PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2360

MELANIE LAWSON,

Plaintiff – Appellant,

v.

UNION COUNTY CLERK OF COURT, William F. "Freddie" Gault; 

WILLIAM F. GAULT, a/k/a Freddie Gault, Individually,

Defendants – Appellees.

-------------------------------------

BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW; 

PENNSYLVANIA CENTER FOR THE FIRST AMENDMENT,

Amici Supporting Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Spartanburg. Timothy M. Cain, District 

Judge. (7:13-cv-01050-TMC)

Argued: September 17, 2015 Decided: July 7, 2016 

Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Vacated and remanded by published opinion. Judge Duncan wrote 

the majority opinion, in which Judge Diaz joined. Senior Judge 

Davis wrote a dissenting opinion.
2

ARGUED: Samantha Clark Booth, MUNGER, TOLLES & OLSON LLP, Los 

Angeles, California, for Appellant. Vance J. Bettis, 

GIGNILLIAT, SAVITZ & BETTIS, Columbia, South Carolina, for 

Appellees. Eugene Volokh, UCLA SCHOOL OF LAW, Los Angeles, 

California, for Amici Curiae. ON BRIEF: Mark Epstein, MUNGER, 

TOLLES & OLSON LLP, Los Angeles, California; John G. Reckenbeil, 

LAW OFFICE OF JOHN G. RECKENBEIL, LLC, Spartanburg, South 

Carolina, for Appellant. Sina Safvati, Anjelica Sarmiento, 

Sabine Tsuruda, UCLA School of Law Students, SCOTT & CYAN 

BANISTER FIRST AMENDMENT CLINIC, Los Angeles, California, for 

Amici Curiae. 
3

DUNCAN, Circuit Judge:

Appellee William Gault (“Gault”) terminated Appellant 

Melanie Lawson (“Lawson”) from her position as a deputy clerk in 

the Clerk of Court’s Office of Union County, South Carolina. 

Lawson filed suit, challenging her termination on First 

Amendment grounds. Gault moved for summary judgment, and the 

district court granted the motion, holding that Lawson occupied 

a confidential or policymaking position and was subject to 

termination for campaigning against her boss. We disagree that 

Gault has established as a matter of law that Lawson held a 

position for which political loyalty was required, and we are 

unable to affirm on any other grounds based on the record as 

currently presented. We therefore vacate the judgment below and 

remand for further proceedings consistent with this opinion.

The dissent is so hyperbolic that it seems necessary to 

stress exactly what is at issue in this appeal. The majority 

simply reverses the grant of summary judgment to Gault and 

remands. What the dissent is so exercised about is that the 

majority does not grant summary judgment to Lawson, who never 

moved for summary judgment nor otherwise sought such relief. To 

the extent there is anything remarkable about this opinion, 

either jurisprudentially or otherwise, it is the dissent’s 

determination to overleap precedent and procedure, and preclude 

the development of any record evidence, solely to grant Lawson 
4

relief she did not ask for and which Gault had no notice of. As 

we explain below, the issue before this court on appeal is 

narrow: whether Gault’s motion for summary judgment had merit. 

We conclude that it did not, and our opinion steps beyond that 

simple question only insofar as we must address the dissent’s 

gratuitous overreach.

I.

A.

This action arises out of Union County, South Carolina’s

2012 election for Clerk of Court. Because of the unique 

statutory characteristics of that position, we begin by 

describing it briefly.

The South Carolina Constitution creates the position of 

Clerk of Court for each county. S.C. Const. art. V, § 24. The 

Clerk is elected to a four-year term through partisan elections, 

with the Governor empowered to fill any vacancies that arise 

between elections. S.C. Code Ann. § 14-17-30. The General 

Assembly prescribes the Clerk’s duties. S.C. Const. art. V, 

§ 24. The Supreme Court of South Carolina approves guidelines 

for the Clerk in connection with the court’s responsibility to 

make rules of court administration. Id. art. V, § 4; see, e.g., 

Administrative Order Adopting Clerk of Court Manual Revision, 

S.C. Sup. Ct. Administrative Order No. 2014-05-21-01, dated 
5

May 21, 2014, http://www.judicial.state.sc.us/courtOrders/

displayOrder.cfm?orderNo=2014-05-21-01. The Clerk is 

essentially responsible for all the duties typically associated 

with court administration. See S.C. Code Ann. §§ 14-17-210 to 

14-17-760.

South Carolina law authorizes the Clerk to appoint deputy 

clerks to aid in executing the Clerk’s statutory duties. Id.

§ 14-17-60. Once sworn into office, a deputy clerk is 

authorized to carry out any of the Clerk’s statutory duties. 

See id. A deputy clerk serves at the pleasure of the Clerk. 

See id.

The Supreme Court of South Carolina has issued a Clerk 

Manual, which emphasizes the Clerk’s “public relations” role as 

the sole face of the state court system for many individuals. 

See Clerk of Court Manual § 1.21 “Public Relations,” 

http://www.judicial.state.sc.us/ClerkOfCourtManual/displaychapte

r.cfm?chapter=1#1.21. In the Family Court/Child Support 

Division, where Lawson worked, the sensitive nature of the 

proceedings gives the Clerk’s public relations role greater 

importance. See id. § 7.18, “Confidentiality in the Family 

Court,” http://www.judicial.state.sc.us/clerkOfCourtManual/

displaychapter.cfm?chapter=7#7.18.

Because all Family Court filings are submitted through the 

Clerk, the Family Court/Child Support Division of the Clerk’s 
6

Office routinely handles sensitive filings. Cases concerning 

legal infractions by minors, child neglect and abuse, child 

custody, divorce, adoption, termination of parental rights, and 

spousal and child support all originate in Family Court. S.C. 

Code Ann. §§ 63-3-510, 63-3-530. Further, many Family Court

filings, unlike most court documents, are strictly confidential. 

See, e.g., id. § 44-41-32 (unemancipated minors seeking 

abortions without parental consent); id. § 63-19-2040 (alleged 

state law violations by minors); id. § 63-9-780(B) (adoptions). 

In addition, South Carolina law protects the integrity of 

filings related to adoptions by making it a misdemeanor, 

punishable by fine and imprisonment, to disseminate or allow the 

unauthorized dissemination of such records. Id. § 63-9-

780(F)(2). The Family Court/Child Support Division of the 

Clerk’s Office is also responsible for managing the child 

support account and working with other staff in the Clerk’s 

Office to process the account’s monthly statements. See

J.A. 96.
7

B.

Lawson was an employee in the Union County Clerk’s Office 

from 1992 until 2012, beginning as a child-support clerk under 

June Miller (“Miller”), who at that time was the Clerk of Court. 

Miller named Lawson the Family Court coordinator before Miller 

retired from her position as Clerk in 2003.

Lawson continued to work in the Family Court/Child Support 

Division under Miller’s successor, Brad Morris (“Morris”). 

Morris served as Clerk from 2003 until October of 2009, when he 

resigned after pleading guilty to embezzling more than $200,000 

in public funds from the Clerk’s Office. During his term in 

office, Morris stole cash receivables and falsified deposit 

slips, beginning with funds from child support receivables and 

eventually including accounts across the Clerk’s Office. Lawson 

applied for appointment to the vacant position after Morris 

resigned, but the Governor appointed William F. Gault to serve 

as Clerk through the next election cycle instead.

At the time Gault took over as Clerk, the office had ten 

full-time staff members. Gault thereafter received approval and 

funding from the Judicial Council1 to hire Miller, the former 

 1 The Judicial Council is a committee of judges, executive 

and legislative officials, and private individuals that make 

findings and recommendations on “the administration of justice” 

in South Carolina courts. See S.C. Code Ann. §§ 14-27-10

(creation), 14-27-20 (composition), 14-27-70 (duties).
8

Clerk of Court, as a part-time employee for six months. The 

parties have stipulated that Gault hired Miller “to perform bank 

reconciliations in an effort to prevent another lapse like the 

one that had allowed Mr. Morris to embezzle hundreds of 

thousands of dollars from the Clerk’s Office.” J.A. 20.

Gault retained Miller after the six-month period ended, 

paying her with funds from the child support account. He also 

selected Lawson to supervise the Family Court/Child Support 

Division of the Clerk’s Office as his deputy. In their 

respective capacities, Lawson and Miller would interact when 

Miller had questions about the monthly child support account 

statements.

C.

Gault opted to run for a full term as Clerk in the November 

2012 election, entering the race as a Republican. On March 30, 

2012, Lawson declared her candidacy for the Democratic primary,2

with plans to oppose Gault in the general election. After 

Lawson informed Gault of her action, Gault placed her on unpaid 

leave for the duration of her campaign.

Lawson acknowledges that, as her campaign progressed, June 

Miller became a campaign issue. According to Lawson, she “made 

 2 Because of a 2012 South Carolina Supreme Court decision 

unrelated to the present case, Lawson was ineligible to run in 

the Democratic primary. She ultimately ran as a Petition 

candidate in the general election.
9

statements concerning June Miller’s employment with the Clerk’s 

Office.” J.A. 186. Specifically, Lawson expressed concern over 

“where the funds were coming from to pay Ms. Miller,” given that 

Miller continued working after her six-month authorization

expired. Id. Lawson explained that she “had a heightened sense 

of alertness, especially when it involved funds of the Clerk’s 

Office” given Morris’s embezzlement scandal. J.A. 187.

Shortly after his election, Gault set up a meeting with 

Lawson. At that November 14, 2012, meeting, Gault terminated 

Lawson, telling her that “he had to do what was in the best 

interest of the office.” J.A. 21. Gault would later testify 

that he terminated Lawson in part for making statements during 

her campaign regarding Miller’s employment at the Clerk’s 

Office, and in part because he was concerned that her continued 

employment would undermine his authority as Clerk.

Gault explained that, on numerous occasions during the 

campaign, it was brought to his attention that Lawson was making 

statements identifying Miller by name. These statements 

questioned Gault’s decision to continue to employ Miller given 

that the “county council doesn’t want June Miller there.” 

J.A. 88. Moreover, Gault was told that Lawson was making 

statements to the effect that “June Miller should not be in the 

clerk of court’s office” and “June Miller is already drawing her 

social security and her retirement.” Id. According to Gault, 
10

he “couldn’t very well bring [Lawson] back in and expect her to 

sit beside June Miller” and interact with the other employees in 

such a small office under these circumstances. J.A. 92.

D.

Following her termination, Lawson sued Gault in both his 

individual and official capacities, seeking monetary damages and 

an injunction ordering her reinstatement. In her complaint, she

alleged that Gault fired her “because of her exercise of her 

right to run for public office thereby violating her First 

Amendment rights.” J.A. 3.

At the conclusion of discovery, Gault moved for summary 

judgment. In addition to asserting immunity defenses, Gault 

argued that the First Amendment did not prohibit him from firing 

one of his deputy clerks for “perceived political disloyalty.” 

J.A. 31. In making this argument, Gault relied on case law 

analyzing the Elrod-Branti doctrine, discussed infra, which 

addresses the First Amendment’s limitations on political 

patronage dismissals.

Lawson opposed the motion, asserting that the Elrod-Branti

doctrine was inapplicable, and that “[w]hen a government 

employer retaliates against a government employee for exercising 

their First Amendment right to speech the appropriate analysis 

falls under the Pickering balancing test.” J.A. 115. Thus, 
11

Lawson urged the district court to apply Pickering, and not 

Elrod-Branti.

The district court agreed with Gault, and found that Lawson 

could not establish that she had a First Amendment right not to 

be terminated after she challenged Gault in her election 

campaign. Lawson v. Gault, 63 F. Supp. 3d 584, 591 (D.S.C. 

2014). Specifically, the district court held that, although 

Lawson’s candidacy implicated her First Amendment rights, she 

was terminated legally because she occupied a confidential or 

policymaking position. Id. at 590. The district court noted 

Lawson’s Pickering argument, but centered its analysis on 

Lawson’s position as a “public employee in a confidential, 

policymaking, or public contact role,” which is a factor drawn 

from the Elrod-Branti doctrine. Id. In other words, the 

district court resolved Gault’s motion based on the grounds

Gault raised, and not on the alternative First Amendment 

doctrine that Lawson raised.

Having concluded that Lawson failed to establish a First 

Amendment violation, the district court granted summary judgment 

and declined to address the qualified immunity and Eleventh 

Amendment immunity defenses that Gault had asserted in his 

motion. Id. at 591 n.7, 592. This timely appeal followed.

II.
12

A.

Summary judgment is appropriate “if the movant shows that 

there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). We review de novo the district court’s grant of

summary judgment. T-Mobile Ne. LLC v. City Council of Newport 

News, 674 F.3d 380, 384 (4th Cir. 2012). We apply “the same 

legal standards as the district court” while “viewing all facts 

and reasonable inferences therefrom in the light most favorable 

to the nonmoving party.” Id. at 385 (quoting Pueschel v. 

Peters, 577 F.3d 558, 563 (4th Cir. 2009)). Our review is not 

limited to the grounds the district court relied upon, and we 

may affirm “on any basis fairly supported by the record.” 

Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir. 

2002) (citing Korb v. Lehman, 919 F.2d 243, 246 (4th Cir. 

1990)). 

B.

This appeal implicates two lines of cases that grapple with 

the limitations on a public employee’s First Amendment rights. 

The first doctrine is the “Elrod-Branti” exception, upon which 

the district court relied. This exception flows from Elrod v. 

Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 

(1980), which held that policymaking employees may be terminated 

for their political beliefs if “party affiliation is an 
13

appropriate requirement for the effective performance of the 

public office involved.” Branti, 445 U.S. at 518. The second 

doctrine, based on Pickering v. Board of Education, 391 U.S. 563 

(1968), and Connick v. Myers, 461 U.S. 138 (1983), provides that 

the First Amendment does not protect public employees when their

speech interests are outweighed by the government’s interest in 

providing efficient and effective services to the public.

The district court held that Gault was entitled to fire 

Lawson under the Elrod-Branti exception, because she held a 

confidential, policymaking position that required political 

loyalty. For the reasons set forth below, we vacate the order 

granting summary judgment to Gault and remand for further 

proceedings. First, we conclude that the district court erred 

in granting summary judgment to Gault based on the Elrod-Branti

exception. Second, we conclude that Gault has not demonstrated 

an entitlement to qualified immunity or Eleventh Amendment 

immunity. Third, we decline to resolve the Pickering balancing 

test on the present record. We address each of these issues 

below.

C.

We begin with the Elrod-Branti exception, which was at the 

heart of Gault’s motion for summary judgment and the district 

court’s order granting the motion. As we explain, Gault has not 
14

satisfied the criteria of the exception, because he has not 

demonstrated that Lawson’s position required political loyalty.

Elrod v. Burns and Branti v. Finkel held that “[t]he First 

Amendment forbids government officials to discharge or threaten 

to discharge public employees solely for not being supporters of 

the political party in power, unless party affiliation is an 

appropriate requirement for the position involved.” Smith v. 

Frye, 488 F.3d 263, 268 (4th Cir. 2007) (quoting Rutan v. 

Republican Party of Ill., 497 U.S. 62, 64-65 (1990)). This 

narrow exception to the First Amendment permits patronage 

dismissals of public employees in policymaking positions in 

order “to give effect to the democratic process.” Jenkins v. 

Medford, 119 F.3d 1156, 1161 (4th Cir. 1997) (en banc). To 

determine whether the exception applies, “the ultimate inquiry 

is not whether the label ‘policymaker’ or ‘confidential’ fits a 

particular position; rather, 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.” Branti, 445 U.S. at 518. 

