Melanie Lawson v. Union County Clerk of Court
Filing
AMENDED OPINION filed amending and superseding opinion dated 07/07/2016. Originating case number: 7:13-cv-01050-TMC Copies to all parties. [14-2360]
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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; COMMON CAUSE,
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:
Amended:
Before DUNCAN
Circuit Judge.
and
DIAZ,
July 7, 2016
July 8, 2016
Circuit
Judges,
and
DAVIS,
Senior
Vacated and remanded by published opinion.
Judge Duncan wrote
the majority opinion, in which Judge Diaz joined. Senior Judge
Davis wrote a dissenting opinion.
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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.
2
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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,
Amendment grounds.
challenging
her
termination
on
First
Gault moved for summary judgment, and the
district court granted the motion, holding that Lawson occupied
a
confidential
or
policymaking
position
and
termination for campaigning against her boss.
was
subject
to
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.
simply
reverses
remands.
the
grant
of
summary
judgment
The majority
to
Gault
and
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.
the
extent
either
there
is
anything
jurisprudentially
or
remarkable
otherwise,
about
it
is
this
the
To
opinion,
dissent’s
determination to overleap precedent and procedure, and preclude
the development of any record evidence, solely to grant Lawson
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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
statutory
for
Clerk
of
characteristics
Court.
Because
that
position,
of
of
we
the
unique
begin
by
describing it briefly.
The
South
Carolina
Constitution
Clerk of Court for each county.
creates
the
position
S.C. Const. art. V, § 24.
of
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.
Assembly prescribes the Clerk’s duties.
§ 24.
The General
S.C. Const. art. V,
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
4
No.
2014-05-21-01,
dated
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May 21,
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2014,
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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.
§ 14-17-60.
Once
sworn
into
office,
a
deputy
Id.
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
Division,
worked,
where
Lawson
the
the
Family
the
sensitive
See
Court,”
http://www.judicial.state.sc.us/clerkOfCourtManual/
“Confidentiality
role
the
importance.
7.18,
relations
of
gives
§
public
nature
Support
proceedings
id.
Clerk’s
Court/Child
in
the
greater
Family
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
5
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Office routinely handles sensitive filings.
legal
infractions
by
minors,
child
Cases concerning
neglect
and
abuse,
child
custody, divorce, adoption, termination of parental rights, and
spousal and child support all originate in Family Court.
Code Ann. §§ 63-3-510, 63-3-530.
S.C.
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,
filings
South
related
to
Carolina
law
adoptions
protects
by
making
the
it
a
integrity
of
misdemeanor,
punishable by fine and imprisonment, to disseminate or allow the
unauthorized
780(F)(2).
dissemination
The
Family
Clerk’s
Office
is
support
account
and
Office
to
process
also
such
Court/Child
with
account’s
J.A. 96.
6
records.
Support
responsible
working
the
of
for
other
Id.
Division
managing
staff
monthly
§ 63-9-
in
the
the
statements.
of
the
child
Clerk’s
See
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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.
office,
Morris
stole
cash
receivables
and
During his term in
falsified
deposit
slips, beginning with funds from child support receivables and
eventually including accounts across the Clerk’s Office.
Lawson
applied
Morris
for
appointment
to
the
vacant
position
after
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 Council 1 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).
7
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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
thousands of dollars from the Clerk’s Office.”
Gault
retained
Miller
after
the
hundreds
of
J.A. 20.
six-month
period
ended,
paying her with funds from the child support account.
He also
selected
Lawson
Support
Division
of
respective
to
the
supervise
Clerk’s
capacities,
the
Office
Lawson
Family
as
and
his
Miller
Court/Child
deputy.
would
In
interact
their
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.
8
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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
expired.
Id.
working
after
her
six-month
authorization
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
J.A. 88.
“county
council
Moreover,
Gault
doesn’t
was
want
told
June
that
Miller
Lawson
was
there.”
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.”
9
Id.
According to Gault,
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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
Amendment rights.”
public
office
thereby
violating
her
First
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
addresses
the
Elrod-Branti
First
doctrine,
Amendment’s
discussed
limitations
infra,
on
which
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.”
10
J.A. 115.
Thus,
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Lawson
urged
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the
district
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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
campaign.
after
she
challenged
Gault
in
her
election
2014).
Lawson v. Gault, 63 F. Supp. 3d 584, 591 (D.S.C.
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.
Lawson’s
Pickering
Lawson’s
position
Id. at 590.
argument,
as
a
but
“public
The district court noted
centered
employee
its
in
a
analysis
on
confidential,
policymaking, or public contact role,” which is a factor drawn
from
the
district
Elrod-Branti
Gault
court
raised,
doctrine.
resolved
Gault’s
and
on
not
the
Id.
motion
In
other
based
alternative
on
words,
the
First
the
grounds
Amendment
doctrine that Lawson raised.
