William Hunt v. County of Orange

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM J. HUNT, 

Plaintiff-Appellant, No. 10-55163

v. D.C. No.

COUNTY OF ORANGE; MICHAEL S.  8:07-cv-00705-

CORONA, Sheriff-Coroner for the MMM-MLG

County of Orange, OPINION

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

October 11, 2011—Pasadena, California

Filed February 13, 2012

Before: Edward Leavy and Kim McLane Wardlaw,

Circuit Judges, and James C. Mahan, District Judge.*

Opinion by Judge Wardlaw;

Partial Concurrence and Partial Dissent by Judge Leavy

*The Honorable James C. Mahan, District Judge for the United States

District Court for Nevada, sitting by designation.

1701

HUNT v. COUNTY OF ORANGE 1705

COUNSEL

Stephen H. Silver and Richard A. Levine, Silver, Hadden, Sil-

ver, Wexler, & Levine for plaintiff-appellant William J. Hunt.

Norman J. Watkins and S. Frank Harrell, Lynberg & Watkins

for defendants-appellees County of Orange and Michael S.

Carona.

OPINION

WARDLAW, Circuit Judge:

The day after his scandal-ridden third election to the posi-

tion of Orange County Sheriff-Coroner, Michael Carona

1706 HUNT v. COUNTY OF ORANGE

placed on administrative leave William Hunt, a former lieu-

tenant officer with the Orange County Sheriff’s Department

(OCSD), who had dared to enter the race and campaign

against Carona’s alleged culture of corruption. Carona then

demoted Hunt, an action that prompted Hunt to file this 42

U.S.C. § 1983 suit claiming that his placement on administra-

tive leave and subsequent demotion were in unconstitutional

retaliation for the exercise of his First Amendment rights. The

district court concluded that Hunt’s campaign speech was not

protected by the First Amendment because, based upon spe-

cial factual findings by a jury, Hunt fell into the narrow “poli-

cymaker” exception to the general rule against politically-

motivated dismissals. Although we determine that the district

court erred in this conclusion, we agree with the district

court’s alternative holding that Carona is entitled to qualified

immunity because a government official in his position “rea-

sonably but mistakenly” could have believed that political

loyalty was required by someone with Hunt’s job responsibili-

ties at the time he ran against Carona. We therefore affirm the

judgment of the district court.

I.

A lieutenant in the OCSD, Hunt was the Chief of Police

Services for the City of San Clemente, which contracted with

the OCSD for police services. In May 2005, Hunt announced

that he would challenge Carona, the incumbent Orange

County sheriff, in the upcoming June 6, 2006 election. During

the campaign, Hunt issued public statements, radio addresses,

press releases, and campaign literature critical of Carona’s

performance as sheriff, including allegations of corruption in

the department. Carona defeated Hunt in the June 6 election

and, on June 7, placed Hunt on administrative leave pending

a personnel investigation regarding his speech and conduct

during the campaign. Hunt was served with a notice of pend-

ing demotion on October 31, 2006 for “failing to perform

[his] duties and responsibilities as a member of the Depart-

ment’s management team” and for violation of department

HUNT v. COUNTY OF ORANGE 1707

rules prohibiting, among other things, bringing discredit upon

the department. The notice catalogued Hunt’s critical cam-

paign communications and concluded that “[t]he Department

lacks the confidence in [Hunt’s] abilities to further the mis-

sion of this agency.” Hunt was then demoted three ranks. Car-

ona does not dispute that Hunt was demoted based on his

campaign communications.

Hunt filed a complaint against Carona, Orange County, and

other unnamed defendants alleging the violation of his First

and Fourteenth Amendment rights under § 1983, as well as

several causes of action under state law that were dismissed

and are not at issue here. Before trial, the district court dis-

missed Orange County as a defendant on the ground that Hunt

had abandoned his Monell municipal liability claim, and there

was thus no longer a cognizable claim against the county.

Because the question of whether Hunt’s position required

political loyalty was critical to whether he fell into the policy-

maker liability exception to the First Amendment, the parties

tried the nature of Hunt’s responsibilities and OCSD position

to a jury. The district court instructed the jury to answer

thirty-seven special interrogatories related to Hunt’s position.

