United States Court of Appeals
For the First Circuit
No. 08-1683
DAVID BERGERON ET AL.,
Plaintiffs, Appellees,
v.
SHERIFF ANDREA CABRAL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Siler,** Circuit Judges.
Ellen M. Caulo, Deputy General Counsel, Suffolk County
Sheriff's Department, for appellant.
Stephen C. Pfaff, with whom Louison, Costello, Condon & Pfaff,
LLP was on brief, for appellees.
March 9, 2009
*
Of the Sixth Circuit, sitting by designation.
SELYA, Circuit Judge. This interlocutory appeal requires
us to determine whether defendant-appellant Andrea Cabral, the duly
elected Sheriff of Suffolk County, Massachusetts, is entitled to
qualified immunity in connection with her decision to strip several
jail officers of their commissions as deputy sheriffs, allegedly in
retaliation for their support of her opponent during the 2004
election cycle. The district court, after concluding that
decommissioning amounts to an adverse employment action, denied the
defendant's motion for summary judgment based on qualified
immunity. The defendant appeals on two grounds. Although we lack
jurisdiction to consider one ground on interlocutory review, we do
have jurisdiction to consider the other. After careful
consideration of that ground, we affirm the order denying brevis
disposition.
I. BACKGROUND
We draw the relevant facts from the summary judgment
record and rehearse them in the light most flattering to the
nonmovants (here, the plaintiffs). See Cox v. Hainey, 391 F.3d 25,
27 (1st Cir. 2004).
This action was brought by ten correctional officers
employed at the Nashua Street Jail, a penal facility operated by
the Suffolk County Sheriff's Department (the Department). All of
them were members of either the Jail Officers and Employees
Association (JOEA) or some other public employees' labor union.
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Because this appeal implicates only six of the ten jail officers
(David Bergeron, John Grennon, John Barnes, John Ellis, Lorne
Lynch, and Al Moscone), we refer to those six jail officers as the
plaintiffs.
On November 29, 2002, the governor appointed the
defendant as Sheriff to complete an unexpired term. Shortly
thereafter, she commissioned the plaintiffs, among others, as
deputy sheriffs. See Mass. Gen. Laws ch. 37, § 3. A deputy-
sheriff commission is not a prerequisite for service as a jail
officer. Some jail officers hold such commissions; others do not.
Starting in the spring of 2003, the defendant became
embroiled in an acrimonious contractual dispute with the JOEA.
That dispute spilled over into the political arena. As a result,
the JOEA disseminated mass mailings and a press release soliciting
support for its cause. To add insult to injury, the JOEA endorsed
Stephen J. Murphy, the defendant's opponent in the 2004 Democratic
primary for election as Sheriff.
The plaintiffs all participated in the campaign (albeit
to varying degrees). Three of them — Grennon, Barnes, and Ellis —
played key roles in the propagation of mailings and a press release
calumnizing the defendant. A fourth, Moscone, raised funds for
Murphy's campaign coffers, contributed money of his own, and made
telephone calls to assist Murphy's bid for election. A fifth,
Lynch, attended at least one Murphy fundraiser. The sixth,
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Bergeron, held a sign advocating Murphy's election at a polling
place in West Roxbury on primary day.
Despite the plaintiffs' efforts, the defendant won the
primary and ran unopposed in the November general election. Her
first full term as Sheriff commenced on January 5, 2005.
Approximately three months later, she rescinded the plaintiffs'
commissions and transferred several of them to less desirable
assignments.
The plaintiffs were not pleased. Invoking 42 U.S.C. §
1983, they joined in bringing suit in federal district court.
Their complaint alleged that the defendant had retaliated against
them because of their union activities and/or their political
affiliation, in violation of the First Amendment.
After the close of discovery, the defendant moved for
summary judgment on the ground that the plaintiffs had failed to
introduce sufficient evidence to support their First Amendment
claims and, in the alternative, that qualified immunity barred
those claims. The court below granted the motion in part and
denied it in part. Bergeron v. Cabral, 535 F. Supp. 2d 204, 216
(D. Mass. 2008).
