Desormeaux v. Savoie

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 01-31469

Summary Calendar

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BRIAN PAUL DESORMEAUX,

Plaintiff-Appellee,

VERSUS

SHERIFF’S OFFICE CAMERON PARISH, ET AL.,

Defendants,

JAMES R. SAVOIE,

IN HIS CAPACITY AS SHERIFF OF CAMERON PARISH LOUISIANA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

m 01-CV-685

_________________________

August 1, 2002

Before JONES, SMITH, and gate whether that was so. Savoie learned that

EMILIO M. GARZA, Circuit Judges. one of Desormeaux’s relatives supported his

opponent. After Desormeaux’s termination,

JERRY E. SMITH, Circuit Judge:* the sheriff informed a staff member that he had

learned that Desormeaux voted for his op-

The district court found that Deputy Brian ponent. Savoie never gave Desormeaux a rea-

Desormeaux had created a fact question as to son for his discharge. Desormeaux avers that

whether Sheriff James Savoie had fired him in he did not actually support Savoie or his op-

violation of his “clearly established” First ponent.

Amendment rights to free expression and as-

sociation. Savoie appeals, arguing that he Desormeaux sued under 42 U.S.C. § 1983,

should be able to use political allegiance as an alleging that the discharge violated his First

employment criterion for hiring investigators. Amendment rights to freedom of speech and

Because we previously have rejected this ar- association; he also pleaded related state law

gument, we affirm the denial of Savoie’s mo- claims. The complaint originally named the

tion for summary judgment on the personal “Cameron Parish Sheriff’s Department” as a

capacity claims. Because the district court has defendant, but the district court found that no

not yet entered a judgment, we lack appellate such entity existed under Louisiana law and

jurisdiction over the claims against Savoie in dismissed the department as a defendant.

his official capacity. Desormeaux amended his complaint to clarify

that he was suing Savoie in his individual and

I. official capacities.

From 1997 to 2000, Desormeaux worked

as one of four investigators for Savoie. Inves- Savoie moved for summary judgment, seek-

tigators occupy one of the top six positions ing dismissal of the federal claims on the basis

among the thirty-four deputies; only the sher- of qualified immunity. He sought dismissal of

iff, chief deputy, and chief investigator are the claims against him in his official capacity

higher. because no counterpart governmental entity

exists. The court denied summary judgment,

Desormeaux alleges that Savoie refused to and Savoie appeals.

renew his employment in June 2000 because

he mistakenly believed that Desormeaux had II.

supported his opponent in an election. Desor- Savoie argues that Elrod v. Burns, 427

meaux provided summary judgment evidence U.S. 347 (1976), and Branti v. Finkel, 445

to support his allegations: In September or U.S. 507 (1980), set forth the exclusive test

October 1999, Savoie informed a deputy that for patronage discharges. He avers that the

he suspected Desormeaux was supporting his Supreme Court’s public employee expression

opponent, and instructed a deputy to investi- cases, most notably Connick v. Myers, 461

U.S. 138 (1983), and Pickering v. Board of

Educ., 391 U.S. 563 (1968), have no rele-

*

Pursuant to 5TH CIR. R. 47.5, the court has vance. He further claims that Elrod and

determined that this opinion should not be pub- Branti permit elected officials to use political

lished and is not precedent except under the limited affiliation and loyalty as employment criteria

circumstances set forth in 5TH CIR. R. 47.5.4.

2

for employees who make important policy position or routinely review confidential in-

decisions or handle confidential information. formation. Id. at 374-75 (Stewart, J.,

See Branti, 445 U.S. at 518. concurring).

A. Four years later, a majority agreed on more

Determining whether an official should re- specific standards. In Branti, 445 U.S. at 519,

ceive qualified immunity requires answering the Court refined Justice Stewart’s hint of an

three questions. First, did the plaintiff allege exception permitting elected officials to

the violation of a constitutional right? Wilson discharge public employees for their political

v. Layne, 526 U.S. 603, 609 (1999). Second, beliefs, explaining that the label “policymaker”

did the public official breach “clearly or “confidential” should not determine whether

established statutory or constitutional rights of political affiliation is a necessary job

which a reasonable person would have requirement. Id. “[R]ather the question is

known?” Harlow v. Fitzgerald, 457 U.S. 800, whether the hiring authority can demonstrate

818 (1982). The applicable law must be clear- that party affiliation is an appropriate

ly established when the allegedly actionable requirement for the effective performance of

conduct was taken. Harlow, 457 U.S. at 818. the public office involved.” Id.