Having concluded that Lawson failed to establish a First
Amendment violation, the district court granted summary judgment
and
declined
Amendment
motion.
to
address
immunity
the
defenses
Id. at 591 n.7, 592.
qualified
that
Gault
immunity
had
and
asserted
Eleventh
in
This timely appeal followed.
II.
11
his
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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.”
Civ. P. 56(a).
Fed. R.
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
Peters, 577 F.3d 558, 563 (4th Cir. 2009)).
Pueschel
v.
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
12
“party
affiliation
is
an
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appropriate
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requirement
for
public office involved.”
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the
effective
performance
Branti, 445 U.S. at 518.
of
the
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
confidential,
loyalty.
granting
Elrod-Branti
policymaking
exception,
position
that
because
she
required
held
a
political
For the reasons set forth below, we vacate the order
summary
proceedings.
judgment
to
Gault
and
remand
for
further
First, we conclude that the district court erred
in granting summary judgment to Gault based on the Elrod-Branti
exception.
an
Second, we conclude that Gault has not demonstrated
entitlement
immunity.
to
qualified
immunity
or
Eleventh
Amendment
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.
13
As we explain, Gault has not
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satisfied
the
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criteria
of
the
Pg: 14 of 97
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,
Rutan
488
F.3d
263,
268
(4th
Cir.
2007)
(quoting
Republican Party of Ill., 497 U.S. 62, 64-65 (1990)).
narrow
exception
dismissals
of
to
public
the
First
employees
Amendment
in
permits
policymaking
This
patronage
positions
order “to give effect to the democratic process.”
v.
in
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
appropriate
demonstrate
requirement
public office involved.”
for
that
the
party
affiliation
effective
performance
is
an
of
the
Branti, 445 U.S. at 518.
In this circuit, our Elrod-Branti analysis follows a twopart test adopted from the First Circuit.
F.2d
134,
Torres
banc)).
141-42
Gaztambide,
(4th
Cir.
1990)
807
F.2d
236,
Stott v. Haworth, 916
(citing
241-42
Jimenez
(1st
Cir.
Fuentes
v.
1986)
(en
Prong one of the inquiry asks, at a general level,
14
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whether
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the
employee’s
decisionmaking
disagreement
on
on
issues
goals
(citation omitted).
or
Pg: 15 of 97
position
requires
where
there
is
room
their
“government
for
implementation.”
political
Id.
at
141
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.
the
deputy
clerks
perform
tasks
that
We see no evidence
relate
to
“partisan
political interests or concerns,” and thus we cannot conclude
that
party
affiliation
is
relevant
qualification to serve as a deputy clerk.
to
an
employee’s
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,
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relates
to
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partisan
Pg: 16 of 97
political
interests
(internal quotations omitted)).
evidence
before
us
that
a
.
.
.
or
concerns.”
Put another way, there is no
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.”
Therefore,
under
the
first
prong
Stott, 916 F.2d at 141.
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
support account, and tracking and reporting court data.
child
Gault
has not argued that a deputy clerk would be better suited to
carry
out
political
these
specific
philosophy.
tasks
Nor
has
if
he
she
espoused
pointed
to
a
particular
any
specific
policies that Lawson was responsible for setting.
Gault has emphasized Lawson’s supervisory title, but that
role,
standing
policymaking
alone,
employee.
does
not
Though
tell
Lawson
us
may
that
have
Lawson
set
was
a
internal
agendas as a supervisor, our decision in Fields v. Prater makes
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clear that a supervisory employee does not automatically hold a
position that is subject to the Elrod-Branti exception.
F.3d 381 (4th Cir. 2009).
566
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
principal, the elected sheriff.”
Stat.
§ 17E-1).
At
the
same
17
conterminous
with
[their]
Id. at 1163 (quoting N.C. Gen.
time,
we
emphasized
that
the
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“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.
3
According to
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.
18
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Gault,
the
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contours
of
the
Pg: 19 of 97
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)).
that
an
unless
official
the
very
action
action
is
in
protected
question
“This is not to say
by
has
qualified
previously
immunity
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
policymaking
demonstrated,
employee
for
whom
appropriate job requirement.
Elrod-Branti
exception
to
as
he
must,
political
that
Lawson
association
was
was
a
an
We have repeatedly limited the
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.
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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,
officials.”
(internal
as
well
as
“arm[s]
of
the
State
and
State
Bland v. Roberts, 730 F.3d 368, 390 (4th Cir. 2013)
quotations
omitted).