In this circuit, our Elrod-Branti analysis follows a twopart test adopted from the First Circuit. Stott v. Haworth, 916 

F.2d 134, 141-42 (4th Cir. 1990) (citing Jimenez Fuentes v. 

Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986) (en 

banc)). Prong one of the inquiry asks, at a general level,
15

whether the employee’s position requires “government 

decisionmaking on issues where there is room for political 

disagreement on goals or their implementation.” Id. at 141

(citation omitted). If this prong is satisfied, we proceed to 

the second prong, under which we look at the employee’s specific 

responsibilities, and “focus on the powers inherent in a given 

office, as opposed to the functions performed by a particular 

occupant of that office.” Id. at 142 (citation omitted). The 

government must satisfy both prongs of Stott to establish the 

Elrod-Branti defense.

We turn now to the attributes of Lawson’s position as a 

deputy clerk, according to the evidence before us. Upon review 

of the general duties of deputies in the Union County Clerk’s 

Office, we conclude that none of the duties Gault has pointed to

satisfy the first prong of Stott. Deputy clerks are generally 

responsible for administrative and ministerial tasks, such as 

keeping records and managing court accounts. We see no evidence 

the deputy clerks perform tasks that relate to “partisan 

political interests or concerns,” and thus we cannot conclude 

that party affiliation is relevant to an employee’s 

qualification to serve as a deputy clerk. Nader v. Blair, 549 

F.3d 953, 960 (4th Cir. 2008); see also Stott, 916 F.2d at 141 

(noting the Elrod-Branti analysis requires that the position, 

“no matter how policy-influencing or confidential it may be, 
16

relates to partisan political interests . . . or concerns.”

(internal quotations omitted)). Put another way, there is no 

evidence before us that a deputy clerk’s political ideology 

would affect the manner in which she performed her role as a 

deputy clerk. Critically, Gault has failed to show that his 

deputies were required to make decisions “on issues where there 

is room for political disagreement.” Stott, 916 F.2d at 141. 

Therefore, under the first prong of Stott, Gault has not 

demonstrated his entitlement to summary judgment. 

Gault has also failed to point to evidence that would 

satisfy the second prong of Stott, under which we consider the

specific attributes of Lawson’s position, as a matter of law. 

The deputy clerk overseeing the Family Court/Child Support

Division is responsible for overseeing case intake, receiving 

filing fees, collecting and disbursing funds from the child 

support account, and tracking and reporting court data. Gault 

has not argued that a deputy clerk would be better suited to 

carry out these specific tasks if she espoused a particular 

political philosophy. Nor has he pointed to any specific 

policies that Lawson was responsible for setting. 

Gault has emphasized Lawson’s supervisory title, but that 

role, standing alone, does not tell us that Lawson was a 

policymaking employee. Though Lawson may have set internal 

agendas as a supervisor, our decision in Fields v. Prater makes 
17

clear that a supervisory employee does not automatically hold a 

position that is subject to the Elrod-Branti exception. 566 

F.3d 381 (4th Cir. 2009). In Fields, we explained that an 

employee with supervisory power does not necessarily have broad 

policy setting power. Id. at 387. “If having power over 

subordinates were a sufficient condition for exemption from the 

requirements of the First Amendment, only the most low-level 

government employees would be protected from politically-based 

hiring and firing.” Id. Thus, the mere fact that Lawson was a 

supervisor did not make her a policymaker.

Citing this court’s en banc decision in Jenkins, Gault 

contends that the Elrod-Branti exception applies because Lawson, 

as a deputy, was Gault’s “alter-ego,” authorized by statute to 

perform all the functions of a Clerk of Court. Contrary to 

Gault’s view, Lawson’s statutory authority does not compel the 

application of the Elrod-Branti exception, and Gault’s reliance 

upon Jenkins in that regard is misplaced. In Jenkins, we held 

that several deputy sheriffs in North Carolina were lawfully 

terminated for political disloyalty. Jenkins, 119 F.3d at 1164. 

Our analysis focused on the fact that deputy sheriffs held a 

special position under North Carolina law, in that they “act[ed] 

in the name of and with powers conterminous with [their] 

principal, the elected sheriff.” Id. at 1163 (quoting N.C. Gen. 

Stat. § 17E-1). At the same time, we emphasized that the 
18

“principal” for whom the deputies acted was a political figure 

responsible for establishing a law enforcement agenda; it was 

therefore critical to our decision that the sheriff’s deputies

played a role in implementing these policies. Id. at 1162-63. 

Based on the current record, we cannot say the same for Lawson’s 

role as a deputy to Gault. Though Gault was an elected 

official, and Lawson did have the statutory authority to act on 

his behalf, Gault has not demonstrated that any of the duties 

Lawson carried out in his stead involved setting or implementing 

a policy agenda.

For the foregoing reasons, we cannot conclude, as a matter 

of law, that “party affiliation is an appropriate requirement 

for the effective performance” of Lawson’s former position as a 

deputy clerk.3 Branti, 445 U.S. at 518. Accordingly, we reverse 

the district court’s decision to grant summary judgment to Gault 

based on the Elrod-Branti exception.

D.

Gault next argues that, even if he has not established the 

Elrod-Branti defense, he is entitled to qualified immunity from 

suit for money damages in his individual capacity. According to 

 3 We are, of course, limited in our analysis to the evidence 

before us on appeal. For this reason, we make no broad 

proclamations about the roles of deputy clerks generally, for 

there may well be attributes of those positions--or Lawson’s 

specific position--of which we are not aware.
19

Gault, the contours of the Elrod-Branti exception were not 

sufficiently clear when he fired Lawson in 2012. 

Qualified immunity “shields government officials from 

liability for civil damages, provided that their conduct does 

not violate clearly established statutory or constitutional 

rights within the knowledge of a reasonable person.” Meyers v. 

Baltimore Cty., 713 F.3d 723, 731 (4th Cir. 2013) (citing Harlow 

v. Fitzgerald, 457 U.S. 800, 818 (1982)). “This is not to say 

that an official action is protected by qualified immunity 

unless the very action in question has previously been held 

unlawful, but it is to say that in the light of pre-existing law 

the unlawfulness must be apparent.” Estate of Armstrong ex rel. 

Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 907 (4th Cir. 

2016) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)).

As our analysis of the Elrod-Branti defense illustrates, 

Gault has not demonstrated, as he must, that Lawson was a 

policymaking employee for whom political association was an 

appropriate job requirement. We have repeatedly limited the 

Elrod-Branti exception to employees who occupy policymaking 

positions for which political association is relevant, and we 

think our precedent made this requirement sufficiently clear at 

the time Gault terminated Lawson. See, e.g., Nader, 549 F.3d at

959; Fields, 566 F.3d at 386; Jenkins, 119 F.3d at 1163-64. 
20

In an effort to demonstrate that the law in this area is 

muddled, Gault cites a 1996 decision in which we held, in an 

unpublished opinion, that qualified immunity shielded a clerk of 

court who fired his chief deputy for disloyalty. Appellee’s Br. 

at 36 (citing Conner v. McGraw, 104 F.3d 358 (4th Cir. 1996) 

(unpublished)). This does not advance Gault’s argument, 

however, because the fact that the law was unsettled in 1996 

tells us nothing about the state of the law nearly sixteen years 

later. As we have explained, the state of the law in 2012 would 

have put Gault on notice that political affiliation was not an 

appropriate requirement for administrative employees.

Thus, we conclude that Gault has not established the 

defense of qualified immunity, and we cannot affirm the district 

court’s judgment on that basis.

E.

Gault next contends that the Eleventh Amendment immunizes 

him from suit for monetary damages in his official capacity. We 

find this argument unpersuasive.

The Eleventh Amendment protects the states from suit in 

federal court, as well as “arm[s] of the State and State 

officials.” Bland v. Roberts, 730 F.3d 368, 390 (4th Cir. 2013) 

(internal quotations omitted). Our Eleventh Amendment 

jurisprudence differentiates “arms or alter egos of the state 

from ‘mere political subdivisions of [the] State such as 
21

counties or municipalities,’ which, though created by the state, 

operate independently and do not share the state’s immunity.” 

United States ex rel. Oberg v. Pa. Higher Educ. Assistance 

Agency, 804 F.3d 646, 651 (4th Cir. 2015) (alteration in 

original) (quoting Kitchen v. Upshaw, 286 F.3d 179, 184 (4th 

Cir. 2002)). To determine whether an entity is an arm of the 

state, we consider four nonexclusive factors:

(1) whether any judgment against the entity as 

defendant will be paid by the State or whether any 

recovery by the entity as plaintiff will inure to the 

benefit of the State; (2) the degree of autonomy 

exercised by the entity, including such circumstances 

as who appoints the entity's directors or officers, 

who funds the entity, and whether the State retains a 

veto over the entity's actions; (3) whether the entity 

is involved with state concerns as distinct from nonstate concerns, including local concerns; and (4) how 

the entity is treated under state law, such as whether 

the entity's relationship with the State [is]

sufficiently close to make the entity an arm of the 

State.

S.C. Dep’t of Disabilities & Special Needs v. Hoover Universal, 

Inc., 535 F.3d 300, 303 (4th Cir. 2008) (alteration in original) 

(internal quotation omitted). 

Applying the Hoover factors to the record before us, we see 

no evidence that the Clerk’s Office is anything but a county 

agency that operates locally as an independent subdivision of 

the state. Significantly, Gault has not argued that a judgment 

against Gault would be paid from the state treasury. 

Additionally, the “Handbook for County Government in South 
22

Carolina” indicates that the clerk of court and his office draw 

their funding from the county, and not the state, which suggests 

that the Clerk’s Office operates autonomously from the state. 

J.A. 198.4 Further, Gault’s authority as Clerk of Court was 

limited to Union County, suggesting that he dealt with only 

local, and not state, concerns. Based on this evidence, we 

cannot conclude that the Clerk’s Office is an arm of the state 

of South Carolina.

In support of his Eleventh Amendment defense, Gault points 

to nothing more than a paragraph of Lawson’s complaint that 

calls the Clerk’s Office a “state office” and an 1883 decision 

from the Supreme Court of South Carolina that characterizes a 

clerk of court as “State officer” for electoral purposes, State 

ex rel. Anderson v. Sims, 18 S.C. 460, 463 (1883). See

Appellee’s Br. at 41. Neither the 1883 case nor Lawson’s 

complaint resolve the Eleventh Amendment question before us, 

because Gault must do more than simply establish a link between 

the state and his office. Instead, Gault must demonstrate that

the Union County Clerk’s Office is an arm of the state, and not 

an independent subdivision of the state. Gault’s conclusory 

assertion that the Clerk of Court is a “state officer” does not 

satisfy his burden to establish Eleventh Amendment immunity.

 4 The state does, however, provide “an annual salary 

supplement” to the Clerk of Court. J.A. 198.
23

In the absence of any evidence tying the Clerk’s Office to 

the state of South Carolina, we conclude that Gault has failed 

to demonstrate that the Eleventh Amendment immunizes him from 

Lawson’s monetary damages claim.

F.

We next consider the Pickering issue that Lawson has 

raised. Simply put, the history of this case does not present 

us with an adequate Pickering record to review. Gault moved for 

summary judgment based on Elrod-Branti, the district court 

granted the motion based on Elrod-Branti, Gault urged us to 

affirm the order based solely on Elrod-Branti, and we now hold 

that Gault failed to establish the Elrod-Branti defense. This 

resolves the appeal, and we need not go any further. Although 

we can affirm on any basis apparent from the record, we conclude 

that we cannot resolve the Pickering question on this record. 

To provide context, we begin with an overview of the 

Pickering balancing test. As we explained in Smith v. 

Gilchrist, “the government, as an employer, ‘is entitled to 

maintain discipline and ensure harmony as necessary to the 

operation and mission of its agencies,’” and therefore has “an 

interest in regulating the speech of its employees.” 749 F.3d 

302, 308 (4th Cir. 2014) (quoting McVey v. Stacy, 157 F.3d 271,

277 (4th Cir. 1998)). When these interests conflict with the 

free speech rights of public employees, Pickering tells us “to 
24

arrive at a balance between the interests 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 

efficiency of the public services it performs through its 

employees.” 391 U.S. at 568.

In this balancing test, “the government bears the ‘burden 

of justifying the discharge on legitimate grounds.’” Gilchrist, 

749 F.3d at 309 (quoting Rankin v. McPherson, 483 U.S. 378, 388 

(1987)).5 However, the government need not “prove that the 

employee’s speech actually disrupted efficiency”; rather, its 

burden is to show that “an adverse effect was ‘reasonably to be 

apprehended.’” Id. (quoting Maciariello v. Sumner, 973 F.2d 

295, 300 (4th Cir. 1992)); see also Jurgensen v. Fairfax Cty., 

745 F.2d 868, 879 (4th Cir. 1984) (“In the application of this 

test, . . . it is not necessary for the agency to prove that 

morale and efficiency in the agency have actually been adversely 

affected by the publication; it is sufficient that such damage 

to morale and efficiency is reasonably to be apprehended.”).

To assess the government’s interest, we must consider the

context of the employee’s speech. Rankin, 483 U.S. at 388 (“In 

performing the balancing, the [employee’s] statement will not be 

 5 The balancing test is the second of the three elements of 

a First Amendment retaliation claim. McVey, 157 F.3d at 277-78. 

The other two elements (speech on a matter of public concern and 

causation) are not at issue here.
25

considered in a vacuum; the manner, time, and place of the 

employee’s expression are relevant, as is the context in which 

the dispute arose.”). In Ridpath v. Board of Governors Marshall 

University, we listed nine non-exhaustive factors that the 

Supreme Court has considered significant:

[W]hether a public employee’s speech (1) impaired the 

maintenance of discipline by supervisors; (2) impaired 

harmony among coworkers; (3) damaged close personal 

relationships; (4) impeded the performance of the 

public employee’s duties; (5) interfered with the 

operation of the institution; (6) undermined the 

mission of the institution; (7) was communicated to 

the public or to coworkers in private; (8) conflicted 

with the responsibilities of the employee within the 

institution; and (9) abused the authority and public 

accountability that the employee’s role entailed.

447 F.3d 292, 317 (4th Cir. 2006) (citing McVey, 157 F.3d 

at 278). As the sheer number of Ridpath factors demonstrates,

this inquiry is fact-intensive and context-specific, and will 

depend on the arguments the government develops and the evidence 

it offers.

Turning to the case at hand, we conclude that Gault has not 

developed a Pickering argument for us to analyze. When Gault 

moved for summary judgment, he did not raise Pickering as a 

basis for the motion. Even after Lawson raised Pickering in her 

opposition brief,6 Gault dismissed Pickering and urged the 

 6 This was a curious choice, because Lawson could have 

refuted the motion by insisting that the Elrod-Branti exception 

did not apply. Instead, she took on the task of defending her 

(Continued)
26

district court to decide the case based on Elrod-Branti. See

J.A. 220. Gault argued that it made no difference whether the 

court analyzed the complaint as a free speech claim, or a claim 

of retaliation for disloyal candidacy, because Elrod-Branti

governed both theories. See J.A. 225 (“[B]ecause, under South 

Carolina law, Plaintiff was regarded as the alter ego of 

Mr. Gault, he could terminate her for political disloyalty 

and/or ‘for speech displaying that political disloyalty.’” 

(quoting Bland, 730 F.3d at 394)).

