USCA11 Case: 18-14808 Date Filed: 06/09/2022 Page: 1 of 86
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` [PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
`____________________
`
`No. 18-14808
`
`____________________
`
`
`JACQUELYN JOHNSTON,
`
` Plaintiff-Appellee,
`
`versus
`GARY S. BORDERS,
`individually and in his official capacity as Sheriff of Lake County,
`Florida,
`JENNIFER FERGUSON,
`
`
` Defendants-Appellants.
`____________________
`
`Appeal from the United States District Court
`for the Middle District of Florida
`D.C. Docket No. 6:15-cv-00936-PGB-DCI
`____________________
`
`
`
`
`
`
`
` [PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
`____________________
`
`No. 18-14808
`
`____________________
`
`
`JACQUELYN JOHNSTON,
`
` Plaintiff-Appellee,
`
`versus
`GARY S. BORDERS,
`individually and in his official capacity as Sheriff of Lake County,
`Florida,
`JENNIFER FERGUSON,
`
`
` Defendants-Appellants.
`____________________
`
`Appeal from the United States District Court
`for the Middle District of Florida
`D.C. Docket No. 6:15-cv-00936-PGB-DCI
`____________________
`
`
`
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`2
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`Opinion of the Court
`
`18-14808
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`____________________
`
`No. 19-13269
`____________________
`
`
`JACQUELYN JOHNSTON,
`
` Plaintiff-Appellee-Cross Appellant
`
`versus
`GARY S. BORDERS,
`individually and in his official capacity as
`Sheriff of Lake County, Florida,
`JENNIFER FERGUSON,
`
`
` Defendants-Appellants-Cross Appellees.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Middle District of Florida
`D.C. Docket No. 6:15-cv-00936-PGB-DCI
`____________________
`
`Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.
`PER CURIAM:
`
`
`
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`Opinion of the Court
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`3
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`These appeals involve two conceptually different causes of
`action against separate defendants. These claims were pled to-
`gether and tried to a jury empaneled for each claim. In one claim,
`the plaintiff, an at-will employee of a sheriff’s office, sued the sher-
`iff, alleging that he made false and stigmatizing statements in ter-
`minating her employment that deprived her of a liberty interest in
`her reputation without affording her a post-termination hearing to
`clear her name in violation of the Due Process Clause of the Four-
`teenth Amendment. In the other claim, the plaintiff alleged that a
`sheriff’s office co-employee, whom she supervised, defamed her in
`violation of state tort law. The jury found for the plaintiff on both
`claims.
`
`
`The defendants appeal the judgments entered pursuant to
`the jury’s verdicts in No. 18-14808. In No. 19-13269, the sheriff ap-
`peals the judgment awarding the plaintiff an attorney’s fee on the
`claim brought against him. Having considered the parties’ briefs
`and with the benefit of oral argument, we affirm the judgments in
`No. 18-14808 and vacate and remand for further proceedings the
`judgment for attorney’s fee in No. 19-13269.
`I.
`
`
`In October 2014, Gary S. Borders, Sheriff of Lake County,
`Florida (the “Sheriff”), took control of the Lake County Animal
`Shelter from the Board of County Commissioners amidst public
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`outcry over high euthanasia rates.1 The Sheriff intended eventu-
`ally to run the shelter as a “no-kill” or “low-kill” shelter. The terms
`are interchangeable, but “no-kill” is a misnomer—it simply refers
`to any shelter that maintains a euthanasia rate of no more than 10
`percent for at least a year. The Sheriff’s plan to achieve “no-kill”
`status was simple: the shelter would not euthanize animals merely
`to create space for other animals.
`
`On October 1, 2014, the Sheriff hired Jacquelyn Johnston as
`Director of Animal Services. Before being hired, she was inter-
`viewed by the Sheriff and Major Wayne Longo—who oversaw the
`animal services division of the Sheriff’s Office. Both Major Longo
`and the Sheriff told Johnston that the shelter’s euthanasia practices
`had been under “public scrutiny” and that the goal was to reduce
`euthanasia rates. The Sheriff also told Johnston that he “wanted to
`make sure that all adoptable pets had the opportunity to be
`adopted,” and that he “was interested in moving toward no-kill.”