Our
Eleventh
Amendment
jurisprudence differentiates “arms or alter egos of the state
from
‘mere
political
subdivisions
20
of
[the]
State
such
as
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counties or municipalities,’ which, though created by the state,
operate independently and do not share the state’s immunity.”
United
Agency,
States
804
ex
F.3d
rel.
646,
Oberg
v.
651
(4th
Pa.
Higher
Cir.
2015)
Educ.
Assistance
(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.
against
Significantly, Gault has not argued that a judgment
Gault
Additionally,
would
the
be
“Handbook
paid
for
21
from
County
the
state
Government
treasury.
in
South
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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
limited
to
Further, Gault’s authority as Clerk of Court was
Union
County,
suggesting
local, and not state, concerns.
that
he
dealt
with
only
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
Appellee’s
complaint
Br.
at
resolve
v.
Sims,
41.
the
18
S.C.
Neither
Eleventh
460,
463
the
1883
case
Amendment
(1883).
nor
question
See
Lawson’s
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
supplement” to the Clerk of Court. J.A. 198.
22
annual
salary
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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
raised.
consider
the
Pickering
issue
that
Lawson
has
Simply put, the history of this case does not present
us with an adequate Pickering record to review.
Gault moved for
summary
judgment
district
granted
the
based
motion
on
based
on
Elrod-Branti,
the
Elrod-Branti,
Gault
court
urged
us
to
affirm the order based solely on Elrod-Branti, and we now hold
that Gault failed to establish the Elrod-Branti defense.
resolves the appeal, and we need not go any further.
This
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
Pickering
balancing
Gilchrist,
maintain
context,
“the
we
test.
government,
discipline
and
begin
As
as
ensure
with
we
an
an
overview
explained
employer,
harmony
as
‘is
in
of
the
Smith
v.
entitled
to
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
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arrive at a balance between the interests of the [employee], as
a citizen, in commenting upon matters of public concern and the
interest
of
efficiency
employees.”
the
of
State,
the
as
public
an
employer,
services
it
in
promoting
performs
through
the
its
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,
employee’s
speech
the
government
actually
disrupted
need
not
“prove
efficiency”;
that
the
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.
24
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considered
in
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a
vacuum;
the
Pg: 25 of 97
manner,
time,
and
place
of
the
employee’s expression are relevant, as is the context in which
the dispute arose.”).
University,
we
In Ridpath v. Board of Governors Marshall
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
at 278).
292,
317
(4th
Cir.
2006)
(citing
McVey,
157
F.3d
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.
opposition
brief, 6
Even after Lawson raised Pickering in her
Gault
dismissed
6
Pickering
and
urged
the
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)
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district court to decide the case based on Elrod-Branti.
J.A. 220.
See
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
governed both theories.
Carolina
law,
Mr. Gault,
and/or
he
‘for
speech
because
Elrod-Branti
See J.A. 225 (“[B]ecause, under South
Plaintiff
could
candidacy,
was
regarded
terminate
displaying
her
that
as
for
the
alter
political
political
ego
of
disloyalty
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.
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Pickering,
in
Filed: 07/08/2016
which
he
Pg: 27 of 97
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.
has
failed
to
justify
his
We do not mean to say that Gault
actions
under
Pickering.
As
we
discuss below, the limited record before us indicates that Gault
may have colorable Pickering arguments.
cannot
resolve
the
issue
based
on
We simply hold that we
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)
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G.
We
turn
now
to
the
dissent’s
entitled to summary judgment.
contention
that
Lawson
is
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
evaluate the issue in the context of this appeal.
we
disagree
that
there
is
no
evidence
that
premature
to
Additionally,
Lawson’s
interfered with the operations of the Clerk’s Office.
conduct
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
Miller.
coming
about
the
Clerk’s
Office
and
her
colleague,
June
Some of her comments questioned “where the funds were
from
to
pay
embezzlement scandal.
Ms.
Miller,”
J.A. 186.
9
in
light
of
the
previous
Lawson also stated that “June
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.
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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
particular,
a
heightened
Lawson’s
effect
negative
within
public
the
office.
comments
about
In
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.
For
J.A. 92.
similar
reasons,
Lawson’s
comments
might
have
been
expected to impair harmony among co-workers and damage close
personal relationships.
this
regard
employees.
appellate
that
the
It is of particular significance in
Clerk’s
Office
consisted
of
only
ten
And Gault does assert--in the only sentence of his
brief
to
address
Pickering--that
the
potential
for
Lawson’s public comments to sow discord in his office was a
serious concern.
Ridpath
See Appellee’s Br. at 31.
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
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might argue that her statements would have had this effect.
the
Supreme
Court
Clerk
Manual
recognizes,
the
Clerk
As
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)
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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.
05.
