Desormeaux v. Savoie

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 01-31469 Summary Calendar _______________

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.

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

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).

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).

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.”).