*

Honorable Edward Rafeedie, Senior U.S. District Judge for the Central District of California,

sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-8553.

Herbert E. BRETT; David Hannah; Wayne D. Hattaway; Jerry O. Hudson, PlaintiffsAppellants,

v.

JEFFERSON COUNTY, GEORGIA; Charles Gary Hutchins, individually and in his official

capacity as Sheriff, Jefferson County, Defendants-Appellees.

Oct. 3, 1997.

Appeal from the United States District Court for the Southern District of Georgia. (No. CV193-144),

Dudley H. Bowen, Jr., Judge.

Before COX and BIRCH, Circuit Judges, and RAFEEDIE*

, Senior District Judge.

BIRCH, Circuit Judge:

Proceeding under 42 U.S.C. § 1983 and 42 U.S.C. § 300bb-7, four former deputy sheriffs,

whom a newly elected sheriff did not reappoint because of their political activities, appeal the

district court's grant of summary judgment to the county and sheriff. The deputy sheriffs contend

that the sheriff's failure to reappoint them violated their free speech and procedural due process

rights under the First, Fifth, and Fourteenth Amendments. They also allege that the district court

erroneously denied fines and attorney's fees based on the county's failure to offer the deputy sheriffs

continued medical coverage as required under the Public Health Service Act, 42 U.S.C. § 300bb-6.

We vacate the summary judgment on the First Amendment claim, affirm the summary judgment on

the additional claims, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Herbert E. Brett, David Hannah, Wayne D. Hattaway, and Jerry O. Hudson were deputy

sheriffs in Jefferson County, Georgia when Zollie Compton, who had been the sheriff of Jefferson

County for more than thirty years, chose not to seek reelection in 1992. Prior to that decision,

Compton had taken steps to ensure that his employees fell under the county's civil service system.
 1

No record of the request was present in the minutes of the meeting; however, the record

shows that the minutes of the meetings generally were not comprehensive. There is a dispute in

the record as to whether the board officially or formally adopted the civil service system as

applied to the sheriff's department. 

 2Hudson and Hattaway announced their candidacies and tendered their resignations. By

resolution of the Board of Commissioners, however, the deputy sheriffs were granted leaves of

absence without pay during their campaigns. 

 3

Hattaway returned to work after losing the primary, and Hudson returned after losing the

run-off election. 

2

Specifically, he appeared at a meeting of the Jefferson County Board of Commissioners in 1989 and

requested that his employees be subject to the Jefferson County personnel policies, which provide

that regular county employees can be terminated only for cause.1 Compton subsequently gave the

deputy sheriffs documents showing that they were subject to the county personnel policies and

procedures.

When Compton announced his plans not to seek reelection in the 1992 election, several

candidates entered the race for sheriff. The candidates who ran in the Democratic primary included

Charles Gary Hutchins and deputy sheriffs Hudson and Hattaway.2 Because there was no majority

winner in the primary, a runoff election between Hudson and Hutchins was held.3 Hutchins, who

prevailed in the runoff election, subsequently was elected sheriff in the general election.

Hannah and Brett supported Hudson's campaign in the primary and runoff elections. While

they were off-duty, they talked with voters about Hudson's qualifications and wore clothing

endorsing his candidacy. Brett, while off-duty, distributed campaign literature and drove a personal

car with signs supporting Hudson. After Hudson's defeat in the runoff election, a deputy that

supported Hutchins in the general election told Brett and Hannah that they should place Hutchins'

campaign signs in their yards to ensure their continued employment. Neither Brett, Hannah,

Hattaway, nor Hudson posted campaign signs in their yards for the general election.

Hannah and Hudson approached Hutchins after the runoff election and asked whether

Hutchins would reappoint them if he were elected. Based on this conversation, Brett, Hannah,

Hattaway, and Hudson believed that any further attempts to apply for positions under Hutchins
 4

Of those deputy sheriffs who supported Hudson and were retained, all but one posted

Hutchins' campaign signs in their yards prior to the general election. The one deputy who

supported Hudson but was reappointed without posting a campaign sign, however, lived in a

remote location and actively campaigned for Hutchins in the general election. 

