## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 01-31469

Summary Calendar

_______________



### B RIAN 

### P AUL 

### D ESORMEAUX



### ,

Plaintiff-Appellee,

VERSUS



### S HERIFF 

### ’ S 

### O FFICE 

### C AMERON 

### P ARISH



### , ET AL



### .,

Defendants,

J AMES 

### R. S AVOIE



### ,

IN H IS C APACITY AS S HERIFF OF C AMERON P ARISH L OUISIANA

,



### Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana



### m 01-CV-685

_________________________

August 1, 20022

Before J ONES

, S MITH , and

E MILIO M. G ARZA , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

The district court found that Deputy Brian

Desormeaux had created a fact question as to

whether Sheriff James Savoie had fired him in

violation of his “c learly established” First

Amendment rights t o free expression and association. Savoie appeals, arguing t hat he

should be able to use political allegiance as an

employment criterion for hiring investigators.

Becaus e we previously have rejected this argument, we affirm the denial of Savoie’s motion for summar y judgment on the personal

capacity claims. Because the district court has

not yet entered a judgment, we lack appellate

jurisdiction over the claims against Savoie in

his official capacity.

I.

F rom 1997 to 2000, Desorm eaux worked

as one of four investigators for Savoie. Investi gators occupy one of the top six positions

among the thirty-four deputies; only the sheriff, chief deputy, an d chief investigator are

higher.

Desormeaux alleges that Savoie refused to

renew his employment in June 2000 because

he mistakenly believed that Desormeaux had

supported his opponent in an election. Desormeaux provided summary judgment evidence

to support hi s allegations: In September or

October 1999, Savoie informed a deputy that

he suspected Desormeaux was supporting his

opponent, and instructed a deputy to investigate whether that was so. Savoie learned that

one of Desormeaux’s relatives suppor ted hi s

opponent. After Desormeaux’s termination,

the sheriff informed a staff member that he had

learne d t hat Desormeaux voted for his opponent. Savoie never gave Desormeaux a reason for his discharge. Desormeaux avers that

he did not actually support Savoie or hi s opponent.

Desormeaux sued under 42 U.S.C. § 1983,

alleging that the discharge violated his First

Amendment rights to freedom of speech and

association; he also plead ed related state law

claims. The complaint originally named the

“Cameron Parish Sher iff’s Department” as a

defendant, but the district court found that no

such entity existed under Louisiana law and

dismissed the department as a defendant.

Desormeaux amended his complaint to clarify

that he was suing Savoie in his individual and

official capacities.

Savoie moved f

or summary judgment, seeking dismissal of the federal claims on the basis

of qualified immunit y. He sought dismissal of

the claims against him in his o ffic i al capacity

because no cou nt erpart governmental entity

exists. The court denied summary judgment,

and Savoie appeals.

II.

Savoie argues that Elrod v. Burns

, 427

U.S. 347 (1976), and Branti v. F inkel , 445

U.S. 507 (198 0), set forth the exclusive test

for patronage discharg es. He avers that the

Supreme Court’s public employee expression

cases, most notably Connic k v. Myers , 461

U.S. 138 (1983), and Pickering v. Board of

Educ.

, 391 U.S. 563 ( 1968), have no relevance. He further claims that E lrod and

Branti permit elected o fficials to use political

affiliat ion and loyalty as employme n t criteria * Pu rsuant to 5 T H C IR

. R. 47.5, the court has

determined that thi s opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.3

for employees who make impo rtant policy

decisions or handle confidentia l information.

See Branti , 445 U.S. at 518.

A.

Determining whether an official should receive qualif

ied immunity requires answering

three questions. First, did the plaintiff allege

the violation of a constitutional right? W ilson

v. Layne

, 526 U.S. 603, 609 (1999). Second,

did the public official brea ch “clearly

established statutory or constitutional rights of

which a reasonable pers o n would have

known?” H

arlow v. Fitzgerald, 457 U.S. 800,

818 (1982). The applicable law must be clearly established when the allegedly ac t ionable

conduct was taken. H

arlow

, 457 U.S. at 818.