Pertinently, the court determined that the six plaintiffs
had adduced evidence adequate to raise a genuine issue of material
fact as to whether each of them had suffered an adverse employment
action because of political affiliation. Id. at 214. The court
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also held that the defendant was not entitled to qualified immunity
on this set of claims. Id. at 215-16.
On appeal, the defendant challenges the district court's
denial of qualified immunity. No other ruling is ripe for review.
II. ANALYSIS
Qualified immunity is a judge-made construct that broadly
protects public officials from the threat of litigation arising out
of their performance of discretionary functions. Pagán v.
Calderón, 448 F.3d 16, 31 (1st Cir. 2006). The defense is
available to public officials whose "conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Because qualified immunity confers a right
"not to stand trial or face the other burdens of litigation . . .
rather than a mere defense to liability," Mitchell v. Forsyth, 472
U.S. 511, 526 (1985), a pretrial rejection of qualified immunity
may give rise to an interlocutory appeal.
The key word in this last sentence is "may." In the
pages that follow, we mull the threshold question of appellate
jurisdiction. We then address those aspects of the appeal that we
have jurisdiction to hear.
A. Appellate Jurisdiction.
In broad-brush terms, an interlocutory appeal may be
taken from the denial of qualified immunity when the immunity issue
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is a purely legal one, that is, when resolving the issue does not
require either choosing among conflicting facts or second-guessing
the district court's conclusion that a genuine issue of material
fact bars any immediate relief. Pagán, 448 F.3d at 26; Camilo-
Robles v. Hoyos (Camilo-Robles I), 151 F.3d 1, 8 (1st Cir. 1998).
Accordingly, when the district court assumes a set of facts
favorable to the plaintiff and decides as a matter of law that
those facts do not form a satisfactory basis for a finding of
qualified immunity, an interlocutory appeal is available under the
collateral order doctrine. See Behrens v. Pelletier, 516 U.S. 299,
313 (1996).
Here, the defendant has advanced two main theories in
support of her assertion that she is shielded by qualified
immunity. We perform the necessary triage.
The defendant's first theory is that decommissioning is
not an adverse employment action (or, at least, that the law in
that area lacks a clear focus). Thus, regardless of any animus on
her part, the plaintiffs were not deprived of any clearly
established constitutional right.
We have jurisdiction to consider this argument. There is
no dispute about either the fact of decommissioning or the benefits
that a commission entails. Seen in this light, the multifaceted
question of whether decommissioning is an adverse employment action
and if so whether a reasonable officer in the defendant's position
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should have known as much fits neatly within the integument of the
collateral order doctrine. See, e.g., Shockency v. Ramsey County,
493 F.3d 941, 948-51 (8th Cir. 2007) (considering on interlocutory
appeal whether employees had suffered adverse employment action and
whether law to that effect was clearly established); Bass v.
Richards, 308 F.3d 1081, 1087-88 (10th Cir. 2002) (similar).1
The defendant's second theory is a horse of a different
hue. She claims that the decommissioning was part of a
comprehensive merits-based reform and that she is entitled to
immunity because there is insufficient record evidence that the
decision was driven by political animus. But the plaintiffs
presented evidence that their political affiliation played a
crucial role in bringing about the decommissioning, and the
district court determined that this evidence permitted a reasonable
inference that the defendant knew of the plaintiffs' support for
Murphy and punished them as a result. Bergeron, 535 F. Supp. 2d at
214. Since the district court discerned a genuine issue of
material fact as to the defendant's motivation, we lack
jurisdiction to review the issue on an interlocutory appeal. See
1
We have suggested that the existence of an adverse
employment action may be a question for the jury when there is a
dispute concerning the manner in which the action taken affected
the plaintiff-employee. See Rivera-Jiménez v. Pierluisi, 362 F.3d
87, 94 (1st Cir. 2004). Here, however, it is clear what effect
decommissioning had on the plaintiffs' positions. Consequently,
the adversity vel non of that action is a legal question properly
reviewable on interlocutory appeal.