The jury concluded, among other things, that:

Hunt did not have policymaking authority over any

area of policy;

Hunt did not formulate, substantially influence, or

substantially influence modifications to any

department-wide policy;

Hunt did not formulate or substantially influence

plans to implement the broad goals of the OCSD

department-wide;

Hunt did not formulate policy that affected San Cle-

mente;

1708 HUNT v. COUNTY OF ORANGE

Hunt did not exercise discretion in setting policy for

the OCSD in San Clemente; Hunt did not directly

and regularly communicate with Carona;

Hunt did not usually speak with Carona, as Hunt

generally approached his supervisor or other depart-

ment officials when confronted with policy-related

decisions;

Hunt did not act as an advisor to Carona or the

Assistant Sheriffs;

Hunt did not have authority to speak to the media

without prior approval of higher-ranking officials;

Hunt did not have a vaguely worded job description;

and

Neither Carona’s, the Captains’, nor the Assistant

Sheriffs’ trust and confidence was necessary for

Hunt to adequately perform his duties.

The jury did conclude that although Hunt did not formulate

policy, he substantially influenced department policy affect-

ing San Clemente and had discretion in how to implement

policy in San Clemente within the general framework pro-

vided by the department.

The district court granted judgment as a matter of law to

Carona after concluding that Hunt occupied a policymaking

position for which political loyalty was an appropriate

requirement based on the jury’s special findings, and thus his

demotion for political reasons did not violate the First

Amendment, Elrod v. Burns, 427 U.S. 347 (1976). The dis-

trict court relied heavily on the nine factors we set forth as rel-

evant to a “policymaker” determination in Fazio v. City and

County of San Francisco, 125 F.3d 1328, 1334 n.5 (9th Cir.

1997). Concluding that the Fazio factors suggested that Hunt

HUNT v. COUNTY OF ORANGE 1709

was a “policymaker,” the district court ruled that political loy-

alty was an appropriate requirement of Hunt’s job because he

“had sufficient authority to thwart or interfere with the Sher-

iff’s implementation of the policies he set for OCSD in [San

Clemente].” Alternatively, the district court held that even if

Hunt was not deemed a policymaker, Carona was entitled to

qualified immunity for concluding that Hunt was.

II.

We review de novo a district court’s grant of judgment as

a matter of law. Summers v. Delta Air Lines, Inc., 508 F.3d

923, 926 (9th Cir. 2007). In so doing, we “must draw all rea-

sonable inferences in favor of the nonmoving party.” Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150

(2000).

A.

The question before us is whether Hunt falls within the

“policymaker” exception to the First Amendment, and thus

cannot avail himself of any constitutional protection against

his demotion on the basis of his political speech.

[1] The First Amendment ordinarily prohibits an elected

official from firing or retaliating against an employee for his

political opinions, memberships, or activities. See Branti v.

Finkel, 445 U.S. 507, 515-16 (1980) (“[U]nless the govern-

ment can demonstrate an overriding interest of vital impor-

tance requiring that a person’s private beliefs conform to

those of the hiring authority, his beliefs cannot be the sole

basis for depriving him of continued public employment.”)

(citations and quotation marks omitted); Elrod, 427 U.S. at

357 (noting that the practice of patronage dismissals “un-

avoidably confronts decisions by this Court either invalidating

or recognizing as invalid government action that inhibits

belief and association through the conditioning of public

employment on political faith”).

1710 HUNT v. COUNTY OF ORANGE

[2] The Supreme Court carved out an exception to this

general prohibition in Elrod, permitting dismissals on the

basis of political beliefs of those employees in “policymaking

positions” so that “representative government not be undercut

by tactics obstructing the implementation of policies of the

new administration, policies presumably sanctioned by the

electorate.” 427 U.S. at 367. Because such dismissals and

demotions potentially infringe upon constitutional rights, we

have held that the exception is “narrow” and should be

applied with caution. DiRuzza v. County of Tehamma, 206

F.3d 1304, 1308 (9th Cir. 2000) (reading Elrod and Branti as

carving out a “narrow exception”).

B.

We disagree with the district court’s conclusion that Hunt

fell within the Elrod “policymaker” exception and was thus

permissibly terminated on the basis of his campaign speech.

The district court’s application of the “policymaker” excep-

tion misinterprets both the Supreme Court’s and our own doc-

trine establishing the contours of the exception. Although the

factors set forth in Fazio, 125 F.3d at 1334 n.5, are relevant

considerations in determining whether Hunt is a policymaker,

they should not be considered in a vacuum, but rather in light

of the underlying purpose of the “policymaker” exception.