Finally, “we must determine wh ether . . . the

record shows that the violation occurred, or at

least gives rise to a genuine issue of material

fact as to whether the defe n dant actually engaged in the conduct that violated the clearlyestablishe d right.” K

err v. Lyford

, 171 F.3d

330, 339 (5th Cir. 1999) (quotati on and

citation omitted).

For purpose s of this appeal, Savoie

concedes Desormeaux’s factual claims. We

review the remaining legal questions de novo

. Geter v. Fortenberry , 882 F.2d 167, 169 (5th

Cir. 1989).

B.

In a series of three cases, the Supreme

Court has outlined the proper framework for

ana l yzing a public employee’s claim that he

was fired for his political views. In E lrod

, a

fractured Court held that an Illino is sh eriff

could not fire non-civil service employees for

failing to support him in a bid for reelection.

427 U.S. at 367 (Brennan, J.) (plurality). Just ice Stewart’s concurrence emphasized that

the employees did not occupy a policymaking position or routinely review confidential inf o rmation. I

d. at 374-75 (Stewart, J.,

concurring).

Four years later, a majority agreed on more

specific standards. In B ranti

, 445 U.S. at 519,

the Court refined Justice S t ewart’s hint of an

exception permitting elected o fficials to

dischar ge public employees for their political

beliefs, explaining that the label “policymaker”

or “confidential” should not dete rmine whet her

political affiliat

ion is a necessary job

requirement. I

d. “[R]ather t he question is

whet her the hiring authority can demonstrate

that party affiliat

ion is an appropriate

requirement for the effective perform ance of

the public office involved.” Id.

In McBee v. Jim Hogg County, Tex.

, 730

F.2d 1009 (1984) (en banc), we laid out rules

fo r deciding political patronage cases in t he

wake of Elrod and Branti

. We explained that

the two cases represented a special subset of

the Supreme Court cases regulating a public

employee’s discharge for speech on matters of

public concern. I

d. a t 1014. We opined that

Elrod and Branti we r e especially easy public

official speech cases that required little or no

weighing under the traditional test. I d. The

employees were loyal and effective, were discharged for private and abstract political

views, and did not actively campaign. Id.

The description of Elrod ’s and Branti ’s

implications for pure a sso ciation cases,

however, was only dictum

. In M cBee

, because

the deputy sheriffs had actively camp aigned

against their emplo yer, i d. at 1015, we

explained that we would em plo y the flexible

Connick-Pickering test laid out for public employee expression cases, id. at 1016. We will

consider whether the speech is on a m atter of

“public concern,” the need for a close working4

relationship, the disruptiveness of the activity,

and the appearance of insu bordi nati on or

hostility. Id. at 1017. 1

In O’Hare Truck Serv., Inc. v. City of

Northlake

, 518 U.S. 71 2, 726 (1996), the

Court tracked the distinction betwe e n mere

affiliat ion and political expression and held that

a mayor could not c o nstitutionally terminate

the city ’s referrals to a private towing company because the company had refused to

donate to his campaign and actively supported

his opponent. For the first time, the Court addressed the complex relationship between the

tests outli ned for firing a public employee

based on political affiliation and political expression. I

d. at 719. The Court explained that

where the case solely involves an association or affiliat ion claim, Elrod and Branti control.

The Court ruled, however, that in mixed cases

of retaliat i on based on both affiliat ion and

expression, courts will almost inevitably have

to apply the test for public employees’

expression. Id.