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Valdizán v. Rivera-Hernández, 445 F.3d 63, 65 (1st Cir. 2006);
Cruz-Gómez v. Rivera-Hernández, 444 F.3d 29, 33-34 (1st Cir. 2006);
Camilo-Robles v. Zapata (Camilo-Robles II), 175 F.3d 41, 46-48 (1st
Cir. 1999).
To recapitulate, we have jurisdiction to resolve the
defendant's first ground for qualified immunity: that
decommissioning does not constitute an adverse employment action,
cognizable in a First Amendment retaliation suit (or, at the very
least, that a reasonable public official would have believed that
to be so). Conversely, we lack jurisdiction over the defendant's
second theory of qualified immunity: that the record evidence is
insufficient to support a finding that she acted out of political
animus in decommissioning the plaintiffs. We limit our substantive
discussion accordingly. See, e.g., Valdizán, 445 F.3d at 65-66
(exercising jurisdiction over legal basis of denial of qualified
immunity but eschewing review insofar as denial was premised on
district court's determination that genuine issues of material fact
existed); Díaz v. Martínez, 112 F.3d 1, 4-5 (1st Cir. 1997)
(similar).
B. The Qualified Immunity Inquiry.
A district court's ruling granting or denying a summary
judgment motion premised on qualified immunity engenders de novo
review. See, e.g., Cox, 391 F.3d at 28; Camilo-Robles I, 151 F.3d
at 11. Over time, we have cultivated an ordered, three-step
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inquiry designed to determine whether a public official is entitled
to qualified immunity. See, e.g., Pagán, 448 F.3d at 31; Cox, 391
F.3d at 29-30. Under that framework, we ask "(i) whether the
plaintiff's proffered version of the facts, if true, makes out a
violation of a constitutionally protected right; (ii) . . . whether
that right was clearly established at the time of the putative
violation; and (iii) . . . whether a reasonable public official,
situated similarly to the defendant, should have understood the
challenged act or omission to violate the discerned right."
Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009). If we answer
any of these queries in the negative, the assertion of qualified
immunity prevails.2
The Supreme Court recently held that these steps need not
be taken in strict sequence. Pearson v. Callahan, 129 S. Ct. 808,
818 (2009) (abrogating Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Pearson creates a pathway to flexibility. It does not in any way
preclude courts from going step by step. See id. Because the
parties briefed and argued the case at hand pre-Pearson, it makes
sense to adhere to a sequential mode of analysis here. We proceed
in that fashion.
2
We occasionally have compressed these three steps into two.
See, e.g., Santana v. Calderón, 342 F.3d 18, 23 (1st Cir. 2003);
Dwan v. City of Boston, 329 F.3d 275, 278 (1st Cir. 2003). The
three-step approach is functionally equivalent to the two-step
approach and, in all events, our resolution of this appeal would be
the same regardless of which methodology we employed.
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1. The First Prong. It is apodictic that the First
Amendment insulates public employees who hold nonpolicymaking
positions from the vicissitudes of personnel decisions rooted in
partisan political concerns. See, e.g., Rutan v. Repub. Party of
Ill., 497 U.S. 62, 74-76 (1990). In order to make out a claim for
political retaliation, a public employee who holds a
nonpolicymaking position must show both that he was subjected to an
adverse employment action and that his politics were a substantial
or motivating factor for that action. González-Pina v. Rodríguez,
407 F.3d 425, 431 (1st Cir. 2005).
For reasons already explained, see supra Part II(A), we
must accept as a given that the plaintiffs have succeeded in
raising a genuine issue of material fact as to the second of these
elements. Thus, our inquiry is limited to the first element.
Moreover, because the defendant has not argued to the contrary, we
must accept that Suffolk County deputy sheriffs do not occupy
policymaking positions for which political loyalty would be an
appropriate qualification. The question, then, reduces to whether
stripping the plaintiffs of their commissions as deputy sheriffs
constituted an adverse employment action.
