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

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Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
The district court found that Deputy Brian
Desormeaux had created a fact question as to
whether Sheriff James Savoie had fired him in
violation of his “clearly established” First
Amendment rights to free expression and as-
sociation. Savoie appeals, arguing that he
should be able to use political allegiance as an
employment criterion for hiring investigators.
Because we previously have rejected this ar-
gument, we affirm the denial of Savoie’s mo-
tion for summary judgment on the personal
capacity claims. Because the district court has
not yet entered a judgment, we lack appellate
jurisdiction over the claims against Savoie in
his official capacity.
I.
From 1997 to 2000, Desormeaux worked
as one of four investigators for Savoie. Inves-
tigators occupy one of the top six positions
among the thirty-four deputies; only the sher-
iff, chief deputy, and chief investigator are
higher.
Desormeaux alleges that Savoie refused to
renew his employment in June 2000 because
he mistakenly believed that Desormeaux had
supported his opponent in an election. Desor-
meaux provided summary judgment evidence
to support his allegations: In September or
October 1999, Savoie informed a deputy that
he suspected Desormeaux was supporting his
opponent, and instructed a deputy to investi-
gate whether that was so. Savoie learned that
one of Desormeaux’s relatives supported his
opponent. After Desormeaux’s termination,
the sheriff informed a staff member that he had
learned that Desormeaux voted for his op-
ponent. Savoie never gave Desormeaux a rea-
son for his discharge. Desormeaux avers that
he did not actually support Savoie or his op-
ponent.
Desormeaux sued under 42 U.S.C. § 1983,
alleging that the discharge violated his First
Amendment rights to freedom of speech and
association; he also pleaded related state law
claims. The complaint originally named the
“Cameron Parish Sheriff’s Department” as a
defendant, but the district court found that no
such entity existed under Louisiana law and
dismissed the department as a defendant.
Desormeaux amended his complaint to clarify
that he was suing Savoie in his individual and
official capacities.
Savoie moved for summary judgment, seek-
ing dismissal of the federal claims on the basis
of qualified immunity. He sought dismissal of
the claims against him in his official capacity
because no counterpart governmental entity
exists. The court denied summary judgment,
and Savoie appeals.
II.
Savoie argues that Elrod v. Burns, 427
U.S. 347 (1976), and Branti v. Finkel, 445
U.S. 507 (1980), set forth the exclusive test
for patronage discharges. He avers that the
Supreme Court’s public employee expression
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-
vance. He further claims that Elrod and
Branti permit elected officials to use political
affiliation and loyalty as employment criteria
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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for employees who make important policy
decisions or handle confidential information.
See Branti, 445 U.S. at 518.
A.
Determining whether an official should re-
ceive qualified immunity requires answering
three questions. First, did the plaintiff allege
the violation of a constitutional right? Wilson
v. Layne, 526 U.S. 603, 609 (1999). Second,
did the public official breach “clearly
established statutory or constitutional rights of
which a reasonable person would have
known?” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). The applicable law must be clear-
ly established when the allegedly actionable
conduct was taken. Harlow, 457 U.S. at 818.
Finally, “we must determine whether . . . the
record shows that the violation occurred, or at
least gives rise to a genuine issue of material
fact as to whether the defendant actually en-
gaged in the conduct that violated the clearly-
established right.” Kerr v. Lyford, 171 F.3d
330, 339 (5th Cir. 1999) (quotation and
citation omitted).
For purposes of this appeal, Savoie
concedes Desormeaux’s factual claims. We
review the remaining legal questions de novo.
Geter v. Fortenberry, 882 F.2d 167, 169 (5th
Cir. 1989).
B.
In a series of three cases, the Supreme
Court has outlined the proper framework for
analyzing a public employee’s claim that he
was fired for his political views. In Elrod, a
fractured Court held that an Illinois sheriff
could not fire non-civil service employees for
failing to support him in a bid for reelection.
427 U.S. at 367 (Brennan, J.) (plurality). Jus-
tice Stewart’s concurrence emphasized that
the employees did not occupy a policymaking
position or routinely review confidential in-
formation. Id. at 374-75 (Stewart, J.,
concurring).
Four years later, a majority agreed on more
specific standards. In Branti, 445 U.S. at 519,
the Court refined Justice Stewart’s hint of an
exception permitting elected officials to
discharge public employees for their political
beliefs, explaining that the label “policymaker”
or “confidential” should not determine whether
political affiliation is a necessary job
requirement. Id. “[R]ather 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.” Id.
In McBee v. Jim Hogg County, Tex., 730
F.2d 1009 (1984) (en banc), we laid out rules
for deciding political patronage cases in the
wake of Elrod and Branti. We explained that
the two cases represented a special subset of
the Supreme Court cases regulating a public
employee’s discharge for speech on matters of
public concern. Id. at 1014. We opined that
Elrod and Branti were especially easy public
official speech cases that required little or no
weighing under the traditional test. Id. The
employees were loyal and effective, were dis-
charged for private and abstract political
views, and did not actively campaign. Id.
The description of Elrod’s and Branti’s
implications for pure association cases,
however, was only dictum. In McBee, because
the deputy sheriffs had actively campaigned
against their employer, id. at 1015, we
explained that we would employ the flexible
Connick-Pickering test laid out for public em-
ployee expression cases, id. at 1016. We will
consider whether the speech is on a matter of
“public concern,” the need for a close working