`At the same time, the Sheriff let Johnston know that he “under-
`stood that there would still be issues regarding public safety in cases
`of dangerous [] or aggressive dogs . . . [or animals] that came in
`very injured or ill.”
`
`On her first day of work, Johnston met with her immediate
`supervisors—Major Longo and Captain Todd Luce—who told her
`to review the governing policies that the Sheriff’s Office had
`
`
`1 Under the Florida Constitution, Article VIII, § 1(d), the Sheriff is an officer of
`Lake County.
`
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`inherited from Lake County. Among the policies Johnston re-
`viewed was one governing when animals would be eligible for eu-
`thanasia. The gist was that euthanasia was permitted only for ani-
`mals that were not adoptable, and animals would generally be con-
`sidered adoptable unless they were dangerous, sick, or injured.
`Even for unadoptable animals, euthanasia was not permitted un-
`less alternatives—such as returning the animal to its owner or
`transferring the animal to a rescue facility—would be unavailable.
`
`Major Longo and Captain Luce also introduced Johnston to
`Jennifer Ferguson, who would be Johnston’s immediate supervi-
`see. Because Ferguson had been working at the shelter for five
`months and was acting interim director before Johnston was hired,
`Major Longo and Captain Luce told Johnston that she would be a
`useful resource in learning shelter policies and practices.
`After a staff meeting on October 9, 2014, Ferguson told John-
`ston that the shelter had received two dogs that were being kept
`outside because there was no room for them in the shelter. John-
`ston asked Ferguson whether she had contacted any rescue facili-
`ties or foster homes to house the dogs, and Ferguson replied that
`she had, but that they were “all full.”
`Johnston then did a “walkthrough” of the shelter to see
`whether she could find space for the dogs. The shelter was divided
`into two areas—the “adoption area,” which was open to the public,
`and the “isolation area,” which was not. An animal’s location in
`either the adoption or isolation areas did not indicate whether the
`animal was fit for adoption. Each animal had a “kennel card” with
`
`
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`information about the animal, and Johnston noticed “about 10 to
`15 kennel cards” in the adoption area indicating that the animals
`had either “bitten or attacked another animal [] or had other be-
`havior notes.” In the isolation area, by contrast, Johnston observed
`only one dog that had behavioral notes on its kennel card; other-
`wise, the isolation area contained several “friendly and young
`dogs.” Johnston judged that the 10 or 15 dogs in the adoption area
`with kennel cards indicating aggression were unadoptable under
`the governing policy.
`Johnston asked Ferguson how she ordinarily dealt with such
`situations, and Ferguson replied that she would usually euthanize
`the animals in the isolation area. Because Johnston thought eu-
`thanizing the animals in the isolation area would be contrary to
`shelter policy, she ordered Ferguson to “re-evaluate the dogs that
`were [i]n the adoption [area] since, according to [Sheriff’s Office]
`policies and according to the notes on the kennel card[s], many of
`those dogs were not adoptable[.]”
`
`Johnston left work around noon that day to attend evening
`classes in Miami.2 Before she left, she told Ferguson to use Face-
`book to connect with rescue facilities and to try to “get some pets
`placed that way.” And while she “understood that there were some
`unadoptable animals that were going to have to be euthanized,”
`she admonished Ferguson to “follow our policies as written . . . and
`
`
`2 The shelter—located in Tavares, Florida—was approximately 265 miles
`from Miami.
`
`
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`Opinion of the Court
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`7
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`to euthanize no more than necessary.” Johnston did not tell Fer-
`guson how many animals to euthanize or which animals to eu-
`thanize.
`After Johnston left for Miami, Ferguson selected 23 or 24 an-
`imals for euthanization. Diane Hagan and Melanie Hollis, two eu-
`thanasia techs at the shelter, then proceeded to euthanize 20 of the
`animals but spared the rest because they saw no legitimate reason
`to euthanize them.
`Hagan filled out a euthanasia log listing the reason why each
`animal was euthanized. She recorded that six animals were eu-
`thanized for “no space,” 10 for aggression toward other animals,
`two for illness or injury, and two for a combination of space and
`health issues. Five of the notations of “no space” were written over
`whiteout. Hagan testified she had originally written “behavior” as
`the reason for those five and that she did not remember changing
`them to “no space.”