The term "adverse employment action" arose in the Title
VII context as a shorthand for the statutory requirement that a
plaintiff show an alteration in the material terms or conditions of
his employment. See Power v. Summers, 226 F.3d 815, 820 (7th Cir.
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2000); see also 42 U.S.C. § 2000e-2(a)(1). Though analogous in
other respects, a section 1983 suit is not subject to any similar
statutory imperative. Rather, the "adverse employment action"
inquiry in the section 1983 context focuses on whether an
employer's acts, viewed objectively, place substantial pressure on
the employee's political views. See Agosto-de-Feliciano v. Aponte-
Roque, 889 F.2d 1209, 1218 (1st Cir. 1989) (en banc); see also
Power, 226 F.3d at 820-21.
Discharge is the paradigmatic example of such an adverse
employment action. See, e.g., Elrod v. Burns, 427 U.S. 347, 372-73
(1976) (plurality op.); Gómez v. Rivera Rodríguez, 344 F.3d 103,
110 (1st Cir. 2003); Vázquez Ríos v. Hernández Colón, 819 F.2d 319,
324 (1st Cir. 1987). But under this rubric, acts short of outright
dismissal may be sufficiently adverse to undergird claims for
political retaliation. See Rutan, 497 U.S. at 74-75.
In Agosto-de-Feliciano, this court, sitting en banc, held
that employment actions are sufficiently adverse to support a
section 1983 claim bottomed on the First Amendment if those
actions, objectively evaluated, would "place substantial pressure
on even one of thick skin to conform to the prevailing political
view." 889 F.2d at 1218. We further stated that this level of
burdensomeness is reached "when the employer's challenged actions
result in a work situation 'unreasonably inferior' to the norm for
the position." Id. It follows that a substantial alteration in an
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employee's job responsibilities may constitute an adverse
employment action. See id. at 1219. The standard enunciated in
Agosto-de-Feliciano survived the Rutan Court's subsequent decision,
see Martínez-Vélez v. Rey-Hernández, 506 F.3d 32, 42 & n.7 (1st
Cir. 2007) (collecting cases), and we apply that standard here.
Jobs come in a kaleidoscopic array of colors, shapes, and
sizes. Moreover, they are performed under a wide variety of
circumstances and with a wide variety of perquisites. The decision
as to what constitutes an adverse employment action must take
account of these variations. Nevertheless, the cases provide some
guidance.
To begin, we have ruled that depriving an employee of the
bulk of his job responsibilities is an adverse employment action.
Bisbal-Ramos v. City of Mayagüez, 467 F.3d 16, 22-23 (1st Cir.
2006) (collecting cases). So, too, the denial of "special benefits
and assignments" arising in the normal course of an employment may
comprise an adverse employment action. Rivera-Jiménez v.
Pierluisi, 362 F.3d 87, 94-95 (1st Cir. 2004). These decisions,
however, are merely background for present purposes; the case at
hand is a "diminished compensation" case.
More to the point, we have recognized that tinkering with
an employee's duties or prerogatives in a way that creates a
realistic potential for pecuniary loss may impose substantial
pressure on the employee such as to implicate his First Amendment
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rights. The most obvious example is a garden-variety salary
reduction, which unarguably constitutes an adverse employment
action. See, e.g., Acosta-Orozco v. Rodríguez-de-Rivera, 132 F.3d
97, 101 (1st Cir. 1997); Jirau-Bernal v. Agrait, 37 F.3d 1, 4 (1st
Cir. 1994).
Some of our cases go farther down this road. In Welch v.
Ciampa, 542 F.3d 927 (1st Cir. 2008), we held that a superior's
failure to reappoint a detective as a detective sergeant
constituted an adverse employment action because loss of the title
entailed the loss of "the additional stipend that accompanied [that
title] as well as the opportunity for substantial overtime pay and
additional pay related to detail and court assignments." Id. at
936. Similarly, in Martínez-Vélez, we held that the denial of
overtime opportunities may constitute an adverse employment action.
