by employee who held the position). This case, in
contrast, involves a decision to eliminate a particular
employee rather than the position that employee happens
to hold. Indeed, as the Court expressly noted in Bogan, the
act at issue in that case

       reflected a discretionary, policymaking decision
       implicating the budgetary priorities of the city and the
       services the city provides to its constituents. Moreover,
       it involved the termination of a position, which, unlike
       the hiring or firing of a particular employee, may have
       prospective implications that reach well beyond the
       particular occupant of the office.

                               13


(emphasis added).

In short, we need not consider whether the act offiring
Wright by vote of the Salary Board was procedurally
legislative. Regardless of the procedure, the act was not
legislative in substance. Firing a particular employee is a
personnel decision that does not involve general policy
making. Appellants' firing of Wright did not reach beyond
"the particular occupant of the office." Nor was their action
an "integral step[ ] in the legislative process." 

an executive or administrative nature such as this are not
entitled to absolute immunity. See 

.
As a result, Appellants' reliance on Bogan is misplaced and
their claim of absolute immunity must be denied.

2. Qualified Immunity

Appellants claim that in addition to absolute immunity,
they are also entitled to qualified immunity. As they
correctly note, the doctrine of qualified immunity shields
government officials from personal liability to the extent the
conduct at issue "does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known." See Appellants' Br. at 37 (citing
Harlow v. Fitzgerald, 

, 818 (1982)).
Unfortunately, the Appellants' attempt to establish that
their decision to terminate Wright did not violate a clearly
established right wholly misunderstands the limited nature
of our interlocutory review.

The Appellants contend that their decision to terminate
Wright was based on HUD's audit report, which suggested,
at best, that he was a poor manager, and, at worst, that he
was guilty of potentially criminal conflicts of interest. They
further contend that their reliance on the report, whether
or not mistaken, was not unreasonable under the
circumstances. They conclude, therefore, that because
Wright "cannot demonstrate that the individual Defendants
were `plainly incompetent' or `knowingly violating the law'
when they terminated him, [his] claims . . . must be
dismissed on grounds of qualified immunity." Appellants'
Br. at 42. As we have already suggested, the argument is
misplaced.

                               14
Wright has not alleged that the Appellants' reliance on
the audit report was unreasonable. Quite to the contrary,
he alleges that the Appellants' claimed reliance on the
report is merely a pretext. The Appellants terminated him,
Wright alleges, in retaliation for speaking out against the
County's allegedly racially discriminatory employment
practices. There is no question that such racially-based
retaliation would violate a right that was clearly established
at the time Wright was terminated.4 See, e.g., Liotta v.
National Forge Co., 

, 907 (3d Cir. 1980)
(holding that appellant had submitted sufficient evidence of
race-based retaliation to survive summary judgment on his
S 1981 claim), cert. denied, 

(1981); Patrick v.
Miller, 

, 1249-50 (10th Cir. 1992) (holding
that six cited cases "were sufficient to inform a reasonable
government official in 1988" that racially based retaliatory
actions "may violate the employee's rights as enumerated in
S 1981.").

Whether the Appellants' decision to terminate Wright was
made in response to HUD's audit findings as they claim, or
in retaliation as Wright alleges, is a question of fact to be
decided in the District Court. Our review on interlocutory
appeal is strictly limited to determining whether the right
alleged to have been violated was clearly established at the
time of the act in question. Until the District Court has
entered a final judgment, we do not consider whether the
plaintiff has produced sufficient evidence to prove his
allegations. Holding as we do that Wright has alleged the
violation of a clearly established right, we must also hold
that the Appellants are not entitled to qualified immunity at
this stage of the proceedings.

IV. Conclusion

For the reasons stated, we will affirm the District Court's
implicit denial of Appellants' immunity claims. We decline
_________________________________________________________________

4. Appellants cite Swineford v. Snyder County Pa., 

, 1271
(3d Cir. 1994), for the proposition that "speech intended to air personal
grievances" is not protected by the First Amendment. That, of course, is
inapposite to the question of whether retaliation for such speech violates
42 U.S.C. S 1981.

                               15
to address the Appellants remaining claims, and will
remand the case for further proceedings.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               16