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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 24-12650
HUBERT ARTURO ACEVEDO,
Plaintiff-Appellee,
versus
CITY OF MIAMI, et al.,
Defendants,
ALEX DIAZ DE LA PORTILLA,
MANUEL REYES,
in his capacity as Personal Representative
of the Estate of Manuel Ernesto Reyes,
ARTHUR NORIEGA,
JOE CAROLLO,
individually,
Defendants-Appellants.
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2 Opinion of the Court 24-12650
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cv-20224-KMW
Before WILLIAM PRYOR, Chief Judge, and BRASHER and ABUDU, Circuit Judges.
BRASHER, Circuit Judge:
This appeal is about a whistleblower, the First Amendment,
and qualified immunity. According to the complaint, the defendants—Miami City Commissioners Alex Diaz de la Portilla, Manuel
Reyes, and Joe Carollo, as well as City Manager Arthur Noriega—
suspended and terminated the plaintiff, Police Chief Hubert
Acevedo, in retaliation for a whistleblowing memo that he wrote
to outside law enforcement agencies implicating the defendant
Commissioners. The defendants moved to dismiss the complaint
based on legislative and qualified immunity, and the district court
denied the motion. Because the district court denied their immunity defenses, the defendants appealed.
We agree in part and disagree in part with the district court.
Based on the facts in the complaint, which control at this stage of
litigation, we determine that the defendant Commissioners are not
entitled to qualified immunity. On the other hand, Manager Noriega is. Accordingly, we affirm in part, reverse in part, and remand
for further proceedings.
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24-12650 Opinion of the Court 3
I.
This appeal comes to us from the district court’s denial of
the defendant City Commissioners’, and Manager Noriega’s, motions to dismiss. Because the appeal arises from that stage of litigation, we accept all factual allegations in the complaint as true. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). And we take
all inferences in favor of the plaintiff. Id. The following facts are
based on Acevedo’s complaint, read in light of that standard.
A.
This dispute began in early 2020, when the Miami City Commission passed Resolution No. R-20-0034. The Resolution instructed the City Commission or the City Manager to direct most
criminal investigations of City elected officials to Florida state law
enforcement or the FBI. The City Commission ostensibly adopted
the Resolution to prevent the appearance of corruption.
Miami Mayor Francis Suarez and City Manager Noriega
later recruited Acevedo to serve as the Miami Chief of Police. They
recruited him due to his reputation as a reformist, given that there
was a “need to reform” the Miami Police Department “and [to]
change the culture of the department.” Doc. 1 at 3.
Shortly after Acevedo assumed his position, certain Commissioners—namely, defendant Commissioners Diaz de la Portilla,
Reyes, and Carollo—improperly involved themselves in an internal police investigation. Acevedo ordered an investigation into an
alleged breach of operational security committed by officer Luis
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Camacho. Based on the investigation, Acevedo relieved Camacho
of duty. The City Commission then summoned Acevedo before
them. At the ensuing public meeting, Commissioners Diaz de la
Portilla, Reyes, and Carollo berated him for suspending Camacho
without due process. Carollo said: “[w]hile I have been walking
very softly, I carry a hell of a big stick, and it don’t matter what time
of the year it is, whether it is election time, or not election time.”
Doc. 1 at 15. Even after this meeting, the defendant Commissioners
continued pressuring Acevedo in private, with Diaz de la Portilla
even offering to support Acevedo for Sheriff of Miami-Dade
County if he just did “the right thing on Camacho and g[o]t him
back.” Id. at 17.
Even more alarmingly, Acevedo witnessed certain City
Commissioners using the police force to settle personal, political
feuds. For example, several city officials warned Acevedo that
Commissioner Carollo had a vendetta against Bill Fuller, a local
businessowner, for backing Carollo’s political opponent. Manager
Noriega, Commissioner Diaz de la Portilla, and Mayor Suarez all
told Acevedo to avoid patronizing Fuller’s business lest he attract
Carollo’s ire. And Noriega directed Acevedo to investigate any potential wrongdoing by Fuller’s businesses, suggesting that this order came at the behest of Carollo.
When the Division of Alcohol, Beverages, and Tobacco, in
tandem with the Miami Police Department, eventually investigated one of Fuller’s businesses, the police report stated that the
business had received a written warning of liquor law violations.
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This statement was in error, as no violation had been found. When
Fuller’s associates read the report, they alerted Acevedo of this error. Acevedo directed one of his officers, Officer Morales, to investigate the error. But Acevedo later learned that Morales defied this
order and did not follow up regarding either this error or the investigation into Fuller’s businesses.
Later, the Miami Police Department conducted two more
unannounced inspections of Fuller’s businesses. During one of
these inspections, the police arrested the general manager for allegedly operating an illegal nightclub. The State Attorney’s Office ultimately dropped the resultant charges. And throughout this time,
Carollo continued to pressure Acevedo to aggressively investigate
Fuller’s businesses, alleging that Fuller was bribing code enforcement officials and police officers. But neither Acevedo nor key Internal Affairs officers ever saw any evidence to support this claim.