749 F.3d at 304-
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.
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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
handle.”
Id. at 305.
we
that
held
termination.
the
and
the
courts
were
required
to
Evaluating these facts under Pickering,
defendant
failed
to
justify
the
ADA’s
Id. at 309, 313.
Importantly, in Gilchrist, we relied on facts that were
markedly
central
different
to
our
from
those
decision
here.
that
In
“none
of
that
the
case,
it
concerns
was
Smith
expressed in the interview had to do with Mecklenburg County
District
Attorney
Office
policy
or
in
any
way
impugned
authority or credibility of the DA’s office.”
Id. at 309-10
(footnote and internal quotation marks omitted).
reason
that
circumstances
basis
for
the
ADA’s
within
concluding
[the
that
commentary
DA’s]
the
did
control,”
ADA’s
not
For the same
“pertain[]
there
public
the
was
also
statements
to
no
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.
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The dissent accepts Lawson’s argument that Gault failed to
adduce
evidence
Office.
of
any
actual
disruption
within
the
This argument fails for several reasons.
Clerk’s
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
For example, the dissent points to
fault him for not doing so.
the absence of testimony in the record from other Clerk’s Office
employees.
We cannot know whether other employees were deposed,
or
Gault
whether
issue.
would
wish
to
depose
them
to
explore
this
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.
Amendment
In Maciariello v. Sumner, we examined a First
claim
brought
by
two
officers
unauthorized investigation of their captain.
300.
who
conducted
an
973 F.2d at 297,
We credited the police chief’s interest in departmental
morale,
stressing
“[w]hether
there
disrupted”
because
that
was
it
any
“the
was
concrete
potential
33
unnecessary
evidence
for
to
that
disruption
determine
morale
[was]
was
self-
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evident.”
Pg: 34 of 97
Id. at 300; see also Gilchrist, 749 F.3d at 309
(emphasizing
only
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show
that,
that
under
an
Maciariello,
adverse
effect
a
public
was
employer
“reasonably
to
need
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
thinking, looking to anticipated harms.
requires
is
disruption.
that
an
employer
necessarily
forward-
All that our precedent
reasonably
anticipate
a
future
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
operations of the Clerk’s Office.
speech
interfered
with
the
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
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appeal. 11
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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.
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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
Defendant-Appellee
the
Elrod–Branti
Amendment
preclude
William
any
the
Lawson,
Gault’s
exception, 1
immunity
identifying
Melanie
fail
genuine
entry
of
as
despite
affirmative
qualified
a
issues
judgment
determining
matter
of
on
defenses
immunity,
of
material
law,
fact
liability.
and
and
that
under
Eleventh
without
that
would
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)).
36
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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
providing
not
outweigh
effective
and
the
efficient
government’s
services
to
interest
the
in
public,
Gilchrist, 749 F.3d at 308 (quoting McVey, 157 F.3d at 277),
simply
by
evident[ly]”
asserting
cause
Appellees’ Br. 2.
that
some
Lawson’s
disruption
speech
in
the
would
“self-
workplace,
see
And finally, the majority opinion contends
that this is the case despite the absence of even a scintilla of
evidence
that
apprehended.”
such
a
disruption
was
“reasonably
to
be
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)
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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.
op. at 4–5.
See Brickey, slip
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].
no money to place the order.
I was told there was
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
38
items
on
the
invoices
had
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nothing
to
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do
with
the
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[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”
terminated in May 2012.
question
facing
the
at
the
time
the
plaintiff
was
Id. at 16 (noting that the dispositive
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
interlocutory
qualified
(given
that
appeal)
immunity
Brickey
comes
to
the
Brickey
panel
decides
grounds,
the
this
reasoning,
Court
the
as
an
case
on
language,
and
precedents relied on in that case provide powerful support for
the reasoning in, and the gravamen of, this dissent and its
Pickering
unadorned
analysis:
and
bald
First,
actual
speculation,
is
record
necessary
evidence,
to
support
not
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
39
employer.
Second,
the
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paramilitary
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character
of
a
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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.
adherence
to
In my judgment, as I show within, faithful
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)
satisfy
Gault
balancing;
failed
but
to
furthermore,
his
that
(2)
burden
the
under
narrow
Pickering
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
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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
retaliation
by
also
a
protects
public
right.’”
Gilchrist,
Indus.
McGraw,
v.
adverse
employment
employee’s
Amendment
speech
rights
official
749
202
F.3d
F.3d
the
308
be
(quoting
taken
in
(4th
the
employee
free
exercise
from
of
Suarez
Cir.
response
violates
“the
to
for
685
generally
(1)
at
right
676,
action
when
‘the
Corp.