It is unsurprising, then, that the district court resolved 

the case on Elrod-Branti grounds. The district court’s opinion 

decided the motion based on its view of Lawson’s position as a 

“confidential, policymaking” employee, a consideration rooted in 

the Elrod-Branti doctrine. In doing so, the decision tracked 

the grounds under which Gault moved, because those were the only 

arguments the motion required the court to resolve.7

This pattern continued on appeal. Before us, Gault 

defended the district court’s order exclusively on Elrod-Branti

grounds. Gault’s brief makes only a passing reference to 

 

lawsuit under two different doctrines. Importantly, however, 

she chose not to move for summary judgment.

7 Because Gault did not assert Pickering arguments in his 

motion, it certainly was not error for the district court to 

decline to analyze that doctrine.
27

Pickering, in which he declined to adopt the application of 

Pickering to this case:

Lawson insists that the fact that her First 

Amendment claim rests not merely on her candidacy but 

also on her speaking out in support of her candidacy 

somehow gives added heft to her First Amendment claim 

that must and can be overcome only by Gault’s making 

an evidentiary showing, under a Pickering-Connick

balancing of interests, that her campaign speech 

actually disrupted the efficient operation of the 

clerk’s office. . . . She is mistaken.

Appellee’s Br. at 30-31. Further, Gault’s substantive analysis 

of the balancing test consists of no more than one sentence. 

See Appellee’s Br. at 30-31. Without additional development, 

this is too slender a reed on which to base an analysis as factspecific as Pickering requires.

For example, it is unclear whether Gault means to argue 

that Lawson’s specific comments about June Miller threatened 

office efficiency, or whether Lawson’s failed campaign alone was 

a source of office disruption. We do not mean to say that Gault 

has failed to justify his actions under Pickering. As we 

discuss below, the limited record before us indicates that Gault 

may have colorable Pickering arguments. We simply hold that we 

cannot resolve the issue based on what the parties have 

presented to us.8

 8 For the same reason, we decline to decide whether Gault 

would be entitled to qualified immunity under a Pickering

theory.

(Continued)
28

G.

We turn now to the dissent’s contention that Lawson is 

entitled to summary judgment. This assertion is unusual to say 

the least, because, as we have noted, Lawson never moved for 

summary judgment. We should certainly exercise caution before 

granting a party relief she did not seek. And neither party has 

asserted Pickering as the ground for a motion, which hinders a 

meaningful Pickering analysis, and makes it premature to 

evaluate the issue in the context of this appeal. Additionally, 

we disagree that there is no evidence that Lawson’s conduct 

interfered with the operations of the Clerk’s Office. In view 

of the Ridpath factors, as we discuss below, we cannot conclude

that Pickering compels a judgment in Lawson’s favor at this 

stage of the case, because the record indicates that Gault may 

have colorable Pickering arguments.9

In the course of her campaign, Lawson made a variety of 

statements about the Clerk’s Office and her colleague, June 

Miller. Some of her comments questioned “where the funds were 

coming from to pay Ms. Miller,” in light of the previous 

embezzlement scandal. J.A. 186. Lawson also stated that “June 

 

9 To be clear, we do not reach the merits of this issue, and 

the discussion that follows is only intended to illustrate why 

Lawson’s entitlement to summary judgment, as the dissent 

proposes, is far from obvious.
29

Miller should not be in the clerk of court’s office,” that the 

“county council doesn’t want June Miller there,” and “June 

Miller is already drawing her social security and retirement.”

J.A. 88.

As we consider the Ridpath factors, we first note that 

Lawson held a supervisory position, and therefore her statements 

would have a heightened effect within the office. In 

particular, Lawson’s negative public comments about an 

identified co-worker could affect Lawson’s ability to maintain 

discipline in her division. In fact, the record reflects that 

Gault expressed concern about this, and noted that he expected 

that other co-workers would have difficulty working with Lawson 

going forward. J.A. 92.

For similar reasons, Lawson’s comments might have been

expected to impair harmony among co-workers and damage close 

personal relationships. It is of particular significance in 

this regard that the Clerk’s Office consisted of only ten 

employees. And Gault does assert--in the only sentence of his 

appellate brief to address Pickering--that the potential for 

Lawson’s public comments to sow discord in his office was a 

serious concern. See Appellee’s Br. at 31.

Ridpath also counsels us to consider whether Lawson’s 

statements would have interfered with the operation and mission 

of the Clerk’s Office. Given Lawson’s public-facing role, Gault 
30

might argue that her statements would have had this effect. As 

the Supreme Court Clerk Manual recognizes, the Clerk and, 

statutorily, the Clerk’s deputy, are the public faces of the 

Office. See Clerk of Court Manual § 1.21 “Public Relations,” 

http://www.judicial.state.sc.us/ClerkOfCourtManual/displaychapte

r.cfm?chapter=1#1.21. In publicly questioning Miller’s presence 

in the Office and the provenance of the funds used to compensate 

her, Lawson’s comments could have undermined the public’s 

confidence in the Office’s integrity and thereby compromised the

Office’s performance. As we have noted, maintaining the 

public’s trust is especially important to the operations of the 

Family Court/Child Support Division, which Lawson oversaw.

Of all of the factors set out in Ridpath, the question of 

whether the speech was communicated to the public or to 

co-workers in private is arguably the most significant here. 

Lawson’s comments publicly associated a colleague, by name, with 

accounting irregularities with respect to the very account that 

the two were responsible for jointly overseeing in the Clerk’s 

Office.10 Gault explained at his deposition that after Lawson 

 10 Lawson’s own affidavit acknowledges that her statement 

drew a connection between Miller and alleged accounting 

irregularities: 

My concerns were where the funds were coming from to 

pay Ms. Miller who was there to help clean up the 

damage caused by the former Clerk of Court’s 

(Continued)
31

made these comments, he “couldn’t very well bring [her] back in 

and expect her to sit beside June Miller.” J.A. 92. Although 

Lawson and Miller did not literally work side-by-side, it is 

undisputed that they did work together to jointly manage the 

account in question and would need to continue to do so if 

Lawson were to return as deputy. And the fact that Gault and 

Lawson maintained a cordial relationship has no bearing on how 

Lawson’s comments would have affected Miller, or the Office as a 

whole.

Our recent decision in Gilchrist provides useful guidance

here. In Gilchrist, we considered a First Amendment challenge 

brought by an assistant district attorney (“ADA”) who was 

terminated for making certain public comments while campaigning 

for Mecklenburg County district court judge. 749 F.3d at 304-

05. During the campaign, the ADA gave an interview where he 

spoke out against a defensive-driving course run by a nonprofit 

 

embezzlement scandal. . . . After having gone through 

the Morris scandal and being investigated by SLED, I 

had a heightened sense of alertness, especially when 

it involved funds of the Clerk’s Office. 

J.A. 186-87. From the perspective of the Clerk’s Office staff, 

there could be no benign reason for Lawson to mention Miller by 

name in connection with these suspicions. Whether Lawson meant 

to suggest that Miller might have been embezzling funds, or 

whether she merely thought Miller was being paid with embezzled 

funds, the statement clearly associated Miller with suspicious 

accounting.
32

organization independent of the DA’s office and unrelated to the 

ADA’s individual responsibilities. Id. at 305 n.1. The program 

allowed those convicted of traffic violations to receive more 

lenient punishments, and “substantially reduced the number of 

cases that the DA’s office and the courts were required to 

handle.” Id. at 305. Evaluating these facts under Pickering, 

we held that the defendant failed to justify the ADA’s 

termination. Id. at 309, 313.

Importantly, in Gilchrist, we relied on facts that were 

markedly different from those here. In that case, it was 

central to our decision that “none of the concerns Smith 

expressed in the interview had to do with Mecklenburg County 

District Attorney Office policy or in any way impugned the 

authority or credibility of the DA’s office.” Id. at 309-10

(footnote and internal quotation marks omitted). For the same 

reason that the ADA’s commentary did not “pertain[] to 

circumstances within [the DA’s] control,” there was also no 

basis for concluding that the ADA’s public statements would 

create “problems with harmony or discipline in the DA’s office 

such that the efficiency of the office would be expected to be 

adversely affected.” Id. at 310. Here, the facts are the very 

converse of those we relied on in Gilchrist: Lawson’s speech 

targeted her own office and her own colleague, whereas the ADA’s 

statements in Gilchrist did not.
33

The dissent accepts Lawson’s argument that Gault failed to 

adduce evidence of any actual disruption within the Clerk’s 

Office. This argument fails for several reasons. First, it

misperceives both the procedural history of this case and the 

nature of Gault’s burden. As we have already discussed, the 

absence of developed Pickering arguments is unsurprising, given 

that Gault never moved for summary judgment based on Pickering, 

and had no reason to develop this theory. It would be unfair to 

fault him for not doing so. For example, the dissent points to 

the absence of testimony in the record from other Clerk’s Office 

employees. We cannot know whether other employees were deposed, 

or whether Gault would wish to depose them to explore this 

issue. If anything, that is a reason to remand the case for 

further proceedings, and not a basis for entering judgment for 

Lawson.

Moreover, our precedent does not require an employer to

proffer evidence that the employee’s speech caused disharmony or 

ill feeling. In Maciariello v. Sumner, we examined a First 

Amendment claim brought by two officers who conducted an 

unauthorized investigation of their captain. 973 F.2d at 297, 

300. We credited the police chief’s interest in departmental 

morale, stressing that it was unnecessary to determine 

“[w]hether there was any concrete evidence that morale was 

disrupted” because “the potential for disruption [was] self-
34

evident.” Id. at 300; see also Gilchrist, 749 F.3d at 309 

(emphasizing that, under Maciariello, a public employer need 

only show that an adverse effect was “reasonably to be 

apprehended”).

Finally, it would be a mistake to analyze Gault’s interests 

based on the morale in the Clerk’s Office at the time Lawson was 

fired, because the Pickering balance is necessarily forwardthinking, looking to anticipated harms. All that our precedent 

requires is that an employer reasonably anticipate a future 

disruption. See Jurgensen, 745 F.2d at 882 n.21 (“[W]e do not 

see the necessity for an employer to allow events to unfold to 

the extent that the disruption of the office and the destruction 

of working relationships is manifest before taking action.” 

(quoting Connick, 461 U.S. at 152)).

In sum, based on the current record, Gault could certainly 

develop arguments that Lawson’s speech interfered with the 

operations of the Clerk’s Office. Therefore, we do not think it 

is appropriate for us to direct summary judgment for Lawson. 

***

The dissent proposes that we not only reach an undeveloped 

issue that was not the subject of Gault’s motion, but that we 

take a leap further and grant summary judgment to a party who 

neither moved for summary judgment nor requested that relief on 
35

appeal.11 We cannot agree with this proposal. Instead, we have 

confined our decision today to the narrow question before us: 

whether Gault’s motion for summary judgment had merit. Having 

concluded that it did not, we vacate the order granting the 

motion and return the case to the district court. If Gault 

chooses to pursue a Pickering defense on remand, the merits of 

his arguments will be for the district court, in the first 

instance, to resolve.

III.

For the foregoing reasons, the judgment of the district 

court is vacated and remanded. We leave to the sound discretion 

of the district court the decision whether to permit additional 

discovery, allow additional motions for summary judgment, or 

calendar the case for trial.

VACATED AND REMANDED

 11 We note that neither of the cases cited by the dissent--

Sharp Elecs. Corp. v. Deutsche Fin. Servs. Corp., 216 F.3d 388, 

398 (4th Cir. 2000), and U.S. Dev. Corp. v. Peoples Fed. Sav. & 

Loan Ass’n, 873 F.2d 731, 735–36 (4th Cir. 1989)--expressly held 

that a court of appeals may direct summary judgment to a nonmoving party without giving notice to the parties. We need not 

opine on our authority to enter summary judgment for Lawson 

without first giving notice to Gault, because, as we have 

explained, the circumstances of this appeal counsel against 

directing such an order.
36

DAVIS, Senior Circuit Judge, dissenting:

With respect, I believe that my friends in the majority 

misapply and effectively rewrite a portion of First Amendment 

jurisprudence in their analysis of this case. First, the 

majority opinion declines to render partial summary judgment for 

Plaintiff-Appellant Melanie Lawson, despite determining that 

Defendant-Appellee William Gault’s affirmative defenses under 

the Elrod–Branti exception,1 qualified immunity, and Eleventh 

Amendment immunity fail as a matter of law, and without 

identifying any genuine issues of material fact that would 

preclude the entry of judgment on liability. Second, the 

majority opinion wades into the deep end of a large pool of 

obiter dicta with its extensive discussion of how its imagined

facts might inform application of the Pickering balancing test.2

Remarkably, it actually suggests that Gault could conceivably 

satisfy his heavy burden of showing that Lawson’s interest in 

 1 As discussed below, the Elrod–Branti exception allows a 

public employer to terminate an employee based on political 

party affiliation where party loyalty is relevant to the 

employee’s position. See Branti v. Finkel, 445 U.S. 507 (1980); 

Elrod v. Burns, 427 U.S. 347 (1976).

2 Under the Pickering balancing test, as explained further 

below, an adverse employment action taken in response to a 

public employee’s speech may violate the employee’s First 

Amendment rights if the employee’s “interest in speaking upon 

the matter of public concern outweighed the government’s 

interest in providing effective and efficient services to the 

public.” Smith v. Gilchrist, 749 F.3d 302, 308 (4th Cir. 2014) 

(quoting McVey v. Stacy, 157 F.3d 271, 277–78 (4th Cir. 1998)).
37

speaking upon a matter of public concern in the course of her 

candidacy for elective office—surely political speech deserving 

of the protective shield afforded by settled First Amendment 

principles—did not outweigh the government’s interest in 

providing effective and efficient services to the public, 

Gilchrist, 749 F.3d at 308 (quoting McVey, 157 F.3d at 277), 

simply by asserting that Lawson’s speech would “selfevident[ly]” cause some disruption in the workplace, see

Appellees’ Br. 2. And finally, the majority opinion contends 

that this is the case despite the absence of even a scintilla of 

evidence that such a disruption was “reasonably to be 

apprehended.” Gilchrist, 749 F.3d at 309 (quoting Maciariello 

v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992)); Jurgensen v. 

Fairfax Cty., 745 F.2d 868, 879 (4th Cir. 1984). I cannot 

agree.

Each of my good friends forming the majority in this case 

is a member of the unanimous panel that today decides Brickey v. 

Hall, No. 14-1910, slip op. (4th Cir. 2016), which is cited and 

discussed at numerous points in this dissenting opinion. Though 

assuredly dissimilar in some respects, the two cases share much 

in common.

The police officer candidate for elective office in Brickey

made statements in a questionnaire published in a local 

newspaper (some but not all of which are set forth infra p. 54) 
38

that any reasonable person would regard as calling into serious 

question his police chief’s overall competence and ability to 

manage a small town’s troubled police force. See Brickey, slip 

op. at 4–5. Parsing the plaintiff’s numerous statements that 

were both directly and indirectly critical of his department and 

its newly installed chief, the Brickey panel explicitly agrees

with the district court’s assessment that virtually all of the 

statements were entitled to First Amendment protection and could 

not support a decision by the chief to terminate the plaintiff. 

Id. at 13 n.3 (“We agree with the district court that it was 

clearly established that Brickey’s other comments were entitled 

to First Amendment protection.”). On interlocutory appeal, 

however, the panel reverses the district court’s denial of the 

police chief’s motion for summary judgment based on qualified 

immunity, solely with regard to the plaintiff’s erroneous, and 

indeed, false, allegations in the newspaper questionnaire that 

police funds for a drug education program had been “misused.” 

