IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60829

Summary Calendar

PATRICIA LEE,

Plaintiff–Appellant

v.

WASHINGTON COUNTY, A Mississippi corporate body politic and its Board

of Supervisors,

Defendant–Appellee

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No. 4:10-CV-16

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff–Appellant Patricia Lee was elected as the Tax Collector for

Washington County, Mississippi in 2003 and was reelected in 2007. On

December 15, 2007, a Washington County grand jury indicted Lee for defrauding

the State of Mississippi. Subsequently, on December 19, the

Defendant–Appellee Washington County Board of Supervisors (“the Board”)

passed a resolution requesting that Mississippi Governor Haley Barbour

United States Court of Appeals

Fifth Circuit

F I L E D

April 27, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 11-60829 Document: 00511837862 Page: 1 Date Filed: 04/27/2012
No. 11-20117

suspend Lee from her tax collector position, pending resolution of the criminal

charges, and that he appoint a substitute for the interim. Barbour did so by

executive order on December 26, but appointed an interim tax collector different

from the one requested by the Board. The next day, the Board passed a

resolution accepting Barbour’s suspension of Lee.

Lee was tried twice for the fraud charges. The first trial resulted in a

mistrial due to a hung jury, and after the second trial, on March 4, 2009, a jury

acquitted Lee of all charges. On March 11, pursuant to a request by the Board,

Barbour reinstated Lee as Washington County Tax Collector. Lee then

requested that the Board reimburse her for back wages and benefits from her

period of suspension as well as attorneys’ fees incurred in her criminal defense.

Lee’s request was refused by the Board. 

Lee then filed the present action in the United States District Court for

the Northern District of Mississippi, alleging violations of her procedural due

process rights. Both parties filed for summary judgment, and the district court

held that Lee did not have a property interest in her employment as tax collector

and therefore could not recover. Lee filed a motion for reconsideration. On

reconsideration, the district court held, contrary to its previous decision, that

although Lee did have a property interest in her continued employment, she

failed to establish a violation of her due process rights. 

We review a district court’s judgment on cross-motions for summary

judgment de novo, applying the same standards as the district court. Morgan

v. Plano Indep. Sch. Dist., 589 F.3d 740, 745 (5th Cir. 2009). In so doing, we

address each party’s motion independently, viewing the evidence and inferences

in the light most favorable to the nonmoving party. Id. Summary judgment is

appropriate where the movant shows that there is no genuine issue of material

fact and that the movant is entitled to judgment as a matter of law. Id.; Fed. R.

Civ. P. 56(a). We may affirm summary judgment on any basis supported by the

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No. 11-20117

record. QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 443 (5th Cir.

2009).

Plaintiffs claiming violations of procedural due process must demonstrate

that the state has deprived them of a liberty or property interest; if such an

interest is established, “we must determine whether the procedures relative to

that deprivation were constitutionally sufficient.” Wilson v. Birnberg, 667 F.3d

591, 601 (5th Cir. 2012) (internal quotation marks omitted). Property interests

protected under the Due Process Clause are not created by the Constitution, but

rather by existing rules or understandings that stem from independent sources,

such as state law. Hampton Nat’l Sur., LLC v. Tunica Cnty., Miss., 543 F.3d

221, 225 (5th Cir. 2008) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 577 (1972)).

Even assuming, as the district court held on reconsideration, that Lee had

a property interest in her continued employment as tax collector, she cannot

recover because she cannot establish any property interest that the Board

deprived her of. Mississippi law provides: “The salary of assessors and collectors

of the various counties is fixed as full compensation for their services as county

assessors or tax collectors . . . ” Miss. Code § 25-3-3(2). Once Governor Barbour

(a non-party) suspended Lee, she was no longer performing the “services . . . [of

a] tax collector,” which is what is required to receive a salary. Therefore, she

cannot demonstrate any property interest in her salary post-suspension. Cf.

Gilbert v. Homar, 520 U.S. 924, 932 (1997) (“If [her] services to the government

are no longer useful once the felony charge has been filed, the Constitution does

not require the government to bear the added expense of hiring a replacement

while still paying [her].”); see also In re John H. McWilliams, Esq., No. 2003-572,

2003 WL 22536086, at *1 (Op. Miss. Att’y Gen. Oct. 24, 2003).

Accordingly, we AFFIRM the district court’s grant of summary judgment

to the Board.

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Case: 11-60829 Document: 00511837862 Page: 3 Date Filed: 04/27/2012