 5There is no dispute that the former deputy sheriffs were not afforded pre- or post-termination

hearings. They filed grievances with the Board of Commissioners in accordance with the

Jefferson County personnel policies and procedures. Hutchins did not attend the grievance

proceeding and no action was taken by the Board. 

 6

Hutchins denies that his decision not to reappoint the appellants was based solely on their

opposition to his election. Rather, he contends that the speech and actions of Brett, Hannah,

Hattaway, and Hudson during the campaign were disparaging and destructive. The allegations

of negative campaigning and personal attacks on Hutchins, however, are disputed in the record. 

In addition, although Hutchins offers additional reasons, such as substance abuse and illegal

activity, for his decision not to reappoint the former deputy sheriffs, the underlying facts are in

dispute. 

 7Hudson claims that, because he developed a severe, chronic illness, he was unable to obtain

insurance independently and that he had extensive medical costs during the period following his

termination. He contends that he wrote the county approximately six months after his

termination and requested information about extending his medical coverage. Because the

county failed to inform him of his rights to extend his coverage and failed to respond to his

letter, he asserts that he suffered stress and anxiety which exacerbated his illness. 

3

would be futile. Hutchins retained several deputy sheriffs who served under Compton and supported

Hudson in the primary and runoff elections.4 After the general election, however, Hutchins informed

Brett, Hannah, Hattaway, and Hudson that they would no longer be employed as deputy sheriffs

when he took office.5 Hutchins concedes that his decision not to reappoint them was based on their

speech and actions during the election.6

When Brett, Hannah, Hattaway, and Hudson were terminated from county employment, they

were not informed of their right to continued coverage under the group health care plan. The county

concedes that it was required to notify timely in writing the former deputy sheriffs of their rights to

continued coverage upon payment of the proper premiums. The county, however, did not inform

them that they were eligible for coverage, retroactive to the date of their termination, until after the

former deputy sheriffs filed this action. Only Hudson chose to pay the premiums and continue the

health insurance coverage.7
 8

The former deputy sheriffs also argue that Hutchins was not entitled to qualified immunity

because his failure to reappoint the deputy sheriffs violated clearly established constitutional

rights. The district court did not address the qualified immunity issue and, because we remand to

the district court for additional fact finding relevant to the First Amendment issue, we do not

reach this issue here. 

4

The former deputy sheriffs filed this action and alleged that Jefferson County and Hutchins

violated their rights under the First, Fifth, and Fourteenth Amendments to the United States

Constitution. They also sought fines and attorney's fees incurred when the county failed to offer,

as required by 42 U.S.C. § 300bb-6, extended health care coverage after their employment

termination. Jefferson County and Hutchins moved for summary judgment. The district court, in

a deferred ruling, granted the motion for summary judgment because it determined that the former

deputy sheriffs had no property rights in their jobs, which terminated automatically at the end of

Compton's term, and that the county's delay in notifying them of their rights to extended health care

coverage did not cause harm to the former deputy sheriffs. In view of its judgment on the

substantive claims, the district court did not reach the issue of qualified immunity as raised by

Hutchins. Brett, Hannah, Hattaway, and Hudson appeal the summary judgment.

II. DISCUSSION

On appeal, the former deputy sheriffs argue that the district court erred in granting summary

judgment because (1) their First Amendment rights were violated when they were denied

reappointment because of political patronage, (2) they were entitled to procedural due process in

view of their property interests in their jobs, and (3) they were entitled to fines and attorney's fees

because they were injured by the delay in notification of their rights to continued health care

coverage.8

 We review a grant of summary judgment de novo and view the facts in the light most

favorable to the nonmoving party. Jaques v. Kendrick, 43 F.3d 628, 630 (11th Cir.1995). The

movant is entitled to summary judgment only when there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); United States v.

Route 2, Box 472, 136 Acres More or Less, 60 F.3d 1523, 1526 (11th Cir.1995).

