Beauregard v. Olson

United States Court of Appeals,

Eleventh Circuit.

No. 95-2091.

Candace A. BEAUREGARD; Aubrey B. Campbell; May H. Jones;
Carolyn C. Whitehead, Plaintiffs-Appellees,

v.

Thomas OLSON, individually and in his official capacity as Tax
Collector of Marion County, Florida, Defendant-Appellant,

Marion County, Florida, Defendant.

June 12, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 93-109-Civ-Oc-20), Harvey E. Schlesinger,
Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and LOGAN*, Senior
Circuit Judge.

EDMONDSON, Circuit Judge:

This interlocutory appeal is from the denial of Thomas Olson's

motion for summary judgment based on qualified immunity. We

reverse the order denying qualified immunity, and we instruct that

the district court grant Olson immunity. We also remand for

further proceedings.

I.

Defendant Olson has been the Marion County (Florida) Tax

Collector since 1971. Plaintiffs are four of his former employees.

The Tax Collector—a constitutionally-created elected position—is

responsible for collecting taxes. Under Florida law,see Fla.Stat.

§ 197.103, the Tax Collector is authorized to appoint deputies to

act in his behalf in carrying out the duties of the office. Olson

*
Honorable James K. Logan, Senior U.S. Circuit Judge for the
Tenth Circuit, sitting by designation.
deputized all his employees, including Plaintiffs.

In 1992, Olson was opposed for reelection. At the outset,

Olson advised all staff members that they were free to support

either him or his opponent or to remain neutral. Two of the

plaintiffs, Whitehead and Jones, supported Olson's opponent. The

other two plaintiffs, Beauregard and Campbell, say they remained

neutral during the campaign.

Olson was reelected. Over three months later, Olson fired

five employees, including the four plaintiffs. Olson says that the

terminations were based on reasons other than Plaintiffs' failure

to support his reelection bid. Asserting these non-political

reasons to be pretextual, Plaintiffs sued Olson individually and in

his official capacity under 42 U.S.C. § 1983. They claimed that

Olson, acting under color of state law, deprived them of their

First Amendment right not to be fired for political patronage

reasons.

Olson moved for summary judgment; one argument he made was

that he was entitled to qualified immunity. The district court

granted Olson's motion, in part because Plaintiffs were deputized

employees of the Tax Collector. But, the district court later

vacated this order and then denied Olson immunity. In its order

denying Olson immunity, the district court wrote only that "it is

clear that genuine issues of material fact remain to be resolved in

this case;" the court did not discuss whether, taking all disputed

facts in favor of Plaintiffs, it was clearly established that Olson

acted unlawfully in firing Plaintiffs.

Olson then filed a motion to reconsider. In the order denying
Olson's motion to reconsider, the district court observed that

"plaintiffs have offered evidence that tends to show that they were

nothing more than ministerial employees." And, the district court

concluded that the firings of Plaintiffs, "if they occurred for

political reasons, would necessarily violate clearly established

rights in that it is clear that clerical employees are entitled to

the protection Plaintiffs seek."

II.

For purposes of our review we accept as true both that

Plaintiffs' job duties were ministerial and that Olson fired them

for political reasons.1 Even so, Olson says he is entitled to

qualified immunity. So, we have jurisdiction, see Behrens v.

Pelletier, --- U.S. ----, ---- 116 S.Ct. 834, 842, 133 L.Ed.2d 773

(1996), to decide the core qualified immunity question of whether

it was clearly established before Olson acted that he could not

lawfully fire these deputized clerical employees of the Tax

Collector's office for political reasons.

Some employees do have a general First Amendment right not to

be fired for political patronage reasons. See Elrod v. Burns, 427

U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion);

and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574

(1980). An employee might have this right if political affiliation

is not an appropriate requirement for the effective performance of

the job. See Branti, 445 U.S. at 518-20, 100 S.Ct. at 1295; see

1
We also accept as true the undisputed facts that Plaintiffs
were employees of the Tax Collector's Office who were deputized
under Florida law. This circumstance was noted in the district
court's initial order granting summary judgment and not later
contradicted.
also Terry v. Cook, 866 F.2d 373, 377 (11th Cir.1989).