2000)).
to
a
An
public
employee’s
‘was
that
First
speaking
as
a
citizen upon a matter of public concern’ rather than ‘as an
employee
about
employee’s
concern
a
matter
“interest
outweighed
in
the
of
personal
speaking
upon
government’s
interest’”;
the
matter
interest
in
(2)
of
the
public
providing
effective and efficient services to the public”; and (3) the
employee’s “‘speech was a substantial factor’ in the employer’s
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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
test.
on
the
second
prong,
known
as
the
Pickering
balancing
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).
make
this
determination,
“the
First
Amendment
requires
To
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
interests
Amendment
is
cases,
required
to
“a
sophisticated
determine
whether
balancing
the
of
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)).
public
Although,
employer
actually
as
need
disrupted
the
not
majority
“prove
efficiency,”
opinion
that
the
the
emphasizes,
employee’s
employer
must
the
speech
show
(by
adducing actual record evidence) that “an adverse effect was
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‘reasonably
to
be
surrounding
the
speech.
Pg: 43 of 97
apprehended’”
Id.
in
light
(quoting
of
the
Maciariello,
context
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.
749 F.3d at 310–12.
See Gilchrist,
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
efficiently.
ability
See id.
to
serve
the
public
effectively
and
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
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good reason.”
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Id. at 309.
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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
services.
likely
to
diminish
the
provision
of
governmental
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
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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)
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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
disruption
to
of
record
the
evidence
workplace
of
warrants
a
reasonably
a
final
anticipated
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
arose over such protected speech.”).
4
of
the
workplace
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.
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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
examination
is
of
erroneous
the
for
multiple
proceedings
in
reasons.
the
First,
district
court
demonstrates that the parties presented, and the district court
entertained,
both
written
Pickering balancing.
and
oral
arguments
related
to
Indeed, in response to Gault’s motion for
summary judgment, Lawson specifically contended that Pickering
balancing,
proper
and
not
doctrinal
resolved.
hearing
the
Elrod–Branti
framework
within
exception,
which
this
provided
case
should
13,
on
the
motion
for
summary
Lawson
v.
Union
Cty.
judgment
Clerk
01050(TMC) (D.S.C. May 5, 2014).
Gault’s
be
And Gault’s highly experienced counsel argued at the
that
“it
really
doesn’t matter . . . how [Lawson’s claim is] analyzed.”
Tr.
the
motion
for
reconsideration
47
of
Court,
No.
Hr’g
7:13-CV-
In fact, at a hearing on
(of
the
district
court’s
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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
candidacy:
“Your
of
Lawson’s
honor,
I
speech
certainly
in
connection
don’t
deny
with
bearing
her
some
responsibility for not being as clear as I could have, maybe.
But
once
this
case
addressed
that
in
gravitated
the
reply
into
brief
the
and
Pickering
argued
thing,
that
entitled to summary judgment [on that basis as well].”
6–7,
Lawson,
No.
7:13-CV-01050(TMC)
(D.S.C.
Oct.
we
we
were
Hr’g Tr.
30,
2014).
Thus, Gault had sufficient notice that he bore the burden of
defending his actions under Pickering.
satisfy
this
burden,
judgment
for
Lawson;
as
it
discussed
does
not
That Gault failed to
below,
warrant
warrants
a
remand
summary
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).
48
Whether Gault
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violated
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Lawson’s
First
Pg: 49 of 97
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
supporting
Gault’s
opinion
suggests
test
due
position
that,
with
to
of
record
evidence
unwarranted.
is
a
The
majority
the
district
proper
lack
notice
that
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
performance of the public office involved.”
49
for
the
effective
Branti, 445 U.S.
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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
termination
effective
based
on
demonstrating
performance
of
the
the
affiliation
political
that
would
public
employee’s
further
office—includes
the
the
same
evidence that the employer must present under Pickering—evidence
that
the
employee’s
appropriate
to
termination
ensure
the
based
office’s
on
her
continued
effective and efficient services to the public.
above,
when
he
was
before
the
district
experienced counsel fully grasped this truism.
majority
opinion
takes
for
granted,
the
speech
provision
was
of
As mentioned
court,
Gault’s
Thus, if, as 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
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interest
in
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Lawson’s
core
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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
institution.’” (quoting McVey, 157 F.3d at 277)).
of
the
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.”).
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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
salary
Miller’s
also
showcased
6
for
voters
Lawson’s
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.
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“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.
words,
her
statements
highlighted
J.A. 187.
the
need
for
regarding the distribution of public funds.
In other
transparency
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
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employee about a matter of personal interest,’” Gilchrist, 749
F.3d
at
308
majority
(quoting
opinion
McVey,
157
appropriately
F.3d
notes
at
that
277–78),
this
and
the
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.
stated
above,
constituted
it
speech
is
upon
undisputed
a
matter
that
of
public
Lawson’s
concern,
As
comments
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
414,
also
Meyer
v.