506 F.3d at 40.
Here, it is transparently clear that the Department
offered the opportunity to work paid security details only to jail
officers who were commissioned as deputy sheriffs. Consequently,
when the defendant stripped the plaintiffs of their commissions,
she excluded them from any chance of staffing such details. That
act effectively reduced the plaintiffs' earning capacity. We
believe that this constriction of job responsibilities and the
concomitant reduction in earning capacity combined to constitute an
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adverse employment action.3 See Welch, 542 F.3d at 936; Martínez-
Vélez, 506 F.3d at 40; cf. Blackie v. Maine, 75 F.3d 716, 725 (1st
Cir. 1996) (holding in context of FLSA retaliation claim that an
adverse employment action generally occurs when employer "(1)
take[s] something of consequence from the employee" or "(2)
withhold[s] from the employee an accouterment of the employment
relationship").
The defendant challenges this conclusion, suggesting that
the number of available security details has declined sharply.
This boils down to a suggestion that the decommissioning wrought
such minuscule pecuniary loss that it cannot be deemed an adverse
employment action.
We need not speculate on the suggestion that, under
certain circumstances, the loss of an opportunity to earn paltry
amounts might not constitute an adverse employment action. Cf.
Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 505 (7th Cir. 2004)
(holding, in Title VII case, that loss of a single day's pay did
not constitute adverse employment action). The situation here is
different. The plaintiffs were decommissioned in April of 2005.
The record shows that deputy sheriffs worked 4,878 security details
3
The plaintiffs allege that decommissioning had certain other
infelicitous effects, such as rendering them ineligible to work in
prisoner transport. Some of them also allege that they were
transferred to unreasonably inferior job assignments. Because the
deprivation of the opportunity to work security details is enough,
in itself, to qualify decommissioning as an adverse employment
action, we do not probe these other allegations.
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in that calendar year. The potential earning capacity that these
opportunities presented is well-illustrated by plaintiffs Lynch
(who during the first three and one-half months of 2005 worked 120
hours on security details, earning $3,360) and Moscone (who during
the same interval worked 86 hours on security details, earning
$2,436). Nor were these figures a fluke: Lynch had earned well
over $20,000 from security details in each of the two preceding
years, and Moscone had earned comparable sums. Extrapolating from
these data, it is fair to draw the inference that a commissioned
deputy sheriff had the capacity to earn several thousand dollars of
extra compensation annually.
Decommissioning foreclosed those opportunities
completely. Such a deprivation was a heavy price to pay for
campaigning against the Sheriff and, thus, the threat of
decommissioning is a classic example of pressure designed to coerce
political orthodoxy. That deprivation is therefore sufficient to
ground a finding of an adverse employment action.
The fact that there may have been fewer security details
available in the years after the decommissioning does not mitigate
the force of this conclusion. If this fact is proffered as a
justification for decommissioning the plaintiffs, we lack
jurisdiction to consider it on this appeal. See supra Part II(A).
If, however, the fact is proffered as a reason why decommissioning
is not an adverse employment action, it lacks bite: the relevant
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inquiry is whether an employer's actions, viewed objectively,
placed inordinate pressure on employees to conform to prevailing
political orthodoxy. See Agosto-de-Feliciano, 889 F.2d at 1218.
In the instant case, that pressure would have been
calibrated to the amount of additional money a deputy sheriff could
expect to earn in the spring of 2005. Absent a showing that the
plaintiffs at that time knew that there would be fewer security
details available in the future — and no such showing has been
forthcoming — the slump in requests for security details is beside
the point.
The defendant's fallback position seems to be that even
if decommissioning is an adverse employment action as to Lynch and
Moscone, it is not as to the remaining plaintiffs. In this regard,
she points out that Grennon worked security details sporadically,
and none from 2003 through 2005; that Bergeron worked only one
security detail in 2004 and none in 2005; and that neither Barnes
nor Ellis ever opted to work on security details. Because these
four plaintiffs did not work security details with any frequency,
the defendant asseverates, decommissioning was not sufficient to
underpin their First Amendment claims.