Olson, holding an office created by the Florida constitution,

was empowered by Florida law to appoint deputies. All Plaintiffs
2
were appointed deputies. This fact is important. As deputies,

Plaintiffs were authorized, by Florida law, to act on Olson's

behalf in carrying out the duties of the Tax Collector's office.

Olson says that Terry v. Cook makes clear that all deputies who

have authority under state law to act on behalf of a state officer

can be fired for patronage reasons—regardless of the particular

deputies' historical, actual duties.3 Plaintiffs, citing toElrod,

supra, respond that no rule exists permitting all deputies to be

lawfully fired on patronage grounds. Instead, they say that what

is required is an assessment of Plaintiffs' actual duties to

determine whether, in fact, political loyalty is an appropriate

requirement for the effective performance of their jobs.

But, in this qualified immunity case, we need not decide

whether these deputized employees empowered by Florida law to act

on behalf of the Tax Collector (a constitutional officer who faces

2
Olson points us to the special status Florida law affords
deputies. See Blackburn v. Brorein, 70 So.2d 293, 296 (Fla.1954)
(en banc); Murphy v. Mack, 358 So.2d 822, 825 (Fla.1978);
Florida Public Employees Council 79, AFSCME v. Martin County
Property Appraiser, 521 So.2d 243 (Fla.Dist.Ct.App.1988).
3
Olson also relies on Martin County Property Appraiser, 521
So.2d 243, where the court concluded that the "determinative
factor" (that is, the factor which led the court to conclude
deputy property appraisers were not "employees") was the power
inherent in the plaintiffs' deputy status, not whether individual
deputies "actually exercise a plenary range of duties." Id. at
244. This was so even where the deputies "primarily exercise[d]
clerical duties." Id. The Martin County court concluded that
employees empowered to "act on [the Property Appraiser's] behalf
in carrying out the duties prescribed by law for that office" are
the "alter ego" of the property appraiser. Id.
partisan elections) can lawfully be fired for patronage reasons

regardless of their actual duties. For Olson personally to

prevail, it is enough if it was not clearly established that firing

Plaintiffs for political patronage reasons would violate federal

law.4 As we explained in Lassiter v. Alabama A & M University, 28

F.3d 1146, 1149 (11th Cir.1994) (en banc), for the law to be

clearly established to the point that qualified immunity does not

apply, the law must have earlier been developed in such a concrete

and factually defined context to make it obvious to every

reasonable person in Olson's place that to fire Plaintiffs would

violate federal law.

None of the cases cited to us by Plaintiffs have so developed

the law for deputy Tax Collectors in Florida. Plaintiffs rely

chiefly on Elrod, Branti, and Terry. Terry, supra, is a case which

Olson says actually shows the firings were lawful; and, to say the

least, it certainly does not clearly establish the unlawfulness of

these firings.5 Elrod, supra, also does not clearly establish the

unlawfulness of Olson's acts—even though one plaintiff in that case

4
Whether or not Olson subjectively believed that political
loyalty was required for Plaintiffs to do their jobs effectively
does not matter. See Lassiter v. Alabama A & M University, 28
F.3d 1146, 1150 (11th Cir.1994) (en banc) ("subjective intent of
government actor defendants plays no part in qualified immunity
analysis").
5
In Terry, 866 F.2d 373, we found no violation of First
Amendment rights—an Alabama sheriff was permitted to fire all
deputies. The Terry court did not undertake a searching
assessment of the individual deputies' actual duties. It also
did not hold unlawful the firings of the non-deputy "ministerial"
workers in the sheriff's office. See note 6, infra, on the
hurdles facing a plaintiff seeking to use a remand case to
clearly establish the contours of a federal right.
was "Chief Deputy of the Process Division."6