Grant,
486
54
U.S.
422,
425
(1988)
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(recognizing
constitutional
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protection
of
“core
political
speech” as being “at its zenith” (citation omitted)).
Moreover,
the
Lawson’s speech.
(2004)
(per
public
itself
had
a
strong
interest
in
See City of San Diego v. Roe, 543 U.S. 77, 82
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
controlling
the
the
government-employer’s
workplace.”).
The
interest
in
Court
has
Supreme
“acknowledged the importance of promoting the public’s interest
in
receiving
the
well-informed
engaging in civic discussion.”
also
Gilchrist,
749
F.3d
at
views
of
government
employees
Garcetti, 547 U.S. at 419; see
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
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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
Lawson’s
both
speech
Lawson
upon
and
this
the
matter
public
of
had
public
an
interest
concern,
in
Lawson
“could not be fired for making the statements [s]he made unless
h[er]
right
to
speak
h[er]
employer’s
Gilchrist, 749 F.3d at 309.
legitimate interests.”
was
outweighed
by
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
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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’
Maciariello, 973 F.2d at 300).
evident’
‘potential
for
Br.
32
(quoting
Gault asserted that this “‘self-
disruption’
suffices
to
strike
required balancing of interests in favor of Gault.”
Id.
any
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)
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was
“reasonably
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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
Ms. Miller,”
J.A.
prerogatives.
“where
186,
the
funds
and
were
questioned
coming
from
Gault’s
to
pay
managerial
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
political
benign
comments
advertisements
described
and
the
above.
message
that
Instead,
her
she
her
and
supporters sought to convey throughout her campaign focused on
her years of experience in the Clerk’s Office.
Moreover,
Lawson
election period.
remained
cordial
throughout
the
entire
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.
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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.
Lawson’s
collegiality,
and
Lawson’s
husband,
passed
who
he
attended
away
a
Gault reciprocated
the
few
visitation
weeks
for
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
8
In fact,
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)
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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.
60
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comments. 9
the
record
bearing
disseminated
questionnaire.
“an
Pg: 61 of 97
The factual record here stands in sharp contrast to
factual
statements
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independent
on
by
the
likely
Brickey
in
effects
the
of
the
newspaper
See Brickey, slip op. at 15–16 (observing that
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.
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even the slightest hiccup in the Clerk’s Office’s effectiveness
or efficiency, let alone a disruption sufficient to overcome the
highest
constitutional
speech.
To
collegiality
the
protection
contrary,
and
for
the
Lawson’s
core
record
among
professionalism
depicts
all
political
longstanding
involved.
The
majority opinion’s indefensible decision to hypothesize future
workplace disruption on the record before us is nothing if not
head-scratchingly
remand,
court
Gault’s
to
reopen
inexplicable.
experienced
discovery
In
counsel
as
the
any
event,
should
majority
even
ask
the
opinion
if,
on
district
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
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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
circumstances.
to
work
In
the
together
same
vein,
effectively
under
according
the
to
those
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.
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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.
ante at 29–30.
See
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
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comprised
only
ten
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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.”
(citing Appellees’ Br. 31).
Id. at 29
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,
at 300).
749
F.3d
at
309
(quoting
Maciariello,
973
F.2d
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
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[one’s
(quoting
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freedom
Suarez
acontextual
of
Corp.
analysis
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speech].”
Indus.,
flies
Gilchrist,
202
F.3d
in
the
the
majority
749
at
teeth
F.3d
at
308
685).
Such
an
of
controlling
precedent.
Perhaps
rests
on
most
an
troubling,
apparent
disapproval
of
the
opinion’s
content
of
analysis
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.
this
In fact, none of the parties or individuals involved in
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
incumbent Clerk.
a
campaign
for
Clerk
of
Court
against
the
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).
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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
circumstances,
on
there
workplace
is
operation
simply
no
evidence
under
certain
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.
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interfered
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with
the
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effective
functioning
of
the
[office]”
(emphasis added)).
D.
While
case
the
from
majority
Gilchrist
opinion
by
attempts
identifying
to
distinguish
differences
between
this
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]
harmony
or
efficiency
statements
discipline
of
affected.”
public
the
in
the
office
would
. . .
would
be
cause
office
expected
problems
such
to
that
be
with
the
adversely
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
substantially
speech
reduces
was
the
“critical
DA’s
of
office’s
a
program
caseload.”
that
Id.
(emphases added); see also id. at 312 (“Gilchrist certainly was
correct to concede that there were no relevant facts upon which
he
could
outweighed
base
by
an
the
argument
that
government’s
added)).