Finally, “we must determine whether . . . the

record shows that the violation occurred, or at In McBee v. Jim Hogg County, Tex., 730

least gives rise to a genuine issue of material F.2d 1009 (1984) (en banc), we laid out rules

fact as to whether the defendant actually en- for deciding political patronage cases in the

gaged in the conduct that violated the clearly- wake of Elrod and Branti. We explained that

established right.” Kerr v. Lyford, 171 F.3d the two cases represented a special subset of

330, 339 (5th Cir. 1999) (quotation and the Supreme Court cases regulating a public

citation omitted). employee’s discharge for speech on matters of

public concern. Id. at 1014. We opined that

For purposes of this appeal, Savoie Elrod and Branti were especially easy public

concedes Desormeaux’s factual claims. We official speech cases that required little or no

review the remaining legal questions de novo. weighing under the traditional test. Id. The

Geter v. Fortenberry, 882 F.2d 167, 169 (5th employees were loyal and effective, were dis-

Cir. 1989). charged for private and abstract political

views, and did not actively campaign. Id.

B.

In a series of three cases, the Supreme The description of Elrod’s and Branti’s

Court has outlined the proper framework for implications for pure association cases,

analyzing a public employee’s claim that he however, was only dictum. In McBee, because

was fired for his political views. In Elrod, a the deputy sheriffs had actively campaigned

fractured Court held that an Illinois sheriff against their employer, id. at 1015, we

could not fire non-civil service employees for explained that we would employ the flexible

failing to support him in a bid for reelection. Connick-Pickering test laid out for public em-

427 U.S. at 367 (Brennan, J.) (plurality). Jus- ployee expression cases, id. at 1016. We will

tice Stewart’s concurrence emphasized that consider whether the speech is on a matter of

the employees did not occupy a policymaking “public concern,” the need for a close working

3

relationship, the disruptiveness of the activity, or affiliation claim, Elrod and Branti control.

and the appearance of insubordination or The Court ruled, however, that in mixed cases

hostility. Id. at 1017.1 of retaliation based on both affiliation and

expression, courts will almost inevitably have

In O’Hare Truck Serv., Inc. v. City of to apply the test for public employees’

Northlake, 518 U.S. 712, 726 (1996), the expression. Id.

Court tracked the distinction between mere

affiliation and political expression and held that Savoie argues that O’Hare supplanted the

a mayor could not constitutionally terminate test we described in McBee. Savoie, however,

the city’s referrals to a private towing com- fails to explain why any minor theoretical

pany because the company had refused to differences between McBee’s and O’Hare’s

donate to his campaign and actively supported respective dictum describing the requirements

his opponent. For the first time, the Court ad- for pure association claims should affect the

dressed the complex relationship between the outcome in this case. Desormeaux presented

tests outlined for firing a public employee summary judgment evidence that Savoie be-

based on political affiliation and political ex- lieved him to be actively supporting the

pression. Id. at 719. The Court explained that opponent. Savoie discriminated against Des-

where the case solely involves an association ormeaux on the basis of his perceived

associations and expressions.2 We apply the

Connick-Pickering balancing test to mixed

1

cases. O’Hare, 518 U.S. at 719; supra note 1.

We have consistently performed the Connick- Savoie concedes that, at this stage in the

Pickering balancing where public employees have

proceedings, Desormeaux has created a fact

both belonged to opposing political parties and

question about the unconstitutionality of his

actively expressed their support for opposing can-

didates. Kinsey v. Salado Indep. Sch. Dist., 950 discharge under the Connick-Pickering

F.2d 988, 990, 995-96 (5th Cir. 1992) (en banc) balancing test.

(explaining that public employee had published

letter in support of candidate and spoken to many C.

citizens about his support, and describing Elrod- Savoie argues that he lawfully fired De-

Branti’s exception as interrelated with Connick- sormeaux because investigators fall within the

Pickering analysis); Anderson v. Pasadena Indep. Elrod-Branti exception for public employees

Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999) in policymaking positions. In Matherne v.

(“When a plaintiff’s claims arise under both Wilson, 851 F.2d 752, 761 (5th Cir. 1988), we

freedom of speech and freedom of association . . . held that Louisiana sheriffs could not

the freedom of association cases are analyzed un- constitutionally discharge investigators for

der the same Pickering balancing test used to de-

termine the success of the freedom of speech

claims.”); Brady v. Fort Bend County, 145 F.3d

2

691, 704-05 (5th Cir. 1998) (campaigning by dep- Precedent supports classifying the case ac-

uty sheriffs placed case in the middle of the spec- cording to the elected official’s perceptions rather

trum and required explicit Connick-Pickering bal- than to the plaintiff’s actual activity. Branti, 445

ancing); Click v. Copeland, 970 F.2d 106, 112-13 U.S. at 509 n.4 (noting that one of the plaintiffs

(5th Cir. 1992) (announcing candidacy for sheriff’s had changed his political party to coincide with the

office requires application of Connick-Pickering elected officials but basing decision on the elected

balancing test). officials’ perception).