Savoie argues that O’Hare supplanted the

test we described in McBee

. Savoie, however,

fa ils t o explain why any minor theoretical

differe n ces between McBee ’s and O’Hare ’s

respective dictum describing the requirements

for pure association

claims should affect the

outcom e in this case. Desormeaux presented

summary judgment evide nce that Savoie believed him to be activ ely supporting the

opponent. Savoie discriminated against Deso rmeaux on the basis of his perceived

associations and expressions. 2 We apply the

Connick-Pickering balancing te s t to mixed

cases. O ’Hare

, 518 U.S. at 719; supra note 1.

Savoie concedes that, at this stage in t he

proceedings, Desormeaux has created a fact

question about the unconstitutionality of his

disch arge under the C onnick-Pickering

balancing test.

C.

Savoie argues that he lawfully fired Desormeaux because investigators fall within the

Elrod-Branti exception for public employees

in policymaking positions. In M atherne v.

Wilson

, 851 F.2d 752, 761 (5th Cir. 1988), we

held that Louisiana sheriffs could not

constit ut ionally discharge investigators for 1 We have consistently performed the ConnickPickering balancing where public employees have

both belonged to opposing political parties and

actively expressed their support for opposing candidates. K insey v. Salado Indep. Sch. Dist.

, 950

F.2d 988, 990, 995-96 (5 th Cir. 1992) (en banc)

(explaining that public employee had published

letter in support of candidate and spoken to many

c itizens about his support, and describing E lrodBranti ’ s exception as interrelated with C onnickPickering analysis); Anderson v. Pasadena Indep.

Sch. Dist.

, 184 F.3d 439, 443 (5th Cir. 1999)

(“When a plaintiff’s claims arise under both

freedom of speech and freedom of association . . .

the freedom of association cases are analyzed under the same Pickering balancing test usedto determine the succ ess of the freedom of speech

claims.”); Brady v. Fort Bend County

, 1 45 F.3d

691, 704-05 (5th Cir. 1998) (campaigning by deputy sheriffs placed case in the middle of the spectrum and required explicit Connick-Pickering balancing); Click v. Copeland

, 970 F.2d 106, 112-13

(5th Cir. 1992 ) (announcing candidacy for sheriff’s

office re q uires application of Connick-Pickering

balancing test). 2 Precedent supports classifying t he case according to the elected official’s perceptions rather

than to the plaintiff’s actual activity. Branti

, 445

U.S. at 509 n.4 (noting that one of the plaintiffs

had changed his political party to coincide with the

elected officials but basing decision on the elected

officials’ perception).5

political reasons. In M

atherne

, as in this case,

the investigator had superiors in the chain of

command, t he sheriff offered zero evidence

that the investigator’s po l itical opinions

skewed his professiona l judgment, and the

sheriff did not argue that the investigato r ’s

political opinions impaire d his working

relationships. Id. 3

Savoie does not explain how O’Hare would

change the outcom e in Matherne

, and he does

not distinguish Matherne

. M atherne binds us

and compels the conclusion that Desormeaux

has created a fact question about whether his

First Amendment rights to association and

expression were violated.

D.

Finally, we consider whether Desormeaux’s

rights were “clearly established” in June 2000.

Savoie argues that although the Fifth Circuit

had repeatedly classified deputy sheriffs as

falling ou t side the Elrod-Branti exception,

other circuits had divided over the question. 4 He argues that the dissen t ing views of other

federal circuits are enough to make a right not

“clearly established.”

Savoie is incorrect; the divergent views of

the other courts of appeals do not affect

established law in this ci rcuit, and a public

o fficial cannot use them, standing alone, to

establi s h the qualified immunit y defense. 5 In

June 2000, our cases “clearly established” that

a Louisiana sheriff could not dis charge an investigator for political reasons.

II.

Savoie argues that the distri ct court erred

by refusing to dismi ss the claims asserted

against him in his official capacity. We have a

duty to consider our appellate jur isdiction

before reaching the merits of t he district

court’s refusal to dismiss the official capacity

claims. S teel Co. v. Citizens for a Be tter

Env’t , 523 U.S. 83, 94-95 (1998).