This is anfractuous reasoning. As a matter of law, the
determination as to whether conduct constitutes an adverse
employment action must be made based on objective criteria. The
opportunity to work security details and earn extra money is an
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attractive benefit that accrues to all commissioned deputy
sheriffs. Foreclosing that opportunity is an adverse employment
action with respect to any and all similarly situated deputies.
See Welch, 542 F.3d at 936; Martínez-Vélez, 506 F.3d at 40.
Accordingly, each of the six plaintiffs felt the sting of an
adverse employment action.
Taking a closely related tack, the defendant asserts that
the plaintiffs did not suffer an adverse employment action because
they lost only the ability to earn outside income; that is, to
supplement their normal wages with monies derived from sources
outside the Department. In support, the defendant notes that a
jail officer does not require a commission to perform his regular
duties; that jail officers who are deputy sheriffs are forbidden
from working security details that interfere with their regular
work assignments; and that the agencies for which deputy sheriffs
perform security details pay for the deputies' services. Thus, the
defendant's thesis runs, any loss of earning capacity arose outside
the scope of the plaintiffs' employment and cannot constitute an
adverse employment action.
This thesis is riddled with imperfections. The most
prominent flaw is that it rests on an incorrect factual predicate.
The record makes manifest that whereas security details involve
work that is not part of a jail officer's obligatory duties, see
Sheriff of Middlesex County v. Int'l Bhd. of Corr. Officers, 821
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N.E.2d 512, 514 (Mass. App. Ct. 2005), those details do not
transpire outside the contours of a deputy's employment
relationship with the Department.4 We explain briefly.
In a very real sense, the Department owns the security
details. It establishes the criteria for the work, maintains the
roster of eligibles, sets the rotation, assigns deputies to
particular details, provides the gear to be used, and enjoins
deputies to abide by departmental policies while working security
details. Individual deputy sheriffs are expressly forbidden from
either free-lancing or negotiating separately with outside agencies
in connection with the provision of security details. Moreover,
the Department instructs deputy sheriffs that, while working
security details, they are "emissar[ies] of the Suffolk County
Sheriff's Department."
To cinch matters, the defendant conceded at oral argument
that the Department actually pays deputy sheriffs for the work that
they do on security details. Indeed, the payments appear as line
4
In an analogous context, the Supreme Court has held that the
anti-retaliation provision of Title VII, unlike the statute's
substantive provisions, "extends beyond workplace-related or
employment-related retaliatory acts and harm." Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Because we find
that the retaliation alleged here was employment-related, we need
not consider whether a First Amendment retaliation claim may
likewise be premised on retaliatory acts that are not employment-
related.
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items on the recipient's normal paycheck.5 Under these
circumstances, we reject the defendant's claim that remuneration
for security details is a matter arising outside the employment
relationship between the Department and deputy sheriffs as a class.
The short of it is that the opportunity to work on
security details is a customary and valuable incident of a deputy
sheriff's employment. The defendant foreclosed that opportunity by
decommissioning the plaintiffs, presumably because of their
political stance. It follows that the plaintiffs have suffered an
adverse employment action and, thus, have prevailed on the first
furculum of the qualified immunity inquiry.
2. The Second Prong. The second prong of the qualified
immunity inquiry requires an objective appraisal of the state of
the law at the time of the challenged act (here, the
decommissioning). See Iacobucci v. Boulter, 193 F.3d 14, 21 (1st
Cir. 1999). The crucial question is whether the contours of the
relevant right "were sufficiently well-defined that a reasonable
official would have understood that his actions violated that
right." Hatch v. Dep't for Children, Youth & Their Families, 274
F.3d 12, 22 (1st Cir. 2001).
In answering this question, "an inquiring court must look
back in time and conduct the juridical equivalent of an
5
The Department apparently acts as a conduit for these sums
and is reimbursed by the agencies that have requested the security
details.
