Bergeron v. Cabral

United States Court of Appeals

For the First Circuit

No. 08-1683

DAVID BERGERON ET AL.,

Plaintiffs, Appellees,

v.

SHERIFF ANDREA CABRAL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Chief Judge,

Selya and Siler,** Circuit Judges.

Ellen M. Caulo, Deputy General Counsel, Suffolk County

Sheriff's Department, for appellant.

Stephen C. Pfaff, with whom Louison, Costello, Condon & Pfaff,

LLP was on brief, for appellees.

March 9, 2009

*

Of the Sixth Circuit, sitting by designation.

SELYA, Circuit Judge. This interlocutory appeal requires

us to determine whether defendant-appellant Andrea Cabral, the duly

elected Sheriff of Suffolk County, Massachusetts, is entitled to

qualified immunity in connection with her decision to strip several

jail officers of their commissions as deputy sheriffs, allegedly in

retaliation for their support of her opponent during the 2004

election cycle. The district court, after concluding that

decommissioning amounts to an adverse employment action, denied the

defendant's motion for summary judgment based on qualified

immunity. The defendant appeals on two grounds. Although we lack

jurisdiction to consider one ground on interlocutory review, we do

have jurisdiction to consider the other. After careful

consideration of that ground, we affirm the order denying brevis

disposition.

I. BACKGROUND

We draw the relevant facts from the summary judgment

record and rehearse them in the light most flattering to the

nonmovants (here, the plaintiffs). See Cox v. Hainey, 391 F.3d 25,

27 (1st Cir. 2004).

This action was brought by ten correctional officers

employed at the Nashua Street Jail, a penal facility operated by

the Suffolk County Sheriff's Department (the Department). All of

them were members of either the Jail Officers and Employees

Association (JOEA) or some other public employees' labor union.

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Because this appeal implicates only six of the ten jail officers

(David Bergeron, John Grennon, John Barnes, John Ellis, Lorne

Lynch, and Al Moscone), we refer to those six jail officers as the

plaintiffs.

On November 29, 2002, the governor appointed the

defendant as Sheriff to complete an unexpired term. Shortly

thereafter, she commissioned the plaintiffs, among others, as

deputy sheriffs. See Mass. Gen. Laws ch. 37, § 3. A deputy-

sheriff commission is not a prerequisite for service as a jail

officer. Some jail officers hold such commissions; others do not.

Starting in the spring of 2003, the defendant became

embroiled in an acrimonious contractual dispute with the JOEA.

That dispute spilled over into the political arena. As a result,

the JOEA disseminated mass mailings and a press release soliciting

support for its cause. To add insult to injury, the JOEA endorsed

Stephen J. Murphy, the defendant's opponent in the 2004 Democratic

primary for election as Sheriff.

The plaintiffs all participated in the campaign (albeit

to varying degrees). Three of them — Grennon, Barnes, and Ellis —

played key roles in the propagation of mailings and a press release

calumnizing the defendant. A fourth, Moscone, raised funds for

Murphy's campaign coffers, contributed money of his own, and made

telephone calls to assist Murphy's bid for election. A fifth,

Lynch, attended at least one Murphy fundraiser. The sixth,

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Bergeron, held a sign advocating Murphy's election at a polling

place in West Roxbury on primary day.

Despite the plaintiffs' efforts, the defendant won the

primary and ran unopposed in the November general election. Her

first full term as Sheriff commenced on January 5, 2005.

Approximately three months later, she rescinded the plaintiffs'

commissions and transferred several of them to less desirable

assignments.

The plaintiffs were not pleased. Invoking 42 U.S.C. §

1983, they joined in bringing suit in federal district court.

Their complaint alleged that the defendant had retaliated against

them because of their union activities and/or their political

affiliation, in violation of the First Amendment.

After the close of discovery, the defendant moved for

summary judgment on the ground that the plaintiffs had failed to

introduce sufficient evidence to support their First Amendment

claims and, in the alternative, that qualified immunity barred

those claims. The court below granted the motion in part and

denied it in part. Bergeron v. Cabral, 535 F. Supp. 2d 204, 216

(D. Mass. 2008).