[3] The essential inquiry in determining whether the Elrod

“policymaker” exception applies is not whether the nine Fazio

factors mechanically apply, or “whether the label ‘policy-

maker’ or ‘confidential’ fits a particular position; rather, the

question is whether the hiring authority can demonstrate that

party affiliation is an appropriate requirement for the effective

performance of the public office involved.” Branti, 445 U.S.

at 518; id. at 517 (“[I]f an employee’s private political beliefs

would interfere with the discharge of his public duties, his

First Amendment rights may be required to yield . . . .”)

(quoting Elrod, 427 U.S. at 366); Fazio, 125 F.3d at 1332

(“[A] public employee need not literally make policy in order

HUNT v. COUNTY OF ORANGE 1711

to fit within the Elrod policymaker exception. Rather, an

employer may fire a public employee for purely political rea-

sons if the employer can demonstrate that political consider-

ations are ‘appropriate requirement[s] for the effective

performance’ of the job.”) (quoting Branti, 445 U.S. at 518);

Fazio, 125 F.3d at 1333 (“[T]he term policymaker as used in

this context does not mean ‘one who makes policy.’ Rather,

the term refers to a position in which political considerations

are ‘appropriate requirement[s] for the effective performance

of the public office involved.’ ”) (quoting Branti, 445 U.S. at

519); Thomas v. Carpenter, 881 F.2d 828, 832 (9th Cir. 1989)

(holding that the exception applies only where the govern-

ment has shown that the employee’s political loyalty is essen-

tial to the effective performance of the tasks).

[4] Here, the record fails to establish that Hunt’s party

affiliation or political outlook were relevant to the effective

discharge of his professional duties. Indeed, the jury — in its

special findings of fact — explicitly found to the contrary.

The jury found that neither Carona’s, the Captains’, nor the

Assistant Sheriffs’ trust and confidence was necessary for

Hunt to perform his job. The jury also found that Hunt’s polit-

ical statements — which were the basis of his demotion —

did not cause, and could not have been reasonably predicted

to cause, a disruption in the efficient operation of the depart-

ment.

[5] These findings establish that political considerations

were not appropriate requirements for the effective perfor-

mance of Hunt’s job and are sufficient to end the “policy-

maker” inquiry. Indeed, if Hunt clearly falls outside of the

intended purpose and scope of the Elrod exception on the

basis of the jury’s factual findings, then we need not necessar-

ily examine the Fazio factors in order to determine whether

Hunt’s position carried certain attributes of a “policymaking”

position. The binding factual findings of the jury indicate that

Hunt was not — under the Supreme Court’s and our own doc-

trine — a “policymaker” for the purposes of the Elrod excep-

1712 HUNT v. COUNTY OF ORANGE

tion to the First Amendment. To set aside those facts in order

to rely on an equivocal balancing of the Fazio factors is to

lose sight of the forest for the trees.

[6] Moreover, dismissals on the basis of political consider-

ations must further a “vital government end” because they

infringe upon a constitutional right. Elrod, 427 U.S. at 363

(“[Such dismissals] must further some vital government end

by a means that is least restrictive of freedom of belief and

association in achieving that end, and the benefit gained must

outweigh the loss of constitutionally protected rights.”). Cru-

cially, “since . . . it is the government’s burden to demonstrate

an overriding interest in order to validate an encroachment on

protected interests, the burden of establishing this [policy-

maker] justification as to any particular respondent will rest

on the [government].” Id. at 368 (emphasis added).

[7] Here, the government has not sufficiently established

the interest at stake, and has thus failed to meet its burden.

Indeed, expanding the legal protection accorded to politically-

motivated dismissals and demotions could very well under-

mine vital government interests. For example, an expansion of

the exception could discourage some of the most capable and

qualified people from running for higher office, and may also

have a chilling effect on whistleblowing. Most persuasively,

the jury, in its answers to the special interrogatories, found as

a matter of fact that Hunt’s actions did not disrupt the effi-

cient operation of the OCSD, nor could anyone have reason-

ably thought they would. Cf. Thomas, 881 F.2d at 831

(“[E]ven in a police department, the complained-of disruption

must be real, and not imagined.”) (internal quotation marks

and citation omitted). Therefore, we conclude that the govern-

ment has failed to establish that Hunt’s dismissal furthered a

vital government interest.