`
`Later that day, Ferguson had a conversation with a shelter
`volunteer named Whitney Boylston. She told Boylston that she
`had been “directed to pull or euthanize any number of animals that
`had been [at the shelter] over a certain amount of time.” Boylston
`asked her why she obeyed the direction, and Ferguson replied that
`she feared she would lose her job if she went outside her chain of
`command.
`
`The next day, Johnston received a phone call from Major
`Longo asking her to report to the shelter. Major Longo told
`
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`Johnston that “people were complaining” that adoptable pets had
`been euthanized and that “the sheriff wasn’t happy and somebody
`was going to have to answer for what happened.” Johnston indi-
`cated she was willing to “review each animal case by case and do a
`full investigation.” But Major Longo told her she “was not going
`to be allowed to investigate, [] was not going to be allowed to re-
`view any records, [and] [] was not going to be allowed to talk to
`any of the[] [animal-rights] advocates or investigate what hap-
`pened.” Major Longo then told Johnston she was fired.
`Later that evening, the Sheriff’s Office issued the following
`press release with the Sheriff’s approval:
`On October 10th 2014 the director of the Lake
`County Sheriff’s Office Animal Services division was
`terminated from her employment. Ms. Jacquelyn
`Johnston was hired by the Sheriff’s Office as Animal
`Services Director from a pool of applicants on Octo-
`ber 1st.
`
`On October 9th Sheriff’s Office administration be-
`came aware that several animals were euthanized un-
`der now former Director Johnston’s direction and
`outside of the Sheriff’s Office policy of utilizing eutha-
`nasia as a last resort.
`
`Sheriff Borders re-stated the Sheriff’s Office philoso-
`phy regarding animal services as being a shelter that
`utilizes any means available to find homes for animals
`in our care and only euthanizes as a last resort.
`
`
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`“This decision was made on our watch and we have
`taken swift action to ensure it does not happen again”
`— Sheriff Gary Borders.
`
`On October 14, 2014, Johnston’s attorney, Angelena Root,
`sent a letter to the Sheriff’s Office requesting “a meeting to discuss
`a resolution of the current situation.” The letter called the October
`10 press release a “wholly fabricated version of events” which
`“wrongfully and publicly vilified” Johnston. In fact, it was Fergu-
`son and not Johnston, the letter asserted, who “went completely
`rogue and . . . pulled far more animals than necessary and eu-
`thanized more animals than needed.” “If I do not hear from any-
`one within five (5) business days from the date of this letter in an
`attempt to schedule a meeting to be had within the next two (2)
`weeks,” Root concluded, “my client will be left with no choice but
`to explore all available legal options.” The Sheriff’s Office never
`responded to the letter.
`
`Despite Johnston’s belief that the Sheriff’s Office press re-
`lease was false and stigmatizing, she never requested a hearing to
`rebut the charges in the release and present her side of the story.
`Nor did the Sheriff’s Office give her notice of her right to such a
`hearing.
`
`
`II.
`
`
`
`On June 8, 2015, Johnston sued the Sheriff and Ferguson in
`the United States District Court for the Middle District of Florida
`
`
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`for compensatory and punitive damages. Her amended complaint
`contained eight counts. Count I asserted a claim against the Sheriff
`in his official and individual capacities under 42 U.S.C. § 1983, al-
`leging that he denied Johnston due process of law by publishing
`false and stigmatizing statements in connection with her termina-
`tion without thereafter giving her an opportunity to clear her
`name. Counts II through V asserted defamation claims under Flor-
`ida law against the Sheriff, in his official capacity, and Ferguson,
`and Count VI alleged a defamation claim against the Sheriff in his
`official capacity.3 Count VII alleged that the Sheriff and Ferguson
`violated 42 U.S.C. § 1985 by conspiring to “injure [Johnston] by ru-
`ining her professional reputation.” Count VIII alleged that the
`Sheriff and Ferguson violated 42 U.S.C. § 1986 in “[f]ailing to stop
`the conspiracy.”4
`
`
`3 Counts II through V asserted different theories of defamation against Fergu-
`son and the Sheriff in his official capacity. Count II alleged defamation based
`on a theory of slander per se. Count III alleged defamation based a theory of
`slander. Count IV alleged defamation based a theory of libel per se. Count V
`alleged defamation based a theory of libel. Count VI alleged defamation based
`a theory of defamation by implication only against the Sheriff in his official
`capacity. We refer to these theories in the singular, as the defamation claim
`brought by Johnston.