Pertinently, the court determined that the six plaintiffs

had adduced evidence adequate to raise a genuine issue of material

fact as to whether each of them had suffered an adverse employment

action because of political affiliation. Id. at 214. The court

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also held that the defendant was not entitled to qualified immunity

on this set of claims. Id. at 215-16.

On appeal, the defendant challenges the district court's

denial of qualified immunity. No other ruling is ripe for review.

II. ANALYSIS

Qualified immunity is a judge-made construct that broadly

protects public officials from the threat of litigation arising out

of their performance of discretionary functions. Pagán v.

Calderón, 448 F.3d 16, 31 (1st Cir. 2006). The defense is

available to public officials whose "conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Because qualified immunity confers a right

"not to stand trial or face the other burdens of litigation . . .

rather than a mere defense to liability," Mitchell v. Forsyth, 472

U.S. 511, 526 (1985), a pretrial rejection of qualified immunity

may give rise to an interlocutory appeal.

The key word in this last sentence is "may." In the

pages that follow, we mull the threshold question of appellate

jurisdiction. We then address those aspects of the appeal that we

have jurisdiction to hear.

A. Appellate Jurisdiction.

In broad-brush terms, an interlocutory appeal may be

taken from the denial of qualified immunity when the immunity issue

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is a purely legal one, that is, when resolving the issue does not

require either choosing among conflicting facts or second-guessing

the district court's conclusion that a genuine issue of material

fact bars any immediate relief. Pagán, 448 F.3d at 26; Camilo-

Robles v. Hoyos (Camilo-Robles I), 151 F.3d 1, 8 (1st Cir. 1998).

Accordingly, when the district court assumes a set of facts

favorable to the plaintiff and decides as a matter of law that

those facts do not form a satisfactory basis for a finding of

qualified immunity, an interlocutory appeal is available under the

collateral order doctrine. See Behrens v. Pelletier, 516 U.S. 299,

313 (1996).

Here, the defendant has advanced two main theories in

support of her assertion that she is shielded by qualified

immunity. We perform the necessary triage.

The defendant's first theory is that decommissioning is

not an adverse employment action (or, at least, that the law in

that area lacks a clear focus). Thus, regardless of any animus on

her part, the plaintiffs were not deprived of any clearly

established constitutional right.

We have jurisdiction to consider this argument. There is

no dispute about either the fact of decommissioning or the benefits

that a commission entails. Seen in this light, the multifaceted

question of whether decommissioning is an adverse employment action

and if so whether a reasonable officer in the defendant's position

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should have known as much fits neatly within the integument of the

collateral order doctrine. See, e.g., Shockency v. Ramsey County,

493 F.3d 941, 948-51 (8th Cir. 2007) (considering on interlocutory

appeal whether employees had suffered adverse employment action and

whether law to that effect was clearly established); Bass v.

Richards, 308 F.3d 1081, 1087-88 (10th Cir. 2002) (similar).1

The defendant's second theory is a horse of a different

hue. She claims that the decommissioning was part of a

comprehensive merits-based reform and that she is entitled to

immunity because there is insufficient record evidence that the

decision was driven by political animus. But the plaintiffs

presented evidence that their political affiliation played a

crucial role in bringing about the decommissioning, and the

district court determined that this evidence permitted a reasonable

inference that the defendant knew of the plaintiffs' support for

Murphy and punished them as a result. Bergeron, 535 F. Supp. 2d at

214. Since the district court discerned a genuine issue of

material fact as to the defendant's motivation, we lack

jurisdiction to review the issue on an interlocutory appeal. See

1

We have suggested that the existence of an adverse

employment action may be a question for the jury when there is a

dispute concerning the manner in which the action taken affected

the plaintiff-employee. See Rivera-Jiménez v. Pierluisi, 362 F.3d

87, 94 (1st Cir. 2004). Here, however, it is clear what effect

decommissioning had on the plaintiffs' positions. Consequently,

the adversity vel non of that action is a legal question properly

reviewable on interlocutory appeal.

