R. Welch, et al v. F. Cain, III, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 30, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11558
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cv-00173-KOB
R. CRAWFORD WELCH,
GILES F. CRIDER,
lllllllllllllllllllllllllllllllllllllll lPlaintiffs - Appellants,
versus
F. MARION CAIN, III,
in his individual capacity,
CALHOUN COUNTY COMMISSION, THE,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(November 30, 2011)
Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.

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PER CURIAM:
R. Crawford Welch and Giles F. Crider appeal from the dismissal with
prejudice of their complaint alleging that the defendants, including their former
supervisor, Marion Cain III, at the Center for Domestic Preparedness (“CPD”)
violated their First Amendment rights. Welch and Crider allege in their1
complaint that while they were employed by the CPD they made numerous
disclosures involving matters of public concern about corruption, fraud, sexual
harassment, and waste of government funds at CPD. They allege that when the
defendants found out that they made such disclosures, the defendants terminated
them. The district court dismissed Welch’s and Crider’s First Amendment claims
against Cain, concluding that the claims could not be sustained because the
Supreme Court’s decision in Bush v. Lucas, 462 U.S. 367 (1983), precludes
federal employees from bringing a damages claim for retaliatory discharge under
the First Amendment.
We review de novo the district court’s grant of a motion to dismiss for
The district court previously dismissed all claims against defendants, Janet Napolitano,1
Secretary of the Department of Homeland Security, and the Center for Domestic Preparedness,
and dismissed, as to all defendants, Welch’s and Crider’s claims under the State Employees
Protection Act (SEPA) and their Equal Protection Claim under the Fourteenth Amendment.
They are not appealing any of these rulings. Welch and Crider also voluntarily dismissed their
claims against defendant, Calhoun County Commission. Thus, the only issue in this appeal is the
dismissal of the Welch’s and Crider’s First Amendment claims against defendant, Cain.
2

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failure to state a claim, accepting all the factual allegations as true and construing
them in the light most favorable to the plaintiffs. Amnesty Int’l, USA v. Battle,
559 F.3d 1170, 1176 (11th Cir. 2009). Having considered the arguments of the
parties and having reviewed the allegations in the complaint in the light most
favorable to Welch and Crider, we affirm the dismissal of their complaint.
Here, Welch and Crider have alleged that during all material times, they
were employed by the Defendants, which included Janet Napolitano, the Secretary
of Homeland Security, the CDP, and Cain, the then Director of the CDP. Each of
these defendants is a federal government entity or official. Despite these
allegations, Welch and Crider argue on appeal that they have not alleged that they
are federal employees, and thus, it would be improper to dismiss their complaint at
this stage of the litigation. This argument is without merit. The complaint alleges
that “[a]t all material times, the plaintiffs were employed by the Defendants.” The
only defendant at issue in this appeal is Cain, the former Director of the CDP, a
federal agency. Although the complaint does not explicitly use the words
“federal” employees, the only reasonable inference that can be drawn from all of
the allegations in the complaint, is that Welch and Crider were federal employees
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at the CDP.2
Accordingly, we see no error in the district court’s dismissal of Welch’s and
Crider’s First Amendment claims against defendant, Cain.
AFFIRMED.
Welch and Crider argue that they are “contract” employees for a federal agency and that2
this status would not preclude their cause of action. We need not decide whether Bush would
preclude a “contract” employee from stating a cause of action under the First Amendment,
because even construing all of the allegations in the complaint in the light most favorable to
Welch and Crider, we so no basis to conclude that they have alleged that they are “contract”
employees.
4

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