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relationship, the disruptiveness of the activity,
and the appearance of insubordination or
hostility. Id. at 1017.1
In O’Hare Truck Serv., Inc. v. City of
Northlake, 518 U.S. 712, 726 (1996), the
Court tracked the distinction between mere
affiliation and political expression and held that
a mayor could not constitutionally terminate
the city’s referrals to a private towing com-
pany because the company had refused to
donate to his campaign and actively supported
his opponent. For the first time, the Court ad-
dressed the complex relationship between the
tests outlined for firing a public employee
based on political affiliation and political ex-
pression. Id. at 719. The Court explained that
where the case solely involves an association
or affiliation claim, Elrod and Branti control.
The Court ruled, however, that in mixed cases
of retaliation based on both affiliation and
expression, courts will almost inevitably have
to apply the test for public employees’
expression. Id.
Savoie argues that O’Hare supplanted the
test we described in McBee. Savoie, however,
fails to explain why any minor theoretical
differences between McBee’s and O’Hare’s
respective dictum describing the requirements
for pure association claims should affect the
outcome in this case. Desormeaux presented
summary judgment evidence that Savoie be-
lieved him to be actively supporting the
opponent. Savoie discriminated against Des-
ormeaux on the basis of his perceived
associations and expressions.2 We apply the
Connick-Pickering balancing test to mixed
cases. O’Hare, 518 U.S. at 719; supra note 1.
Savoie concedes that, at this stage in the
proceedings, Desormeaux has created a fact
question about the unconstitutionality of his
discharge under the Connick-Pickering
balancing test.
C.
Savoie argues that he lawfully fired De-
sormeaux because investigators fall within the
Elrod-Branti exception for public employees
in policymaking positions. In Matherne v.
Wilson, 851 F.2d 752, 761 (5th Cir. 1988), we
held that Louisiana sheriffs could not
constitutionally discharge investigators for
1 We have consistently performed the Connick-
Pickering balancing where public employees have
both belonged to opposing political parties and
actively expressed their support for opposing can-
didates. Kinsey v. Salado Indep. Sch. Dist., 950
F.2d 988, 990, 995-96 (5th Cir. 1992) (en banc)
(explaining that public employee had published
letter in support of candidate and spoken to many
citizens about his support, and describing Elrod-
Branti’s exception as interrelated with Connick-
Pickering analysis); Anderson v. Pasadena Indep.
Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999)
(“When a plaintiff’s claims arise under both
freedom of speech and freedom of association . . .
the freedom of association cases are analyzed un-
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
691, 704-05 (5th Cir. 1998) (campaigning by dep-
uty sheriffs placed case in the middle of the spec-
trum and required explicit Connick-Pickering bal-
ancing); Click v. Copeland, 970 F.2d 106, 112-13
(5th Cir. 1992) (announcing candidacy for sheriff’s
office requires application of Connick-Pickering
balancing test).
2 Precedent supports classifying the case ac-
cording to the elected official’s perceptions rather
than to the plaintiff’s actual activity. Branti, 445
U.S. at 509 n.4 (noting that one of the plaintiffs
had changed his political party to coincide with the
elected officials but basing decision on the elected
officials’ perception).