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Valdizán v. Rivera-Hernández, 445 F.3d 63, 65 (1st Cir. 2006);

Cruz-Gómez v. Rivera-Hernández, 444 F.3d 29, 33-34 (1st Cir. 2006);

Camilo-Robles v. Zapata (Camilo-Robles II), 175 F.3d 41, 46-48 (1st

Cir. 1999).

To recapitulate, we have jurisdiction to resolve the

defendant's first ground for qualified immunity: that

decommissioning does not constitute an adverse employment action,

cognizable in a First Amendment retaliation suit (or, at the very

least, that a reasonable public official would have believed that

to be so). Conversely, we lack jurisdiction over the defendant's

second theory of qualified immunity: that the record evidence is

insufficient to support a finding that she acted out of political

animus in decommissioning the plaintiffs. We limit our substantive

discussion accordingly. See, e.g., Valdizán, 445 F.3d at 65-66

(exercising jurisdiction over legal basis of denial of qualified

immunity but eschewing review insofar as denial was premised on

district court's determination that genuine issues of material fact

existed); Díaz v. Martínez, 112 F.3d 1, 4-5 (1st Cir. 1997)

(similar).

B. The Qualified Immunity Inquiry.

A district court's ruling granting or denying a summary

judgment motion premised on qualified immunity engenders de novo

review. See, e.g., Cox, 391 F.3d at 28; Camilo-Robles I, 151 F.3d

at 11. Over time, we have cultivated an ordered, three-step

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inquiry designed to determine whether a public official is entitled

to qualified immunity. See, e.g., Pagán, 448 F.3d at 31; Cox, 391

F.3d at 29-30. Under that framework, we ask "(i) whether the

plaintiff's proffered version of the facts, if true, makes out a

violation of a constitutionally protected right; (ii) . . . whether

that right was clearly established at the time of the putative

violation; and (iii) . . . whether a reasonable public official,

situated similarly to the defendant, should have understood the

challenged act or omission to violate the discerned right."

Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009). If we answer

any of these queries in the negative, the assertion of qualified

immunity prevails.2

The Supreme Court recently held that these steps need not

be taken in strict sequence. Pearson v. Callahan, 129 S. Ct. 808,

818 (2009) (abrogating Saucier v. Katz, 533 U.S. 194, 201 (2001)).

Pearson creates a pathway to flexibility. It does not in any way

preclude courts from going step by step. See id. Because the

parties briefed and argued the case at hand pre-Pearson, it makes

sense to adhere to a sequential mode of analysis here. We proceed

in that fashion.

2

We occasionally have compressed these three steps into two.

See, e.g., Santana v. Calderón, 342 F.3d 18, 23 (1st Cir. 2003);

Dwan v. City of Boston, 329 F.3d 275, 278 (1st Cir. 2003). The

three-step approach is functionally equivalent to the two-step

approach and, in all events, our resolution of this appeal would be

the same regardless of which methodology we employed.

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1. The First Prong. It is apodictic that the First

Amendment insulates public employees who hold nonpolicymaking

positions from the vicissitudes of personnel decisions rooted in

partisan political concerns. See, e.g., Rutan v. Repub. Party of

Ill., 497 U.S. 62, 74-76 (1990). In order to make out a claim for

political retaliation, a public employee who holds a

nonpolicymaking position must show both that he was subjected to an

adverse employment action and that his politics were a substantial

or motivating factor for that action. González-Pina v. Rodríguez,

407 F.3d 425, 431 (1st Cir. 2005).

For reasons already explained, see supra Part II(A), we

must accept as a given that the plaintiffs have succeeded in

raising a genuine issue of material fact as to the second of these

elements. Thus, our inquiry is limited to the first element.

Moreover, because the defendant has not argued to the contrary, we

must accept that Suffolk County deputy sheriffs do not occupy

policymaking positions for which political loyalty would be an

appropriate qualification. The question, then, reduces to whether

stripping the plaintiffs of their commissions as deputy sheriffs

constituted an adverse employment action.

