Aucoin v. Haney

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 02-30028
Summary Calendar
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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

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 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"

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 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.

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 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.

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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.

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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).

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 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

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(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).

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 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.

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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.

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