`4 Johnston brought Count I (and Counts VII and VIII) against the Sheriff in his
`individual and official capacities, invoking the District Court’s federal question
`jurisdiction, 28 U.S.C. §§ 1331 and 1343. The judgment the District Court en-
`tered against the Sheriff does not state that it was entered against him in his
`individual capacity. We therefore treat the judgment as having been entered
`
`
`
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`The Sheriff and Ferguson separately moved the District
`Court to dismiss the amended complaint for failure to state a claim
`for relief.5 The Sheriff argued that he was immune from suit in his
`individual capacity on Counts I, VII, and VIII on the ground that
`absolute immunity under Florida law protected him from suit for
`any false and defamatory statements he allegedly made because he
`made them within the scope of his employment.6 The Sheriff
`sought the dismissal of Count I on an additional ground, under the
`federal doctrine of qualified immunity, by claiming that he could
`not be sued in his individual capacity because it was not “clearly
`established” that that the statements he made in connection with
`Johnston’s termination had violated “any ‘clearly established’
`laws.” As for Count VII, the Sheriff argued that the “doctrine of
`intracorporate conspiracy” barred a conspiracy claim. And Count
`VIII failed, he argued, because its sufficiency depended on the via-
`bility of Count VII.7
`
`
`against him solely in his official capacity. Johnston brought Counts II through
`VI against the Sheriff and Jefferson under the Court’s supplemental jurisdic-
`tion, 28 U.S.C. § 1367.
`5 The Sheriff and Ferguson were represented by the same law firm throughout
`the litigation.
`6 See Fla. Stat. § 768.28(9)(a). The Sheriff’s motion stood silent as to whether
`Count I stated a claim against him in his official capacity.
`7 The Sheriff moved to dismiss Counts VII and VIII in both his official and
`individual capacities.
`
`
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`Ferguson argued that she was entitled to absolute immunity
`under Florida law on Counts II through V8 because her allegedly
`defamatory statements were made in the course of her duties. In
`the alternative, she argued that those counts should be dismissed
`because they failed to state facts constituting defamation.9 On May
`9, 2016, the District Court granted their motions to dismiss in part
`and denied them in part. The Court denied the motion to dismiss
`Count I—to the extent it sought damages against the Sheriff in his
`individual capacity—on two grounds. First, the Sheriff was not en-
`titled to absolute immunity under Florida law for his allegedly false
`and defamatory statements because Count I was not a defamation
`claim. Rather, it alleged that the statements infringed Johnston’s
`Fourteenth Amendment liberty interest in her good name and rep-
`utation, and because the Sheriff made the statements in terminat-
`ing her employment, due process required that he “provide [her] a
`name-clearing hearing.” Second, the Sheriff was not entitled to
`qualified immunity because the right to a name-clearing hearing
`was “clearly established law.”10 The Court granted the Sheriff’s
`
`
`8 See Fla. Stat. § 768.28(9)(a).
`9 Ferguson argued that those counts failed to allege the five elements required
`to establish a claim of defamation: “(1) publication to a third person; (2) falsity;
`(3) negligence; (4) actual damages; and (5) statement must be defamatory.”
`10 The Sheriff’s motion to dismiss Count I contained no reference to Count
`I’s allegation that the deprivation of a “name-clearing hearing” constituted a
`denial of due process. Rather, the motion appears to have interpreted Count
`I as alleging a due process claim based solely on the Sheriff’s statements.
`
`
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`(and Ferguson’s) motion to dismiss Counts VII and VIII as legally
`insufficient, although with leave to amend.11
`The Court denied Ferguson’s motion to dismiss Counts II
`through V. It rejected her arguments that she was entitled to ab-
`solute immunity under Florida law and that Counts II through V
`failed to sufficiently allege the elements of a defamation claim.