Id. at 4 (“I went in to talk to [the chief] about ordering the 

supplies for the [drug education program]. I was told there was 

no money to place the order. After checking with the accounts 

payable clerk to see where the $500 in the police department 

budget had been spent, I was shown several invoices that were 

charged to [that] account. The items on the invoices had 
39

nothing to do with the [drug education] program.” (citation 

omitted)).

Thus, Brickey holds, with particular emphasis on the fact 

that the erroneous “missing funds” allegations were made in the 

context of a small town’s small police department and about its

newly installed chief, that, at the proper level of specificity, 

the outcome of Pickering balancing as to those allegations was 

not “clearly established” at the time the plaintiff was

terminated in May 2012. Id. at 16 (noting that the dispositive 

question facing the police chief was, “[W]hen does a police 

chief’s need to maintain discipline and harmony permit him to 

infringe on an officer’s right to make public statements as a 

political candidate insinuating wrongdoing by a superior 

officer?”).

Although (given that Brickey comes to this Court as an 

interlocutory appeal) the Brickey panel decides the case on 

qualified immunity grounds, the reasoning, language, and 

precedents relied on in that case provide powerful support for 

the reasoning in, and the gravamen of, this dissent and its 

Pickering analysis: First, actual record evidence, not 

unadorned and bald speculation, is necessary to support the 

assertion by a defendant in a First Amendment retaliation case 

that respect for a public employee’s speech would impose too 

high a cost on her government employer. Second, the 
40

paramilitary character of a law enforcement agency requires 

greater restraints on the First Amendment rights of officeremployees in such agencies, as compared to the rights of those 

not so employed. And third, critical to Pickering balancing is 

the particularized context in which the plaintiff engages in the 

disputed speech. In my judgment, as I show within, faithful 

adherence to these longstanding, undisputed, foundational 

precepts compels a decision in favor of Lawson under Pickering

balancing on the record in this case. 

Correctly discerning no genuine disputes of material fact, 

the majority opinion appropriately reverses the district court’s 

grant of summary judgment in favor of Gault under the Elrod–

Branti doctrine, and it rules out Gault’s qualified immunity and 

Eleventh Amendment immunity defenses, yet it refuses to render 

judgment for Lawson. Moreover, the majority opinion declines to 

resolve the Pickering balancing test, even though it analyzes 

the issue at length and suggests that Gault may have a viable 

defense on this ground. I conclude, by contrast, not only that 

(1) Gault failed to satisfy his burden under Pickering

balancing; but furthermore, that (2) the narrow Elrod–Branti

exception in First Amendment jurisprudence, invoked by Gault, 

plainly did not allow Gault to lawfully terminate Lawson; 

(3) qualified immunity did not protect Gault from liability in 

his individual capacity; and (4) Eleventh Amendment immunity did 
41

not bar suit for damages against Gault in his official capacity. 

Accordingly, I would reverse the district court’s decision in 

all respects and remand this action with instructions to enter 

judgment on liability in Lawson’s favor and for further 

proceedings on relief as necessary.

I.

A.

I begin where the majority opinion concludes by addressing 

first the Pickering balancing test, as I believe that this 

issue’s resolution at this juncture is proper and central to 

this case. “Not only does the First Amendment protect freedom 

of speech, it also protects ‘the right to be free from 

retaliation by a public official for the exercise of that 

right.’” Gilchrist, 749 F.3d at 308 (quoting Suarez Corp. 

Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000)). An 

adverse employment action taken in response to a public 

employee’s speech generally violates the employee’s First 

Amendment rights when (1) “the employee ‘was speaking as a 

citizen upon a matter of public concern’ rather than ‘as an 

employee about a matter of personal interest’”; (2) the 

employee’s “interest in speaking upon the matter of public 

concern outweighed the government’s interest in providing 

effective and efficient services to the public”; and (3) the 

employee’s “‘speech was a substantial factor’ in the employer’s 
42

decision to take action against [her].” Id. (quoting McVey, 157 

F.3d at 277–78).

Gault does not dispute that the first and third prongs of 

this test are easily satisfied here, so I, like the majority, 

focus on the second prong, known as the Pickering balancing 

test. The relevant question is thus whether Lawson’s interest 

in speaking upon a matter of public concern outweighed Gault’s 

interest in providing effective and efficient services to the 

public in his operation of the Office of the Clerk of Court. 

See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). To 

make this determination, “the First Amendment requires a 

delicate balancing of the competing interests surrounding the 

speech and its consequences.” Garcetti v. Ceballos, 547 U.S. 

410, 423 (2006); see also McVey, 157 F.3d at 277 (noting that, 

in First Amendment cases, “a sophisticated balancing of 

interests is required to determine whether the plaintiff’s 

constitutional rights have been violated”).

Importantly, no one disputes that Gault bears the “burden 

of justifying the discharge on legitimate grounds.” Gilchrist, 

749 F.3d at 309 (quoting Rankin v. McPherson, 483 U.S. 378, 388 

(1987)). Although, as the majority opinion emphasizes, the 

public employer need not “prove that the employee’s speech 

actually disrupted efficiency,” the employer must show (by 

adducing actual record evidence) that “an adverse effect was 
43

‘reasonably to be apprehended’” in light of the context 

surrounding the speech. Id. (quoting Maciariello, 973 F.2d 

at 300); accord Durham v. Jones, 737 F.3d 291, 302 (4th Cir. 

2013).

This Court’s recent decision in Gilchrist, which two of us 

on the present panel joined, demonstrates that the Pickering

balancing test requires a public employer to offer more than a 

bald assertion that an employee’s speech could have impaired the 

functioning of the workplace to avoid liability. See Gilchrist, 

749 F.3d at 310–12. Rather, our precedent requires the employer 

to present actual record evidence showing that it was reasonable

to expect the employee’s speech to cause an adverse effect on 

the office’s ability to serve the public effectively and 

efficiently. See id. In Gilchrist, district attorney (“DA”) 

Peter Gilchrist terminated assistant district attorney (“ADA”) 

Sean Smith after Smith ran for Mecklenburg County district court 

judge and, in the course of his campaign for election, 

criticized a defensive-driving program that the DA’s office had 

recommended to the public. Id. at 305–06. Gilchrist in fact 

conceded before the federal district court that Smith’s interest 

in speaking on this public matter outweighed the government’s 

interest in providing effective and efficient public services, 

and the panel noted unanimously that this concession was “with 
44

good reason.” Id. at 309. We held that, as a matter of clearly 

established law,

it is the right of an ADA running for public office 

not to be fired for speaking publicly in his capacity 

as a candidate on matters of public concern when the 

speech is critical of a program that substantially 

reduces the DA’s office’s caseload but there is no 

reason to believe the speech will negatively impact 

the DA’s office’s efficiency.

Id. at 312 (emphasis added). Properly understood, that clearly 

stated holding controls the result of Pickering balancing in 

this case. Or at least, it should.

Indeed, there is no binding or persuasive authority to the 

contrary. In previous decisions, the Supreme Court and this 

Court have both required a showing of actual record evidence 

from which it is reasonable to anticipate a disruption in the 

workplace likely to diminish the provision of governmental 

services. See, e.g., Rankin, 483 U.S. at 388–89 (“While [the 

employee’s] statement was made at the workplace, there is no 

evidence that it interfered with the efficient functioning of 

the office.” (emphasis added)); Durham, 737 F.3d at 301 (“[W]e 

discern no substantial evidence in the trial record supporting 

[the employer’s] claim” that its “interest in maintaining an 

efficient and effective law enforcement agency outweighed [the 

employee’s] rights under the First Amendment.” (emphasis 

added)); Bland v. Roberts, 730 F.3d 368, 387 (4th Cir. 2013) 

(“[D]espite the Sheriff’s reference to the need for harmony and 
45

discipline in the Sheriff’s Office, nothing in the record in 

this case indicates that [the employee’s] Facebook support of 

[the Sheriff’s political opponent’s] campaign did anything in 

particular to disrupt the office or would have made it more 

difficult for [the employee], the Sheriff, or others to perform 

their work efficiently.” (emphasis added)); Robinson v. Balog, 

160 F.3d 183, 189 (4th Cir. 1998) (“In view of the lack of 

evidence supporting the [government’s] interest in disciplining 

[the employees] for their speech, we hold that the district 

court erred in precipitously resolving the Pickering balance in 

favor of the defendants.” (emphasis added)).3 Moreover, the 

 3 Several other circuits also require a showing of actual 

record evidence from which one may reasonably expect a workplace 

disruption to arise. See, e.g., Jordan v. Ector Cty., 516 F.3d 

290, 299 (5th Cir. 2008) (“We need not pause long on the 

balancing, for there is no record evidence that [the employee’s] 

political activities caused disruptions that would justify 

termination.” (emphasis added)); Murphy v. Cockrell, 505 F.3d 

446, 453 (6th Cir. 2007) (“[The employer] presented no evidence

that [the employee’s] speech impeded her duties at the . . . 

office.” (emphasis added)); Sexton v. Martin, 210 F.3d 905, 912 

(8th Cir. 2000) (“[A] simple assertion by the employer that 

contested speech affected morale, without supporting evidence, 

is not enough . . . . Mere allegations of disruption are 

insufficient to put the Pickering balance at issue.” (emphasis 

added) (citations and internal quotation marks omitted)).

Unsurprisingly, courts have also recognized that even a 

showing of some tension may be insufficient to tip the scale in 

favor of the public employer where the employer fails to offer 

any evidence that one could reasonably expect the disharmony to 

actually interfere with the government’s efficient operation. 

See, e.g., Murphy, 505 F.3d at 453 (“[I]t is impermissible to 

allow a superior to terminate an employee simply because 

(Continued)
46

majority opinion provides no support for its assertion that it 

“cannot resolve the Pickering question on this record,” ante

at 23, nor does it meaningfully distinguish this case from any 

of the prior cases in which this Court has consistently held 

that a lack of record evidence of a reasonably anticipated 

disruption to the workplace warrants a final decision under 

Pickering in favor of the plaintiff, not remand to provide the 

defendant another opportunity to meet his burden.4

 

tensions that did not impede the functions of the workplace 

arose over such protected speech.”).

4 To be sure, in Gilchrist, we reversed the erroneous grant 

of summary judgment for Gilchrist and remanded for further 

proceedings without explicitly rendering judgment in favor of 

Smith. See 749 F.3d at 313. But, unlike the majority opinion 

in this case, the Court in Gilchrist conducted the Pickering

balancing test and, upon observing that Gilchrist presented no 

evidence of a reasonably anticipated workplace disruption, 

reached a final decision on that issue in favor of Smith. See

id. The subsequent trial briefs in Gilchrist reveal that the 

parties and the district court fully understood that the sole 

issue remaining after remand was that of causation. See Pl.’s 

Trial Br. 1, Smith v. Gilchrist, No. 3:10-CV-00636-RJC-DLH 

(W.D.N.C. June 22, 2015); Def.’s Trial Br. 1, 5, Gilchrist, No. 

3:10-CV-00636-RJC-DLH (W.D.N.C. June 22, 2015). In other words, 

there remained in that case a genuine factual issue related to 

the First Amendment retaliation claim that warranted further 

proceedings before liability could be determined. See Love-Lane 

v. Martin, 355 F.3d 766, 776 (4th Cir. 2004) (“The first two 

elements involve questions of law. The third element, 

causation, can be decided on summary judgment only in those 

instances when there are no causal facts in dispute.” (citation 

and internal quotation marks omitted)). No such issue exists 

here. Accordingly, rendering judgment on liability in this case 

is entirely appropriate.
47

B.

1.

Although the majority opinion analyzes the issue at length, 

it ultimately declines to reach a conclusion regarding Pickering

balancing, declaring that the record has not been sufficiently 

developed to allow for a fair analysis. In particular, the

majority opinion seemingly contends that, in the district court, 

Gault was not seasonably put on notice that the principles of 

Pickering were at play in this case.

The majority opinion’s decision not to reach a conclusion 

under Pickering is erroneous for multiple reasons. First, 

examination of the proceedings in the district court 

demonstrates that the parties presented, and the district court 

entertained, both written and oral arguments related to 

Pickering balancing. Indeed, in response to Gault’s motion for 

summary judgment, Lawson specifically contended that Pickering

balancing, and not the Elrod–Branti exception, provided the 

proper doctrinal framework within which this case should be 

resolved. And Gault’s highly experienced counsel argued at the 

hearing on the motion for summary judgment that “it really 

doesn’t matter . . . how [Lawson’s claim is] analyzed.” Hr’g 

Tr. 13, Lawson v. Union Cty. Clerk of Court, No. 7:13-CV01050(TMC) (D.S.C. May 5, 2014). In fact, at a hearing on 

Gault’s motion for reconsideration (of the district court’s 
48

original denial of summary judgment as to injunctive relief), 

Gault’s counsel made clear that, although for a period the focus 

of the case had been on the protected status of Lawson’s 

candidacy, he fully understood that the case was also about the 

protected status of Lawson’s speech in connection with her 

candidacy: “Your honor, I certainly don’t deny bearing some 

responsibility for not being as clear as I could have, maybe. 

But once this case gravitated into the Pickering thing, we 

addressed that in the reply brief and argued that we were 

entitled to summary judgment [on that basis as well].” Hr’g Tr. 

6–7, Lawson, No. 7:13-CV-01050(TMC) (D.S.C. Oct. 30, 2014). 

Thus, Gault had sufficient notice that he bore the burden of 

defending his actions under Pickering. That Gault failed to 

satisfy this burden, as discussed below, warrants summary 

judgment for Lawson; it does not warrant a remand to the 

district court to provide him an additional opportunity to do 

so.

Further, “[w]hen an issue or claim is properly before [an 

appellate] court, the court is not limited to the particular 

legal theories advanced by the parties, but rather retains the 

independent power to identify and apply the proper construction 

of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 

90, 99 (1991); accord United States ex rel. May v. Purdue Pharma 

L.P., 737 F.3d 908, 913 n.3 (4th Cir. 2013). Whether Gault 
49

violated Lawson’s First Amendment rights by terminating her 

employment is indisputably an issue that is properly before us, 

and we may analyze this issue under Pickering or under any other 

relevant legal theory raised in the district court.

Moreover, the majority opinion’s reluctance to perform the 

Pickering balancing test due to a lack of record evidence 

supporting Gault’s position is unwarranted. The majority 

opinion suggests that, with proper notice that the district 

court or this Court might perform the Pickering balancing test, 

Gault might have deposed other individuals or otherwise sought 

greater factual support for the proposition that he terminated 

Lawson to ensure the continued effective and efficient provision 

of governmental services. Yet given that the majority opinion 

apparently determined sub silentio that the factual record was 

sufficiently developed to assess one of Gault’s legal defenses—

namely, his defense under Elrod–Branti—it is perplexing that the 

majority opinion deems the same factual record an insufficient 

basis to assess another of Gault’s legal defenses to the same 

First Amendment claim—namely, his defense under Pickering.