The term "adverse employment action" arose in the Title

VII context as a shorthand for the statutory requirement that a

plaintiff show an alteration in the material terms or conditions of

his employment. See Power v. Summers, 226 F.3d 815, 820 (7th Cir.

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2000); see also 42 U.S.C. § 2000e-2(a)(1). Though analogous in

other respects, a section 1983 suit is not subject to any similar

statutory imperative. Rather, the "adverse employment action"

inquiry in the section 1983 context focuses on whether an

employer's acts, viewed objectively, place substantial pressure on

the employee's political views. See Agosto-de-Feliciano v. Aponte-

Roque, 889 F.2d 1209, 1218 (1st Cir. 1989) (en banc); see also

Power, 226 F.3d at 820-21.

Discharge is the paradigmatic example of such an adverse

employment action. See, e.g., Elrod v. Burns, 427 U.S. 347, 372-73

(1976) (plurality op.); Gómez v. Rivera Rodríguez, 344 F.3d 103,

110 (1st Cir. 2003); Vázquez Ríos v. Hernández Colón, 819 F.2d 319,

324 (1st Cir. 1987). But under this rubric, acts short of outright

dismissal may be sufficiently adverse to undergird claims for

political retaliation. See Rutan, 497 U.S. at 74-75.

In Agosto-de-Feliciano, this court, sitting en banc, held

that employment actions are sufficiently adverse to support a

section 1983 claim bottomed on the First Amendment if those

actions, objectively evaluated, would "place substantial pressure

on even one of thick skin to conform to the prevailing political

view." 889 F.2d at 1218. We further stated that this level of

burdensomeness is reached "when the employer's challenged actions

result in a work situation 'unreasonably inferior' to the norm for

the position." Id. It follows that a substantial alteration in an

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employee's job responsibilities may constitute an adverse

employment action. See id. at 1219. The standard enunciated in

Agosto-de-Feliciano survived the Rutan Court's subsequent decision,

see Martínez-Vélez v. Rey-Hernández, 506 F.3d 32, 42 & n.7 (1st

Cir. 2007) (collecting cases), and we apply that standard here.

Jobs come in a kaleidoscopic array of colors, shapes, and

sizes. Moreover, they are performed under a wide variety of

circumstances and with a wide variety of perquisites. The decision

as to what constitutes an adverse employment action must take

account of these variations. Nevertheless, the cases provide some

guidance.

To begin, we have ruled that depriving an employee of the

bulk of his job responsibilities is an adverse employment action.

Bisbal-Ramos v. City of Mayagüez, 467 F.3d 16, 22-23 (1st Cir.

2006) (collecting cases). So, too, the denial of "special benefits

and assignments" arising in the normal course of an employment may

comprise an adverse employment action. Rivera-Jiménez v.

Pierluisi, 362 F.3d 87, 94-95 (1st Cir. 2004). These decisions,

however, are merely background for present purposes; the case at

hand is a "diminished compensation" case.

More to the point, we have recognized that tinkering with

an employee's duties or prerogatives in a way that creates a

realistic potential for pecuniary loss may impose substantial

pressure on the employee such as to implicate his First Amendment

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rights. The most obvious example is a garden-variety salary

reduction, which unarguably constitutes an adverse employment

action. See, e.g., Acosta-Orozco v. Rodríguez-de-Rivera, 132 F.3d

97, 101 (1st Cir. 1997); Jirau-Bernal v. Agrait, 37 F.3d 1, 4 (1st

Cir. 1994).

Some of our cases go farther down this road. In Welch v.

Ciampa, 542 F.3d 927 (1st Cir. 2008), we held that a superior's

failure to reappoint a detective as a detective sergeant

constituted an adverse employment action because loss of the title

entailed the loss of "the additional stipend that accompanied [that

title] as well as the opportunity for substantial overtime pay and

additional pay related to detail and court assignments." Id. at

936. Similarly, in Martínez-Vélez, we held that the denial of

overtime opportunities may constitute an adverse employment action.