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archeological dig." Savard v. Rhode Island, 338 F.3d 23, 28 (1st
Cir. 2003) (en banc). The court should search the relevant
authorities both in circuit and out of circuit. Hatch, 274 F.3d at
23. In order to show that a principle is clearly established in
the pertinent sense, a plaintiff ordinarily must identify "cases of
controlling authority . . . at the time of the incident . . . [or]
a consensus of cases of persuasive authority such that a reasonable
officer could not have believed that his actions were lawful."
Wilson v. Layne, 526 U.S. 603, 617 (1999). Throughout, the court
should take care to focus on the particulars of the case at hand.
That is not to say that, like in a dog-bite case at
common law, the first bite is always free. See, e.g., Burton v.
Moorhead, (1881) 8 R. 892, 895 (Sess.) (Scot.). The qualified
immunity defense does not furnish public officials with an absolute
license to subject citizens to deprivations of constitutional
rights simply because the underlying fact pattern is new. See Hope
v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that public
officials may be deemed to "be on notice that their conduct
violates established law even in novel factual circumstances");
Limone v. Condon, 372 F.3d 39, 48 (1st Cir. 2004) (similar). In
other words, a plaintiff need not show that the conduct of which he
complains is an exact replica of conduct that previously has been
held unlawful. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
In the last analysis, a plaintiff may satisfy the second prong of
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the qualified immunity inquiry by showing that the relevant legal
principles were both specific enough and sufficiently well-
established that the unlawfulness of the defendant's conduct ought
to have been apparent. See id.; Limone, 372 F.3d at 44.
As said, the decommissioning took place in April of 2005.
At that time, it was settled beyond hope of contradiction that a
garden-variety reduction in pay constituted an adverse employment
action. See, e.g., Acosta-Orozco, 132 F.3d at 101; Jirau-Bernal,
37 F.3d at 4; Agosto-de-Feliciano, 889 F.2d at 1218 n.8. It was
equally well-settled that an employer could not deny an employee a
promotion or otherwise significantly retard the employee's
eligibility for wage increases because of the employee's exercise
of First Amendment rights. See, e.g., Rutan, 497 U.S. at 76;
McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994); Roque-
Rodríguez v. Lema Moya, 926 F.2d 103, 107 (1st Cir. 1991).
Accordingly, the case law of the Supreme Court and this
circuit alone establish that there was fair notice that a reduction
in income controlled by the employer was actionable. There is no
need to go beyond that; we accept the principle that a single out
of circuit case would not alone be enough. But we think it germane
to note that there was at least one such case decided prior to the
decommissioning that had haunting parallels to this case.6
6
A second highly analogous case, Welch, 542 F.3d at 936,
resolved by this court, was not decided until after the Sheriff
took away the plaintiffs' commissions.
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In Bass, the Tenth Circuit, following an agnate line of
reasoning, had held that a sheriff's decision to rescind the
commission of a reserve deputy constituted an adverse employment
action under what that court viewed as clearly established First
Amendment principles. See Bass, 308 F.3d at 1088. The court
rested its holding on a finding that the commission constituted a
valuable benefit, allowing its holder to effectuate arrests and
conduct investigations. Id.
The plain import of these decisions is that, by 2005, it
was clearly established that public officials could not
significantly impact an employee's compensation or earning capacity
on the basis of the employee's political affiliation. Inasmuch as
a deputy-sheriff commission offers a jail officer the potential to
garner substantial financial benefits, it was clearly established
when the defendant acted that she could not deprive a jail officer
of his commission out of political animus. Thus, the plaintiffs
have satisfied the second prong of the qualified immunity inquiry.
