IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-30028
Summary Calendar
_____________________
GREGORY P. AUCOIN,
Plaintiff - Appellee,
v.
PHIL HANEY, Individually and in his capacity as
District Attorney for the 16th Judicial District Court,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Louisiana, Lafayette Division
_________________________________________________________________
October 1, 2002
Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Phil Haney, the District Attorney for the Sixteenth Judicial
District Court of Louisiana, appeals the district court’s denial of
qualified immunity to him from this suit brought by an assistant
district attorney. Gregory P. Aucoin sued Haney under 42 U.S.C. §
1983, alleging a political discharge that violated his First
Amendment rights. Specifically, Aucoin claimed that he was fired
by Haney because he was supporting Haney’s political opponent in
the upcoming District Attorney election. We join all other
circuits that have considered this question, and hold that Aucoin
has failed to demonstrate that Haney violated his First Amendment
right to free speech. We therefore REVERSE the district court’s
denial of summary judgment to Haney and REMAND for further
proceedings that are not inconsistent with this opinion.
I
Haney served as an Assistant District Attorney in the
Sixteenth Judicial District Court for twenty years. In the spring
of 1999, Bernard Boudreaux, the District Attorney for the Sixteenth
Judicial District Court, announced that he intended to resign his
post effective January 19, 2000, and that he would be supporting
Haney as his successor. In the fall of 1999, Boudreaux proved
himself a real political friend of Haney. He elevated Haney to the
position of First Assistant District Attorney, which positioned
Haney for appointment as the Interim District Attorney upon
Boudreaux’s resignation. Haney announced that he planned to run in
the upcoming election for District Attorney, which was scheduled
for October 6, 2000.
In June or July of 1999, Aucoin made a political decision that
was not in his best interests. He began to openly support Haney’s
declared opponent in the District Attorney race, Leon Roy. Aucoin
asserts that he only worked on behalf of Roy during his personal
time. In late 1999, Boudreaux, again flying Haney’s colors, met
with all the Assistant District Attorneys and informed them that he
2
expected them to support Haney. Boudreaux went a step further and
put a personal squeeze on Aucoin. On December 7, 1999, he told
Aucoin that he should support Haney or resign. Aucoin declined to
do either, but said that he would continue to fully comply with the
duties of his position. Boudreaux wisely did not fire Aucoin.
Next, Haney, who had now been named First Assistant District
Attorney, moved into the picture. Haney met with Aucoin on January
14, 2000, and told him that he would be fired if he did not support
his candidacy. Aucoin told Haney that he would support him in his
administration of the office of District Attorney, but, standing
his ground, said that he would not support him politically. Haney,
who was apparently prepared for this response, handed a letter to
Aucoin, dated January 13, 2000, in which he conveyed his intention
not to re-commission Aucoin as an Assistant District Attorney once
Haney was sworn in as Interim District Attorney on January 19. In
the letter to Aucoin, Haney stated in part:
It is my understanding that you did not wish to support
my administration of the Office of District Attorney. As
an Assistant District Attorney, you are in a position of
authority, supervision, and responsibility and are
responsible for implementation of policies in my
administration. Since you are unwilling to
conscientiously and wholeheartedly support my
administration of this office, I have no alternative than
to issue commissions to all current Assistant District
Attorneys with the exception of yourself.
Haney “fired” Aucoin on January 14, effective January 19, 2000.
II
3
Aucoin filed this suit under 42 U.S.C. § 1983 against Haney in
his individual and official capacities, alleging a violation of his
First Amendment rights. Haney filed a Motion to Dismiss under Fed.
R. Civ. P. 12(b)(6), which the district court denied. After the
parties conducted some discovery, Haney filed a motion for summary
judgment arguing that all of Aucoin’s claims should be dismissed.
Alternatively, Haney argued that he was entitled to qualified
immunity from suit in his individual capacity. The district court
denied Haney’s motion in its entirety, finding that disputed issues
of material fact existed. The only issue before us now in this
interlocutory appeal is whether the district court erroneously
denied Haney’s motion for summary judgment on qualified immunity
grounds.
III
We review de novo the denial of a public official's motion for
summary judgment based on qualified immunity. Nerren v. Livingston
Police Dept., 86 F.3d 469, 472 (5th Cir. 1996) (citing Johnston v.