Indeed, the two legal doctrines require consideration of 

the same type of factual evidence. The Elrod–Branti exception 

applies where “the hiring authority can demonstrate that party 

affiliation is an appropriate requirement for the effective 

performance of the public office involved.” Branti, 445 U.S. 
50

at 518 (emphasis added); see also id. at 519–20 (noting that the 

doctrine is intended to “promote[] the effective performance of 

[the public] office”). Likewise, the Pickering balancing test 

assesses whether “the interest in speaking upon the matter of 

public concern outweighed the government’s interest in providing 

effective and efficient services to the public.” Gilchrist, 749 

F.3d at 308 (quoting McVey, 157 F.3d at 277–78). Accordingly, 

the factual evidence that a public employer must put forth under 

Elrod–Branti—evidence demonstrating that the employee’s 

termination based on political affiliation would further the 

effective performance of the public office—includes the same 

evidence that the employer must present under Pickering—evidence 

that the employee’s termination based on her speech was 

appropriate to ensure the office’s continued provision of 

effective and efficient services to the public. As mentioned 

above, when he was before the district court, Gault’s 

experienced counsel fully grasped this truism. Thus, if, as the 

majority opinion takes for granted, the factual record is 

sufficiently developed to consider Lawson’s claims under Elrod–

Branti, there is no reason to suppose that the record is 

insufficiently developed to do the same under Pickering.

2.

A thorough examination of the relevant interests in this 

case under the Pickering balancing test reveals that the robust 
51

interest in Lawson’s core political speech upon a matter of 

public concern significantly outweighed Gault’s unwarranted and

speculative belief that Lawson’s speech would undermine his 

interest in assuring that the Office of the Clerk would continue 

to provide effective and efficient services to the public.

I note first that we must consider Lawson’s speech in the 

context of her political campaign for Clerk of Court against 

Gault, the incumbent Clerk.5 See Gilchrist, 749 F.3d at 309; 

Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 317 

(4th Cir. 2006) (“For Pickering balancing, ‘we must take into 

account the context of the employee’s speech’ and ‘the extent to 

which it disrupts the operation and mission of the 

institution.’” (quoting McVey, 157 F.3d at 277)). In doing so, 

let’s be clear about the particular speech and context at issue. 

This is not a case in which an employee lashed out at her 

supervisor or coworker, impugning a colleague’s character in an 

unnecessarily public fashion. To the contrary, the comments in 

this case consist of Lawson’s statements during her political 

 5 I strongly believe that, in its lengthy but ultimately 

inconclusive discussion of the Pickering balancing test, the 

majority opinion unwittingly compounds its erroneous analysis of 

Lawson’s claim by viewing Lawson’s speech without regard for its 

proper context: that of pure political speech voiced in the 

course of a partisan campaign for elective office. See Brickey, 

slip op. at 15 (Diaz, J.) (“Brickey spoke as a political 

candidate in a public forum. In general terms, speaking as a 

political candidate weighs in favor of speech.”).
52

campaign for public office in which she questioned “where the 

funds were coming from to pay Ms. Miller.” J.A. 186. Gault 

testified that, “around the campaign trail[,] . . . people would 

say [Lawson] is saying June Miller should not be in the clerk of 

court’s office; June Miller is running the clerk of court’s 

office; . . . why does Freddie Gault got [sic] June Miller in 

the clerk of court’s office[?]” J.A. 88–90. Although Gault 

admitted that he did not hear Lawson make these comments or, in

fact, say anything about Miller throughout the election 

campaign, he maintained that his receipt of reports about these 

statements prompted him to fire Lawson.

Far from “publicly associat[ing] a colleague, by name, with 

accounting irregularities,” ante at 30, in statements for which 

“there could be no benign reason,” id. at 30 n.10, as the 

majority opinion asserts, Lawson’s comments, at worst, expressed 

skepticism regarding the strength of Gault’s management of the 

Clerk’s Office and questioned Gault’s reliance on the aid of a 

former Clerk.6 Lawson’s comments concerning the source of funds 

for Miller’s salary also showcased for voters Lawson’s 

 6 Gault himself apparently interpreted Lawson’s comments in 

this manner, rather than as an affront to Miller: “[T]he rumor 

is going around that [Miller is] running the office, you know. 

And I don’t mean this disrespectful either, but I never even ask 

her advice . . . . Ms. Miller is not running my office for 

me. . . . [She is j]ust doing [bank] reconciliations.” 

J.A. 100.
53

“heightened sense of alertness” as to the management of public 

funds, which she had acquired from her experience in the Clerk’s 

Office during the embezzlement scandal. J.A. 187. In other 

words, her statements highlighted the need for transparency 

regarding the distribution of public funds. Accordingly, her 

speech was precisely the kind of core political speech that one 

would expect a candidate to make as part of her campaign for 

elective office. Compare ante at 30 & n.10 (characterizing 

Lawson’s comments during a political campaign in which she asked 

“where the funds were coming from to pay Ms. Miller” as 

statements “associat[ing] Miller with suspicious accounting” for 

“no benign reason” and suggesting that Gault did not violate the 

First Amendment by firing Lawson for her speech), with Brickey, 

slip op. at 13 n.3 (recognizing that a police officer’s comments 

during a political campaign, including “[s]tatements that the 

department ‘needs to be more professional,’ ‘needs to be more 

[aggressive] on investigations,’ [and] ought to hire an 

investigator,” “offer modest criticism of the department and its 

chief,” “do not raise a reasonable apprehension of disruption,” 

and are “entitled to First Amendment protection” as a matter of 

clearly established law (first alteration in original) (citation 

omitted)).

Indeed, all parties agree that Lawson “‘was speaking as a 

citizen upon a matter of public concern’ rather than ‘as an 
54

employee about a matter of personal interest,’” Gilchrist, 749 

F.3d at 308 (quoting McVey, 157 F.3d at 277–78), and the 

majority opinion appropriately notes that this element of 

Lawson’s First Amendment claim is not at issue, ante at 24 n.5.

3.

Bearing in mind the particular speech in question and its 

specific context, I examine the interest in Lawson’s speech. As 

stated above, it is undisputed that Lawson’s comments 

constituted speech upon a matter of public concern, as they 

“involve[d] an issue of social, political, or other interest to 

the community.” Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 

2000) (en banc). More to the point, Lawson had a particularly 

strong interest in speaking on this matter. She certainly had 

an interest in running for Clerk of Court, as she had worked in 

the Union County Clerk’s Office for twenty-three years and had 

previously sought the position. She also had an interest in 

demonstrating to her constituents, as part of her campaign, that 

she was mindful of the need for proper management of public 

funds and that she was especially vigilant of the use of Clerk’s 

Office funds, given her experience working there. Core 

political speech like Lawson’s garners “the highest level of

protection” under the First Amendment because of the 

particularly strong interests at stake. Bland, 730 F.3d at 387; 

see also Meyer v. Grant, 486 U.S. 414, 422, 425 (1988) 
55

(recognizing constitutional protection of “core political 

speech” as being “at its zenith” (citation omitted)).

Moreover, the public itself had a strong interest in 

Lawson’s speech. See City of San Diego v. Roe, 543 U.S. 77, 82 

(2004) (per curiam) (“The interest at stake is as much the 

public’s interest in receiving informed opinion as it is the 

employee’s own right to disseminate it.”); McVey, 157 F.3d 

at 279 (Murnaghan, J., concurring) (“Both the Supreme Court and 

the Fourth Circuit have explained that the public interest in 

the employee’s speech must be considered when weighing his right 

to speak against the government-employer’s interest in 

controlling the workplace.”). The Supreme Court has 

“acknowledged the importance of promoting the public’s interest 

in receiving the well-informed views of government employees 

engaging in civic discussion.” Garcetti, 547 U.S. at 419; see 

also Gilchrist, 749 F.3d at 308 (“Protection of the public 

interest in having a debate on matters of public importance is 

at the heart of the First Amendment.” (quoting McVey, 157 F.3d 

at 277)).

In this case, the public had a considerable interest in 

ensuring that the Deputy Clerk—someone with significant 

experience working in the Clerk’s Office—would not be deterred 

from running for Clerk of Court by the prospect of losing her 

current employment. Moreover, members of the public considering 
56

who to elect as the next Clerk had a substantial interest in 

hearing the comments of one candidate, the Deputy Clerk, 

concerning the management of Clerk’s Office finances under the 

current Clerk, who was also seeking the position. Indeed, the 

public’s interest in Lawson’s speech was especially strong, as 

her speech concerned the management and expenditure of public 

funds—the same funds that Gault’s predecessor had pled guilty to 

embezzling while in office.

4.

Because both Lawson and the public had an interest in 

Lawson’s speech upon this matter of public concern, Lawson 

“could not be fired for making the statements [s]he made unless 

h[er] right to speak was outweighed by h[er] employer’s 

legitimate interests.” Gilchrist, 749 F.3d at 309. Gault bore 

a particularly heavy burden in identifying legitimate interests 

in terminating Lawson, for “[a] stronger showing of public 

interest in the speech requires a concomitantly stronger showing 

of government-employer interest to overcome it.” McVey, 157 

F.3d at 279 (Murnaghan, J. concurring) (citing cases); accord

Connick v. Myers, 461 U.S. 138, 152 (1983); Durham, 737 F.3d 

at 302 (“[I]t is not enough that there is some disruption; the 

amount of disruption has to outweigh the importance of the 

speech and its concern to the public.”); see also Dougherty v. 

Sch. Dist. of Phila., 772 F.3d 979, 991 (3d Cir. 2014) (“The 
57

more tightly the First Amendment embraces the employee’s speech, 

the more vigorous a showing of disruption must be made by the 

employer.”).

Nevertheless, in an effort to meet this burden, Gault 

merely suggested that he lawfully terminated Lawson’s employment 

in response to her political speech because “the potential for 

disruption is self-evident.” Appellees’ Br. 32 (quoting 

Maciariello, 973 F.2d at 300). Gault asserted that this “‘selfevident’ ‘potential for disruption’ suffices to strike any 

required balancing of interests in favor of Gault.” Id. My 

friends in the majority suggest that Gault’s “showing” in this 

respect could warrant summary judgment in his favor. I 

disagree.

5.

The factual record, which was fully developed in this case 

(in accordance with the district court’s scheduling order, whose 

deadlines were in fact extended) prior to the motion for summary 

judgment,7 indicates that absolutely no adverse effect on the 

 7 In declining to render judgment for Lawson, ostensibly 

because Lawson did not affirmatively seek summary judgment, the 

majority opinion remands to allow for further development of the 

factual record even though Gault has not urged this Court to do 

so, indicated that the record is currently underdeveloped, or 

explained how he might seek to further develop the record. The 

majority opinion thus purports to give effect to Lawson’s 

intent, emphasizing repeatedly that Lawson has not sought 

summary judgment, while ignoring Gault’s express intent to 

(Continued)
58

workplace was “reasonably to be apprehended” had Gault 

maintained Lawson’s employment and declined to retaliate against 

her for her political speech. Lawson’s 2012 campaign for office 

was remarkably tame and collegial. Of course, as noted above, 

Lawson did make statements as part of her bid for election in 

which she asked “where the funds were coming from to pay 

Ms. Miller,” J.A. 186, and questioned Gault’s managerial 

prerogatives. Lawson did not say anything, however, regarding 

Miller’s character or fitness as an employee of the Clerk’s 

Office. Likewise, Lawson did not speak negatively about Gault 

throughout the campaign or thereafter, aside from making the 

relatively benign comments described above. Instead, her 

political advertisements and the message that she and her 

supporters sought to convey throughout her campaign focused on 

her years of experience in the Clerk’s Office.

Moreover, Lawson remained cordial throughout the entire 

election period. When Gault instructed Lawson not to involve 

 

resolve the case by summary judgment, without any further 

factual discovery. As the majority opinion identifies no 

genuine issue of material fact, it is unclear why it remands for 

further development of the factual record.

To be sure, in light of the majority opinion’s disposition 

of this case, a decision by the district court to allow further 

discovery would likely fall within the district court’s 

discretion. I am unconvinced, however, that remand for this 

purpose is necessary, as there is no genuine issue of material 

fact and clearly established law plainly favors Lawson.
59

anyone in the Clerk’s Office in her campaign, she obliged; she 

did not campaign at the office or enlist any of the Clerk’s 

Office employees to help with her campaign. Gault reciprocated 

Lawson’s collegiality, and he attended the visitation for 

Lawson’s husband, who passed away a few weeks before the 

election and the night before the two candidates were to engage 

in their only debate. Gault later indicated that he had 

considered Lawson’s husband “a close friend,” and he explained 

that he had attended the visitation “out of respect for him and 

her.” J.A. 177. In light of her husband’s passing, Lawson did 

not attend the debate. When Gault ultimately won the election, 

Lawson called to congratulate him.

Further, the record is unmistakably clear that, after 

Lawson had previously applied for appointment as Clerk of Court 

in 2009 and after the governor appointed Gault to the position 

instead, the Clerk’s Office continued to operate effectively and 

efficiently while Lawson continued to work there.8 In fact, 

 8 The majority opinion asserts that any reliance on the 

actual record evidence of the respectful, professional 

relationship between Lawson and Gault prior to the 2012 election 

campaign and throughout the campaign somehow “has no bearing on 

how Lawson’s comments would have affected Miller, or the Office 

as a whole.” Ante at 31. This reasoning exemplifies the 

majority opinion’s disdain for actual record evidence of no 

likelihood of a workplace disruption, coupled with its 

celebration of the absence of any actual record evidence of a 

likelihood of a workplace disruption.

(Continued)
60

after his appointment, Gault promoted Lawson from the position 

of senior employee in the Family Court/Child Support Division of 

the Clerk’s Office to Deputy Family Court Clerk. Lawson 

continued to serve as Deputy Clerk until Gault placed her on 

unpaid leave when she announced her candidacy for Clerk of 

Court.

Finally, the record contains no testimony from anyone other 

than Lawson or Gault. Not one member of the Clerk’s Office—not 

even Miller—indicated that she would have been unable to work 

effectively and efficiently with Lawson as a result of Lawson’s 

speech. Only Gault appeared to react negatively to Lawson’s 

 

Manifestly, it is the majority opinion that has introduced 

into the record the notion that Lawson “publicly associated a 

colleague, by name, with accounting regularities,” id. at 30, 

and made “negative public comments about an identified coworker,” id. at 29, for “no benign reason,” id. at 30 n.10 

(emphasis added), in characterizing, quite unfairly, Lawson’s 

political speech. One can search the record of this case for 

days and will not uncover any such characterization by Gault, 

Miller, any of the employees of the Clerk’s Office, or the 

district court. Furthermore, as this dissent pointed out 

previously in decrying the majority opinion’s acontextual 

approach in this case (in contrast to the approach one sees in 

Brickey), supra note 5, the majority opinion turns the First 

Amendment political speech doctrine on its head by joining with 

Gault to punish Lawson for speaking publicly. Lawson was not 

running for “Most Likeable Employee of the Clerk’s Office/2012”; 

she was running in a partisan election to become the Clerk of 

Court. It is unfathomable to suggest that her mere mention of 

Miller’s name in connection with her benign comments about the 

operational efficiency of the office based on her twenty-threeyear career in that very office should only be whispered in 

private conversations with voters. 
61

comments.9 The factual record here stands in sharp contrast to 

the factual record bearing on the likely effects of the 

statements disseminated by Brickey in the newspaper 

questionnaire. See Brickey, slip op. at 15–16 (observing that 

“an independent investigation of Brickey’s statements [had] 

concluded that they ‘were harmful to the public trust of [the 

police chief] as well as his integrity’” (citation omitted)).