Unrelated to the incidents involving Fuller, the Commission
summoned Acevedo to appear before another public Commission
meeting. There, Carollo and Diaz de la Portilla named specific bars
and establishments that they wanted Acevedo to investigate. And
Diaz de la Portilla later emailed Acevedo to reiterate which businesses the police should target. But at no time did he suggest that
the City had received complaints about these businesses, nor did
he provide Acevedo with any evidence that these establishments
had violated the law.
During and after the above events, Acevedo warned Mayor
Suarez and Manager Noriega about the improprieties that he had
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witnessed. He stressed to them that he was alarmed by the Commissioners’ involvement with the internal Camacho investigation
and that he was concerned that the Commissioners were acting beyond their authority. He further alerted them to the fact that the
defendant Commissioners were attempting to intimidate him and
to use the Police Department to advance personal agendas. Suarez
and Noriega told Acevedo that this was just the way things worked
in Miami.
B.
Alarmed, Acevedo wrote and circulated a “whistle-blowing
memorandum.” 1 Doc. 1 at 23. He sent this memo to Suarez, Noriega, the Miami-Dade State Attorney’s Office, and the FBI. He did
so because he felt that he could not investigate any wrongdoing by
the Commissioners, hamstrung as he was by the 2020 Resolution.
The memo included the details relayed above, describing how certain Commissioners had “attempted to weaponize the [Police De1 Here, based on the “incorporation by reference” doctrine, the contents of
Acevedo’s whistleblowing memo are included in the complaint. See Swinford
v. Santos, 121 F.4th 179, 187 (11th Cir. 2024) (“[A] district court may consider
evidence attached to a motion to dismiss without converting the motion into
a motion for summary judgment if the document is (1) central to the plaintiff’s
claim; and (2) undisputed, meaning that its authenticity is not challenged.” (citation modified)).
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24-12650 Opinion of the Court 7
partment], interfered with [Police Department] internal and external investigations, and impeded reform at the [Department].” Id. at
24. The memo leaked to the media.
Even after it was leaked to the press, Acevedo’s memo did
not disrupt the functioning of the Police Department or the municipal government. Indeed, the Commission has no “authority to
manage the [Police Department] or otherwise dictate [Police Department] decisions.” Id. at 4. As a result, the memo could not, and
in fact did not, have any negative effect on the Commission’s ability
to run the department—a power which it did not have.
Nevertheless, upon receiving the memo, Noriega called
Acevedo. He told Acevedo:
So you’ve gone after [the defendant Commissioners],
and [you’d] better be sure you have a kill shot because
if you don’t, you better not take it. Maybe it’s because
you’re an outsider it’s easier for you. Trust me, I came
from my last job where I had a hell of a lot more autonomy than I have here, but I realize and accept my
limitations.
Doc. 1 at 24.
The Commission then held a special meeting. The defendant Commissioners—Diaz de la Portilla, Reyes, and Carollo—
launched into a series of heated attacks on Acevedo and his performance. Carollo even raised false allegations about Acevedo that
stemmed from before his time as Chief of Police. And the Commissioners played video of Acevedo in an Elvis costume, noting his
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tight pants, and compared Acevedo to former Chief of Police Don
Warshaw, a convicted felon. At the end of this meeting, the Commission passed a resolution to investigate the wrongdoing alleged
in Acevedo’s memo.
The Commission subsequently held another special meeting to discuss Acevedo. At this meeting, they continued their attacks on him, arguing that he was “no reformer” and noting that
he was “not a Cuban-American from Miami.” Doc. 1 at 27. They
then voted to eliminate funding for high-ranking positions within
the Miami Police Department.
In the wake of these meetings, Noriega suspended Acevedo
with pay pending a termination hearing. He provided Acevedo
with a memo that outlined the reasons for his suspension. The
complaint dismisses these reasons as pretextual. And when Noriega provided Acevedo with the memo, he told Acevedo that that
Acevedo had “gone too far” and that he, Noriega, needed to “stop
the bleeding” by suspending him. Doc. 1 at 28–29. Noriega then
scheduled Acevedo’s termination hearing for just a few days later,
on a day when Acevedo’s primary lawyers were unavailable. When
Acevedo asked if the hearing could be pushed back a few days so
that his lawyers could be present, Noriega refused.
At the ensuing termination hearing, Noriega called four witnesses. As Noriega and Acevedo were questioning these witnesses,
the Commissioners—ostensibly serving as impartial jurors in the
hearing—repeatedly inveighed against Acevedo and badgered the
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witnesses. One of the non-defendant Commissioners even informed the others that they were revealing their bias. Unsurprisingly, at the conclusion of the meeting, the Commissioners terminated Acevedo. According to the complaint, they did so “because
[Acevedo] had reported their misconduct to City Manager Noriega, Mayor Suarez, the State Attorney’s Office, and the FBI.” Doc.
1 at 30.
After Acevedo was fired, Officer Morales, the same officer
who earlier defied Acevedo’s instruction to investigate the error in
the police report on Fuller’s business, was appointed interim Chief.
The Commissioners “chose Officer Morales” for the role “because
he carries out their orders without question and allows [them] to
abuse [Police Department] resources to carry out personal agendas
and vendettas.” Doc. 1 at 11. And when Morales was sworn in as
interim Chief, at a ceremony attended by the defendant Commissioners and Manager Noriega, Carollo played the theme music
from The Godfather.
