IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 01-31469

Summary Calendar

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BRIAN PAUL DESORMEAUX,

Plaintiff-Appellee,

VERSUS

SHERIFF’S OFFICE CAMERON PARISH, ET AL.,

Defendants,

JAMES R. SAVOIE,

IN HIS CAPACITY AS SHERIFF OF CAMERON PARISH LOUISIANA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

m 01-CV-685

_________________________

August 1, 2002
2

Before JONES, SMITH, and

EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, 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 “clearly established” First

Amendment rights to free expression and association. Savoie appeals, arguing that he

should be able to use political allegiance as an

employment criterion for hiring investigators.

Because we previously have rejected this argument, we affirm the denial of Savoie’s motion for summary 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.

From 1997 to 2000, Desormeaux worked

as one of four investigatorsfor Savoie. Investigators occupy one of the top six positions

among the thirty-four deputies; only the sheriff, chief deputy, and 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 his 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 supported his

opponent. After Desormeaux’s termination,

the sheriff informed a staffmember that he had

learned that Desormeaux voted for his opponent. Savoie never gave Desormeaux a reason for his discharge. Desormeaux avers that

he did not actually support Savoie or his 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 pleaded related state law

claims. The complaint originally named the

“Cameron Parish Sheriff’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.

Savoiemoved for summary judgment, seeking dismissal of the federal claims on the basis

of qualified immunity. He sought dismissal of

the claims against him in his official capacity

because no counterpart 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. Finkel, 445

U.S. 507 (1980), set forth the exclusive test

for patronage discharges. He avers that the

Supreme Court’s public employee expression

cases, most notably Connick 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 Elrod and

Branti permit elected officials to use political

affiliation and loyalty as employment criteria

* 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.
3

for employees who make important policy

decisions or handle confidential information.

See Branti, 445 U.S. at 518.

A.

Determining whether an official should receive qualified immunity requires answering

three questions. First, did the plaintiff allege

the violation of a constitutional right? Wilson

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

did the public official breach “clearly

established statutoryor constitutionalrights of

which a reasonable person would have

known?” Harlowv. Fitzgerald, 457 U.S. 800,

818 (1982). The applicable law must be clearly established when the allegedly actionable

conduct was taken. Harlow, 457 U.S. at 818.

Finally, “we must determine whether . . . the

record showsthat the violation occurred, or at

least gives rise to a genuine issue of material

fact as to whether the defendant actually engaged in the conduct that violated the clearlyestablished right.” Kerr v. Lyford, 171 F.3d

330, 339 (5th Cir. 1999) (quotation and

citation omitted).

For purposes 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

analyzing a public employee’s claim that he

was fired for his political views. In Elrod, a

fractured Court held that an Illinois sheriff

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). Justice Stewart’s concurrence emphasized that

the employees did not occupy a policymaking

position or routinely review confidential information. Id. at 374-75 (Stewart, J.,

concurring).

Four yearslater, a majority agreed on more

specific standards. In Branti, 445 U.S. at 519,

the Court refined Justice Stewart’s hint of an

exception permitting elected officials to

discharge public employees for their political

beliefs, explaining that the label “policymaker”

or “confidential” should not determine whether

political affiliation is a necessary job

requirement. Id. “[R]ather the question is

whether the hiring authority can demonstrate

that party affiliation is an appropriate

requirement for the effective performance of

the public office involved.” Id.

In McBee v. Jim Hogg County, Tex., 730

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

for deciding political patronage cases in the

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. Id. at 1014. We opined that

Elrod and Branti were especially easy public

official speech cases that required little or no

weighing under the traditional test. Id. 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 association cases,

however, was onlydictum. In McBee, because

the deputy sheriffs had actively campaigned

against their employer, id. at 1015, we

explained that we would employ the flexible

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

consider whether the speech is on a matter of

“public concern,” the need for a close working
4

relationship, the disruptiveness of the activity,

and the appearance of insubordination or

hostility. Id. at 1017.1

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

Northlake, 518 U.S. 712, 726 (1996), the

Court tracked the distinction between mere

affiliation and political expression and held that

a mayor could not constitutionally 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 outlined for firing a public employee

based on political affiliation and political expression. Id. at 719. The Court explained that

where the case solely involves an association

or affiliation claim, Elrod and Branti control.