In short, nothing in the record suggests that it was 

reasonable to anticipate that Lawson’s speech would have caused 

 9 Gault testified that, after having terminated Lawson, he 

explained that decision to some members of the Clerk’s Office 

staff. He indicated that three of the staff members responded 

that they had “no [hard] feelings” about his decision to fire 

Lawson, while one person told him that, in hindsight, she was 

“kind of glad [Gault] did this,” given the potential challenge 

of working with a Deputy Clerk who had run for election against 

the Clerk. J.A. 93. The staff members apparently said nothing 

of the likely effect of Lawson’s speech, as opposed to the 

effect of Lawson’s seeking election against Gault, and their 

comments did not provide a reasonable basis upon which Gault 

could have anticipated an interruption to workplace 

effectiveness or efficiency, as this discussion occurred after

he had terminated Lawson. I mention Gault’s testimony 

concerning post hoc comments by Clerk’s Office employees merely 

to emphasize that the only putative evidence in the record that 

Gault could have attempted to put forth to demonstrate the 

reasonableness of his decision to terminate Lawson is 

inapposite. Meanwhile, the record is devoid of any evidence of 

circumstances prior to Lawson’s termination or at the time of 

Lawson’s termination that would have led a reasonable person to 

conclude that the effectiveness and efficiency of the Union 

County Clerk’s Office would suffer as a result of Lawson’s 

campaign speech. And further development of the factual record 

on remand, approximately four years after Lawson’s termination, 

would likely uncover only the same kind of post hoc evidence 

that has no bearing on the reasonableness of Gault’s perception 

of a likely disruption at the time he terminated Lawson.
62

even the slightest hiccup in the Clerk’s Office’s effectiveness 

or efficiency, let alone a disruption sufficient to overcome the 

highest constitutional protection for Lawson’s core political 

speech. To the contrary, the record depicts longstanding 

collegiality and professionalism among all involved. The 

majority opinion’s indefensible decision to hypothesize future 

workplace disruption on the record before us is nothing if not 

head-scratchingly inexplicable. In any event, even if, on 

remand, Gault’s experienced counsel should ask the district 

court to reopen discovery as the majority opinion curiously 

contemplates, the district court would act quite reasonably to 

demand to know why any employee of the Clerk’s Office (circa 

2012) who was not deposed in support of the Elrod-Branti defense 

should now be deposed in support of Gault’s ostensible Pickering

defense.

C.

Despite the absence of any actual record evidence of a 

potential disruption in the Clerk’s Office, the majority opinion 

takes the unprecedented approach of refusing to announce a 

decision on Pickering balancing while nonetheless discussing at 

length its inclination to credit Gault’s baldly unsupported 

statement that he terminated Lawson because he “couldn’t very 

well bring [her] back in and expect her to sit beside June 

Miller.” J.A. 92. The majority’s reliance on this assertion in 
63

particular is troubling because Lawson and Miller—and, indeed, 

Lawson and Gault—worked in separate office buildings.10 

Accordingly, Lawson’s return to work would not have required 

that she and Miller sit side by side, even if the record had

provided any indication that the two employees would not have 

been able to work together effectively under those 

circumstances. In the same vein, according to the majority 

opinion, “the record reflects that Gault expressed concern about 

 10 Gault, Miller, and five other Clerk’s Office employees 

worked in the Union County courthouse, while Lawson and three 

other employees worked in a separate building called the 

“annex.” See J.A. 69. Further discrediting the majority 

opinion’s reliance on its manufactured propinquity as between

Lawson and Miller, the latter was a part-time employee at all 

pertinent times. Indeed, as Gault testified, 

[Miller would] work normally two days a week. Some 

days it may go three or four weeks where she -- three 

weeks where she doesn’t work, and she just comes back 

in at the first of the month where our checks are 

coming in and the reports, and she reviews reports 

that the general sessions and that child support is 

doing [sic].

J.A. 98. 

The notion that Lawson’s speech or her continued employment 

would have disrupted the work of the Clerk’s Office in any 

legally cognizable manner is fantastical on this record. Unlike 

the majority opinion, the district court recognized that it was 

Gault’s view of Lawson as his “political enem[y]” that arguably 

justified her termination. See Lawson v. Gault, 63 F. Supp. 3d 

584, 590 n.4 (D.S.C. 2014) (quoting Jenkins v. Medford, 119 F.3d 

1156, 1163 n.47 (4th Cir. 1997) (en banc)). For the reasons 

stated infra pp. 75–85, this dissent (together with the majority 

opinion) disagrees with that alternative justification for 

denying Lawson protection for the exercise of her First 

Amendment rights.
64

[how Lawson’s comments could affect her ability to maintain 

discipline in her division], and noted that he expected that 

other co-workers would have difficulty working with Lawson going 

forward.” Ante at 29. Yet no record evidence demonstrates that 

Gault’s subjective concerns were objectively reasonable. Cf.

Durham, 737 F.3d at 302 (“[The employer] paid lip service to 

ostensible damage to office morale, relationships between 

colleagues, and the function of the office generally, but he was 

unable to articulate any way in which the office would have been 

different or was actually different due to [the employee’s] 

statements.”).

The majority also speculates that Lawson’s employment in a 

“supervisory position” and “public-facing role” enabled her to 

have a greater impact on office morale through her speech. See

ante at 29–30. Yet once again, this suggestion has no basis in 

the record—and Gault, who bears the burden at this juncture, did 

not raise this argument himself. Likewise, although the 

majority highlights the public nature of Lawson’s speech, that 

it occurred during her campaign for public office is simply not 

evidence that her speech would damage the Clerk’s Office’s 

continued productivity.

Further, in presenting one of the primary bases for its 

apparent inclination to resolve the Pickering balancing test in 

Gault’s favor, the majority opinion emphasizes that the Clerk’s 
65

Office comprised only ten full-time employees, and it thus 

suggests that “[t]he potential for Lawson’s public comments to 

sow discord in his office was a serious concern.” Id. at 29 

(citing Appellees’ Br. 31). The notion that, as Gault asserts, 

the potential disruption to the Clerk’s Office’s operation could 

be “self-evident” is fundamentally at odds with the legal rule 

firmly entrenched in Supreme Court and Fourth Circuit precedent 

that a public employer must provide actual record evidence to 

demonstrate that a disruption is “reasonably to be apprehended,” 

Gilchrist, 749 F.3d at 309 (quoting Maciariello, 973 F.2d 

at 300). See, e.g., Rankin, 483 U.S. at 388–89; Gilchrist, 749 

F.3d at 310, 312; Durham, 737 F.3d at 301; Bland, 730 F.3d 

at 387; Robinson, 160 F.3d at 189. Yet the majority opinion 

essentially suggests that Lawson’s employment in a small office 

is sufficient to establish that her speech would inherently 

cause disharmony in the workplace—and not just any disharmony, 

but disharmony sufficient to outweigh the robust countervailing 

interest in Lawson’s core political speech—despite all actual 

record evidence to the contrary. With this reasoning, the 

majority effectively invokes a new, per se presumption that a 

public employee who works in a small office and who speaks 

critically about a matter involving the workplace, no matter the 

circumstances, is not protected by the First Amendment “right to 

be free from retaliation by a public official for the exercise 
66

of [one’s freedom of speech].” Gilchrist, 749 F.3d at 308 

(quoting Suarez Corp. Indus., 202 F.3d at 685). Such an 

acontextual analysis flies in the teeth of controlling 

precedent.

Perhaps most troubling, the majority opinion’s analysis 

rests on an apparent disapproval of the content of Lawson’s 

speech without regard for its context, as the majority suggests 

that, at least in part because Lawson “publicly associated a 

colleague, by name, with accounting irregularities,” ante at 30, 

“Lawson’s comments might have been expected to impair harmony 

among co-workers and damage close personal relationships,” id.

at 29. In fact, none of the parties or individuals involved in 

this case suggested that any “accounting irregularities” 

existed; nor did anyone contend that Lawson’s speech might have

implied that such irregularities existed.11 Lawson merely 

questioned “where the funds were coming from to pay Ms. Miller,” 

J.A. 186—or how Clerk’s Office funds were being distributed—in 

the context of a campaign for Clerk of Court against the 

incumbent Clerk. Contrary to the image of Lawson painted by the 

majority opinion, Lawson actually expressed warm personal regard 

 11 It is useful to recall that, in assessing Gault’s motion 

for summary judgment, the majority opinion acknowledges that it 

must construe all facts and draw all reasonable inferences in 

the light most favorable to Lawson. See T-Mobile Ne. LLC v. 

City Council of Newport News, 674 F.3d 380, 385 (4th Cir. 2012).
67

for Miller during the campaign for the positive role Miller had 

played in her development and career.12 See J.A. 169.

In any event, even if Lawson’s comments could have had a 

negative effect on workplace operation under certain 

circumstances, there is simply no evidence that it was 

reasonable to anticipate such an effect in the context of this 

case. Cf. Robinson, 160 F.3d at 189–90 (holding that the 

district court erred in resolving the Pickering balancing test 

in the employer’s favor where the employees “allege[d] 

corruption in the use of public funds” but the employer “failed 

to present any evidence that . . . [the employees’] speech . . .

 12 Lawson stated in an autobiographical “open letter” to 

voters,

My involvement with Union County began in 1983 working 

part - time for former Clerk of Court Pearl S. Kirby. 

This position was approved for six months and during 

this time I worked with Uniform Commercial Codes, 

Judgements [sic] and Child Support Services. Later, 

in 1989, I became employed by the Union County 

Sheriff’s Department as a dispatcher and worked 12 

hour shifts. I remained there for three years until 

former Clerk of Court June H. Miller hired me to work 

in the Family Court and Child Support Division of the 

clerk’s office. I was so thankful to her for this 

opportunity because at the time, I had a young son and 

needed a 9 to 5 job.

J.A. 169 (emphasis added). The majority opinion is willing to 

blink at this affirmative record evidence, as it blinks at other 

evidence discussed herein, of no likelihood of a substantial 

disruption had Lawson’s employment continued.
68

interfered with the effective functioning of the [office]” 

(emphasis added)).

D.

While the majority opinion attempts to distinguish this 

case from Gilchrist by identifying differences between the 

comments that ADA Smith made about the defensive-driving program 

and those Lawson made about the source of Miller’s salary, the 

two cases are identical in at least one critically important 

respect: in both cases, “[t]here simply was no evidence that 

[the employee’s] public statements would cause problems with 

harmony or discipline in the . . . office such that the 

efficiency of the office would be expected to be adversely 

affected.” Gilchrist, 749 F.3d at 310 (emphasis added). This 

Court in Gilchrist repeated this determination again and again: 

“Nor was there any evidence that Gilchrist had any reason to 

believe that Smith’s interview would negatively affect the 

efficiency or effectiveness of the DA’s office”—even though the 

content of the speech was “critical of a program that 

substantially reduces the DA’s office’s caseload.” Id.

(emphases added); see also id. at 312 (“Gilchrist certainly was 

correct to concede that there were no relevant facts upon which 

he could base an argument that Smith’s interest . . . was 

outweighed by the government’s interest . . . .” (emphasis 

added)). 
69

Moreover, my friends in the majority rely too heavily on 

the case from which Gault gleaned the phrase “self-evident.” In 

Maciariello, two police officers were demoted after performing 

an unofficial internal investigation of their captain. 973 F.2d 

at 296–97. This Court weighed the limited interest of the two 

investigating officers in their purported speech against the 

interest of the police department in providing effective and 

efficient public services. See id. at 299–300. As part of its 

careful balancing, the Court recognized that a police department 

is “paramilitary” and has a greater interest than most employers 

in minimizing “dissension in [its] ranks” as well as “an 

undeniable interest in discouraging unofficial internal 

investigations” that could be “very disrupting.” Id. at 300; 

accord Brickey, slip op. at 13 (“It was clearly established in 

2012 that police officials are entitled to impose more 

restrictions on speech than other public employers because a 

police force is paramilitary—discipline is demanded, and freedom 

must be correspondingly denied.” (internal quotation marks 

omitted) (quoting Maciariello, 973 F.2d at 300)). The Court 

also acknowledged that “we do not require the public employer to 

prove that the employee’s speech actually disrupted efficiency, 

but only that an adverse effect was ‘reasonably to be 

apprehended.’” Maciariello, 973 F.2d at 300 (emphasis added) 

(quoting Jurgensen, 745 F.2d at 879). Accordingly, the Court 
70

indicated that, “[w]hether there was any concrete evidence that 

morale was disrupted or not, the potential for disruption is 

self-evident.” Id.

To the extent that Maciariello might suggest that a public 

employer need not present actual record evidence from which one 

could reasonably expect an obstruction of the office’s 

operation, two important points bear mentioning. First, the 

Court in Maciariello discussed several bases upon which one 

could reasonably anticipate that the specific type of “speech” 

at issue—performing an unauthorized investigation of the police 

officers’ captain—would prove highly disruptive to a police 

department in particular, a workplace in which “discipline is 

demanded.” Id. That is, even though the Court did not strictly 

require the public employer to present actual record evidence of 

a likely disruption, it nevertheless carefully considered 

whether “an adverse effect was ‘reasonably to be apprehended’” 

under the specific circumstances of that case. See id. (quoting 

Jurgensen, 745 F.2d at 879). The majority in this case, by 

contrast, identifies no basis in the record upon which one could 

reasonably expect that a Clerk’s Office employee’s political 

speech about the source of funds for another employee, made in 

the context of a campaign for political office, would hinder the 

operation of the Clerk’s Office. Cf. Brickey, slip op. at 21

(emphasizing that “a core abuse of the mission of a police 
71

department is reasonably distinguishable from vague allegations 

of mismanagement or even misuse of funds”).

Second, and perhaps of greater salience, the Court’s 

balancing of competing interests in Maciariello and its 

suggestion that a disruption to the workplace may be “selfevident” were dicta. The Court in Maciariello first determined 

that the two officers’ statements of their suspicions about 

their captain constituted “speech,” but the Court concluded that 

this speech was not a “but for” cause of their demotions. 973 

F.2d at 299. Next, the Court concluded that the larger 

investigation itself may have been a “but for” cause of the 

demotions, but the investigation was not “speech.” Id. 

Accordingly, summary judgment for the defendants was 

appropriate. Only after reaching this holding did the Court 

offer an alternative basis for its decision, explaining that 

“[e]ven if these defects were repaired, plaintiffs would lose if 

their interest as a citizen in the ‘speech’ is outweighed by the 

government’s interest as an employer.” Id. At this point, the 

Court applied the Pickering balancing test. Accordingly, the 

Court’s analysis under Pickering was merely dicta and did not 

constitute binding law. See Alexander v. Sandoval, 532 U.S. 

275, 282 (2001) (“[T]his Court is bound by holdings, not 

language.”); United States v. Pasquantino, 336 F.3d 321, 329 

(4th Cir. 2003) (en banc) (“The first significant problem is 
72

that the statements [the defendants] rely upon . . . are pure 

and simple dicta, and, therefore, cannot serve as a source of 

binding authority in American jurisprudence.”).