C.
Acevedo sued the three defendant Commissioners—Commissioners Diaz de la Portilla, Reyes, and Carollo—and Manager
Noriega for retaliation in violation of Acevedo’s First Amendment
rights, under 42 U.S.C. § 1983. 2 In response, each individual defend2 Though not relevant here, Acevedo also sued the City of Miami under the
Florida Whistleblower Act, Fla. Stat. § 112.3187.
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ant moved for dismissal based on qualified immunity. Two defendant Commissioners also moved for dismissal based on legislative
immunity.
After a hearing, the district court denied all motions to dismiss. The individual defendants timely filed notices of appeal.
II.
This Court reviews the district court’s denial of a motion to
dismiss based on immunity de novo. Keating, 598 F.3d at 762. When
reviewing such a denial, as discussed above, we accept all factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Id.
III.
First, we discuss the defendant Commissioners’ argument
that they are entitled to legislative immunity. Second, we turn to
their argument that they are shielded by qualified immunity.
Third, we turn to Manager Noriega’s contention that he is entitled
to qualified immunity. We determine that, although the defendant
Commissioners do not enjoy the protection of either legislative or
qualified immunity at this stage, Manager Noriega is entitled to
qualified immunity.
A.
We begin with legislative immunity. Commissioners Carollo and Reyes argue that their decision to terminate Acevedo is
protected by legislative immunity. Although Commissioner Diaz
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de la Portilla purports to raise this argument on appeal, he did not
argue legislative immunity below. As a result, he has forfeited the
defense of legislative immunity. See Scott v. Taylor, 405 F.3d 1251,
1258 (11th Cir. 2005) (Jordan, J., concurring) (noting that “[l]egislative immunity is an affirmative defense which can be waived or
forfeited, and, unless raised, does not affect the power of a federal
court to adjudicate.” (citing Kingman Park Civic Ass’n v. Williams,
348 F.3d 1033, 1039 (D.C. Cir. 2003))). Regardless, none of the defendant Commissioners are entitled to legislative immunity.
This Court has held that “[a]bsolute legislative immunity extends only to actions taken within the sphere of legitimate legislative activity.” Brown v. Crawford County, 960 F.2d 1002, 1011 (11th
Cir. 1992) (citation modified). When considering whether the relevant actions fall within this sphere, we must determine whether
the actions were “legislative” in nature or “executive” or “administrative” in nature. Littlejohn v. Sch. Bd. of Leon Cnty., 132 F.4th 1232,
1242 (11th Cir. 2025). Legislative acts generally apply to a broad
swathe of society. Id. But executive or administrative acts, to which
legislative immunity does not attach, “apply to a limited number
of persons and typically arise from the ministerial or administrative
activities of members of the executive branch.” Id. (citation modified). Put otherwise, “if the decision impacts specific individuals,
rather than the general population, it is more apt to be administrative in nature.” Crymes v. DeKalb County, 923 F.2d 1482, 1485 (11th
Cir. 1991).
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Because “employment and personnel decisions are administrative in nature,” legislative immunity does not apply here. Smith
v. Lomax, 45 F.3d 402, 405 (11th Cir. 1995). Terminating Acevedo
was an employment and personnel decision. It “appl[ied] to a limited number of persons and . . . ar[ose] from the ministerial [and]
administrative activities” of the Commission. Littlejohn, 132 F.4th
at 1242 (citation modified). Therefore, the district court did not err
in denying Reyes’s and Carollo’s motion to dismiss based on legislative immunity.
B.
Having determined that the defendant Commissioners are
not entitled to legislative immunity, we now discuss whether they
are entitled to qualified immunity. Though this is a much closer
question, we determine that—at this stage of litigation—they are
not.
The qualified immunity test is a familiar one. “To obtain a
dismissal based on qualified immunity, a government official must
first establish that he was acting within the scope of his discretionary authority when the alleged wrongful act occurred.” Echols v.
Lawton, 913 F.3d 1313, 1319 (11th Cir. 2019) (citation modified). If
the official was acting within the scope of his discretion, the burden
shifts to the plaintiff to overcome qualified immunity. Mikko v. City
of Atlanta, 857 F.3d 1136, 1144 (11th Cir. 2017). And for a plaintiff
like Acevedo to carry this burden, he must satisfy both parts of the
qualified immunity analysis. He must plead facts establishing that
the official violated a statutory or constitutional right. Ashcroft v. alUSCA11 Case: 24-12650 Document: 105-1 Date Filed: 08/26/2026 Page: 13 of 31
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Kidd, 563 U.S. 731, 735 (2011). And he must prove that the right was
“clearly established,” or that the “state of the law at the time of the
violation” gave the “officials fair warning that their conduct was
unconstitutional.” Hughes v. Locure, 166 F.4th 121, 128 (11th Cir.
2026) (citation modified).
Because no one contests that the Commissioners were acting within the scope of their discretion when they terminated
Acevedo, the burden shifts to him. The next question is whether
he has satisfied his burden. In considering this question, we again
must accept all factual allegations in the complaint as true and draw
all reasonable inferences in Acevedo’s favor. Keating, 598 F.3d at
762. When we do so, we determine that Acevedo has carried his
burden and that qualified immunity does not protect the defendant
Commissioners.