A. First Amendment Rights
 9

Jefferson County and Hutchins argue that the deputy sheriffs should be barred from raising

the First Amendment claims because they failed to apply for reappointment. Under Terry v.

Cook, 866 F.2d 373 (11th Cir.1989), however, the failure to apply is irrelevant to a First

Amendment claim if the application would have been futile. Id. at 379-79. The futility of any

applications by the former deputy sheriffs is disputed in the record and, thus, cannot support the

summary judgment. The finder of fact must make such a determination on remand. 

5

 The district court opined that, because the term of the deputy sheriffs expired when

Compton left office, Hutchins could have chosen not to reappoint them for any reason or for no

reason at all. Upon finding that the newly elected sheriff had an absolute right to appoint whomever

he chose, the district court did not scrutinize the former deputy sheriffs' First Amendment claim.

The district court, however, was plainly in error. In Perry v. Sindermann, 408 U.S. 593, 92 S.Ct.

2694, 33 L.Ed.2d 570 (1972), the Supreme Court stated that

even though a person has no "right" to a valuable government benefit and even though the

government may deny him the benefit for any number of reasons, there are some reasons

upon which the government may not rely. It may not deny a benefit to a person on a basis

that infringes his constitutionally protected interests—especially, his interest in free speech.

Id. at 597, 92 S.Ct. at 2697. Furthermore, the Court noted that the principle applies to denials of

public employment, not just terminations, and ruled that the lack of a contractual "right" to

re-employment during the next academic year was immaterial to a college professor's free speech

claim. Id. at 597-98, 92 S Ct. at 2697-98. Thus, in view of clear Supreme Court precedent, the

district court erred in deciding that no First Amendment analysis was warranted because the former

deputy sheriffs had no right to re-employment.

 Although the parties recognize that Supreme Court precedent clearly establishes that

Hutchins could not refuse to reappoint deputy sheriffs for unconstitutional reasons, they disagree

on the proper analysis that the court should apply on remand.9

 Two related lines of cases have

evolved—"those involving employee expression and those involving "raw political patronage.' "

Terry v. Cook, 866 F.2d 373, 375 (11th Cir.1989). In cases involving employee expression, the

balancing test stated in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d

811 (1968), requires the court to balance "the interest 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
 10We note that "[o]ur circuit has not limited political patronage cases strictly to those cases

involving party affiliation, but has recognized that the Elrod /Branti analysis applies whenever

public employment is "conditioned upon political allegiance and not upon the content of

expression of political beliefs.' " Morris v. Crow, 117 F.3d 449, 456, (11th Cir.1997)(quoting

Terry, 866 F.2d at 377). 

 11Jefferson County and Hutchins do not challenge the point that the speech of the former

deputy sheriffs related to matters of public concern as it related to the election of the sheriff of

Jefferson County. 

6

efficiency of the public services it performs through its employees." Id. at 568, 88 S.Ct. at 1734-35.

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court

articulated the standard to be applied in political patronage cases: "[C]onditioning the retention of

public employment on the employee's support of the in-party ... must further some vital government

end by a means that is least restrictive of freedom of belief and association in achieving that end,

and the benefit gained must outweigh the loss of constitutionally protected rights." Id. at 363, 96

S.Ct. at 2685. Conditioning employment on political patronage, however, may be constitutionally

acceptable if the "hiring authority can demonstrate that party affiliation is an appropriate

requirement for the effective performance of the public office involved." Branti v. Finkel, 445 U.S.

507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980). Both the Pickering and the Elrod-Branti

tests are balancing tests. The Elrod-Branti test, however, "does not require open-ended inquiries

into specific work-place relationships ... because the public employee's interests and the public

employer's interests are essentially fixed and unvarying in the raw political patronage context."

Stough v. Gallagher, 967 F.2d 1523, 1527 (11th Cir.1992).

The former deputy sheriffs argue that the Elrod-Branti test should apply. They contend that

Hutchins failed to reappoint them solely because they did not support Hutchins in his campaign for

sheriff.10 Jefferson County and Hutchins, however, argue that the Pickering standard is appropriate

because Hutchins chose not to reappoint the deputy sheriffs due to their negative campaigning and

disparaging remarks.11 Whether the former deputy sheriffs engaged in negative campaigning or

made disparaging remarks is disputed in the record.
 12Once the district court decides which test to apply, the qualified immunity issue also can be

decided. 