City of Houston, 14 F.3d 1056, 1059 (5th Cir. 1994)). Summary
judgment is inappropriate if there is a genuine issue of material
fact or if the moving party is not entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). For the purposes of a summary
judgment determination, all fact questions are viewed in the light
most favorable to the nonmovant. Stults v. Conoco, Inc., 76 F.3d
651, 654 (5th Cir. 1996). Here, the district court denied summary
4
judgment because it found that there were genuine issues of
material facts.
Aucoin argues that the district court’s denial of summary
judgment on the qualified immunity issue, based on its finding of
disputed material facts, is not an appealable final order. See
Johnson v. Jones, 515 U.S. 304, 319 (1995) (“[W]e hold that a
defendant, entitled to invoke a qualified immunity defense, may not
appeal a district court's summary judgment order insofar as that
order determines whether or not the pretrial record sets forth a
"genuine" issue of fact for trial.”) However, “[m]ore recently, in
Behrens v. Pelletier, [516 U.S. 299 (1996),] the Supreme Court
clarified that Johnson ‘permits [the defendant] to claim on appeal
that all of the conduct which the District Court deemed
sufficiently supported for purposes of summary judgment met the
Harlow standard of ‘objective legal reasonableness.’ Thus, in
Behrens, the district court’s determination that ‘material issues
of fact remain’ did not preclude appellate review.” Nerren v.
Livingston Police Dept., 86 F.3d 469, 472 (5th Cir. 1996). We
further stated:
In the wake of Behrens, the Johnson modification (if any)
on appellate review applies only when “what is at issue
in the sufficiency determination is nothing more than
whether the evidence could support a finding that
particular conduct occurred." Thus, we cannot review the
"evidence sufficiency issue" (i.e., whether the nonmovant
presented sufficient summary judgment evidence to create
a dispute of fact). But we retain interlocutory
jurisdiction to "take, as given, the facts that the
district court assumed when it denied summary judgment"
5
and determine whether these facts state a claim under
clearly established law.
Id. (citations omitted).
Haney argues on appeal that even if all of Aucoin’s factual
allegations are taken as true, he is still entitled to qualified
immunity. Because we will only take into account undisputed facts
in considering the constitutional issues presented in this appeal,
we have appellate jurisdiction, under Nerren, to review whether the
district court erred in denying Haney qualified immunity.
IV
Taking the facts asserted by Aucoin as true, the issue thus is
narrowed to whether the law was clearly established that Haney was
constitutionally prohibited from firing Aucoin because Aucoin
refused to support Haney politically in his campaign for District
Attorney; if the law was not clearly established, then the district
court erred, and Haney is entitled to qualified immunity and the
dismissal of the complaint against him in his individual capacity.
In addressing qualified immunity, we proceed in three steps.
First, we ask whether the plaintiff has alleged a violation of a
constitutional right. Id. (citing Siegert v. Gilley, 500 U.S. 226,
232 (1991)). Second, we ask whether the constitutional right was
clearly established at the time of the alleged violation. Id. at
474. If we answer yes to both questions, we then ask whether the
official’s conduct was objectively reasonable in the light of that
established constitutional right.
6
Aucoin’s constitutional allegation is that Haney deprived him
of his First Amendment right to free speech.1 In Elrod v. Burns,
427 U.S. 347, 357 (1976), the Supreme Court held that because
“political belief and association constitute the core of those
activities protected by the First Amendment,” id. at 356, the
practice of patronage dismissals “clearly infringes First Amendment
interests.” Id. at 360. Yet, because of the political position he
held as an Assistant District Attorney, we must further consider
whether, in the context of the undisputed facts of this case,
Aucoin has alleged a violation of his constitutional rights.
A plurality of the Court stated that patronage dismissals of
those in policymaking positions would be permissible in some cases
in order to ensure that “representative government not be undercut
by tactics obstructing the implementation of policies of the new
administration . . . .” Id. at 367. In Branti v. Finkel, 445 U.S.
507, 518 (1980), the Supreme Court held that if “an employee’s
private political beliefs would interfere with the discharge of his
public duties, his First Amendment rights may be required to yield
to the State’s vital interests in maintaining governmental
effectiveness and efficiency.” Id. at 517. This circuit has
stated that “by January 1992 at the latest, the law was [] clear
that, regardless of whether an employee is a policymaker, a public
1
Aucoin’s complaint also alleged that Haney deprived him of
his right to vote, but neither party has raised this issue before
this court. We therefore will not address it.