1.
We begin with the first qualified immunity element:
whether the defendant Commissioners violated Acevedo’s First
Amendment rights. Acevedo alleges that he was terminated because he had drafted and circulated a memo alleging wrongdoing
on the part of the Commissioners. We determine that, based on
the facts alleged in the complaint, the defendant Commissioners
impermissibly retaliated against Acevedo for his protected speech
and thus violated his constitutional rights.
At the outset, we must decide whether Acevedo has alleged
an “adverse employment action” sufficient to establish a retaliation
claim. Akins v. Fulton County, 420 F.3d 1293, 1300 (11th Cir. 2005).
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He has done so here. This Court has held that “discharges, demotions, refusals to hire or promote, and reprimands” constitute adverse employment actions. Id. Because the defendant Commissioners discharged Acevedo, Acevedo has established an adverse employment action.
We then turn to examining the nature of Acevedo’s speech.
Deciding whether the First Amendment protects a public employee’s speech requires “a careful balance between the interests of
the employee, as a citizen, in commenting upon matters of public
concern and the interest of . . . an employer[] in promoting the efficiency of the public services it performs through its employees.”
Lane v. Franks, 573 U.S. 228, 231 (2014) (citation modified). Therefore, to establish First Amendment retaliation, an employee like
Acevedo must prove the following: (1) “that the speech was made
as a [private] citizen”; (2) that the speech was “on a matter of public
concern” or importance; (3) that “the employee’s free speech interest . . . outweigh[s] the employer’s interest in effective and efficient
fulfillment of its responsibilities”; and (4) that “the
speech . . . played a substantial part in the adverse employment action.” Green v. Finkelstein, 73 F.4th 1258, 1263 (11th Cir. 2023).
It is only the first three inquiries that concern us here. Those
are questions of law. Id. The fourth inquiry, whether the speech
played a substantial role in Acevedo’s termination, is a question of
fact. As such, because we are at the motion to dismiss stage, we
accept as true Acevedo’s well-pleaded assertion—that the speech
was the reason he was fired.
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a.
We start at the beginning, with the first inquiry. Whether
Acevedo spoke as a private citizen, in which case First Amendment
protections would attach, or as a public employee, in which case
they would not, depends on “whether the speech at issue is . . . ordinarily within the scope of [his] duties.” Lane, 573 U.S. at 240. For
speech to be the speech of a public employee, it must be “speech
that an employee made in accordance with or in furtherance of the
ordinary responsibilities of [his] employment, not merely speech
that concerns the ordinary responsibilities of [his] employment.”
Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1162
(11th Cir. 2015). Indeed, “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment
does not transform that speech into employee—rather than citizen—speech.” Lane, 573 U.S. at 240.
Because Acevedo’s whistleblower memo was not, based on
the facts in the complaint, “ordinarily within the scope of
[Acevedo’s] duties,” it was the speech of a private citizen. Doc. 1 at
39. In the complaint, Acevedo notes that he “had no administrative,
disciplinary, or investigative authority over the Commission or its
members.” Id. He further stresses that the 2020 Resolution had removed from his authority the responsibility for investigating
wrongdoing committed by City officials. Id. at 40. As a result, blowing the whistle to law enforcement over the defendant Commissioners’ misconduct was outside of Acevedo’s ordinary duties.
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This Court has determined, at the motion to dismiss stage,
that substantially similar speech was speech of a private citizen. See
Carollo v. Boria, 833 F.3d 1322 (11th Cir. 2016), abrogated on other
grounds by Gilmore v. Ga. Dep’t of Corrs., 111 F.4th 1118 (11th Cir.
2024). In Carollo, the City Manager of Doral, Florida—the same Joe
Carollo who is a defendant here—was terminated after alerting federal law enforcement to violations of state and federal law committed by members of the City Council. Id. at 1326. There, Carollo
alleged that reporting these matters was not within his ordinary
duties. Id. at 1330. This Court determined that these assertions in
the complaint were sufficient to establish that Carollo was speaking
as a private citizen. Id. Indeed, the Carollo Court noted that, because
“formal job descriptions often bear little resemblance to the duties
an employee actually is expected to perform,” discovery would be
necessary to “illuminate exactly” the scope of Carollo’s ordinary
duties. Id. (citation modified).
A few years after Carollo, this Court reiterated that speech
like Acevedo’s memo is the speech of a private citizen. In King v.
Board of County Commissioners, we stressed that when an employee
“spoke on something beyond his job duties to persons outside his
workplace,” it was the speech of a private person. 916 F.3d 1339,
1350 (11th Cir. 2019). Here, Acevedo sent a memo to the State Attorney’s Office and the FBI, persons outside his workplace, to complain of misconduct by the City Commissioners, which the 2020
Resolution removed from his investigatory duties. The fact that he
did so is enough to prove that he spoke as a private person.