Nothing in the record persuasively suggests that political

considerations are an appropriate requirement for Hunt’s posi-

tion. Because the jury found that political considerations were

HUNT v. COUNTY OF ORANGE 1713

not an appropriate requirement, we conclude that Hunt does

not fall within the intended scope of the policymaker excep-

tion. That one can marshal colorable arguments to conclude

that a majority of Fazio factors apply in a given case is not

sufficient reason to widen what the Supreme Court has

deemed a narrow exception to the First Amendment, particu-

larly where, as here, such an expansion is at odds with the

underlying purpose of that exception. See Elrod, 427 U.S. at

366; Branti, 445 U.S. at 518.

C.

[8] Moreover, the district court’s analysis of the Fazio fac-

tors led it to wrongly conclude that Hunt’s position was that

of a policymaker. Although the Fazio factors are not necessar-

ily dispositive, they suggest Hunt was not a policymaker, and

was thus entitled to constitutional protection against his retal-

iatory demotion.

A sheriff’s lieutenant is not automatically a policymaker.

Thomas, 881F.2d at 832 (reversing dismissal of lieutenant’s

First Amendment retaliation claim). Therefore, the district

court properly considered Hunt’s actual job requirements and

responsibilities in applying the Fazio factors. In Fazio, we set

forth “[s]ome factors to be considered when determining

whether a job is a policymaking position,” including “vague

or broad responsibilities, relative pay, technical competence,

power to control others, authority to speak in the name of

policymakers, public perception, influence on programs, con-

tact with elected officials, and responsiveness to partisan poli-

tics and political leaders.” 125 F.3d at 1334 n.5. These factors

are intended to guide the “policymaker” analysis, but not sup-

plant what we have called “the essential inquiry” — whether

“party affiliation is an appropriate requirement for the effec-

tive performance of the public office involved.” Id. at 1331.

Because the parties agreed the court should not propound spe-

cial jury interrogatories regarding relative pay and stipulated

1714 HUNT v. COUNTY OF ORANGE

that Hunt’s position required technical competence, only

seven of the nine Fazio factors are at issue.

[9] Although the district court, by using as many as thirty-

seven special interrogatories, adopted a novel approach to

resolving the question of Hunt’s status, its conclusion that

Hunt was a policymaker was directly contradicted by the

jury’s response to those interrogatories. The jury’s findings of

fact suggest that at least three Fazio factors—vague or broad

responsibilities, authority to speak in the name of policy-

makers, and influence on programs—strongly indicate that

Hunt was not a policymaker. Indeed, the jury found that: Hunt

did not have a vaguely worded job description; Hunt did not

have authority to speak to the media without prior approval of

higher-ranking officials; Hunt did not have policymaking

authority over any area of policy; Hunt did not formulate,

substantially influence, or substantially influence modifica-

tions to any department-wide policy; Hunt did not formulate

or substantially influence plans to implement the broad goals

of the OCSD department-wide; Hunt did not formulate policy

that affected San Clemente; and Hunt did not exercise discre-

tion in setting policy for the OCSD in San Clemente.

Hunt’s power to control others, another Fazio factor, was

severely limited. Hunt lacked any power to hire or promote

the officers that worked under him in San Clemente. Cf.

McCloud v. Testa, 227 F.3d 424, 429 (6th Cir. 2000) (holding

that employee did not fall within the “policymaker” exception

where he supervised employees “but did not hire or fire them

[and] was not responsible for their raises or granting leaves”).

Hunt did have limited ability to impose discipline and manage

deployments, but only within the contours of the department

policy that was set by his superiors. This authority is both lim-

ited and largely operational. We agree that “merely being a

supervisor/administrator . . . is not sufficient to show that

political affiliation is an appropriate requirement for the job

in question.” Milazzo v. O’Connell, 108 F.3d 129, 133 n.1

(7th Cir. 1997).

HUNT v. COUNTY OF ORANGE 1715

The three remaining factors — contact with elected offi-

cials, public perception, and responsiveness to partisan poli-

tics and leaders — weigh in favor of classifying Hunt as a

policymaker. However, despite his interactions with the San

Clemente City Council and its citizenry, Hunt was at all times

bound by department policy that was set by his superiors and

over which he had little, if any, control or influence. His inter-

actions with San Clemente politicians and public are insuffi-

cient to elevate his administrative role into a political role.