7
employer cannot act against an employee because of the employee's
affiliation or support of a rival candidate unless the employee's
activities in some way adversely affect the government's ability to
provide services.” Vojvodich v. Lopez, 48 F.3d 879, 887 (5th Cir.
1995) (citation omitted).
In Elrod, the Court stated:
No clear line can be drawn between policymaking and
nonpolicymaking positions. . . . An employee with
responsibilities that are not well defined or are of
broad scope more likely functions in a policymaking
position. In determining whether an employee occupies a
policymaking position, consideration should also be given
to whether the employee acts as an adviser or formulates
plans for the implementation of broad goals. Thus, the
political loyalty "justification is a matter of proof, or
at least argument, directed at particular kinds of jobs."
Elrod, 427 U.S. at 367-68 (citation omitted).
This court has stated that policymakers may be “public
employees whose responsibilities require more than simple
ministerial competence, whose decisions create or implement policy,
and whose discretion in performing duties or in selecting duties to
perform is not severely limited by statute, regulation, or policy
determinations made by supervisors.” Stegmaier v. Trammell, 597
F.2d 1027, 1035 (5th Cir. 1979) (citing Johnson v. Bergland, 586
F.2d 993 (4th Cir. 1978); Newcomb v. Brennan, 558 F.2d 825 (7th
Cir.), cert. denied, 434 U.S. 968 (1977)). “A policymaker also may
be an individual who "controls or exercises a role in a decision
making process as to the goals and general operating procedures of
(an) office". Id. (citing Ramey v. Harber, 431 F.Supp. 657, 666 n.
8
15 (W.D. Va. 1977), aff’d in part & rev’d in part on other grounds,
589 F.2d 753 (4th Cir. 1978), cert. denied, 442 U.S. 910 (1979)).
Confidential employees also may be subject to patronage dismissals;
one is a confidential public employee if “he or she has access to
confidential documents or other materials that embody policymaking
deliberations and determinations, e. g., as a private secretary to
a policymaker.” Id. at 1039 (citation omitted).
In Branti, the Court explained that "the ultimate inquiry is
not whether the label ‘policymaker’ or ‘confidential’ fits a
particular position; rather, the question is whether the hiring
authority can demonstrate that party affiliation is an appropriate
requirement for effective performance of the public office
involved." Branti, 445 U.S. at 518.
In Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court
expressly adopted the balancing analysis first recognized in
Pickering v. Board of Education, 391 U.S. 563 (1968), in order to
make a determination as to the appropriateness of requiring a
particular political affiliation. Under Connick and Pickering, the
court "is to seek ‘a balance between the interests of the
[employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its
employees.’” Connick, 461 U.S. at 142 (alteration in original)
(quoting Pickering, 391 U.S. at 568).
9
The employee bears the burden of establishing that his speech
or activity related to a matter of public concern. There is no
doubt that campaigning for a political candidate relates to a
matter of public concern. See Vojvodich, 48 F.3d at 884-85;
Coughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir. 1991). Once the
plaintiff demonstrates a matter of public concern, the employer
then must establish that its interest in promoting the efficiency
of the services provided by its employees outweighs the employee's
interest in engaging in the protected activity. Vojvodich, 48 F.3d
at 885 (citing United States Dep’t of Justice v. Federal Labor
Relations Auth., 955 F.2d 998, 1005 (5th Cir. 1992)). We have
noted that in "cases involving public employees who occupy
policymaker or confidential positions . . . the government's
interests more easily outweigh the employee's (as a private
citizen)." Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 994
(5th Cir. 1992) (citing Rutan v. Republican Party of Ill., 497 U.S.
62 (1990)), cert. denied, 504 U.S. 941 (1992).