68
Smith’s
interest
interest . . . .”
. . .
was
(emphasis
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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.
at 296–97.
973 F.2d
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
undeniable
“dissension
interest
in
in
[its]
ranks”
discouraging
as
well
unofficial
investigations” that could be “very disrupting.”
as
“an
internal
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
omitted) (quoting Maciariello, 973 F.2d at 300)).
marks
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
apprehended.’”
an
adverse
effect
was
‘reasonably
to
be
Maciariello, 973 F.2d at 300 (emphasis added)
(quoting Jurgensen, 745 F.2d at 879).
69
Accordingly, the Court
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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
operation, two important points bear mentioning.
Court
in
Maciariello
discussed
several
bases
office’s
First, the
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.
Jurgensen, 745 F.2d at 879).
See id. (quoting
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.
(emphasizing
that
“a
core
abuse
70
Cf. Brickey, slip op. at 21
of
the
mission
of
a
police
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department is reasonably distinguishable from vague allegations
of mismanagement or even misuse of funds”).
Second,
and
balancing
of
suggestion
that
perhaps
competing
a
the
two
greater
interests
disruption
evident” were dicta.
that
of
to
salience,
in
the
the
Maciariello
workplace
may
Court’s
and
be
its
“self-
The Court in Maciariello first determined
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.
F.2d
at
299.
Next,
the
Court
concluded
that
the
973
larger
investigation itself may have been a “but for” cause of the
demotions,
but
the
investigation
was
Accordingly,
summary
judgment
appropriate.
Only after reaching this holding did the Court
for
not
the
“speech.”
Id.
defendants
was
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.
Court applied the Pickering balancing test.
At this point, the
Accordingly, the
Court’s analysis under Pickering was merely dicta and did not
constitute binding law.
275,
282
(2001)
(“[T]his
See Alexander v. Sandoval, 532 U.S.
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
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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
preluding
identifies
summary
no
genuine
judgment.
Yet
issue
the
of
material
majority
fact
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.
the
majority
opinion
eschews
affirmative
evidence
Further,
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
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
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“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
confounding
that
effectiveness
Gault
argues,
and
and
the
efficiency,
majority
it
is
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
reasonableness
excellent
requirement
opinion
in
inherent
Brickey),
in
the
that
the
“reasonable
apprehension of disruption” metric draws its meaning from actual
record evidence.
majority
After today in the Fourth Circuit, if the
opinion’s
dicta
is
73
given
full
effect,
such
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“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.
384.
See T-Mobile, 674 F.3d at
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.
F.3d at 374.
See id. at 515–16; Bland, 730
Under this exception, dismissal on the basis of
political affiliation may be lawful where the public employee
occupies
a
policymaking
or
confidential
74
position
for
which
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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
relationships,
that
out
of
information
partisan political concerns.”
has
various
no
bearing
Id. at 519.
attorney–client
whatsoever
on
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
public office involved.”
for
the
effective
Id. at 518.
75
performance
of
the
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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.
916 F.2d at 134).
Bland, 730 F.3d at 375 (citing Stott,
First, we consider whether “the position at
issue, no matter how policy-influencing or confidential it may
be,
relates
concerns.’”
to
‘partisan
political
. . .
[or]
Stott, 916 F.2d at 141 (alterations in original)
(quoting Branti, 445 U.S. at 519).
whether
interests
“the
position
involve[s]
In other words, we examine
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
specific
at 386).
“requires
position
at
a
much
more
concrete
analysis
issue.”
Id.
(quoting
Fields,
of
566
the
F.3d
Even at the second step, however, we examine only “the
76
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description
for
the
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position
in
question,”
rather
than
considering the “functions performed by a particular occupant of
that office.”
Id. (quoting Stott, 916 F.2d at 142).
must
whether
determine
requirement
for
the
“political
effective
loyalty
was
performance
an
of
We thus
appropriate
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
issues where there is room for political disagreement.”
Stott, 916 F.2d at 142.
on
See
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.
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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
appropriate
[or
political
requirement.”
Bland,
allegiance]
730
is
F.3d
at
an
. . .
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. § 14-1760, so I begin by exploring these responsibilities.
The Clerk
of Court “keeps records of the proceedings,” “is charged with
managing
the
responsible
juries
for
and
“[t]he
the
custody
county
grand
of
courthouse,”
the
jury,”
and
including
“the assignment of office space within the courthouse.”
198.
is
J.A.
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.”
to
the
Id.
In addition, the Clerk “performs duties relating
recording
of
affecting land titles.”
land
titles,
Id.
78
liens
and
other
documents
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The obligations of a Deputy Clerk in particular include
similarly administrative tasks, such as “setting up accounts and
refunding
orders,
payments
when
aggregating
receipts.