3 See Brady

, 145 F.3d at 709 (finding, in mixed

case, that Texas deputy sheriffs did not fall within

Elrod- B ranti exception); Click

, 970 F.2d at 112

(finding that Texas deputy sheriffs who ran against

sheriff could not fall within Elrod-Branti exception

because there was no proof candida cy had

interfered with their job); Barrett v. Thomas

, 649

F.2d 1193, 1200 (5th Cir. Unit A July 1981)

(same).

4 Compare, e.g., Jenkins v. Medford

, 119 F.3d

1156, 1162 (4th Cir. 1997) (en banc) (classifying

poli tical allegiance as an appropriate requirement

because deputies play such a critical role in implementing sheriff’s policies); and Upton v.

Thom pson , 930 F.2d 1209, 1218 (7th Cir. 1991)

(h olding that sheriff may consider politics when

deciding whether to hire or fire chief deputy), with

(continued...) 4 (...continued)

Burns v. County of Cambria

, 971 F.2d 1015, 1023

(3d Cir. 1992) (finding deputy sheriffs may not be

discharged for political beliefs without some proof

that they had significant discretion or their political

views affected their decisionmaking).

5 Brady

, 58 F.3d at 175 n.11 (“While it seems

pecu liar to consider an official action held lawful

by one federal circui t court to be ‘clearly’

unconstitutional by any ‘objective’ criteria, such a

result reinforces the finality of circuit law, albeit at

the expense of immunity in some cases.”); Boddie

v. City of Columbus, Mis s. , 989 F.2d 745, 748

(5th Cir. 1993) (“Our inquiry ends, if we find from

examining the decisions of the Supreme Court and

our own decisions that the law was clearly

established in this circuit.”). See Click

, 970 F.2d

at 110-11 (holding “[t]he law was established

clearly enough in this circui t” despite a conflict

with two circuits).6

The collateral order doctrine creates

appellate jurisdiction over a deni a l of official

i m m unity, because the defendant’s immunity to

suit is effectively sacrificed if the case goes to

trial. M itchell v. Forsyth

, 472 U.S. 511, 526-

28 (1985). To fall within the scope of t he

collateral order doctrine the order “must conclusively determine the disputed question, resolve an importan t question completely

separate from the merits of the action, and be

effectively unreviewable on appeal from a final

judgment.” C

oopers & Lyb rand v. Livesay

, 437 U.S. 463, 468 (1978).

The collateral order doctrine does not extend to official capacity claims. The Supreme

Court has explai ned that the collateral order

does not enc ompass the district court’s

rejection of a local government’s def ense to

liabilit y. S wint v. Chambers County Comm’n

, 514 U.S. 35, 43 (1995 ). Local governments

do not have immunit

y from suit, and appellate

courts may ad equately review the denial of

summary judgment after a full-blown trial. I d.

Official capacity claims really create liabilit y

for the local government, and, in the wake of

Swint, we have held t hat we lack jurisdiction

over “official capacity” c laims against a

Louisiana sheriff before the district court has

entered a final judgment. 6 The denial of summary judgment based on

o fficial, qualified immunit

y is AFFIRMED, and

the appeal in all other respects is DISMISSED

for want of appellate jurisdiction.

6 Jacobs v. W. Feliciana Sheriff’s Dep’t , 228

F.3d 388, 392 (5th Cir. 2000) (“And since a suit

against Sheriff Daniel in his officia l capacity is a

suit against the Parish, we ma y not review the

Magistrat e Judge’s denial of summary judgment

regarding Sheriff Daniel in his official capacity.”);

Burge v. Parish of St. Tamman y , 187 F.3d 452,

476 (5th Cir. 1999) (“The district court’s order

denying the Sheriff ’ s motion for summary

judgment in the ‘official capacity’ suit does not

satisfy C ohen’ s requirement that the decision be

effectively unreviewable after final judgment.”).