7

The district court must decide on remand which balancing test to apply, Pickering or ElrodBranti. Choosing the proper test, however, turns on certain predicate factual issues which are in

dispute: the basis for Hutchins' failure to rehire Brett, Hannah, Hattaway, and Hudson and the

nature of the political activity in which the former deputy sheriffs participated. Thus, we remand

for additional fact finding so that the district court can decide which test properly to apply in the

First Amendment analysis.12

B. Right to Procedural Due Process

 No due process hearing was provided to Brett, Hannah, Hattaway, or Hudson upon Hutchins

failure to reappoint them as deputy sheriffs. The former deputy sheriffs, thus, argue that they were

denied their constitutional right to procedural due process. To establish such a claim, the former

deputy sheriffs must show that they had a protected property interest in their employment. See

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548

(1972). "State law determines whether a public employee has a property interest in his or her job."

Warren v. Crawford, 927 F.2d 559, 562 (11th Cir.1991). Under Georgia law, a public employee

generally has no protected property interest unless he or she is employed under a civil service

system, which allows termination only for cause. Id.

 The district court opined that the former deputy sheriffs had no protected property interest

under Georgia law because Compton's efforts to place the deputy sheriffs under the civil service

system failed to satisfy the statutory requirements of O.C.G.A. § 36-1-21(b). We agree. Sheriffs

have statutory authority to appoint deputy sheriffs at their discretion. O.C.G.A. § 15-16-23. Section

36-1-21(b), however, provides a means for extending the civil service system to departments, like

the Jefferson County Sheriff's Department, which are subject to the jurisdiction of elected county

officers. Specifically, section 36-1-21(b) requires that (1) the elected county officer apply to the

proper governing authority in writing for such an extension and (2) the governing authority formally
 13The record is devoid of any evidence that the Board of Commissioners passed a formal

resolution or ordinance to make the deputy sheriffs subject to the civil service system. The

former deputy sheriffs, however, contend that the minutes of the meetings of the Board of

Commissioners are not complete, and the parties acted as if the resolution or ordinance had been

passed. 

8

provide by ordinance or resolution that the positions be subject to the county civil service system.

There is no evidence in the record that Compton made a written application to the Board of

Commissioners; rather, the former deputy sheriffs allege that Compton made the request orally at

a meeting of the Board. Thus, even if the Board passed the necessary resolution or ordinance,13 the

formal requirements of section 36-1-21(b) were not satisfied and the deputy sheriffs were not subject

to the Jefferson County civil service system.

 The former deputy sheriffs contend that, even if the statutory requirements were not

satisfied, a de facto civil service system existed based on Compton's adoption and distribution of

departmental rules and regulations that integrated by reference the county civil service system.

While protected property interests in continued employment can arise from the policies and practices

of an institution, Perry, 408 U.S. at 602-03, 92 S.Ct. at 2700, a property interest contrary to state law

cannot arise by informal custom, Warren, 927 F.2d at 564. In the absence of satisfaction of the

requirements of section 36-1-21(b), the deputy sheriffs were at-will employees with no protected

property interest in continued employment. Thus, we affirm the summary judgment on the former

deputy sheriffs' procedural due process claim.

C. Fines and Attorney's Fees

 The former deputy sheriffs contend that the district court erred by denying their request for

fines and attorney's fees based on Jefferson County's failure to comply with the Consolidated

Omnibus Budget Reconciliation Act ("COBRA") notification requirements set forth in the Public

Health Services Act ("PHSA"), 42 U.S.C. § 300bb-6. The COBRA amendments of the PHSA

provide that state and local governments must offer to terminated public employees continued health

plan coverage for a specified time following their termination. 42 U.S.C. § 300bb-1 to § 300bb-3.