`On receiving the District Court’s rulings on their motions to
`dismiss, the Sheriff and Ferguson separately answered the
`amended complaint. They both denied the allegations of wrong-
`doing and asserted several affirmative defenses, as indicated be-
`low.12
`After discovery closed, the Sheriff and Ferguson jointly
`moved the District Court for summary judgment. The Sheriff ar-
`gued that the Count I due process claim brought against him in his
`official capacity failed because “adequate state [judicial] remedies
`were available” to provide Johnston with the process that was due:
`an “opportunity for a name clearing hearing.” He argued that the
`
`
`11 Johnston failed to amend Counts VII and VIII, so they are not implicated in
`these appeals.
`12 The Sheriff’s answer presented six affirmative defenses. None are pertinent
`here. Ferguson’s answer presented four affirmative defenses. One defense,
`the fourth, is relevant: the defamation claim in Counts II through V were
`barred by the doctrine of absolute privilege under Fla. Stat. § 768.28(9)(a), be-
`cause Ferguson’s statements were made “in connection with her official du-
`ties.” Ferguson asserted this privilege in her motion to dismiss Counts II
`through V as well as in the fourth affirmative defense.
`
`
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`Count I claim brought against him in his individual capacity failed
`because the doctrine of qualified immunity protected him from the
`damages Johnston was seeking.13 He argued that he was entitled
`to summary judgment on Counts II through VI because the Florida
`doctrine of absolute privilege barred the claims; he issued the press
`release containing the allegedly defamatory statements about John-
`ston in carrying out his duties as a Lake County executive officer.
`
`Ferguson argued that she was entitled to summary judg-
`ment on the defamation claim of Counts II through V because her
`statement to Boylston, on which the claims were based, was true
`and, in any case, protected by a qualified privilege applicable to
`statements “made by managerial employees to non-managerial
`personnel.”
`
`On January 11, 2017, the District Court granted the Sheriff
`and Ferguson summary judgment. The Court dismissed the Count
`I due process claim against the Sheriff, in his individual and official
`capacities, on the merits and declined to exercise its supplemental
`
`
`13 Nothing in the Sheriff’s motion for summary judgment or elsewhere in the
`record indicated that the Sheriff was aware that the due process Johnston was
`entitled to, a name-clearing hearing, would be an injunction ordering him to
`provide such a hearing and that if Florida law could not provide one, the Dis-
`trict Court could. Count I, though, did not seek a name-clearing hearing; it
`sought damages only. This explains why the Sheriff invoked the doctrine of
`qualified immunity in his individual capacity; it was a defense to Count I’s due
`process claim for damages.
`
`
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`jurisdiction over the state law defamation claim lodged against him
`in Counts II through VI.
`As to Count I, the District Court adhered to the position
`from its order on the motion to dismiss, that the Due Process
`Clause of the Fourteenth Amendment required the Sheriff to pro-
`vide Johnston with “a meaningful opportunity to clear her name”
`of the reputational stigma his statements had caused. In other
`words, Johnston had a constitutional right to a name-clearing hear-
`ing. If the Sheriff wouldn’t provide one, she could sue him in state
`court for an injunction ordering him to provide one. But the Dis-
`trict Court also found that Johnston had not (yet) suffered a due
`process violation. Such a violation could not occur, the District
`Court reasoned, until Johnston had sought and failed to secure a
`state court injunctive order requiring the Sherriff to provide her a
`name-clearing hearing. The need to seek a state court injunctive
`order, according to the Court, stemmed from our holding in
`McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc). But
`Johnston, in her complaint, did not seek a state court injunctive or-
`der. She didn’t have to, she contended, because the “Sheriff never
`notified her of her right to a name-clearing hearing, never offered
`her a name-clearing hearing, and never denied her a name-clearing
`hearing.” The District Court was not persuaded.
`Whether a public employer deprives a terminated
`employee of due process by denying the employee’s
`request for a name-clearing hearing—which did not
`happen in this case—or by failing to provide the
`
`
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`employee with notice of his or her rights to a name-
`clearing hearing14—which did happen in this case—
`the employee “has not suffered a violation of his pro-
`cedural due process rights unless and until the [state]
`refuses to make available a means to remedy the dep-
`rivation.” McKinney, 20 F.3d at 1563. Because an ad-
`equate state court remedy was available to Johnston,
`her failure to pursue that remedy dooms her proce-
`dural due process claim in this Court.15
`
`Having found that Johnston failed to seek a state court in-
`junctive order and thus suffered no due process violation, the
`Court granted the Sheriff summary judgment on Count I.16 Since
`Johnston’s only federal claim failed as a matter of law, the Court
`declined to exercise its supplemental jurisdiction under 28 U.S.C. §
`1367 over the state-law defamation claim of Counts II through VI
`and dismissed them without prejudice.