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In response, the defendant Commissioners argue that
Acevedo’s memo was part of his ordinary job duties (1) because
part of the memo was devoted to complaining about the Commissioners’ involvement in police matters, which were within his purview, and (2) because, notwithstanding the 2020 Resolution, it is
the Police Chief’s duty to report crime. In fact, the defendant Commissioners argue that Acevedo “had a heightened duty to report
what others would investigate.” Appellant Commissioners’ Br. at
30 (emphasis added). Both arguments fail.
The first argument is baseless, as it attempts to minimize the
memo as simply a complaint about workplace mismanagement.
But we must construe the allegations in the complaint in favor of
Acevedo. We cannot, therefore, conclude that Acevedo would report a mere workplace complaint to the FBI. By doing so, we conclude that Acevedo intended to report misconduct, as he asserts in
his complaint.
As for the second argument, it is foreclosed by Carollo, 833
F.3d at 1331. In Carollo, this Court rejected the idea that public officials have an “implied duty” to report misconduct. Id. This Court
so held because to do otherwise “would eviscerate the role of the
First Amendment in protecting public employees who act as whistleblowers.” Id. (applying Lane, 573 U.S. at 240–41).
b.
We now turn to the second inquiry: whether Acevedo’s
speech addressed a matter of public concern. In doing so, we consider whether the speech can “be fairly considered as relating to
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any matter of political, social, or other concern to the community”
or if it “is a subject of legitimate news interest.” Snyder v. Phelps, 562
U.S. 443, 453 (2011) (citation modified). When making this determination, we look to “the content, form, and context of a given
statement, as revealed by the whole record.” Connick v. Myers, 461
U.S. 138, 147–48 (1983). Of these, the “most important factor” is
the content of the speech. Mitchell v. Hillsborough County, 468 F.3d
1276, 1284 (11th Cir. 2006). And we ask whether “the main thrust
of the speech in question is essentially public in nature or private.”
King, 916 F.3d at 1347.
The main thrust of the speech in question—Acevedo’s
memo—is essentially public. The memo listed several instances in
which the defendant Commissioners attempted to weaponize the
police department in pursuit of their personal vendettas. The
memo also alleged other, unrelated abuses of power on their part.
And exposing corruption and abuses of power is a quintessentially
public matter. See Lane, 573 U.S. at 241 (“[C]orruption in a public
program . . . obviously involves a matter of significant public concern.”); see also Stanley v. City of Dalton, 219 F.3d 1280, 1289 (11th
Cir. 2000) (“[T]here can be no doubt that corruption in a police department is an issue of public concern.”).
In response, the defendant Commissioners argue that the
memo’s “main thrust was to promote Acevedo’s interest in independently running the police department.” Appellant Commissioners’ Br. at 32. And in support of this argument, they contend
that the memo’s (1) content was primarily about Acevedo’s interest
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in, and difficulty with, managing the police department free of interference, (2) form was a workplace report delivered to Acevedo’s
superiors during a workplace dispute, and (3) intent was to be circulated privately, not publicly. We disagree.
First, though much of the memo focuses on the defendant
Commissioners’ interference with police affairs, that concern is
framed as a public corruption issue. That is, the complained-of interference is cited as evidence of the defendant Commissioners’
misconduct. This context confirms that the memo focuses on a
matter of public concern—corruption—instead of Acevedo’s primary interest in managing his own department.
Second, it is at best misleading to dismiss the memo as a
mere workplace report delivered to Acevedo’s superiors. Though
addressed to Mayor Suarez and Manager Noriega, Acevedo also
sent the memo to the State Attorney’s Office and the FBI. It would
be quite a stretch, indeed, to describe a memo to outside state and
federal law enforcement as simply an internal workplace report.
And his decision to send the memo to outside law enforcement
confirms that he meant for it to be more than a simple internal catalogue of grievances.
Third, the private nature of the memo does not, contrary to
the defendant Commissioners’ arguments, render the content a
matter of private concern. This Court has found that a police officer privately reporting misconduct to a state law enforcement
agency is speech of a public nature. Fikes v. City of Daphne, 79 F.3d
1079, 1084 (11th Cir. 1996); see also Martinez v. City of Opa-Locka, 971
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F.2d 708, 712 (11th Cir. 1992) (holding that a private report of government misconduct to state law enforcement was speech of a public nature). The fact that Acevedo sent the memo privately, then, is
of relatively little significance. Such evidence would simply serve
as proof of a speech’s private nature when the content of the speech
already indicates as much. See Pearson v. Macon-Bibb Cnty. Hosp.
Auth., 952 F.2d 1274, 1278–79 (11th Cir. 1992) (finding that the private nature of speech merely reinforced the conclusion that the
contents of a plaintiff’s speech only “concerned the circumstances
of her own employment”).
We believe Acevedo’s memo was speech on a matter of public importance.
c.
Because Acevedo’s memo was the speech of a private citizen
on a matter of public importance, we now turn to applying the
Pickering balancing test. Green, 73 F.4th at 1263. This test requires
us to balance “the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of an employer in promoting the efficiency of the public services it performs
through its employees.” Id. at 1267 (citing Pickering v. Bd. of Educ.,
391 U.S. 563, 568 (1968) (citation modified)). Factors that the Court
can consider include “(1) whether the speech at issue impedes the
government’s ability to perform its duties efficiently, (2) the manner, time[,] and place of the speech, and (3) the context within
which the speech was made.” Belyeu v. Coosa Cnty. Bd. of Educ., 998
F.2d 925, 928 (11th Cir. 1993) (quoting Morales v. Stierheim, 848 F.2d
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1145, 1149 (11th Cir. 1988)). And when applying this test, the key
question is “whether the relevant government entity had an adequate justification for treating the employee differently from any
other member of the general public.” Garcetti v. Ceballos, 547 U.S.