The Court ruled, however, that in mixed cases

of retaliation based on both affiliation 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,

fails to explain why any minor theoretical

differences between McBee’s and O’Hare’s

respective dictum describing the requirements

for pure association claims should affect the

outcome in this case. Desormeaux presented

summary judgment evidence that Savoie believed him to be actively supporting the

opponent. Savoie discriminated against Desormeaux on the basis of his perceived

associations and expressions.2 We apply the

Connick-Pickering balancing test to mixed

cases. O’Hare, 518 U.S. at 719;supra note 1.

Savoie concedes that, at this stage in the

proceedings, Desormeaux has created a fact

question about the unconstitutionality of his

discharge under the Connick-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 Matherne v.

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

held that Louisiana sheriffs could not

constitutionally 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. Kinsey v. Salado Indep. Sch. Dist., 950

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

(explaining that public employee had published

letter in support of candidate and spoken to many

citizens about his support, and describing ElrodBranti’s exception as interrelated with ConnickPickering 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 used to determine the success of the freedom of speech

claims.”); Brady v. Fort Bend County, 145 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

(5thCir. 1992) (announcing candidacy for sheriff’s

office requires application of Connick-Pickering

balancing test).

2 Precedent supports classifying the 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 Matherne, as in this case,

the investigator had superiors in the chain of

command, the sheriff offered zero evidence

that the investigator’s political opinions

skewed his professional judgment, and the

sheriff did not argue that the investigator’s

political opinions impaired his working

relationships. Id.3

Savoie does not explainhowO’Harewould

change the outcome in Matherne, and he does

not distinguish Matherne. Matherne 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 outside the Elrod-Branti exception,

other circuits had divided over the question.4

He argues that the dissenting 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 circuit, and a public

official cannot use them, standing alone, to

establish the qualified immunity defense.5 In

June 2000, our cases “clearly established” that

a Louisiana sheriff could not discharge an investigator for political reasons.

II.

Savoie argues that the district court erred

by refusing to dismiss the claims asserted

against him in his official capacity. We have a

duty to consider our appellate jurisdiction

before reaching the merits of the district

court’s refusal to dismiss the official capacity

claims. Steel Co. v. Citizens for a Better

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-Branti exception); Click, 970 F.2d at 112

(finding that Texas deputy sheriffs who ran against

sheriff could notfallwithinElrod-Branti exception

because there was no proof candidacy 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

political allegiance as an appropriate requirement

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

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

(holding 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

peculiar to consider an official action held lawful

by one federal circuit 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, Miss., 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 circuit” despite a conflict

with two circuits).
6

The collateral order doctrine creates

appellate jurisdiction over a denial of official

immunity, because the defendant’s immunity to

suit is effectively sacrificed if the case goes to

trial. Mitchell v. Forsyth, 472 U.S. 511, 526-

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

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

separate from the merits of the action, and be

effectively unreviewable on appealfroma final

judgment.” Coopers & Lybrand v. Livesay,

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

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

Court has explained that the collateral order

does not encompass the district court’s

rejection of a local government’s defense to

liability. Swint v. Chambers County Comm’n,

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

do not have immunity from suit, and appellate

courts may adequately review the denial of

summary judgment after a full-blown trial. Id.

Official capacity claims really create liability

for the local government, and, in the wake of

Swint, we have held that we lack jurisdiction

over “official capacity” claims against a

Louisiana sheriff before the district court has

entered a final judgment.6

The denial of summary judgment based on

official, qualified immunity is AFFIRMED, and

the appeal in all other respectsis 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 official capacity is a

suit against the Parish, we may not review the

Magistrate Judge’s denial of summary judgment

regarding Sheriff Daniel in his official capacity.”);

Burge v. Parish of St. Tammany, 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 Cohen’s requirement that the decision be

effectively unreviewable after final judgment.”).