holding, under nearly identical circumstances, that this court should not consider a qualified immunity defense where the district court did not reach the issue
How later courts described this case
- holding, under nearly identical circumstances, that this court should not consider a qualified immunity defense where the district court did not reach the issue
- noting that the viability of a due process claim premised on the denial of First Amendment interests depends on whether the plaintiff “has stated a First Amendment claim”
- field investigator in attorney general’s office not within category three where there was no evidence that plaintiff provided confidential advice or controlled the lines of communication to anyone
- “First Amendment freedoms of speech and association are within the term ‘liberty’ as protected by the due process clause of the Fourteenth Amendment.” (citations omitted)
Written by the judges who cited it.
The opinion
BATCHELDER, Circuit Judge,
dissenting.
I write separately because I believe that the position of Crime Victims Claims Investigator (“CVCI”) in Toledo is one that falls within the Branti exception and because I believe Mr. Bauer has presented no genuine issues of material fact that would preclude summary judgment in this case. I would therefore affirm the district court’s opinion.
As the majority opinion rightly sets forth, this Circuit has identified four categories of positions which presumptively fall into the Branti exception. See McCloud v. Testa, 97 F.3d 1536, 1556 (6th Cir.1996). The district court found that the Toledo CVCI position fit into Category Three, and I agree with this conclusion for the following reasons.
According to Eversman, he provides information to police chiefs regarding services, conferences and training offered by the Attorney General’s office; he receives feedback on Attorney General programs; he networks to “enhance the level of trust, cooperation and communication between local law enforcement” and the Attorney General’s office; and he speaks at the local university and high school. These duties demonstrate his political role as an advisor and representative of the Attorney General to the law enforcement community in the Toledo area.
We have held that the Branti exception “is to be construed broadly, so as presumptively to encompass positions placed by the legislature outside of the ‘merit’ civil service.” McCloud, 97 F.3d at 1542 . Accordingly, even “if there is any ambiguity about whether a particular position falls into any of the [the categories] (and so also within the Branti exception), it is to be construed in favor of the governmental defendants when the position at issue is unclassified or non-merit under state law....” Id. at 1557 . Further, when considering whether the job duties of such a position are political, we must analyze the position in light of the job description as the job is envisioned by the new appointing authority. See Smith v. Sushka, 117 F.3d 965, 970 (6th Cir.1997) (“The two tests outlined in Faughender, ‘the job as actually performed’ and ‘the job as envisioned,’ are not completely separate and independent. Rather, if one or the other test is clearly and directly applicable, the other is not independently necessary, although it may be somewhat informative.”) (citing McCloud v. Testa, 97 F.3d 1536, 1561 (6th Cir.1996)).
The Toledo CVCI position is an “unclassified” position. However, contrary to our instruction in McCloud , the majority takes a narrow view of the evidence and concludes that Mr. Eversman’s duties are non-political. As the majority opinion acknowledges, Attorney General Montgomery argues that Eversman is her “eyes and ears” in the community and her “alter ego” at the regional level. Montgomery’s vision *663 of the role of the Toledo CVCI is obviously political. Overall, the duties of the Toledo CVCI — both as envisioned by Montgomery and as actually implemented by Eversman and Montgomery — establish that the Toledo CVCI position involves the communication of confidential information to one with policymaking authority. Thus, I would find that the Toledo CVCI position is sufficiently political to fall within Category Three and is thus an exception to the rule laid out in Branti
The majority opinion relies upon the testimony of Jeff Frye and Bill Dinan, Bauer’s direct supervisor and Eversman’s current supervisor, respectively, as the basis for finding a disputed issue of material fact that would preclude summary judgment. However, the testimony of Frye and Dinan focuses generally on the role of the CVCI statewide, as opposed to the specific function of the CVCI in the Toledo area. Moreover, they testified with regard to the responsibilities inherent in Evers-man’s position as it relates to Frye and Dinan only, and not with regard to his duties relating to Attorney General Montgomery. There is no evidence that either Frye or Dinan would have any knowledge or awareness of Eversman’s enhanced capacity with respect to Montgomery. Thus, while these witnesses’ limited testimony is perhaps instructive on the issue of the scope of Mr. Eversman’s current duties, it is not conclusive. Moreover, because their testimony is reconcilable with the testimony of Montgomery and Eversman, it does not create a genuine disputed issue of material fact.
Finally, because I agree with the district court’s conclusion that Mr. Bauer’s due process claim was dependent upon his First Amendment claim, I would also affirm the district court’s dismissal of Count II of Mr. Bauer’s complaint. Therefore, for the reasons described above, I respectfully dissent from the majority’s opinion.