410, 418 (2006).
On the limited record before us at the motion to dismiss
stage, the Commissioners did not have such a justification. There
is no evidence before us to suggest that Acevedo’s memo in any
way “impede[d] the government’s ability to perform its duties efficiently.” Belyeu, 998 F.2d at 928 (quoting Morales, 848 F.2d at 1149).
Indeed, the complaint makes allegations to the contrary. Based on
the complaint, the City Commissioners had no oversight and control over the operations of the Miami Police Department. Acevedo
further asserts in the complaint that the memo “did not disrupt the
functioning of the [Police Department] or the City of Miami.” Doc.
1 at 39. And the manner, time, and place of the speech, and the
context within which it was made, support this assertion—
Acevedo did not release the memo to the public, but sent it to a
private and select group of law enforcement and supervisory officials. See Belyeu, 998 F.2d at 928. Consequently, we cannot say that
Acevedo’s private whistleblower memo, which of itself could only
have interfered with the defendant Commissioners’ nonexistent
authority over the Police Department, meaningfully impeded the
Commission’s authority to perform its duties.
Further, the interests of Acevedo, as a citizen, are weighty.
After all, this Court has observed that “a core concern of the [F]irst
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[A]mendment is the protection of the ‘whistle-blower’ attempting
to expose government corruption.” Bryson v. City of Waycross, 888
F.2d 1562, 1566 (11th Cir. 1989). Therefore, because Acevedo’s interests in the speech were weighty, and because the complaint alleges that the memo did not affect the government’s interest in efficiently performing its duties, the Pickering balancing tips in
Acevedo’s favor.
In addition, Acevedo’s speech arguably furthered the City’s
interests by exposing alleged corruption and misconduct. We have
previously held that a government’s interest in preventing whistleblower speech is as weak as a plaintiff’s interest in exposing corruption is high. Akins, 420 F.3d at 1304 (“[P]reventing [whistleblower]
speech would not seem to aid the government’s interest in efficiency, since the speech would bring the alleged wrongful practices
to light and lead to more efficient provision of public services.”).
And we have held that exposing corruption can enhance a government’s ability to efficiently provide services, given that their services may be hampered by official corruption. See Fikes, 79 F.3d at
1084 (holding that the plaintiff’s “attempts to expose police malfeasance helped further the municipality’s responsibility to provide effective law enforcement services”). Thus, the defendant Commissioners face an uphill battle in tipping the balance in their favor.
In response, the defendant Commissioners argue that (1)
Acevedo’s First Amendment protections are “slight” due to his policymaking role, (2) the presence of an ongoing personnel dispute
between Acevedo and the Commissioners tips the balance in the
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Commissioners’ favor, (3) the unique nature of a police force
means that Acevedo’s speech has little protection, and (4) the contents of the suspension memorandum establish that Acevedo’s
speech impeded the Commission’s ability to do its duties. These
arguments fail.
First, although “First Amendment constitutional protection
is often slight” for policymaking officials, that principle is irrelevant
to this dispute. Bates v. Hunt, 3 F.3d 374, 378 (11th Cir. 1993). Even
assuming that Acevedo was in a policymaking role, this limitation
applies when a policymaking official is terminated for his policybased speech. Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338, 1347
(11th Cir. 2013). It does not, then, justify firing a policymaking official for the kind of “whistle-blowing” speech that this Court has
held lies at the heart of the First Amendment. Bryson, 888 F.2d at
1566. As a result, because Acevedo has adequately pleaded (1) that
he was fired because of the memo he sent and (2) the memo was a
whistleblower memo, the protection afforded to his speech is not
the “slight” protection afforded for policy-based speech.
Second, the defendant Commissioners’ argument that the
ongoing personnel dispute lends their interests greater weight also
fails. In making this argument, they rely on Morales v. Stierheim, 848
F.2d 1145 (11th Cir. 1988). In Morales, we held that when an “employee’s speech arises out of his own ongoing personnel dispute,
additional weight must be given to the supervisor’s view that the
employee has threatened the authority of the employer to run the
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24 Opinion of the Court 24-12650
office.” Id. at 1150 (citation modified). This rule goes to the “context” of the speech. Id. But the Morales approach supports employers because it helps to prove that the speech has “impeded” the employer, or will impede the employer, from fulfilling his duties. Id.
at 1150–51. Because, as discussed above, we must take the contrary
allegations of the complaint as true, whatever help Morales offers
the Commissioners is for naught.
Third, the Commissioners argue that the “heightened need
for order, loyalty, morale and harmony” in a police force afforded
them “more latitude in responding to [Acevedo’s speech] than [that
of] other government employe[e]s.” Oladeinde v. City of Birmingham
(Oladeinde II), 230 F.3d 1275, 1293 (11th Cir. 2000). And indeed, this
Court has held that the “heightened need for order, loyalty, and
harmony in a quasi-military organization such as a police or fire
department” can tip the Pickering balance in an employer’s favor.