* * * * *

To conclude on Pickering balancing, the majority opinion 

forges an unprecedented path in refusing to consider the legal 

issue outright, even though the matter is properly before us and 

the majority identifies no genuine issue of material fact 

preluding summary judgment. Yet the majority opinion 

nonetheless contains a lengthy hypothetical Pickering analysis, 

during which it constructs its own palette, rather than relying 

on the record coming to us from the district court, on which to 

paint its narrative suggesting a likely denial of Lawson’s right 

to the enjoyment of her First Amendment freedoms. The reasons 

offered by the majority opinion for painting what it paints are 

barren of actual evidentiary support in the record. Further, 

the majority opinion eschews affirmative evidence in the 

existing record of a strong likelihood of the Clerk’s Office’s 

continued provision of effective and efficient public services 

despite Lawson’s speech. The majority opinion asserts that 

Lawson’s political speech: 

“could affect Lawson’s ability to maintain discipline 

in her division,” ante at 29, but there is no actual 

record evidence to support that speculation; and that
73

“Gault expressed concern about [Lawson’s ability to 

maintain discipline], and noted that he expected that 

other co-workers would have difficulty working with

Lawson going forward,” id., but there is no actual 

record evidence to support that speculation; and that 

“Lawson’s comments might have been expected to impair 

harmony among co-workers and damage close personal 

relationships,” id., but there is no actual record 

evidence to support that speculation; and that

“Given Lawson’s public-facing role, . . . Lawson’s 

comments could have undermined the public’s confidence 

in the Office’s integrity and thereby compromised the 

Office’s performance,” id. at 29–30, but there is no 

actual record evidence to support that speculation. 

In light of the clearly established law set forth in 

binding precedent regarding the need for actual record evidence

demonstrating that it is reasonable to anticipate an adverse 

impact on workplace effectiveness and efficiency, it is 

confounding that Gault argues, and the majority appears to 

credit, that such a disruption could be “self-evident”—and that 

this assertion by a public employer alone could be sufficient to 

outweigh the substantial interest in Lawson’s core political 

speech.

One would have thought, before today (and even as of today, 

in light of the excellent opinion in Brickey), that the 

reasonableness requirement inherent in the “reasonable 

apprehension of disruption” metric draws its meaning from actual 

record evidence. After today in the Fourth Circuit, if the 

majority opinion’s dicta is given full effect, such 
74

“reasonableness” determinations will more often be a function of 

whatever can be conjured in the fertile imaginations of federal 

judges. This distortion of settled First Amendment doctrine is 

unwarranted, unwise, and unsupportable. I regret this 

development.

II.

Having determined that the Pickering balancing test weighed 

in Lawson’s favor, I next consider whether her termination may 

nevertheless have been lawful under the Elrod–Branti exception. 

While the district court granted summary judgment for Gault 

based on its determination that this exception applied, de novo 

review of this matter is appropriate. See T-Mobile, 674 F.3d at 

384. Like the majority opinion, I would hold that the Elrod–

Branti exception is inapplicable to this case, and, as such, 

summary judgment for Gault was improper on this basis as well.

A.

In Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. 

Finkel, 445 U.S. 507 (1980), the Supreme Court established a 

narrow exception to the general rule that terminating a 

government official on the basis of political affiliation is 

presumptively unconstitutional. See id. at 515–16; Bland, 730 

F.3d at 374. Under this exception, dismissal on the basis of 

political affiliation may be lawful where the public employee 

occupies a policymaking or confidential position for which 
75

effective job performance requires allegiance to a particular 

party. See Branti, 445 U.S. at 518. Thus, an individual 

employed in such a position who “speaks out in a manner that 

interferes with or undermines the operation of the agency, its 

mission, or its public confidence, enjoys substantially less 

First Amendment protection than does a lower level employee.” 

Bland, 730 F.3d at 374 (quoting McVey, 157 F.3d at 278).

The Supreme Court has made clear, however, that this 

exception is narrow, see id., and it has emphasized that “party 

affiliation is not necessarily relevant to every policymaking or 

confidential position,” Branti, 445 U.S. at 518. For example, 

“[t]he coach of a state university’s football team formulates 

policy, but no one could seriously claim that Republicans make 

better coaches than Democrats, or vice versa, no matter which 

party is in control of the state government.” Id. Likewise, 

“although an assistant is bound to obtain access to confidential 

information arising out of various attorney–client 

relationships, that information has no bearing whatsoever on 

partisan political concerns.” Id. at 519. Thus, “the ultimate 

inquiry is not whether the label ‘policymaker’ or ‘confidential’ 

fits a particular position; rather, 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. at 518.
76

In Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990), this 

Court developed a two-part test to determine whether the Elrod–

Branti exception applies. Bland, 730 F.3d at 375 (citing Stott, 

916 F.2d at 134). First, we consider whether “the position at 

issue, no matter how policy-influencing or confidential it may 

be, relates to ‘partisan political interests . . . [or] 

concerns.’” Stott, 916 F.2d at 141 (alterations in original) 

(quoting Branti, 445 U.S. at 519). In other words, we examine 

whether “the position involve[s] government decisionmaking on 

issues where there is room for political disagreement on goals 

or their implementation.” Id. This inquiry requires an 

exploration of the public employee’s position “at a very high 

level of generality.” Bland, 730 F.3d at 375 (quoting Fields v. 

Prater, 566 F.3d 381, 386 (4th Cir. 2009)).

If the first prong is satisfied, we proceed to the second 

step, where we “examine the particular responsibilities of the 

position to determine whether it resembles a policymaker, a 

privy to confidential information, a communicator, or some other 

office holder whose function is such that party affiliation [or 

political allegiance] is an equally appropriate requirement.” 

Id. (alteration in original) (quoting Stott, 916 F.2d at 142). 

This step “requires a much more concrete analysis of the 

specific position at issue.” Id. (quoting Fields, 566 F.3d 

at 386). Even at the second step, however, we examine only “the
77

job description for the position in question,” rather than 

considering the “functions performed by a particular occupant of 

that office.” Id. (quoting Stott, 916 F.2d at 142). We thus 

must determine whether “political loyalty was an appropriate 

requirement for the effective performance of the public 

employment of the [plaintiff] before us in light of the duties 

of [her] particular position[].” Id. at 377.

B.

Gault argues that Lawson’s position as Union County Family

Court Deputy Clerk fits under the Elrod–Branti exception. He 

has failed, however, to make this showing, and, based on the 

record evidence, I would hold that the Elrod–Branti exception is 

inapposite to this case.

1.

Under the first prong of the Stott two-part test, Gault has 

not shown, at a high level of generality, that the position of 

Deputy Clerk of Court relates to partisan political interests or 

that “the position involve[s] government decisionmaking on 

issues where there is room for political disagreement.” See

Stott, 916 F.2d at 142. The responsibilities of Deputy Clerks 

are generally limited to ministerial and administrative tasks, 

and such responsibilities do not afford the Deputy Clerks any 

discretion for which political affiliation might be relevant. 
78

Gault has therefore failed to satisfy the first prong of Stott, 

and the Elrod–Branti exception is inapplicable to this case.

2.

Even if I were to conclude otherwise and proceed to the 

second prong of Stott, I would nevertheless hold that Lawson’s

particular responsibilities as the Union County Family Court 

Deputy Clerk did not transform her position into one for which 

“party affiliation [or political allegiance] is an . . . 

appropriate requirement.” Bland, 730 F.3d at 375 (first 

alteration in original) (quoting Stott, 916 F.2d at 142).

Under South Carolina Law, a Deputy Clerk of Court may 

perform all duties of the Clerk of Court, see S.C. Ann. § 14-17-

60, so I begin by exploring these responsibilities. The Clerk 

of Court “keeps records of the proceedings,” “is charged with 

managing the juries and the county grand jury,” and is 

responsible for “[t]he custody of the courthouse,” including 

“the assignment of office space within the courthouse.” J.A. 

198. With regard to Family Court in particular, the Clerk of 

Court’s duties include “recouping the costs of public assistance 

from parents with legal obligations for child support” and, in 

some cases, “charg[ing] a fee of five percent of the delinquent 

amount.” Id. In addition, the Clerk “performs duties relating 

to the recording of land titles, liens and other documents 

affecting land titles.” Id.
79

The obligations of a Deputy Clerk in particular include 

similarly administrative tasks, such as “setting up accounts and 

refunding payments when cases were closed,” issuing judges’ 

orders, aggregating and reporting court data, and collecting 

receipts. J.A. 165, 167, 169. Based on these perfunctory 

responsibilities, I see no indication that “party affiliation is 

an appropriate requirement for the effective performance of the 

public office.” See Branti, 445 U.S. at 518.

Gault argues that the Clerk of Court, as well as a Deputy 

Clerk serving as the Clerk’s alter ego, may also perform a 

number of tasks that involve policymaking. For instance, a 

Deputy Clerk may “refer cases to a master in equity or special 

referee for final disposition; order that, under specified 

circumstances, personal property be seized and sold; suspend 

income withholding for spousal or child support in Family Court 

cases; and even declare drainage districts within the[] county 

and make and enter final orders regarding the same.” Appellees’ 

Br. 25 (citations omitted). Yet even if these tasks did involve 

some amount of policymaking discretion—which remains unclear—

Gault has failed to show that these responsibilities require the 

Deputy Clerk to hold a particular partisan affiliation. Like 

the hypothetical football coach discussed in Branti, the Deputy 

Clerk of Court does not appear to hold a position for which 

“party affiliation is an appropriate requirement for the 
80

effective performance of the public office,” Branti, 445 U.S. 

at 518, for surely a Republican and a Democrat would be equally 

suited to refer cases to a master in equity (when instructed to 

do so by a judge) or to declare a drainage district. Cf.

Fields, 566 F.3d at 387 (“It is not enough for defendants to 

show merely that local directors make some policy; the ultimate 

question under Branti is whether local directors make policy 

about matters to which political ideology is relevant, and we 

conclude that they do not.”).

Further, Lawson’s duty to supervise three other staff 

members did not vest her with the kind of “significant 

discretion” that requires political party allegiance. Knight v. 

Vernon, 214 F.3d 544, 551 (4th Cir. 2000) (quoting Jenkins, 119 

F.3d at 1162); see also Fields, 566 F.3d at 387 (“If having 

power over subordinates were a sufficient condition for 

exemption from the requirements of the First Amendment, only the 

most low-level government employees would be protected from 

politically-based hiring and firing.”).

In the same vein, that Lawson’s position made her privy to 

confidential information or that the position required her to 

communicate with the public is insufficient to warrant 

application of the Elrod–Branti exception without an additional 

showing that “party affiliation is an appropriate requirement 

for the effective performance of the public office.” See
81

Branti, 445 U.S. at 518. In Fields, for instance, an applicant 

for the position of local director of the Buchanan County 

Department of Social Services brought suit against members of 

the Buchanan County Board of Supervisors for allegedly denying 

her the position because of her party affiliation. 566 F.3d 

at 384. The defendants in that case asserted that, “because a 

local director’s duties involve confidential information, 

political affiliation is a relevant consideration under Stott.” 

Id. at 387. We rejected this argument, however, as “many social 

services workers deal with confidential information. Yet it 

cannot be the case that party affiliation is an appropriate 

criterion for the effective performance of their jobs.” Id.

at 388. This Court held that the Elrod–Branti exception was 

inapplicable and noted that “defendants attempt[ed] to fit the 

local director position into the labeled category ‘confidential’ 

without explaining how it proves that political affiliation is 

actually relevant to a local director’s duties.” Id. Here too, 

Gault emphasizes the confidential nature of Lawson’s position 

and Lawson’s role as a communicator without establishing that 

political affiliation was actually relevant to the Deputy 

Clerk’s duties.

3.

Further, this case differs significantly from Jenkins, in 

which this Court held that North Carolina deputy sheriffs were 
82

policymakers who may be lawfully terminated for political 

reasons under the Elrod–Branti exception. 119 F.3d at 1164 (en 

banc). In reaching its decision, this Court considered that 

“deputy sheriffs are the alter ego of the sheriff generally, for 

whose conduct he is liable,” and that a deputy sheriff “hold[s] 

an office of special trust and confidence, acting in the name of 

and with powers coterminous with his principal, the elected 

sheriff.” Id. at 1163. Similarly, because “the sheriff can be 

held liable for the misbehavior of the deputies,” a deputy 

sheriff “serve[s] at the pleasure of the appointing officer.” 

Id. at 1163–64.

Although much of the same is true for Deputy Clerks 

relative to the Clerk of Court, this case differs from Jenkins

in one key respect: the Court in Jenkins relied on the North 

Carolina legislature’s determination that the sheriff is “an 

important political figure.” Id. at 1163 (emphasis added); see 

also id. at 1164 n.52 (“The sheriff’s position in government 

vests in him and his deputies ‘substantial responsibility for or 

control over the conduct of governmental affairs.’” (quoting 

Cline v. Brown, 210 S.E.2d 446, 449 (N.C. Ct. App. 1974))). The 

Court in Jenkins thus emphasized that deputy sheriffs “play a 

special role in implementing the sheriff’s policies and goals,” 

that deputy sheriffs exercise “significant discretion in 

performing their jobs,” and that, “[i]n the course of their 
83

duties, deputies will make some decisions that actually create 

policy.” Id. at 1162 (citation and internal quotation marks 

omitted). Accordingly, a deputy sheriff, who is the alter ego 

of the sheriff and serves at the sheriff’s pleasure, also 

occupies a political position covered by Elrod–Branti.

The Union County Clerk of Court, by contrast, is limited to 

ministerial, administrative duties such that a Deputy Clerk, who 

is the alter ego of the Clerk and serves at the Clerk’s 

pleasure, occupies an equally apolitical position. The limited 

policymaking that the Clerk of Court and his Deputy Clerk might 

perform does not allow for “significant discretion” of any kind. 

Thus, Gault has failed to show that the position of Deputy Clerk 

requires political allegiance to the Clerk.

4.

Most tellingly, the facts in this case clearly demonstrate 

both that political party allegiance was not a requirement of 

the Deputy Clerk position and that a lack of political 

allegiance would in no way hinder the operation of the public 

office. Gault indicated that he was “never asked” about his 

political affiliation when he applied for the vacant position of 

Clerk of Court in 2009. J.A. 75. After Gault’s appointment, 

Lawson, a Democrat, served as Deputy Clerk under Gault, a 

Republican, for nearly a year before Lawson announced her 
84

candidacy. In fact, as discussed above, Gault had actually 

promoted Lawson to that position.

As one might expect, given that the Clerk and his Deputy 

Clerks perform largely administrative tasks, the record contains 

no indication that the bipartisan composition of the Clerk’s 

Office affected the office’s operation. I therefore cannot 

conclude that Lawson’s political beliefs, which had differed 

from Gault’s for a significant period of time, somehow became 

sufficiently relevant to her position as Deputy Clerk after the 

2012 election to provide lawful grounds for Lawson’s 

termination. Cf. Fields, 566 F.3d at 387 (“Defendants make 

conclusory assertions about the local director’s policymaking 

power, but they cannot show ‘a rational connection between 

shared ideology and job performance.’” (quoting Stott, 916 F.2d 

at 142)). Accordingly, I would hold that the Elrod–Branti

exception is inapposite to this case. I would reverse the 

district court’s grant of summary judgment for Gault on this 

basis.

III.

Gault next argues that he is entitled to qualified immunity 

with respect to Lawson’s claims against him in his personal 
85

capacity.13 “The doctrine of qualified immunity protects 

government officials from liability for civil damages insofar as 

their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have 

known.” Gilchrist, 749 F.3d at 307 (quoting Stanton v. Sims, 

134 S. Ct. 3, 4 (2013) (per curiam)). To defeat a claim of 

qualified immunity, a plaintiff must demonstrate that “(1) the 

allegations underlying the claim, if true, substantiate [a] 

violation of a federal statutory or constitutional right” and 

that “(2) this violation was of a clearly established right of 

which a reasonable person would have known” at the time of the 

violation. Id. at 308 (alteration in original) (quoting 

Ridpath, 447 F.3d at 306); see McVey, 157 F.3d at 276. That 

said, “[t]he burden of proof and persuasion with respect to a 

defense of qualified immunity rests on the official asserting 

that defense.” Meyers v. Balt. Cty., 713 F.3d 723, 731 (4th 

Cir. 2013). 