Although we have not addressed the Elrod-Branti exception in
the precise context of assistant district attorneys, we have
applied the exception to permit political dismissals of employees
in a number of other positions. See, e.g., Kinsey, 950 F.2d at 995
(school superintendent who occupied a confidential and policymaking
position was within the exception); Soderstrum v. Town of Grand
Isle, 925 F.2d 135, 141 (personal secretary to police chief was
confidential employee); Stegmaier v. Trammell, 597 F.2d 1027, 1040
10
(5th Cir. 1979) (deputy circuit clerk was “confidential employee”),
but see, e.g., Click v. Copeland, 970 F.2d 106, 108 (5th Cir. 1992)
(noting that the deputy positions of civil warrants officer and
chief criminal district court bailiff did not involve
policymaking); Matherne v. Wilson, 851 F.2d 752, 761 (5th Cir. 1988)
(non-policymaking deputy sheriff could not be terminated on basis
of political activity).
We have applied this balancing test to a claim of qualified
immunity for the firing of an investigator in a county district
attorney’s office. In Gunaca v. State of Texas, 65 F.3d 467, 473
(5th Cir. 1995), Gunaca was a former investigator in the county
district attorney’s office who sued the county district attorney,
Jaime Esparza, alleging that the district attorney refused to
reappoint him in part because Gunaca had supported the district
attorney’s opponent in the primary election. Gunaca alleged that
this violated his First Amendment rights. Id. We held:
The right that Gunaca asserts in his complaint and
summary judgment response was not clearly established at
the time Esparza allegedly violated it because neither
the Fifth Circuit nor the Supreme Court had addressed the
issue of political patronage in the hiring or firing of
investigators in district attorneys’ offices, and neither
had addressed an issue sufficiently analogous that a
reasonable official would understand from its resolution
that it is a First Amendment violation to dismiss or to
not hire an investigator on the grounds that the
investigator supported the campaign of the official’s
opponent . . . . Because reasonable public officials
could have differed on the lawfulness of Esparza’s
actions at the time they occurred, Esparza is entitled to
qualified immunity.
Id. at 475 (citation omitted).
11
The other circuits that have addressed the Elrod-Branti
exception in the context of government attorney dismissals, whether
for assistant district attorneys or other government attorneys,
have held that these attorneys occupy positions requiring political
loyalty and are not protected from political dismissals under the
First Amendment. See, e.g., Butler v. New York State Dept. of Law,
211 F.3d 739, 741 (2d Cir. 2000) (Deputy Bureau Chief of the
Litigation Department at the New York State Department of Law);
Biggs v. Best, Best & Krieger, 189 F.3d 989 (9th Cir. 1999)
(attorney with private law firm that performed services of city
attorney); Bavaro v. Pataki, 130 F.3d 46, 47 (2d Cir. 1997)
(associate counsel and assistant counsel in the New York State
Department of Health, Division of Legal Affairs, Bureau of
Professional Medical Misconduct); Fazio v. City & County of San
Francisco, 125 F.3d 1328 (9th Cir. 1997) (assistant district
attorney); Gordon v. County of Rockland, 110 F.3d 886, 890-892 (2d
Cir.) (assistant county attorneys), cert. denied, 522 U.S. 820
(1997); Monks v. Marlinga, 923 F.2d 423 (6th Cir. 1991) (assistant
prosecuting attorneys); Williams v. City of River Rouge, 909 F.2d
151 (6th Cir. 1990) (city attorney); Livas v. Petka, 711 F.2d 798
(7th Cir. 1983) (assistant state attorney to a public prosecutor);
Mummau v. Ranck, 687 F.2d 9 (3d Cir. 1982) (assistant district
attorney); Ness v. Marshall, 660 F.2d 517 (3d Cir. 1981) (city
solicitor and assistant city solicitor); Newcomb v. Brennan, 558
F.2d 825 (7th Cir.) (deputy city attorney), cert. denied, 434 U.S.
12
968 (1977); Bauer v. Bosley, 802 F.2d 1058 (8th Cir. 1986) (staff
legal assistant in office of clerk of circuit court), cert. denied,
481 U.S. 1038 (1987). A number of district courts in the Fifth
Circuit also have applied this exception to assistant district
attorneys and other government attorneys. See, e.g., Cudd v.
Aldrich, 982 F. Supp. 463 (S.D. Tex. 1997) (assistant district
attorney); Parker v. Barthelemy, 1992 U.S. Dist. LEXIS 7109 (E.D.
La.) (city attorney); Finkelstein v. Barthelemy, 678 F.Supp. 1255
(E.D. La. 1988) (assistant city attorney).