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political reasons. In Matherne, as in this case,
the investigator had superiors in the chain of
command, the sheriff offered zero evidence
that the investigator’s political opinions
skewed his professional judgment, and the
sheriff did not argue that the investigator’s
political opinions impaired his working
relationships. Id.3
Savoie does not explain how O’Hare would
change the outcome in Matherne, and he does
not distinguish Matherne. Matherne binds us
and compels the conclusion that Desormeaux
has created a fact question about whether his
First Amendment rights to association and
expression were violated.
D.
Finally, we consider whether Desormeaux’s
rights were “clearly established” in June 2000.
Savoie argues that although the Fifth Circuit
had repeatedly classified deputy sheriffs as
falling outside the Elrod-Branti exception,
other circuits had divided over the question.4
He argues that the dissenting views of other
federal circuits are enough to make a right not
“clearly established.”
Savoie is incorrect; the divergent views of
the other courts of appeals do not affect
established law in this circuit, and a public
official cannot use them, standing alone, to
establish the qualified immunity defense.5 In
June 2000, our cases “clearly established” that
a Louisiana sheriff could not discharge an in-
vestigator for political reasons.
II.
Savoie argues that the district court erred
by refusing to dismiss the claims asserted
against him in his official capacity. We have a
duty to consider our appellate jurisdiction
before reaching the merits of the district
court’s refusal to dismiss the official capacity
claims. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94-95 (1998).
3 See Brady, 145 F.3d at 709 (finding, in mixed
case, that Texas deputy sheriffs did not fall within
Elrod-Branti exception); Click, 970 F.2d at 112
(finding that Texas deputy sheriffs who ran against
sheriff could not fall within Elrod-Branti exception
because there was no proof candidacy had
interfered with their job); Barrett v. Thomas, 649
F.2d 1193, 1200 (5th Cir. Unit A July 1981)
(same).
4 Compare, e.g., Jenkins v. Medford, 119 F.3d
1156, 1162 (4th Cir. 1997) (en banc) (classifying
political allegiance as an appropriate requirement
because deputies play such a critical role in im-
plementing sheriff’s policies); and Upton v.
Thompson, 930 F.2d 1209, 1218 (7th Cir. 1991)
(holding that sheriff may consider politics when
deciding whether to hire or fire chief deputy), with
(continued...)
4(...continued)
Burns v. County of Cambria, 971 F.2d 1015, 1023
(3d Cir. 1992) (finding deputy sheriffs may not be
discharged for political beliefs without some proof
that they had significant discretion or their political
views affected their decisionmaking).
5 Brady, 58 F.3d at 175 n.11 (“While it seems
peculiar to consider an official action held lawful
by one federal circuit court to be ‘clearly’
unconstitutional by any ‘objective’ criteria, such a
result reinforces the finality of circuit law, albeit at
the expense of immunity in some cases.”); Boddie
v. City of Columbus, Miss., 989 F.2d 745, 748
(5th Cir. 1993) (“Our inquiry ends, if we find from
examining the decisions of the Supreme Court and
our own decisions that the law was clearly
established in this circuit.”). See Click, 970 F.2d
at 110-11 (holding “[t]he law was established
clearly enough in this circuit” despite a conflict
with two circuits).

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The collateral order doctrine creates
appellate jurisdiction over a denial of official
immunity, because the defendant’s immunity to
suit is effectively sacrificed if the case goes to
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
The denial of summary judgment based on
official, qualified immunity is AFFIRMED, and
the appeal in all other respects is DISMISSED
for want of appellate jurisdiction.
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.”).

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