The other important case cited by Plaintiffs is Branti, supra,

where the Supreme Court held unlawful the firings of two assistant

public defenders. Branti is not "materially similar" to this case,

which involves deputized employees of the Marion County Tax

Collector's office. See Adams v. St. Lucie County Sheriff's Dept.,

962 F.2d 1563, 1575 (11th Cir.1992) (Edmondson, J., dissenting),

approved en banc, 998 F.2d 923 (11th Cir.1993) (facts of prior

cases must be "materially similar" to clearly establish law).7

6
No opinion in Elrod discussed whether the Chief Deputy of
the Process Division had the power to act on behalf of the
Sheriff in carrying out the duties of the office of Sheriff. How
close Florida law and Illinois law are on the point of the legal
significance of deputization is, itself, unclear. And, given the
differences between the Cook County Sheriff's office and the
Marion County Tax Collector's office, we doubt Elrod is
"materially similar" enough to this case to establish clearly the
applicable law. Most important, however, Elrod—although saying
that preliminary injunctive relief was appropriate—did not
finally decide that the Chief Deputy had some right not to be
fired by the Sheriff. Instead, the Supreme Court in Elrod
affirmed the Seventh Circuit's remand of the case for the
determination of whether or not the plaintiffs' rights were
violated. Elrod, 427 U.S. at 371-73, 96 S.Ct. at 2689-90.

Remand cases such as Elrod (and also Terry) are of
little use to the plaintiff who faces a qualified immunity
defense and who must show that the case law has clearly
established the unlawfulness of the government actor's
decision under the circumstances. This idea is so because
such cases do not hold that the government actor behaved
unlawfully. For example, in Elrod the district court might
have decided on remand that the firing of the Chief Deputy
was lawful solely because he was empowered—as plaintiffs are
here—to act instead of his employer. (By the way, it seems
no court ever concluded the firing of any Elrod plaintiff to
have been unlawful; the case settled before trial. See
Burns v. Elrod, 757 F.2d 151, 153 (7th Cir.1985).)
7
The office of Marion County, Florida Tax Collector is
charged with a materially different function than the office at
issue in Branti (the Rockland County, New York Public Defender.)
And, the need for political loyalty may be different between such
different kinds of offices.
 Violations of the constitutional right at issue in this case

(the First Amendment right not to be fired for patronage reasons)

are determined based on a standard "framed in vague and sweeping

language certain to create vast uncertainty." Branti, 445 U.S. at

522-24, 100 S.Ct. at 1297 (Powell, J. dissenting). In the light of

such a vague standard, "elected and appointed officials at all

levels ... no longer ... know when political affiliation is an

appropriate consideration in filling a position." Id. at 522-26,

100 S.Ct. at 1297-98.
Justice Powell's concerns in Branti do not make Branti any

less the law, but they do help explain why we have observed that

"defendants who allegedly violate public employees' First Amendment

freedoms rarely act within "clearly established' contours of law."

Hansen v. Soldenwagner, 19 F.3d 573, 575 (11th Cir.1994). This

case is not the exceptional case where the individual defendant is

unentitled to qualified immunity: it was not clearly established

at the time Olson acted that firing Plaintiffs was unlawful.

The order denying Olson, in his personal capacity, summary

The limits of Branti were made clear by the Court's
focus on the kind of workers involved in that case: public
defenders. The Court observed that the "primary, if not the
only, responsibility of an assistant public defender is to
represent individual citizens in controversy with the
State." Branti, 445 U.S. at 518-20, 100 S.Ct. at 1295. The
office of the public defender was contrasted with offices
which have "broader public responsibilities." Id. at 518-19
n. 13, 100 S.Ct. at 1295 n. 13. The office of Tax Collector
might be such an office. And, no discussion exists in
Branti on whether the assistant public defenders were
statutorily authorized to act on the Public Defender's
behalf in carrying out the duties of the office.

In the end, the facts of Branti and the facts of this
case are different enough to cloud the question whether
Olson's acts were unlawful when he acted.
judgment based on qualified immunity is vacated; we remand for

further proceedings8 and instruct that Olson be granted qualified

immunity.

VACATED and REMANDED.

8
Olson also asks us to order the entry of summary judgment
in his favor in the suit against him in his official capacity.
We decline to address this claim.