In assessing whether the governing law was clearly 

established, “[w]e do not require a case directly on point”; 

 13 The majority opinion only addresses Gault’s qualified 

immunity defense in conjunction with the Elrod–Branti exception 

and declines to examine this defense with respect to Pickering

balancing. For the reasons expressed above regarding the 

propriety of performing the Pickering balancing test on the 

current record, I consider Gault’s qualified immunity defense 

under both legal theories.
86

rather, “existing precedent must have placed the statutory or 

constitutional question beyond debate.” Gilchrist, 749 F.3d 

at 307–08 (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 

(2011)). Thus, “officials can still be on notice that their 

conduct violates established law even in novel factual 

circumstances.” Meyers, 713 F.3d at 734 (quoting Hope v. 

Pelzer, 536 U.S. 730, 741 (2002)). This Court has indicated 

that, “particularly in First Amendment cases, where a 

sophisticated balancing of interests is required to determine 

whether the plaintiff’s constitutional rights have been 

violated, ‘only infrequently will it be “clearly established” 

that a public employee’s speech on a matter of public concern is 

constitutionally protected.’” McVey, 157 F.3d at 277 (quoting 

DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995)).

A.

Nevertheless, this Court has repeatedly recognized that the 

employer is certainly not entitled to qualified immunity in all 

public employee speech cases. Indeed, in Robinson, 160 F.3d 

at 189, in Durham, 737 F.3d at 303–04, and most recently in 

Gilchrist, 749 F.3d at 313, this Court rejected the employer’s 

assertion of qualified immunity. In each case, this Court based 

its “decision to deny qualified immunity in large part on ‘the 

lack of evidence supporting the [government’s] interest in 

disciplining [the employees] for their speech.’” Brickey, slip 
87

op. at 21 n.6 (alterations in original) (quoting Robinson, 160 

F.3d at 189); see also Ridpath, 447 F.3d at 321 (holding that an 

employer was not entitled to qualified immunity for terminating 

an employee “for making protected statements that [the employer] 

did not like” and noting that “a clearer violation of 

constitutionally protected free speech would be difficult to 

fathom”). The case before us most closely mirrors Gilchrist in 

this manner.

In Gilchrist, we began by defining Smith’s First Amendment 

right at issue, at the appropriate level of specificity:

[I]t is the right of an ADA running for public office 

not to be fired for speaking publicly in his capacity 

as a candidate on matters of public concern when the 

speech is critical of a program that substantially 

reduces the DA’s office’s caseload but there is no 

reason to believe the speech will negatively impact 

the DA’s office’s efficiency.

749 F.3d at 312.

We next concluded that “[a]ny reasonable official in 

Gilchrist’s position would have been aware of that right on the 

day of Smith’s termination” in July 2010. Id. In reaching this 

conclusion, the Court explained that, by July 2010, “it was well 

established that a government employee’s speech made as a 

private citizen on a matter of public concern is balanced 

against the adverse effect that the government reasonably 

anticipates the speech will have on its ability to operate 

efficiently.” Id. The Court emphasized that, under the 
88

circumstances in Gilchrist, “there was no evidence forecasted in 

the summary judgment record” that Gilchrist might reasonably 

expect Smith’s speech to have any particular effect on the 

workplace. Id. at 312–13. Accordingly, the Court explained 

that “the general complexity of the balancing test is of no 

consequence in this case since there is nothing on the 

employer’s side of the ledger to weigh.” Id. at 313. We held 

that Gilchrist had violated Smith’s clearly established right 

and was therefore not entitled to qualified immunity. Id.

B.

1.

Much like the constitutional right at issue in Gilchrist, 

the First Amendment right implicated in this case is the right 

of a Deputy Clerk of Court running for public office not to be 

fired for speaking publicly in her capacity as a candidate on 

matters of public concern when the speech is critical of the 

source of funding for a coworker’s salary but there is no reason 

to believe the speech will negatively impact the Clerk’s 

Office’s efficiency. Cf. id. at 312. As I have already 

determined that Gault’s termination of Lawson violated Lawson’s 

right in this manner, the only remaining question is whether 

this “right was ‘clearly established’ at the time of the acts 

complained of such that an objectively reasonable official in 

[Gault’s] position would have known of the right.” McVey, 157 
89

F.3d at 276 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982)).

As was true of the right at issue in Gilchrist, any 

reasonable official in Gault’s position would have been aware of 

Lawson’s right, as defined above, on the day of Lawson’s 

termination. Cf. 749 F.3d at 312. Indeed, the Court in 

Gilchrist determined that a nearly identical right had been 

clearly established at the time of Smith’s termination in July 

2010. See id. It naturally follows that the right at issue 

here was clearly established at the time that Gault terminated 

Lawson’s employment in November 2012. No Supreme Court or 

Fourth Circuit case muddled this area of law in the interim.14

Moreover, the Court’s reasoning in Gilchrist holds true 

here as well. That is, it was clearly established in November 

2012 that a court must balance a public employee’s speech on a 

 14 Gault argues that Underwood v. Harkins, 698 F.3d 1335 

(11th Cir. 2012), which was decided one month before Lawson’s 

termination, demonstrates that Gault did not violate clearly 

established law. In Underwood, the Eleventh Circuit affirmed a 

grant of summary judgment in favor of a Georgia superior court 

clerk who had terminated a deputy clerk’s employment after both 

had run for the superior court clerk position. Id. at 1337–38, 

1345–46. As the right at issue was clearly established under 

binding Fourth Circuit case law in November 2012, however, the 

decision of another circuit did not affect the clarity of 

governing precedent in this Circuit. See Hill v. Crum, 727 F.3d 

312, 322 (4th Cir. 2013) (“[W]e have long held that it is case 

law from this Circuit and the Supreme Court that provide[s] 

notice of whether a right is clearly established.” (first 

alteration in original) (citation omitted)).
90

matter of public concern against the government’s interest in 

providing effective and efficient services. See McVey, 157 F.3d 

at 277. It was also clearly established at the time that the 

public employer bears the burden of justifying the employee’s 

discharge on legitimate grounds, Rankin, 483 U.S. at 388 (citing 

Connick, 461 U.S. at 150), such as by demonstrating that “damage 

to morale and efficiency is reasonably to be apprehended,” 

Jurgensen, 745 F.2d at 879. Where, as here, the public employer 

offers no evidence to demonstrate that the employer could 

reasonably have expected the office’s effectiveness and 

efficiency to suffer as a result of the employee’s speech, it 

was clearly established that the balance would tip in favor of 

the employee. See Gilchrist, 749 F.3d at 313.

2.

Further, as the majority opinion concludes as well, it was 

clearly established in November 2012 that an employment position 

that does not “relate[] to ‘partisan political interests . . . 

[or] concerns,’” Stott, 916 F.2d at 141 (second and third 

alterations in original) (quoting Branti, 445 U.S. at 519), is 

not a position from which an employee may be terminated based on 

political affiliation under Elrod–Branti. Thus, where there is 

no indication that political party allegiance was relevant to 

the effective performance of an employee’s duties, a reasonable 

person would have known in November 2012 that termination of 
91

that employee based on political affiliation was unlawful. 

Accordingly, I would hold that Gault violated clearly 

established law by terminating Lawson’s employment, and he is 

therefore not entitled to qualified immunity.

IV.

Finally, Gault argues that he is not subject to suit for 

damages in his official capacity due to Eleventh Amendment 

immunity. The Eleventh Amendment bars suit against state 

officials in their official capacity for damages under 42 U.S.C. 

§ 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 

(1989). Local officials, however, generally do not enjoy 

Eleventh Amendment immunity. Cash v. Granville Cty. Bd. of 

Educ., 242 F.3d 219, 222 (4th Cir. 2001). The government 

official asserting Eleventh Amendment immunity therefore bears 

the burden of proving that he is a state official. Hutto v. 

S.C. Ret. Sys., 773 F.3d 536, 542 (4th Cir. 2014). “Whether an 

action is barred by the Eleventh Amendment is a question of law 

that we review de novo.” Id.

In making this determination, “the most important 

consideration is whether the state treasury will be responsible 

for paying any judgment that might be awarded.” Id. at 543 

(quoting Ram Ditta v. Md. Nat’l Capital Park & Planning Comm’n, 

822 F.2d 456, 457 (4th Cir. 1987)). “[I]f the State treasury 

will be called upon to pay a judgment against a governmental 
92

entity, then Eleventh Amendment immunity applies to that 

entity.” Id. (quoting Cash, 242 F.3d at 223). If, however, the 

state treasury will not be liable for a judgment, sovereign 

immunity applies only where the “governmental entity is so 

connected to the State that the legal action against the entity 

would . . . amount to ‘the indignity of subjecting a State to 

the coercive process of judicial tribunals at the instance of 

private parties.’” Id. (quoting Cash, 242 F.3d at 224). In 

assessing whether allowing suit would offend a state’s dignity, 

this Court considers “(1) the degree of control that the State 

exercises over the entity or the degree of autonomy from the 

State that the entity enjoys; (2) the scope of the entity’s 

concerns—whether local or statewide[;] . . . and (3) the manner 

in which State law treats the entity.” Id. at 546 (quoting 

Cash, 242 F.3d at 224).

A.

I agree with the majority opinion that Gault has not met 

his burden of demonstrating that he is a state official for 

purposes of Eleventh Amendment immunity. Gault relies solely on 

Lawson’s allegation in the second amended complaint that “the 

Union County Clerk of Court is a state office, existing and 

operating under the laws of the State of South Carolina” and on 

a South Carolina Supreme Court decision and several unpublished 

federal district court decisions. See Appellees’ Br. 41. None 
93

of these sources demonstrates that the state treasury would be 

liable for any judgment against Gault or that South Carolina 

would suffer any indignity from such a judgment.

Gault’s reference to the South Carolina Supreme Court case 

State v. Sims, 18 S.C. 460 (1883), for the proposition that the 

court has “long held that the clerk of court . . . is a state 

officer,” Appellees’ Br. 41 (citation omitted), is wholly 

unpersuasive. Not only does the case date back to 1882, before 

the evolution of Eleventh Amendment jurisprudence, but it also 

presented no Eleventh Amendment issue. See Sims, 18 S.C. at 

463. Although the court did refer to the Clerk of Court as a 

“state officer,” it did not address whether a Clerk of Court’s 

liability would affect the state treasury or state dignity such 

that the Clerk might be a state officer for purposes of the 

Eleventh Amendment. See id. Likewise, the unpublished federal 

district court decisions that Gault cites are similarly 

unavailing. None of the decisions analyzed whether the Clerk of 

Court was a state or local official under the relevant legal 

standard, and each merely presumed that the Clerk of Court is a 

state official for purposes of the Eleventh Amendment. See

Appellees’ Br. 41 (citing Green v. Hyatt, No. 4:09-2573-TLW-TER, 

2010 WL 597203, at *4 (D.S.C. Feb. 16, 2010), aff’d, 385 F. 

App’x 318 (4th Cir. 2010) (unpublished) (per curiam); Harden v. 

Bodiford, No. 6:09-2362-HFF-WMC, 2009 WL 3417780, at *3 (D.S.C. 
94

Oct. 21, 2009); Muqit v. Kitchens, No. 2:08-3959-CMC-RSC, 2009 

WL 87429, at *3 (D.S.C. Jan. 13, 2009)). Gault has therefore 

failed to show that he is entitled to Eleventh Amendment 

immunity.

B.

Indeed, evidence on the record indicates that South 

Carolina’s treasury would not be liable for a judgment against 

Gault. A Handbook for County Government in South Carolina, 

which includes a description of the role of Clerk of Court, 

provides that “individual county employees and officials” who 

are sued pursuant to § 1983 are “generally . . . covered by the 

county’s insurance policy.” J.A. 198, 200. It appears that the 

phrase “individual county employees and officials” includes the 

Clerk of Court, as “[a]ll of the funding for the clerk of court 

and the clerk’s office is the responsibility of the county.” 

Id. at 198.

Moreover, the record contains no indication that judgment 

against Gault would offend the dignity of South Carolina. It 

seems that the state’s control over the Clerk of Court is 

limited; for instance, South Carolina’s Judicial Council 

indicated that it had no authority to overrule Gault’s decision 

to place Lawson on unpaid leave. In addition, the Clerk of 

Court is elected by the voters of a particular county and is the 

Clerk only of courts within that county. See S.C. Code Ann. 
95

§§ 14-17-10, 14-17-20. Accordingly, I would hold that Eleventh 

Amendment immunity does not bar Lawson’s § 1983 claim for 

damages against Gault in his official capacity.

V.

For the foregoing reasons, I cannot join the majority’s 

opinion merely reversing the district court’s grant of summary 

judgment for Gault without even reaching a conclusion under 

Pickering balancing. Instead, I would hold that summary 

judgment for Lawson is appropriate, as the Pickering balancing 

test—which this Court has every reason (and duty) to conduct on 

this record—weighs conclusively in Lawson’s favor, the Elrod–

Branti exception does not apply, and Gault is not entitled to 

qualified or Eleventh Amendment immunity. Gault had ample 

notice and opportunity to present his arguments on the legal 

issues in this case—including any arguments under Pickering

balancing—before the district court. See Hr’g Tr. 6–7, Lawson, 

No. 7:13-CV-01050(TMC) (D.S.C. Oct. 30, 2014) (“But once this 

case gravitated into the Pickering thing, we addressed that in 

the reply brief and argued that we were entitled to summary 

judgment [on that basis as well].”). Most assuredly, there is 

no genuine dispute as to any material fact, and Lawson is 

entitled to judgment as a matter of law. See Fed. R. Civ. 

P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) 

(“[D]istrict courts are widely acknowledged to possess the power 
96

to enter summary judgments sua sponte, so long as the losing 

party was on notice that she had to come forward with all of her 

evidence.”); U.S. Dev. Corp. v. Peoples Fed. Sav. & Loan Ass’n, 

873 F.2d 731, 735–36 (4th Cir. 1989) (same); see also Gibson v. 

Mayor & Council of City of Wilmington, 355 F.3d 215, 224 (3d 

Cir. 2004) (recognizing three different exceptions to the tenday notice requirement prior to a sua sponte grant of summary 

judgment—“the presence of a fully developed record, the lack of 

prejudice, or a decision based on a purely legal issue”—and 

holding that any of the three would justify a sua sponte grant 

of summary judgment in that case); Sharp Elecs. Corp. v. 

Deutsche Fin. Servs. Corp., 216 F.3d 388, 398 (4th Cir. 2000)

(reversing summary judgment against appellant and ordering entry 

of summary judgment in favor of appellant despite the fact that 

appellant never sought summary judgment in the district court); 

Portsmouth Square Inc. v. S’holders Protective Comm., 770 F.2d 

866, 869 (9th Cir. 1985) (“[S]ua sponte summary judgment is 

appropriate where one party moves for summary judgment and, 

after the hearing, it appears from all the evidence presented 

that there is no genuine issue of material fact and the nonmoving party is entitled to judgment as a matter of law.”).

* * * * *

I would reverse the judgment and remand with instructions 

to: (1) enter judgment of liability in favor of Appellant 
97

Melanie Lawson and (2) conduct such proceedings as to remedy 

that the district court finds necessary and appropriate.