I read with great interest the Fourth Circuit's opinion in the case of Ridpath v. Board of Governors, and find much noteworthy within it.
For one thing, the Court splits 2-1 on the issue of whether the plaintiff has stated a due process/liberty claim. If three Fourth Circuit judges cannot agree, that's pretty good evidence to me that the constitutional right asserted by the plaintiff is not clearly established. If it's not clear to Judge Widener that the plaintiff has a claim, how could the defendants have known any better?
The case is about some guy suing a football coach and Marshall University administrators for throwing the blame on him for an NCAA rules violation, with the result that the NCAA ruled that part of the "corrective action" the University should take was to correct the plaintiff out of his job, which in turn made him untouchable in the NCAA compliance racket. That "liberty interest" area of the law seems like murky territory to me - I've never seen one get past a motion to dismiss. Judge Widener might be right in his dissent when he focuses on the case law that says defamation is not a constitutional violation. There is something fuzzy about this claim, to my mind, and it has to do with the interaction between the University and the NCAA. Fuzzy claims, one would hope, are the ones on which the defendants are entitled to qualfied immunity.
Second, there is a footnote bashing citation to unpublished case law. I have always believed that qualified immunity is one sub-issue where the unpublished law frequently ought to be considered, not for the purpose of considering what the law is, but for the secondary and sometimes historical issue of whether the right at issue was not clearly established. The Court says in footnote 15: "On this issue and others, the Administrators extensively rely on unpublished decisions of this Court. Of course, under Local Rule 36(c), citations to unpublished decisions are disfavored. These citations might be warranted if, for example, there were no published decision on point. Because such circumstances are not present here, however, we do not address the unpublished decisions cited by the Administrators." Now, I don't know what the lawyers were doing in this case, but I know what I was trying to do when I have cited unpublished case when litigating qualified immunity in the past. I suspect, however, that Local Rule 36(c) will not present the same obstacle on this point as it has in the past, once the rules change takes effect on citation to unpublished opinions.
Third, on the First Amendment question, the panel refers to "the McVey rule." I was the lawyer for the defendants in the McVey case. It seemed to me at the time like a very good case for determination on the pleadings, because the plaintiff's First Amendment claim was based entirely on an innocuous writing that was made a part of the complaint. The majority notes in its footnotes that its decision does not preclude the individuals from relitigating qualified immunity on summary judgment. And, so we did in McVey, and won the case, which judgment was affirmed on appeal. 44 Fed.Appx. 630 (4th Cir. 2002). In McVey, the original panel agreed 3-0 that the denial of the motion to dismiss should be affirmed, but otherwise was split 1-1-1 in a curious sort of way. Judge Niemeyer wrote that if the facts turn out one way, the defendants would win; Judge Murnaghan wrote that if the facts turn out another way, the defendants would lose; and Judge Michael wrote in the manner of that fellow in the movie Oh, Brother, Where Art Thou?, who said "I'm for yours truly, too." Actually, what he wrote was this: "I concur in Judge Niemeyer's opinion for the court, except to the extent it is qualified by Judge Murnaghan's separate opinion. In addition, I concur in the judgment." McVey v. Stacy, 157 F.3d 271, 282 (4th Cir. 1998) (Michael, J., concurring in part and concurring in judgment).
And so it is that I will be unable to hit the lecture circuit explaining the McVey rule, when it has puzzled me like a Rubik's cube in some aspects for almost a decade.
Fourth, the majority variously cites Jenkins v. Medford. Jenkins is the poster child for qualified immunity appeals of motions to dismiss. Judge Ervin in his dissent in Jenkins bemoaned the way the majority had taken the issue of qualified immunity and come out with an opinion that said the plaintiff could not state a claim, when there were all kinds of facts that remained unknown. I suspect that the Jenkins case has done in the political firing claims of road deputies in four states.
Finally, the lawyers for the defendants do not seem to have done themselves any favors, as they have boogered up some of the procedure. One appellant was booted out for lack of standing because he had not raised qualified immunity at all in the district court. As to the others, the official capacity appellants were booted because qualified immunity has nothing to do with official capacity defendants. As to the remaining individuals, the Court had to consider whether it could consider their qualified immunity claims, when they were not raised in the answers or any motions to dismiss, but instead in the third round of briefing motions to dismiss.