506 F.3d at 40.

Here, it is transparently clear that the Department

offered the opportunity to work paid security details only to jail

officers who were commissioned as deputy sheriffs. Consequently,

when the defendant stripped the plaintiffs of their commissions,

she excluded them from any chance of staffing such details. That

act effectively reduced the plaintiffs' earning capacity. We

believe that this constriction of job responsibilities and the

concomitant reduction in earning capacity combined to constitute an

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adverse employment action.3 See Welch, 542 F.3d at 936; Martínez-

Vélez, 506 F.3d at 40; cf. Blackie v. Maine, 75 F.3d 716, 725 (1st

Cir. 1996) (holding in context of FLSA retaliation claim that an

adverse employment action generally occurs when employer "(1)

take[s] something of consequence from the employee" or "(2)

withhold[s] from the employee an accouterment of the employment

relationship").

The defendant challenges this conclusion, suggesting that

the number of available security details has declined sharply.

This boils down to a suggestion that the decommissioning wrought

such minuscule pecuniary loss that it cannot be deemed an adverse

employment action.

We need not speculate on the suggestion that, under

certain circumstances, the loss of an opportunity to earn paltry

amounts might not constitute an adverse employment action. Cf.

Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 505 (7th Cir. 2004)

(holding, in Title VII case, that loss of a single day's pay did

not constitute adverse employment action). The situation here is

different. The plaintiffs were decommissioned in April of 2005.

The record shows that deputy sheriffs worked 4,878 security details

3

The plaintiffs allege that decommissioning had certain other

infelicitous effects, such as rendering them ineligible to work in

prisoner transport. Some of them also allege that they were

transferred to unreasonably inferior job assignments. Because the

deprivation of the opportunity to work security details is enough,

in itself, to qualify decommissioning as an adverse employment

action, we do not probe these other allegations.

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in that calendar year. The potential earning capacity that these

opportunities presented is well-illustrated by plaintiffs Lynch

(who during the first three and one-half months of 2005 worked 120

hours on security details, earning $3,360) and Moscone (who during

the same interval worked 86 hours on security details, earning

$2,436). Nor were these figures a fluke: Lynch had earned well

over $20,000 from security details in each of the two preceding

years, and Moscone had earned comparable sums. Extrapolating from

these data, it is fair to draw the inference that a commissioned

deputy sheriff had the capacity to earn several thousand dollars of

extra compensation annually.

Decommissioning foreclosed those opportunities

completely. Such a deprivation was a heavy price to pay for

campaigning against the Sheriff and, thus, the threat of

decommissioning is a classic example of pressure designed to coerce

political orthodoxy. That deprivation is therefore sufficient to

ground a finding of an adverse employment action.

The fact that there may have been fewer security details

available in the years after the decommissioning does not mitigate

the force of this conclusion. If this fact is proffered as a

justification for decommissioning the plaintiffs, we lack

jurisdiction to consider it on this appeal. See supra Part II(A).

If, however, the fact is proffered as a reason why decommissioning

is not an adverse employment action, it lacks bite: the relevant

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inquiry is whether an employer's actions, viewed objectively,

placed inordinate pressure on employees to conform to prevailing

political orthodoxy. See Agosto-de-Feliciano, 889 F.2d at 1218.

In the instant case, that pressure would have been

calibrated to the amount of additional money a deputy sheriff could

expect to earn in the spring of 2005. Absent a showing that the

plaintiffs at that time knew that there would be fewer security

details available in the future — and no such showing has been

forthcoming — the slump in requests for security details is beside

the point.

The defendant's fallback position seems to be that even

if decommissioning is an adverse employment action as to Lynch and

Moscone, it is not as to the remaining plaintiffs. In this regard,

she points out that Grennon worked security details sporadically,

and none from 2003 through 2005; that Bergeron worked only one

security detail in 2004 and none in 2005; and that neither Barnes

nor Ellis ever opted to work on security details. Because these

four plaintiffs did not work security details with any frequency,

the defendant asseverates, decommissioning was not sufficient to

underpin their First Amendment claims.