Indeed, the jury found that, despite his responsibilities, Hunt

had no regular interaction with the OCSD’s political leader-

ship. The jury found that Hunt did not directly and regularly

communicate with Carona, and that it was, in fact, unusual for

the two to speak, as Hunt would commonly speak with his

supervisor or other department officials when confronted with

San Clemente policy-related decisions.

[10] The picture painted by the jury’s factual findings

shows that Hunt was one of sixty department lieutenants, with

no authority to formulate policy, who reported to a supervisor,

and who needed approval from higher-ranking officials to

speak on behalf of the department. He did have heightened

administrative responsibility over San Clemente, which

accounts for a small fraction of Orange County’s population,

where the effective performance of his job was neither com-

promised by his statements during the campaign, nor depen-

dent on Carona’s trust in him. We thus conclude that the

Fazio factors, with all reasonable inferences drawn in favor of

Hunt, Reeves, 530 U.S. at 150, and in light of the jury’s find-

ings of fact, support the conclusion that Hunt was not a poli-

cymaker.

In Bardzik v. County of Orange, 635 F.3d 1138 (9th Cir.

2011), we held that another OCSD lieutenant who was the

Reserve Division Commander, and was also demoted by Car-

ona after supporting Hunt’s candidacy, was a policymaker for

the purposes of the Elrod exception. Although the legal prin-

ciples we applied in Bardzik are applicable here, the result in

1716 HUNT v. COUNTY OF ORANGE

Bardzik is not controlling because the “policymaker” inquiry

is highly fact-specific.

The position at issue in Bardzik—Reserve Division

Commander—is factually quite distinct from Hunt’s position

in the OCSD. Unlike Hunt, Bardzik’s duties went well

beyond the administration of a small division and included

significant programmatic authority. As Reserve Division

Commander, Bardzik was in charge of six hundred reserve

officers, id. at 1141, compared to the fifty-six officers that

Hunt oversaw in San Clemente. Bardzik reported directly to

Carona and would meet with him face-to-face as much as sev-

eral times a week at times, id. at 1142, significantly greater

contact than Hunt’s rare interactions with Carona. While the

jury found that Hunt’s job description was not vaguely

worded, Bardzik was broadly tasked by Carona to “take com-

mand of the Reserve Division, clean it up and bring it back

to responsibility,” “get rid of the dead wood,” and ensure it

was no longer “being led like a badge and gun club.” Id. at

1141-42.

Bardzik also had significant programmatic authority, under

which he initiated “proactive programs,” which included

establishing a high-tech unit and reforming the swift-water

rescue responder program. Id. at 1142. Bardzik further created

department-wide policy, recommending a decentralization of

the division, which was praised by Carona as one of the

“highlights of the year,” as well as a new promotional proto-

col to eliminate favoritism. Id. Under both the stated purpose

for the Elrod exception and the Fazio factors, the position

evaluated in Bardzik is significantly more amenable to classi-

fication as a “policymaking” position than Hunt’s OCSD

position. Thus, our analysis of the lieutenant position in

Bardzik does not control our conclusion here.

D.

[11] We agree with the district court, however, that

although Carona’s demotion of Hunt in retaliation for cam-

HUNT v. COUNTY OF ORANGE 1717

paign speech violated the First Amendment, Carona is entitled

to qualified immunity. “Qualified immunity shields federal

and state officials from money damages unless a plaintiff

pleads facts showing (1) that the official violated a statutory

or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). “A Government offi-

cial’s conduct violates clearly established law when, at the

time of the challenged conduct, ‘the contours of a right are

sufficiently clear’ that every ‘reasonable official would have

understood that what he is doing violates that right.’ ” Id. at

2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)) (internal alterations omitted).

[12] Hunt’s First Amendment right to be free from demo-

tion for campaigning against Carona was clearly established

as of June 2006. As we held in DiRuzza, “[u]nder Elrod and

Branti, decided by the Supreme Court in 1976 and 1980, and

under Ninth Circuit case law decided prior to 1995, it was

clearly established that a non-policymaking public employee

in a sheriff’s office is protected from retaliation for the exer-

cise of First Amendment rights.” 206 F.3d at 1313. However,

the critical question here is whether a reasonable official in

Carona’s position should have known that Hunt was not a

policymaker whose political loyalty was important to the

effective performance of his job. See Lopez-Quinones v.