Moss v. City of Pembroke Pines, 782 F.3d 613, 621 (11th Cir. 2015).
But ultimately, we reject this argument. Our precedents
highlight the special or unique nature of employer interests within
a police force, but they concern suits brought by rank-and-file officers against their direct superiors. See Oladeinde II, 230 F.3d at 1293
(citing Campbell v. Towse, 99 F.3d 820, 829–30 (7th Cir. 1996) (“It
surely cannot be doubted that individuals who work in the highest
echelons of the command of a police department must be assured
of the loyalty of their immediate subordinates, as these subordinates are entrusted with carrying out their orders, at times under
the most trying conditions.”)). Although police forces may be
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quasi-military organizations, there is not the same need for discipline and loyalty between the Police Chief and City Commissioners who wield no oversight authority over the police force.
Fourth, the defendant Commissioners point to the contents
of the suspension memorandum as evidence in their favor. They
argue that the suspension memorandum is included in the record
here based on the “incorporation by reference” doctrine. See Horsley v. Feldt, 304 F.3d 1125, 1134–35 (11th Cir. 2002) (permitting the
court to consider a document attached to a motion to dismiss when
that document is (1) central to the plaintiff’s claim and (2) its authenticity is not challenged). But because the suspension memo is
not central to Acevedo’s claim, this doctrine does not apply. Not
only was the suspension memo not part of the basis for Acevedo’s
claim, but he also repeatedly denies the veracity of the memo’s
contents in his complaint. See Baker v. City of Madison, 67 F.4th 1268,
1277 (11th Cir. 2023) (incorporating by reference police bodycam
footage when the plaintiff’s allegations were based directly on the
contents thereof). What’s more, Acevedo adequately alleges that
the suspension memo was pretextual and was part of a pattern by
the defendant Commissioners to harass and chill whistleblowers.
Because we must draw all inferences in Acevedo’s favor, we cannot
rely on the contents of this allegedly pretextual memo to tip the
balance in the Commissioners’ favor. Keating, 598 F.3d at 762.
To recapitulate, Acevedo’s complaint adequately alleges
that his speech did not impede the provision of government services. And he has very strong interests in his whistle-blowing
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26 Opinion of the Court 24-12650
speech, which we have described as sitting at the core of the First
Amendment. Further, there is no evidence, based on the complaint, on the defendant Commissioners’ side of the Pickering balance. Therefore, the Pickering balancing test tips in Acevedo’s favor
at this stage of litigation, and his interest in exposing corruption
outweighs whatever hypothetical and unproven effect his memo
had on the City’s ability to function.
2.
We now turn to the second element of qualified immunity,
and we ask whether Acevedo’s rights were clearly established. The
defendant Commissioners focus their arguments on the Pickering
balance. They argue that it is not clearly established under our law
that they lacked “an adequate justification for treating [Acevedo]
differently from any other member of the general public.” Garcetti,
547 U.S. at 418. We disagree.
“A right is clearly established if, in light of already-existing
law, the unlawfulness of the conduct is apparent.” Akins, 420 F.3d
at 1305 (citation modified). Acevedo can prove as much here in
three ways: (1) he can cite to “case law with indistinguishable facts
clearly establishing the constitutional right”; (2) he can point to “a
broad statement of principle within the Constitution, statute, or
case law that clearly establishes a constitutional right”; or (3) he can
establish that the defendant Commissioners engaged in “conduct
so egregious that a constitutional right was clearly violated, even
in the total absence of case law.” Jarrard v. Sheriff of Polk Cnty., 115
F.4th 1306, 1323–24 (11th Cir. 2024).
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Before applying this law to the appeal before us, it is worth
reiterating the facts as they stand at this stage of litigation. Based
on the complaint, we know that a public employee spoke as a private citizen on a matter of public concern, he suffered an adverse
employment action because of that speech, and his speech did not
disrupt the efficient provision of government services. Moreover,
the employee was not fired for any legitimate reason that we might
weigh in the government’s favor—for example, because the speech
was disruptive or unprofessional—but for the purpose of harassing
and chilling a whistleblower.
When viewed in this light, we think “already-existing law”
makes the “the unlawfulness of the conduct” apparent. Akins, 420
F.3d at 1305. Indeed, our precedent addresses a similar situation
about police officers, finds a constitutional violation, and denies
qualified immunity. See Oladeinde v. City of Birmingham (Oladeinde
I), 963 F.2d 1481, 1487 (11th Cir. 1992), overruled on other grounds by
Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507
U.S. 163 (1993). 3 In Oladeinde I, members of the Birmingham Police
Department sued several Birmingham City officials. Id. at 1483.
The police officers alleged, “[i]n essence . . . that they [were] ‘whistleblowers’ and that defendants violated [the] plaintiffs’ free-speech
3 Oladeinde I reiterated this Court’s law, then in effect, that a section 1983 claim
carried a heightened pleading standard. 963 F.2d at 1485. This Court later recognized that this rule had been overruled by the Supreme Court in Leatherman,
507 U.S. at 163. Swann v. S. Health Partners, Inc., 388 F.3d 834 (11th Cir. 2004),
overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009). None of this
reasoning has any bearing on the discussion here.