4

political reasons. In Matherne, as in this case, He argues that the dissenting views of other

the investigator had superiors in the chain of federal circuits are enough to make a right not

command, the sheriff offered zero evidence “clearly established.”

that the investigator’s political opinions

skewed his professional judgment, and the Savoie is incorrect; the divergent views of

sheriff did not argue that the investigator’s the other courts of appeals do not affect

political opinions impaired his working established law in this circuit, and a public

relationships. Id.3 official cannot use them, standing alone, to

establish the qualified immunity defense.5 In

Savoie does not explain how O’Hare would June 2000, our cases “clearly established” that

change the outcome in Matherne, and he does a Louisiana sheriff could not discharge an in-

not distinguish Matherne. Matherne binds us vestigator for political reasons.

and compels the conclusion that Desormeaux

has created a fact question about whether his II.

First Amendment rights to association and Savoie argues that the district court erred

expression were violated. by refusing to dismiss the claims asserted

against him in his official capacity. We have a

D. duty to consider our appellate jurisdiction

Finally, we consider whether Desormeaux’s before reaching the merits of the district

rights were “clearly established” in June 2000. court’s refusal to dismiss the official capacity

Savoie argues that although the Fifth Circuit claims. Steel Co. v. Citizens for a Better

had repeatedly classified deputy sheriffs as Env’t, 523 U.S. 83, 94-95 (1998).

falling outside the Elrod-Branti exception,

other circuits had divided over the question.4

4

(...continued)

Burns v. County of Cambria, 971 F.2d 1015, 1023

3

See Brady, 145 F.3d at 709 (finding, in mixed (3d Cir. 1992) (finding deputy sheriffs may not be

case, that Texas deputy sheriffs did not fall within discharged for political beliefs without some proof

Elrod-Branti exception); Click, 970 F.2d at 112 that they had significant discretion or their political

(finding that Texas deputy sheriffs who ran against views affected their decisionmaking).

sheriff could not fall within Elrod-Branti exception

5

because there was no proof candidacy had Brady, 58 F.3d at 175 n.11 (“While it seems

interfered with their job); Barrett v. Thomas, 649 peculiar to consider an official action held lawful

F.2d 1193, 1200 (5th Cir. Unit A July 1981) by one federal circuit court to be ‘clearly’

(same). unconstitutional by any ‘objective’ criteria, such a

result reinforces the finality of circuit law, albeit at

4

Compare, e.g., Jenkins v. Medford, 119 F.3d the expense of immunity in some cases.”); Boddie

1156, 1162 (4th Cir. 1997) (en banc) (classifying v. City of Columbus, Miss., 989 F.2d 745, 748

political allegiance as an appropriate requirement (5th Cir. 1993) (“Our inquiry ends, if we find from

because deputies play such a critical role in im- examining the decisions of the Supreme Court and

plementing sheriff’s policies); and Upton v. our own decisions that the law was clearly

Thompson, 930 F.2d 1209, 1218 (7th Cir. 1991) established in this circuit.”). See Click, 970 F.2d

(holding that sheriff may consider politics when at 110-11 (holding “[t]he law was established

deciding whether to hire or fire chief deputy), with clearly enough in this circuit” despite a conflict

(continued...) with two circuits).

5

The collateral order doctrine creates The denial of summary judgment based on

appellate jurisdiction over a denial of official official, qualified immunity is AFFIRMED, and

immunity, because the defendant’s immunity to the appeal in all other respects is DISMISSED

suit is effectively sacrificed if the case goes to for want of appellate jurisdiction.

trial. Mitchell v. Forsyth, 472 U.S. 511, 526-

28 (1985). To fall within the scope of the

collateral order doctrine the order “must con-

clusively determine the disputed question, re-

solve an important question completely

separate from the merits of the action, and be

effectively unreviewable on appeal from a final

judgment.” Coopers & Lybrand v. Livesay,

437 U.S. 463, 468 (1978).

The collateral order doctrine does not ex-

tend to official capacity claims. The Supreme

Court has explained that the collateral order

does not encompass the district court’s

rejection of a local government’s defense to

liability. Swint v. Chambers County Comm’n,

514 U.S. 35, 43 (1995). Local governments

do not have immunity from suit, and appellate

courts may adequately review the denial of

summary judgment after a full-blown trial. Id.

Official capacity claims really create liability

for the local government, and, in the wake of

Swint, we have held that we lack jurisdiction

over “official capacity” claims against a

Louisiana sheriff before the district court has

entered a final judgment.6

6

Jacobs v. W. Feliciana Sheriff’s Dep’t, 228

F.3d 388, 392 (5th Cir. 2000) (“And since a suit

against Sheriff Daniel in his official capacity is a

suit against the Parish, we may not review the

Magistrate Judge’s denial of summary judgment

regarding Sheriff Daniel in his official capacity.”);

Burge v. Parish of St. Tammany, 187 F.3d 452,

476 (5th Cir. 1999) (“The district court’s order

denying the Sheriff’s motion for summary

judgment in the ‘official capacity’ suit does not

satisfy Cohen’s requirement that the decision be

effectively unreviewable after final judgment.”).

6