Puerto Rico Nat’l Guard, 526 F.3d 23, 27 (1st Cir. 2008)

(“The crucial question here is whether a reasonable official

acting at the time of Lopez’ termination should have known

on what side of the Elrod/Branti line Lopez’ own position

fell.”). If Carona “could . . . have reasonably but mistakenly

believed that his or her conduct did not violate a clearly estab-

lished constitutional right,” he is entitled to qualified immu-

nity. Greene v. Camreta, 588 F.3d 1011, 1031 (9th Cir. 2009)

(citing Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th

Cir. 2001)).

1718 HUNT v. COUNTY OF ORANGE

[13] We conclude, like the district court, that Carona could

have reasonably but mistakenly believed that Hunt’s demo-

tion was not unconstitutional, given the unique nature of his

job as Chief of Police Services for the City of San Clemente.

Although Hunt’s position had no department-wide policy-

making responsibility, influence, or control, as the jury found,

Hunt exercised discretion over the implementation of OCSD

policy within San Clemente, influenced OCSD policy as it

affected San Clemente, and formulated plans to implement

OCSD policy in San Clemente. While Hunt had to secure

authority before speaking with the public, when he did so, it

was on behalf of the OCSD. We have carefully analyzed the

development of the policymaker exception, its underlying

purpose, the high burden on the government to prove that

political fidelity was a necessary requirement of Hunt’s job,

and balanced the nine-factor Fazio analysis that requires a

fact-dependent inquiry. Even if Carona engaged in the appro-

priate analysis and wrongly concluded that Hunt was a policy-

maker such that demoting him was constitutional, we cannot

say that he acted objectively unreasonably in concluding he

could demote Hunt without violating his constitutional rights.

III.

The district court did not abuse its discretion in denying

Hunt’s motion to amend the pretrial conference order. “We

review the district court’s denial of a motion to modify a pre-

trial order for abuse of discretion.” Byrd v. Guess, 137 F.3d

1126, 1131 (9th Cir. 1998), superseded by statute on other

grounds. District courts have “broad discretion to manage dis-

covery and to control the course of litigation under Federal

Rule of Civil Procedure 16.” Avila v. Willits Envtl. Remedia-

tion Trust, 633 F.3d 828, 833 (9th Cir. 2011). Where, as here,

the district court has entered a pretrial order, modifications are

allowed “only to prevent manifest injustice.” Fed. R. Civ. P.

16(e). We have explained:

The district court should consider four factors in

determining whether to modify the parties’ pretrial

HUNT v. COUNTY OF ORANGE 1719

order: (1) the degree of prejudice or surprise to the

defendants if the order is modified; (2) the ability of

the defendants to cure any prejudice; (3) the impact

of the modification on the orderly and efficient con-

duct of the case; and (4) any degree of willfulness or

bad faith on the part of the party seeking the modifi-

cation.

Byrd, 137 F.3d at 1132.

In light of these factors, we hold that the district court did

not abuse its discretion in denying the motion to amend the

pretrial order. First, amendment would have caused prejudice

or surprise to Carona because Hunt had abandoned any

Monell claim asserted in his complaint by filing two memo-

randa of contentions of fact and law and a proposed pretrial

order that did not include any Monell claim.1 Allowing Hunt

to raise the Monell claim through an amendment to the pre-

trial order would have prejudiced the County because it had

taken no discovery toward defending against a Monell claim.

Second, Hunt’s motion was made less than three weeks before

trial began, which would have left insufficient time to cure

that prejudice. Finally, the amendment would have interfered

with the orderly and efficient conduct of the case because cur-

ing the prejudice would have required reopening discovery,

which, in turn, would have delayed the proceedings.

[14] We have “consistently held that issues not preserved

in the pretrial order have been eliminated from the action.” S.

Cal. Retail Clerks Union and Food Emp’rs Joint Pension

Trust Fund v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984).

1

Hunt argues that his reference to the actions of “Defendants” in the

plural suggest that he preserved a Monell claim. Simply grouping the

County in with Carona is insufficient to establish a Monell claim, which

requires allegations that the County’s “customs or policies caused a viola-

tion of [Hunt’s] constitutional rights.” The pretrial documents do not

reveal any contention that the County’s policies or customs lead to Car-

ona’s action.