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28 Opinion of the Court 24-12650
rights by retaliating against them for their efforts.” Id. at 1486. We
held that the district court correctly denied qualified immunity at
the motion to dismiss stage because “the limited record . . . does
not support [the] defendants’ contention that . . . their interest in
efficiently operating the police department outweighed plaintiffs’
free-speech rights on a matter of public concern.” Id. at 1487. We
acknowledged that, “in free-speech cases . . . the employer is entitled to immunity” unless the Pickering balancing test “would lead
to the inevitable conclusion that the retaliatory action was unlawful.” Id. (citing Dartland v. Metro. Dade County, 866 F.2d 1321, 1323
(11th Cir. 1989)) (citation modified). But, because we were bound
to “consider[] the complaint only” in the light most favorable to
the plaintiff, we held that nothing in the record supported a balance
in the government actor’s favor and denied qualified immunity.
Oladeinde I, 963 F.2d at 1487.
We made the same point in Fikes v. City of Daphne. In Fikes,
this Court considered whether a police officer’s First Amendment
right had been violated, based solely on the complaint, when he
had been terminated from public employment in retaliation for reporting misconduct. 79 F.3d at 1083–85. We held that his rights had
been plausibly violated, particularly because there was no allegation in the complaint to tip the Pickering balancing test in favor of
the employer. Id. We did not suggest that, merely because a police
officer was involved, the Pickering balance weighed in favor of the
government at the motion to dismiss stage. Instead, we reversed
the lower court’s dismissal of the complaint. Id.
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We are bound by these precedents that deny qualified immunity on analogous facts in the same procedural posture. Nevertheless, the defendant Commissioners “retain the right to assert the
qualified-immunity defense at the next stage of the proceedings
(and, for that matter, throughout the proceedings) as more facts
are developed.” Oladeinde I, 963 F.2d at 1487. It is at these later
stages of litigation that the defendant Commissioners will be able
to introduce evidence that they had a justification for terminating
Acevedo because his speech—i.e., that his memorandum undermined morale or was disruptive or something similar. See Jackson
v. Humphrey, 776 F.3d 1232, 1241 (11th Cir. 2015) (holding that,
when the facts “show both a lawful and unlawful motivation for
the decision made by a government official, the official is entitled
to qualified immunity”). For now, however, we cannot find that
the defendants had a legitimate justification for firing Acevedo because of his speech without impermissibly drawing inferences in
favor of the defendant Commissioners and crediting hypothetical
justifications that are not supported by anything in the record. See
Keating, 598 F.3d at 762.
C.
We now turn to Manager Noriega, who also raises the defense of qualified immunity. Unlike the defendant Commissioners,
he successfully does so. The reason is that Acevedo’s claim against
Noriega differs in a meaningful way from his claim against the defendant Commissioners: Noriega did not terminate Acevedo, nor
was he responsible for humiliating Acevedo at City Commission
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meetings. Instead, Noriega merely suspended Acevedo with pay
pending a hearing.
Noriega argues that it is not clearly established that he took
adverse employment action against Acevedo at all. Akins, 420 F.3d
at 1300. Unlike the defendant Commissioners, Noriega’s qualified
immunity defense doesn’t turn on a hypothetical Pickering balance.
He says that, under our caselaw at least, it is not clearly established
that suspending someone until another person—here the Commissioners—can consider termination is an adverse action. We agree.
This Court has defined “adverse employment action”
broadly but amorphously. We have held that any conduct that “alters the employee’s compensation, terms, conditions, or privileges
of employment, deprives him or her of employment opportunities,
or adversely affects his or her status as an employee” counts as such
an action. Id. But this Court has also held that a “five-day suspension with pay pending an investigation,” absent more, is not an adverse employment action. Bell v. Sheriff of Broward Cnty., 6 F.4th
1374, 1379 (11th Cir. 2021). Even though we stressed in Bell that we
were “not issu[ing] a broad ruling about whether a public employee’s suspension with pay always constitutes or never constitutes an adverse action,” we described conduct similar to Noriega’s
as not an adverse action. Id.
Accordingly, we hold that Noriega did not have “fair warning that [his] conduct was unconstitutional.” Hughes, 166 F.4th at
128 (citation modified). At the margins, what is (or is not) “adverse
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employment action” is murky. See Bell, 6 F.4th at 1379. Bell introduced additional uncertainty into the definition of “adverse employment action.” And, although one could conclude that Bell is
distinguishable, it remains true that the conduct in Bell—suspension with pay pending further proceedings—is like Noriega’s conduct—suspension with pay pending termination proceedings. See
id. Because we determined that, in that context, such conduct was
not “adverse employment action,” we cannot say that Noriega was
sufficiently on notice that his decision to suspend Acevedo with pay
pending a decision on his termination by the City Commission implicated Acevedo’s First Amendment rights.
IV.
For the foregoing reasons, we AFFIRM the district court’s
denial of the defendant Commissioners’ motions to dismiss, and
we REVERSE the court’s denial of Manager Noriega’s motion and
REMAND for further proceedings consistent with this opinion.