`
`Johnston appealed the summary judgment. Johnston v. Bor-
`ders, 724 F. App’x. 762 (11th Cir. 2018). She presented two issues:
`
`14 The District Court cited Buxton v. City of Plant City, 871 F.2d 1037, 1042–
`43 (11th Cir. 1989), for its position.
`15 Query whether the Court necessarily implied that if the state failed to order
`the Sheriff to provide Johnston with a name-clearing hearing, it would enter
`an injunction ordering a hearing.
`16 The Court granted the Sheriff summary judgment on Count I in his official
`capacity but did not rule on the defense he asserted in his individual capacity
`that he was entitled to summary judgment based on the doctrine of qualified
`immunity.
`
`
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`(1) whether the record showed that she had established a violation
`of her due process right to a name-clearing hearing, and (2)
`whether the District Court erred in holding that, under McKinney,
`she could obtain an injunctive order requiring the Sheriff to pro-
`vide her with a name-clearing hearing. We resolved both issues in
`her favor.
`In deciding the first issue, we held that to establish her right
`to a name-clearing hearing, Johnston had to prove: “(1) a false state-
`ment (2) of a stigmatizing nature (3) attending [her] discharge (4)
`made public (5) by [her] government employer (6) without a mean-
`ingful opportunity for employee name clearing.” Id. at 766 (quot-
`ing Buxton v. City of Plant City, 871 F.2d 1037, 1042–43 (11th Cir.
`1989)). We concluded that the evidence in the record created a
`genuine dispute as to the sixth element. Contrary to the Sheriff’s
`position, “releasing her complaint letter in response to a media re-
`quest . . . was . . . a ‘meaningful opportunity for employee name
`clearing.’ ” Id. (quoting Buxton, 871 F.2d at 1042–43).
`Turning to the second issue, we held that the District Court
`incorrectly concluded that the Florida courts would order the Sher-
`iff to give Johnston a name-clearing hearing.17 Id. at 766–68. We
`rejected the Sheriff’s argument that those courts would provide
`
`17 We impliedly held that, because the Florida courts would not enjoin the
`Sheriff to provide a name-clearing hearing, she would have to seek one from
`the District Court. As it turned out, though, she never sought one from the
`Florida courts or the District Court. Instead, she sought damages from the
`District Court.
`
`
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`Johnston with a name-clearing hearing via a writ of certiorari or a
`writ of mandamus. Id. Certiorari was unavailable because it con-
`sists of appellate court review of “the record of an inferior tribunal
`hearing” and no such hearing had been held. Id. at 766–67. Man-
`damus was unavailable because although the Sheriff contended
`that “mandamus was adequate to cure Johnston’s ‘lack of notice,’
`” id. at 767, a writ of mandamus wouldn’t provide Johnston “a
`chance to clear her name.”18 Id. We therefore vacated the District
`Court’s order granting the defendants’ summary judgment and re-
`manded the case for further proceedings. Id. at 768.19
`
`
`18 We note that this non-precedential conclusion is dubious, though, consid-
`ering that the writ of mandamus in Florida is available if there was an “indis-
`putable legal duty to perform the . . . action, and . . . no other adequate remedy
`[was] available.” Fla. Agency for Health Care Admin. v. Zuckerman Spaeder,
`LLP, 221 So.3d 1260, 1263 (Fla. 1st Dist. Ct. App. 2017).
`19 Recall that the District Court did not rule on the Sheriff’s argument that he
`was entitled to summary judgment on Count I brought against him in his in-
`dividual capacity based on the defense of qualified immunity. In his answer
`brief in Johnston v. Borders, the Sheriff asked us to determine whether he was
`entitled to the defense. We said no.
`Several of our published decisions gave Sheriff Borders “fair
`warning” that his conduct was unconstitutional. We have held
`that government employees are entitled to a meaningful op-
`portunity for a name clearing hearing after an employer places
`allegedly false and stigmatizing information in their personnel
`files. See Cotton [v. Jackson], 216 F.3d [1328,] 1330 [(11th Cir.