1720 HUNT v. COUNTY OF ORANGE

Because the pretrial order did not include a claim against the

County, the district court was within its power to sua sponte

dismiss the County from the action. See Fed. R. Civ. P. 21

(“On motion or on its own, the court may at any time, on just

terms, add or drop a party.”). Cf. Trujillo v. Crescent Jewel-

ers, 243 F.3d 550 (9th Cir. 2000) (“Federal courts may, in

fact, dismiss sua sponte pursuant to F.R.C.P. 12(b)(6) when

it is clear that the plaintiff has not stated a claim upon which

relief may be granted.”).

IV.

We affirm the district court’s judgment as a matter of law

in favor of Defendant Sheriff Michael Carona.2

AFFIRMED.

LEAVY, Circuit Judge, concurring in part and dissenting in

part:

Pursuant to the Supreme Court’s decision in Pearson v.

Callahan, 555 U.S. 223, 236-37 (2009), we need not decide

whether a constitutional violation exists before we reach the

question of qualified immunity. Because the majority has cho-

sen to reach the issue whether Carona’s conduct violated

Hunt’s constitutional rights, I am compelled to concur in only

Sections II. D., III and IV of the opinion. I dissent from the

majority’s holding that Hunt was not a “policymaker.”

2

We also affirm the denial of Hunt’s motion to vacate and for a new

trial pursuant to Federal Rules of Civil Procedure 59(e) and 60(b)(1), (6).

Hunt fails to make any legal arguments that would satisfy the standards

set forth in Rules 59(e) and 60(b)(1), (6). Hunt merely reiterates his merits

arguments related to the “policymaking,” qualified immunity, and Monell

issues discussed above.

HUNT v. COUNTY OF ORANGE 1721

In determining whether an employee is a policy maker, the

“ultimate inquiry is whether the hiring authority can demon-

strate that party affiliation is an appropriate requirement for

the effective performance of the public office involved.”

Branti v. Finkel, 445 U.S. 507, 518 (1980). Following Branti,

we have explained that the policymaker exception is not lim-

ited to “party affiliation,” but includes termination based on

“political affiliation, which includes commonality of political

purpose and support.” Walker v. City of Lakewood, 272 F.3d

1114, 1132 (9th Cir. 2001) (citation and internal quotation

omitted).

Because “[t]he nature of the responsibilities is critical” to

a determination whether a particular employee holds a policy-

making position, Elrod v. Burns, 427 U.S. 347, 367 (1976),

we have set forth nine factors that should be taken into

account in the analysis: “vague or broad responsibilities, rela-

tive pay, technical competence, power to control others,

authority to speak in the name of policymakers, public per-

ception, influence on programs, contact with elected officials,

and responsiveness to partisan politics and political leaders.”

Bardzik v. County of Orange, 635 F.3d 1138, 1145 (9th Cir.

2011) (citing Fazio v. City and County of San Francisco, 125

F.3d 1328, 1334 n.5 (9th Cir. 1997). Contrary to the majori-

ty’s opinion, the district court did not consider these factors

in a vacuum, but applied them in light of the overarching

question, whether effective performance of the Chief of

Police Services for the City of San Clemente required a com-

monality of political purpose with the Orange County Sheriff.

As is discussed below, the district court’s affirmative answer

to this question is amply supported both by the jury’s answers

to the special interrogatories and Hunt’s testimony.

Job Responsibilities. The jury found that Hunt’s job

responsibilities were “restricted to implementing the Depart-

ment’s goals within a general framework provided by the

Department,” and “restricted to implementing the City of San

Clemente’s goals within a general framework provided by the

1722 HUNT v. COUNTY OF ORANGE

Department.” However, the jury also found that Hunt was

responsible for “formulat[ing] plans to implement the broad

goals of the OCSD in the City of San Clemente, and had “dis-

cretionary authority regarding the deployment of deputy sher-

iffs within” the City. Hunt’s responsibilities were remarkably

similar to those described in Bardzik, where the police lieu-

tenant/policymaker was “in effect running the Reserves,” but

was restricted by Carona’s instruction to “run the Reserves

like every other division.” Bardzik, 635 F.3d at 1146. Thus

Hunt’s job responsibilities, like Bardzik’s, were broad enough

to support policymaker status.

Relative Pay and Technical Competence. As noted by the

majority, the parties agreed the court should not propound

special jury interrogatories regarding relative pay and stipu-

lated that Hunt’s position required technical competence.