Under Louisiana law, an assistant district attorney is vested
with broad discretionary powers. Under the Louisiana Constitution,
“a district attorney, or his designated assistant, shall have
charge of every criminal prosecution by the state in his district,
be the representative of the state before the grand jury in his
district, and be the legal advisor to the grand jury.” La. Const.
Art. 5, § 26(B). The district attorney or his designated assistant
also represents the state in all civil actions. La. Rev. Stat. §
16:1(B). The district attorney serves as counsel for “police
juries, parish school boards, and city school boards within their
respective districts and of every state board or commission
domiciled therein . . . .” Id. § 16:2(A). The district attorney
for each judicial district appoints the assistant district
attorneys. Id. § 16:51(A). “Assistant district attorneys serve at
the pleasure of and may be removed at the discretion of the
district attorney.” Id. § 16:52(B). The Louisiana Supreme Court
13
has noted “the well-established general principle that assistants
may perform the duties of officials under whom they serve . . . .”
State v. Refuge, 300 So.2d 489, 490 (La. 1974). Further, the
actions of an assistant district attorney can bind the state.
State v. Tanner, 425 So.2d 760, 763 (La. 1983) (citing Refuge, 300
So.2d 489).
Aucoin testified in his deposition, a copy of which was
attached to Haney’s motion for summary judgment, that he had great
discretion in handling the misdemeanor docket in St. Mary Parish,
for which he was responsible. He stated that he handled his job on
his own and exercised his judgment and discretion on a daily basis,
without much contact with the district attorney. He also admitted
that he was a visible representative of the district attorney’s
office in Morgan City, in St. Mary parish. The primary office of
the district attorney was located in New Iberia.
Given Aucoin’s broad duties and the important policymaking
role of a district attorney and his designated assistants under
Louisiana law, we hold that an assistant district attorney falls
within the Elrod-Branti policymaker exception. However, our
inquiry does not end here. The summary judgment evidence also must
show that “party affiliation is an appropriate requirement for
effective performance of the public office involved.” Branti, 445
U.S. at 518.
It is clear to us that the effective performance of the office
of district attorney requires political loyalty from district
14
attorneys. Under Louisiana law, the district attorney serves as a
representative of the state and has important policymaking powers.
Assistant district attorneys are the representatives of the
District Attorney, and perform all the functions that he or she
performs. It is therefore essential that the District Attorney
have trust and confidence in the assistant district attorneys, and
that the District Attorney has the loyalty of the assistant
district attorneys. It is clear from the summary judgment evidence
that Haney did not have the loyalty, confidence or trust of Aucoin.
We therefore hold that, based on the undisputed facts, Aucoin
has failed to demonstrate that Haney violated his First Amendment
right to free speech. Haney therefore is entitled to qualified
immunity.
As a final observation, we should note that Aucoin points to
the fact that Haney was not yet the District Attorney or the
Interim District Attorney when he “fired” Aucoin. Rather, he was
a co-worker of Aucoin’s who was to become Interim District Attorney
in five days. Aucoin argues that, therefore, Haney did not yet
have an administration with which Aucoin’s political activities
could interfere. The district court found this to be important.
However, we think that this distinction is without significance.
One who knows he is about to become Interim District Attorney must
begin to assemble his staff before he actually assumes the
position. Aucoin’s support of Haney’s political opponent and lack
of support for Haney were already clearly known to Haney, and were
15
not in dispute. We note that in Cudd v. Aldrich, 982 F.SUpp. 463
(S.D. Tex. 1997), the district court held that the Elrod-Branti
exception applied to assistant district attorneys, and granted
qualified immunity to the district attorney who was elected to
begin serving in 1995 and who informed the plaintiff assistant
district attorney on December 24, 1994 that there was no position
available for her effective January 1, 1995. Similarly here,
Haney’s decision not to renew Aucoin’s commission as an assistant
district attorney upon Haney becoming Interim District Attorney is
covered by the qualified immunity doctrine.
V
For the stated reasons, the district court erred in denying
summary judgment to Haney on his qualified immunity claim. We hold
that Haney is entitled to qualified immunity for his conduct here,
and accordingly we REVERSE the district court’s denial of qualified
immunity and REMAND for such further proceedings that may be
appropriate and that are not inconsistent with this opinion.
REVERSED and REMANDED.
16