`2000)]; Buxton, 871 F.2d at 1038, 1045–46.
`Johnston, 724 F. App’x. at 768.
`
`
`
`USCA11 Case: 18-14808 Date Filed: 06/09/2022 Page: 19 of 86
`
`18-14808
`
`Opinion of the Court
`
`19
`
`On remand, the District Court considered whether the Sher-
`iff and Ferguson were entitled to summary judgment on the state
`law defamation claim it had dismissed, Counts II through VI. The
`Court found that the October 10, 2014, press release was issued
`“within the scope of the Sheriff’s Office’s authority” and was there-
`fore protected by the doctrine of absolute privilege, but also that
`triable issues of fact existed regarding Ferguson’s statement to
`Boylston. Accordingly, the Court granted the Sheriff summary
`judgment on Counts II through VI but denied it as to Ferguson.
`At this point, Johnston moved the District Court to enforce
`our mandate in Johnston v. Borders.20 She made two points rele-
`vant here. First, she argued that Johnston implicitly held that she
`was not required to satisfy the “policy or custom” requirement es-
`tablished by Monell v. Department of Social Services of City of
`New York, 436 U.S. 658, 98 S. Ct. 2018 (1978), to obtain damages
`from the Sheriff in his official capacity on the Count I due process
`claim.21 Second, she argued that Johnston found that,
`
`
`20 Johnston styled her motion as one under Federal Rule of Civil Procedure
`50. The District Court found Rule 50 relief unavailable because the case had
`not gone to trial, so it construed Johnston’s motion as one in limine “to set
`forth the trial court’s understanding of the Eleventh Circuit’s opinion and to
`provide guidance to the parties.” Because the motion sought to enforce John-
`ston’s interpretation of the mandate, we refer to it as a motion to enforce the
`mandate.
`21 In Monell, the Supreme Court held that municipalities are not subject to
`respondeat superior liability under § 1983. 436 U.S. at 691, 98 S. Ct. at 2036.
`
`
`
`
`USCA11 Case: 18-14808 Date Filed: 06/09/2022 Page: 20 of 86
`
`20
`
`Opinion of the Court
`
`18-14808
`
`a) [she] was not informed of her right to a name clear-
`ing hearing, and b) she was not given a hearing for
`name clearing purposes. As a “meaningful oppor-
`tunity” for name clearing, according to the Eleventh
`Circuit, required a hearing at which Johnston could
`“cross-examine witnesses or rebut their claims”, law
`of the case requires finding that this last element of
`the Section 1983 claim – “without a meaningful op-
`portunity for an employee name clearing” – is met
`and does not require proof at trial.
`
`The District Court agreed with Johnston’s first point with
`this statement:
`
`The Eleventh Circuit . . . established six (6) elements
`for a § 1983 deprivation of liberty interest claim. The
`Court’s pronouncement in this case is consistent with
`its approach in Buxton, and this Court declines to add
`additional elements of proof not required by the ap-
`pellate court. The Eleventh Circuit is well-aware of
`Monell and its progeny, yet, the Court omitted the
`‘policy, custom or usage’ language from its analysis of
`the elements of a § 1983 deprivation of liberty claim.”
`
`The Court disposed of the second point by interpreting
`Johnston as holding that the Sheriff’s concession that he did not
`notify Johnston of her right to a name clearing hearing established
`
`Rather, municipalities are only liable for a constitutional tort committed by
`employees insofar as the tort results from a municipal policy or custom. Id. at
`690, 98 S. Ct. at 2035–36.
`
`
`
`USCA11 Case: 18-14808 Date Filed: 06/09/2022 Page: 21 of 86
`
`18-14808
`
`Opinion of the Court
`
`21
`
`the sixth element of her due process claim—that is, he denied her
`a meaningful opportunity to clear her name.
`The case then proceeded to trial on the Count I due process
`claims against the Sheriff and the Count II defamation claim against
`Ferguson. The trial lasted nine days. Johnston’s counsel called
`nine witnesses. Johnston testified first, followed by Major Longo
`and two expert witnesses. The first expert testified about th
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