This is anfractuous reasoning. As a matter of law, the

determination as to whether conduct constitutes an adverse

employment action must be made based on objective criteria. The

opportunity to work security details and earn extra money is an

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attractive benefit that accrues to all commissioned deputy

sheriffs. Foreclosing that opportunity is an adverse employment

action with respect to any and all similarly situated deputies.

See Welch, 542 F.3d at 936; Martínez-Vélez, 506 F.3d at 40.

Accordingly, each of the six plaintiffs felt the sting of an

adverse employment action.

Taking a closely related tack, the defendant asserts that

the plaintiffs did not suffer an adverse employment action because

they lost only the ability to earn outside income; that is, to

supplement their normal wages with monies derived from sources

outside the Department. In support, the defendant notes that a

jail officer does not require a commission to perform his regular

duties; that jail officers who are deputy sheriffs are forbidden

from working security details that interfere with their regular

work assignments; and that the agencies for which deputy sheriffs

perform security details pay for the deputies' services. Thus, the

defendant's thesis runs, any loss of earning capacity arose outside

the scope of the plaintiffs' employment and cannot constitute an

adverse employment action.

This thesis is riddled with imperfections. The most

prominent flaw is that it rests on an incorrect factual predicate.

The record makes manifest that whereas security details involve

work that is not part of a jail officer's obligatory duties, see

Sheriff of Middlesex County v. Int'l Bhd. of Corr. Officers, 821

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N.E.2d 512, 514 (Mass. App. Ct. 2005), those details do not

transpire outside the contours of a deputy's employment

relationship with the Department.4 We explain briefly.

In a very real sense, the Department owns the security

details. It establishes the criteria for the work, maintains the

roster of eligibles, sets the rotation, assigns deputies to

particular details, provides the gear to be used, and enjoins

deputies to abide by departmental policies while working security

details. Individual deputy sheriffs are expressly forbidden from

either free-lancing or negotiating separately with outside agencies

in connection with the provision of security details. Moreover,

the Department instructs deputy sheriffs that, while working

security details, they are "emissar[ies] of the Suffolk County

Sheriff's Department."

To cinch matters, the defendant conceded at oral argument

that the Department actually pays deputy sheriffs for the work that

they do on security details. Indeed, the payments appear as line

4

In an analogous context, the Supreme Court has held that the

anti-retaliation provision of Title VII, unlike the statute's

substantive provisions, "extends beyond workplace-related or

employment-related retaliatory acts and harm." Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Because we find

that the retaliation alleged here was employment-related, we need

not consider whether a First Amendment retaliation claim may

likewise be premised on retaliatory acts that are not employment-

related.

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items on the recipient's normal paycheck.5 Under these

circumstances, we reject the defendant's claim that remuneration

for security details is a matter arising outside the employment

relationship between the Department and deputy sheriffs as a class.

The short of it is that the opportunity to work on

security details is a customary and valuable incident of a deputy

sheriff's employment. The defendant foreclosed that opportunity by

decommissioning the plaintiffs, presumably because of their

political stance. It follows that the plaintiffs have suffered an

adverse employment action and, thus, have prevailed on the first

furculum of the qualified immunity inquiry.

2. The Second Prong. The second prong of the qualified

immunity inquiry requires an objective appraisal of the state of

the law at the time of the challenged act (here, the

decommissioning). See Iacobucci v. Boulter, 193 F.3d 14, 21 (1st

Cir. 1999). The crucial question is whether the contours of the

relevant right "were sufficiently well-defined that a reasonable

official would have understood that his actions violated that

right." Hatch v. Dep't for Children, Youth & Their Families, 274

F.3d 12, 22 (1st Cir. 2001).

In answering this question, "an inquiring court must look

back in time and conduct the juridical equivalent of an

5

The Department apparently acts as a conduit for these sums

and is reimbursed by the agencies that have requested the security

details.