Power to Control Others. Hunt testified he supervised

approximately 56 employees as Chief of Police Services for

the City of San Clemente. While the parties stipulated Hunt

lacked the power to hire employees under his command or

determine criteria for promoting them, the jury concluded that

“Hunt resolve[d] official complaints from citizens regarding

the conduct of employees under his command” and “in some

instances,” had “the authority to determine the type of disci-

pline to be imposed on any subordinate under his command.”

The majority distinguishes Bardzik based on the greater num-

ber of officers supervised, Bardzik was in charge of only part-

time volunteers. Hunt, by contrast supervised the active police

force for an entire city. Moreover, Bardzik did not supervise

the reserves while they were working in other divisions, he

did not train the reserves, and he referred personnel problems

to the Department’s Personnel Division.” Id. at 1141, 1146.

Hunt, by contrast, was the sole supervisor of his employees,

resolved complaints regarding employee conduct, and was

authorized to make disciplinary decisions.

Authority to Speak in the Name of Policymakers. While the

jury found that Hunt lacked authority to speak with the media

HUNT v. COUNTY OF ORANGE 1723

without the prior approval of either higher ranking OCSD

officers or the OCSD’s Public Information Officer, it also

concluded that Hunt regularly interacted with the San Cle-

mente City Council on behalf of OCSD, made comments to

the media, and regularly interacted with the public as a repre-

sentative of the OCSD concerning law enforcement matters in

San Clemente. Thus, Hunt regularly was authorized to com-

municate on OCSD’s behalf with elected officials and the

public. The majority apparently holds that it doesn’t matter

that Hunt acted as a spokesperson for the OCSD in San Cle-

mente.

Influence on Programs or Policy. The jury found that Hunt

did not formulate or substantially influence policy for the

Orange County Sheriff’s Department (“OCSD”) that applied

department-wide, but that he “substantially influenced” policy

for the OCSD that affected the City of San Clemente, formu-

lated plans to implement the broad goals of OCSD in the City

of San Clemente, and exercised discretion regarding how to

implement the policies of the OCSD in the City. Hunt con-

ceded he was a leader, a decision-maker, and manager in the

OCSD, and made daily decisions on how to run the [law

enforcement] operation in San Clemente. The majority repeat-

edly refers to Hunt’s inability to make policy county-wide as

a basis for concluding his job responsibilities were not those

of a policymaker. The inability to make county-wide policy

does not negate Hunt’s extensive authority to make policy in

San Clemente. There is no case which stands for the proposi-

tion that a “policymaker” within a particular jurisdiction must

have authority to make policy for the entire jurisdiction. In

fact, Hunt’s influence on policy is strikingly similar to the

lieutenant/policymaker in Bardzik, who could not “unilater-

ally create policy,” but “influenced many . . . programs within

the division he supervised.” Id. at 1146.

The majority concedes the three remaining factors, contact

with elected officials, public perceptions, and responsiveness

to partisan politics and leaders, weigh in favor of classifying

1724 HUNT v. COUNTY OF ORANGE

Hunt as a policymaker. The jury’s finding on these factors

was that Hunt regularly interacted with the City Council and

the public, the public perceived Hunt represented the OCSD

in the City of San Clemente and Hunt’s position required him

to be responsive to City Council members and other political

leaders in Orange County.

In sum, the evidence shows that Hunt was responsible for

formulating plans to implement OCSD policy in San Cle-

mente, had the ability substantially to influence OCSD policy

in the City, spoke regularly with city elected officials and citi-

zens on behalf of OCSD, and was perceived by the public as

representing OCSD in San Clemente. Thus, applying the rele-

vant factors, Hunt was in a position for which political loyalty

was an appropriate requirement and the “policymaker” excep-

tion applies.

In addition to these factors, in Bardzik we found persuasive

in the policymaker determination the fact that the lieutenant

actively sought to undermine the Sheriff’s policies. Id. at

1148. Here, this consideration is even more significant.

Bardzik merely supported Hunt in the contested election,

while Hunt campaigned on a platform accusing Carona of

corruption. In Bardzik by a divided court we held that the dis-

trict court erred in finding that the lieutenant who supported

Hunt was not a policymaker. In this case by a divided court

we hold that the district erred in finding that the candidate

was a policymaker. “An elected official need not retain a

high-ranking official in a position to undermine the official’s

credibility and goals when neither the electorate nor an appro-

priate agency has determined that the official has violated the

law.” Id. at 1149. Carona did not violate the Constitution

when he removed Hunt from his position as Chief of Police.