Furthermore, the PHSA requires that the plan administrator, within fourteen days of his notification
9

of the employee's termination, notify the terminated employee in writing of the employee's right to

elect to continue the coverage. 42 U.S.C. § 300bb-6. The county failed to notify the former deputy

sheriffs of their rights to continued coverage until after the former deputy sheriffs filed this action,

at which time the county offered each former deputy sheriff the proper coverage. The former deputy

sheriffs contend that they are entitled to fines and attorney's fees because 42 U.S.C. § 300bb-7

allows an individual who is aggrieved by the government's failure to comply with the requirements

of the PHSA to "bring an action for appropriate equitable relief."

COBRA amended both the PHSA and the Employment Retirement Income Security Act

("ERISA") and included similar coverage and notification provisions in each act. Williams v. New

Castle County, 970 F.2d 1260, 1264 (3d Cir.1992). The COBRA provisions of ERISA and PHSA

represent parallel statutory schemes. ERISA, however, excludes public employees covered by

government health plans from ERISA's employee benefit plan provisions, 29 U.S.C. § 1003(b)(1),

whereas the PHSA applies only to such employees. The two acts can be further distinguished

because ERISA provides broader relief to aggrieved private employees than the PHSA provides to

similarly situated public employees. Mansfield v. Chicago Park Dist. Group Plan, 946 F.Supp. 586,

591 (N.D.Ill.1996). For example, ERISA not only provides for "appropriate equitable relief," 29

U.S.C. § 1132(a)(3), but also explicitly provides for the recovery of fines and attorney's fees, 29

U.S.C. §§ 1132(c) and (g). The PHSA contains no provisions regarding the recovery of fines or

attorney's fees and instead limits relief to "appropriate equitable relief." 29 U.S.C. § 1003(b)(1).

The former deputy sheriffs would have us read the phrase "appropriate equitable relief" in the

COBRA provisions of the PHSA to include fines and attorney's fees. We decline to do so in view

of Congress's decision that ERISA should provide more extensive remedies than the PHSA. Rather,

we determine that the PHSA and ERISA, viewed together, show that Congress would have included

provisions for fines and attorney's fees in the PHSA had it intended that such relief should be
 14Interpreting the term "appropriate equitable relief" narrowly to include those types of relief

traditionally available at equity, like injunction, declaratory relief, and restitution, is consistent

with the interpretation by the Supreme Court of the same phrase in ERISA. See Mertens v.

Hewitt Assocs., 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)(interpreting the relief

available under 29 U.S.C. § 1132(a)(3)). 

 15Because we hold that fines and attorney's fees are not within the scope of "appropriate

equitable relief" under the PHSA, we need not decide whether the former deputy sheriffs, and

Hudson in particular, were injured by the county's failure to timely notify the former deputy

sheriffs of their right to continued coverage. 

10

available to public employees.14 Thus, we affirm the district court's grant of summary judgment on

the former deputy sheriffs' COBRA claim.15

III. CONCLUSION

In this appeal of summary judgment, Brett, Hannah, Hattaway, and Hudson, former deputy

sheriffs of Jefferson County, Georgia, contend that the county and Hutchins, as the newly elected

sheriff, violated their constitutional rights by failing to reappoint them because of their political

activities and by failing to provide pre- or post-termination hearings. They further contend that they

are entitled to fines and attorney's fees since the county failed to timely notify them, as required by

42 U.S.C. § 300bb-6, of their right to continued health plan coverage. We determine that (1)

because Hutchins could not refuse to reappoint the deputy sheriffs for unconstitutional reasons, the

district court erred in failing to analyze the former deputy sheriffs' First Amendment claim, (2) under

Georgia law, the former deputy sheriffs had no protected property interest in continued employment

and were not entitled to procedural due process, and (3) the COBRA provisions of the PHSA, in

contrast to the COBRA provisions of ERISA, provide only for "appropriate equitable relief" and not

for the award of fines and attorney's fees. Thus, we AFFIRM the summary judgment on the due

process claim and the COBRA claim but VACATE the summary judgment on the First Amendment

claim and REMAND for further proceedings consistent with this opinion.