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archeological dig." Savard v. Rhode Island, 338 F.3d 23, 28 (1st

Cir. 2003) (en banc). The court should search the relevant

authorities both in circuit and out of circuit. Hatch, 274 F.3d at

23. In order to show that a principle is clearly established in

the pertinent sense, a plaintiff ordinarily must identify "cases of

controlling authority . . . at the time of the incident . . . [or]

a consensus of cases of persuasive authority such that a reasonable

officer could not have believed that his actions were lawful."

Wilson v. Layne, 526 U.S. 603, 617 (1999). Throughout, the court

should take care to focus on the particulars of the case at hand.

That is not to say that, like in a dog-bite case at

common law, the first bite is always free. See, e.g., Burton v.

Moorhead, (1881) 8 R. 892, 895 (Sess.) (Scot.). The qualified

immunity defense does not furnish public officials with an absolute

license to subject citizens to deprivations of constitutional

rights simply because the underlying fact pattern is new. See Hope

v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that public

officials may be deemed to "be on notice that their conduct

violates established law even in novel factual circumstances");

Limone v. Condon, 372 F.3d 39, 48 (1st Cir. 2004) (similar). In

other words, a plaintiff need not show that the conduct of which he

complains is an exact replica of conduct that previously has been

held unlawful. Anderson v. Creighton, 483 U.S. 635, 640 (1987).

In the last analysis, a plaintiff may satisfy the second prong of

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the qualified immunity inquiry by showing that the relevant legal

principles were both specific enough and sufficiently well-

established that the unlawfulness of the defendant's conduct ought

to have been apparent. See id.; Limone, 372 F.3d at 44.

As said, the decommissioning took place in April of 2005.

At that time, it was settled beyond hope of contradiction that a

garden-variety reduction in pay constituted an adverse employment

action. See, e.g., Acosta-Orozco, 132 F.3d at 101; Jirau-Bernal,

37 F.3d at 4; Agosto-de-Feliciano, 889 F.2d at 1218 n.8. It was

equally well-settled that an employer could not deny an employee a

promotion or otherwise significantly retard the employee's

eligibility for wage increases because of the employee's exercise

of First Amendment rights. See, e.g., Rutan, 497 U.S. at 76;

McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994); Roque-

Rodríguez v. Lema Moya, 926 F.2d 103, 107 (1st Cir. 1991).

Accordingly, the case law of the Supreme Court and this

circuit alone establish that there was fair notice that a reduction

in income controlled by the employer was actionable. There is no

need to go beyond that; we accept the principle that a single out

of circuit case would not alone be enough. But we think it germane

to note that there was at least one such case decided prior to the

decommissioning that had haunting parallels to this case.6

6

A second highly analogous case, Welch, 542 F.3d at 936,

resolved by this court, was not decided until after the Sheriff

took away the plaintiffs' commissions.

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In Bass, the Tenth Circuit, following an agnate line of

reasoning, had held that a sheriff's decision to rescind the

commission of a reserve deputy constituted an adverse employment

action under what that court viewed as clearly established First

Amendment principles. See Bass, 308 F.3d at 1088. The court

rested its holding on a finding that the commission constituted a

valuable benefit, allowing its holder to effectuate arrests and

conduct investigations. Id.

The plain import of these decisions is that, by 2005, it

was clearly established that public officials could not

significantly impact an employee's compensation or earning capacity

on the basis of the employee's political affiliation. Inasmuch as

a deputy-sheriff commission offers a jail officer the potential to

garner substantial financial benefits, it was clearly established

when the defendant acted that she could not deprive a jail officer

of his commission out of political animus. Thus, the plaintiffs

have satisfied the second prong of the qualified immunity inquiry.