3. The Third Prong. The third prong of the qualified
immunity inquiry is qualitatively different from the first two
prongs. "While the first two steps . . . deal with abstract legal
principles, the final step deals with the facts of the particular
case." Hatch, 274 F.3d at 24. The inquiry at step three is
"whether it would have been clear to an objectively reasonable
official, situated similarly to a particular appellant, that the
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actions taken or omitted contravened the clearly established
right." Limone, 372 F.3d at 48. In many cases, the fact that the
relevant law is clearly established is dispositive at step three
"since a reasonably competent public official should know the law
governing his conduct." Harlow, 457 U.S. at 819.
Notwithstanding this generalization, public officials
sometimes may find safe haven at the third step of the qualified
immunity pavane. The key consideration is whether the official can
demonstrate that he has made a reasonable, though mistaken,
judgment. See, e.g., López-Quiñones v. P.R. Nat'l Guard, 526 F.3d
23, 27-28 (1st Cir. 2008); Duriex-Gauthier v. López-Nieves, 274
F.3d 4, 11 (1st Cir. 2001). So, if the defendant could reasonably
have believed that she could decommission the plaintiffs with
impunity on the basis of their political advocacy, she would be
entitled to qualified immunity.
Endeavoring to convince us on this point, the defendant
declares that she has unfettered statutory authority to commission
and decommission deputy sheriffs at her pleasure. Thus, she
reasonably believed that she had power to decommission the
plaintiffs for any reason that struck her fancy, including
political affiliation. This analysis is faulty.
We start with the proposition, urged by the defendant,
that the plaintiffs had no inalienable "right" to their
commissions. But there is another relevant proposition, not
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controverted by the defendant, that partisan political loyalty is
not a legitimate qualification for a deputy sheriff's position.
Public officials have long been on notice that, even when they have
authority to take a discretionary action for virtually any reason,
there are certain reasons — race, gender, religion, to name a few
— upon which they may not rely in exercising their discretion to
bestow or withdraw valuable government benefits. See Gratz v.
Bollinger, 539 U.S. 244, 275-76 (2003) (race); United States v.
Virginia, 518 U.S. 515, 545-46 (1996) (gender); Thomas v. Review
Bd. of Ind. Empl't Sec. Div., 450 U.S. 707, 717-18 (1981)
(religion). Under First Amendment principles, political
affiliation is such a proscribed reason. See Branti v. Finkel, 445
U.S. 507, 512 n.6 (1980); Elrod, 427 U.S. at 372-73; Cheveras
Pacheco v. Rivera González, 809 F.2d 125, 127-28 (1st Cir. 1987).
In this case, the defendant made a calculated decision to
decommission several deputy sheriffs who had opposed her bid for
office. She acted deliberately and purposefully. When this type
of executive decision violates clearly established law, it is much
harder to justify than when a public official makes a split-second
judgment in the heat of the moment. See, e.g., Estate of Bennett
v. Wainwright, 548 F.3d 155, 175-76 (1st Cir. 2008) (holding that
officers were entitled to qualified immunity on excessive force
claim because they reasonably — even if mistakenly — could have
believed that decedent posed continuing, imminent threat);
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Rodríguez-Rodríguez v. Ortiz-Vélez, 391 F.3d 36, 41 (1st Cir. 2004)
(terming "a close-call case of probable cause to arrest" an "easy
example" of a situation where qualified immunity would apply).
Given the clarity of the law in April of 2005, we do not
think that any reasonable public official could have thought that
she could divest those who opposed her political aspirations of the
opportunity to work lucrative details while leaving her political
supporters free to cash in on those opportunities. Accordingly,
the plaintiffs have satisfied the third prong of the qualified
immunity inquiry.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we dismiss the defendant's appeal in part for want of appellate
jurisdiction,7 and affirm the district court's denial of qualified
immunity on the issue that is properly before us. The case is
remanded for further proceedings consistent with this opinion.
Costs shall be taxed in favor of the plaintiffs.
So Ordered.
7
Insofar as we lack jurisdiction to reach a given issue,
nothing prevents the defendant from raising that issue at a later
stage of this litigation. See, e.g., Behrens, 516 U.S. at 309
(permitting qualified immunity defense to be raised at subsequent
stages in the same case, even where it has been previously
rejected).
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