3. The Third Prong. The third prong of the qualified

immunity inquiry is qualitatively different from the first two

prongs. "While the first two steps . . . deal with abstract legal

principles, the final step deals with the facts of the particular

case." Hatch, 274 F.3d at 24. The inquiry at step three is

"whether it would have been clear to an objectively reasonable

official, situated similarly to a particular appellant, that the

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actions taken or omitted contravened the clearly established

right." Limone, 372 F.3d at 48. In many cases, the fact that the

relevant law is clearly established is dispositive at step three

"since a reasonably competent public official should know the law

governing his conduct." Harlow, 457 U.S. at 819.

Notwithstanding this generalization, public officials

sometimes may find safe haven at the third step of the qualified

immunity pavane. The key consideration is whether the official can

demonstrate that he has made a reasonable, though mistaken,

judgment. See, e.g., López-Quiñones v. P.R. Nat'l Guard, 526 F.3d

23, 27-28 (1st Cir. 2008); Duriex-Gauthier v. López-Nieves, 274

F.3d 4, 11 (1st Cir. 2001). So, if the defendant could reasonably

have believed that she could decommission the plaintiffs with

impunity on the basis of their political advocacy, she would be

entitled to qualified immunity.

Endeavoring to convince us on this point, the defendant

declares that she has unfettered statutory authority to commission

and decommission deputy sheriffs at her pleasure. Thus, she

reasonably believed that she had power to decommission the

plaintiffs for any reason that struck her fancy, including

political affiliation. This analysis is faulty.

We start with the proposition, urged by the defendant,

that the plaintiffs had no inalienable "right" to their

commissions. But there is another relevant proposition, not

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controverted by the defendant, that partisan political loyalty is

not a legitimate qualification for a deputy sheriff's position.

Public officials have long been on notice that, even when they have

authority to take a discretionary action for virtually any reason,

there are certain reasons — race, gender, religion, to name a few

— upon which they may not rely in exercising their discretion to

bestow or withdraw valuable government benefits. See Gratz v.

Bollinger, 539 U.S. 244, 275-76 (2003) (race); United States v.

Virginia, 518 U.S. 515, 545-46 (1996) (gender); Thomas v. Review

Bd. of Ind. Empl't Sec. Div., 450 U.S. 707, 717-18 (1981)

(religion). Under First Amendment principles, political

affiliation is such a proscribed reason. See Branti v. Finkel, 445

U.S. 507, 512 n.6 (1980); Elrod, 427 U.S. at 372-73; Cheveras

Pacheco v. Rivera González, 809 F.2d 125, 127-28 (1st Cir. 1987).

In this case, the defendant made a calculated decision to

decommission several deputy sheriffs who had opposed her bid for

office. She acted deliberately and purposefully. When this type

of executive decision violates clearly established law, it is much

harder to justify than when a public official makes a split-second

judgment in the heat of the moment. See, e.g., Estate of Bennett

v. Wainwright, 548 F.3d 155, 175-76 (1st Cir. 2008) (holding that

officers were entitled to qualified immunity on excessive force

claim because they reasonably — even if mistakenly — could have

believed that decedent posed continuing, imminent threat);

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Rodríguez-Rodríguez v. Ortiz-Vélez, 391 F.3d 36, 41 (1st Cir. 2004)

(terming "a close-call case of probable cause to arrest" an "easy

example" of a situation where qualified immunity would apply).

Given the clarity of the law in April of 2005, we do not

think that any reasonable public official could have thought that

she could divest those who opposed her political aspirations of the

opportunity to work lucrative details while leaving her political

supporters free to cash in on those opportunities. Accordingly,

the plaintiffs have satisfied the third prong of the qualified

immunity inquiry.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we dismiss the defendant's appeal in part for want of appellate

jurisdiction,7 and affirm the district court's denial of qualified

immunity on the issue that is properly before us. The case is

remanded for further proceedings consistent with this opinion.

Costs shall be taxed in favor of the plaintiffs.

So Ordered.

7

Insofar as we lack jurisdiction to reach a given issue,

nothing prevents the defendant from raising that issue at a later

stage of this litigation. See, e.g., Behrens, 516 U.S. at 309

(permitting qualified immunity defense to be raised at subsequent

stages in the same case, even where it has been previously

rejected).

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