J.A.
and
165,
cases
were
reporting
167,
169.
closed,”
issuing
court
data,
Based
on
and
judges’
collecting
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
number
of
as
tasks
the
Clerk’s
alter
ego,
may
that
involve
policymaking.
also
For
perform
a
instance,
a
Deputy Clerk may “refer cases to a master in equity or special
referee
for
final
circumstances,
disposition;
personal
property
order
be
that,
seized
under
and
specified
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.”
Br. 25 (citations omitted).
some
amount
of
policymaking
Appellees’
Yet even if these tasks did involve
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
79
requirement
for
the
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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,
members
did
Lawson’s
not
duty
vest
her
to
supervise
with
the
three
kind
of
other
staff
“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
80
of
the
public
office.”
See
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Filed: 07/08/2016
Branti, 445 U.S. at 518.
for
the
position
of
Pg: 81 of 97
In Fields, for instance, an applicant
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.
at 384.
local
566 F.3d
The defendants in that case asserted that, “because a
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.
cannot
be
the
case
that
party
affiliation
is
an
Yet it
appropriate
criterion for the effective performance of their jobs.”
at 388.
Id.
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
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policymakers
Filed: 07/08/2016
who
may
be
Pg: 82 of 97
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
sheriff.”
held
coterminous
Id. at 1163.
liable
for
the
with
his
principal,
the
elected
Similarly, because “the sheriff can be
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
important political figure.”
that
the
sheriff
is
“an
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
performing
sheriffs
their
jobs,”
exercise
and
that,
82
“significant
“[i]n
the
discretion
course
of
in
their
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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
pleasure, occupies an equally apolitical position.
the
Clerk’s
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.
Lawson,
a
Republican,
Democrat,
for
J.A. 75.
served
nearly
a
as
year
83
After Gault’s appointment,
Deputy
before
Clerk
Lawson
under
Gault,
announced
a
her
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candidacy.
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In
fact,
as
Pg: 84 of 97
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
conclude
that
the
office’s
Lawson’s
operation.
political
I
beliefs,
therefore
which
had
cannot
differed
from Gault’s for a significant period of time, somehow became
sufficiently relevant to her position as Deputy Clerk after the
2012
election
termination.
conclusory
power,
to
Cf.
provide
Fields,
assertions
but
they
566
about
cannot
lawful
F.3d
the
show
grounds
at
local
‘a
387
for
(“Defendants
director’s
rational
Lawson’s
make
policymaking
connection
between
shared ideology and job performance.’” (quoting Stott, 916 F.2d
at
142)).
exception
Accordingly,
is
inapposite
I
to
would
this
hold
case.
that
I
the
would
Elrod–Branti
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
84
against
him
in
his
personal
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capacity. 13
“The
doctrine
of
Pg: 85 of 97
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.
85
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Pg: 86 of 97
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)).
conduct
Thus, “officials can still be on notice that their
violates
circumstances.”
established
Meyers,
law
713
F.3d
Pelzer, 536 U.S. 730, 741 (2002)).
that,
“particularly
in
First
even
at
734
in
novel
(quoting
factual
Hope
v.
This Court has indicated
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]
disciplining [the employees] for their speech.’”
86
interest
in
Brickey, slip
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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”
constitutionally
fathom”).
and
noting
protected
that
free
“a
clearer
speech
would
violation
be
difficult
of
to
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
private
citizen
against
the
anticipates
a
on
adverse
the
efficiently.”
government
a
matter
effect
speech
Id.
will
The
employee’s
speech
of
public
concern
that
the
government
have
Court
87
on
its
ability
emphasized
that,
made
is
as
a
balanced
reasonably
to
operate
under
the
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circumstances in Gilchrist, “there was no evidence forecasted in
the
summary
expect
judgment
Smith’s
workplace.
speech
record”
to
that
have
Id. at 312–13.
any
Gilchrist
might
particular
reasonably
effect
on
the
Accordingly, the Court explained
that “the general complexity of the balancing test is of no
consequence
in
this
case
since
there
employer’s side of the ledger to weigh.”
is
nothing
Id. at 313.
on
the
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
Office’s
the
speech
efficiency.
will
Cf.
negatively
id.
at
312.
impact
As
I
the
Clerk’s
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.”
88
McVey, 157
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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,
termination.
Gilchrist
as
Cf.
defined
749
determined
above,
F.3d
that
a
at
on
312.
nearly
the
day
Indeed,
identical
of
the
right
Lawson’s
Court
had
in
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,
here as well.
the
Court’s
reasoning
in
Gilchrist
holds
true
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)).
89
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matter of public concern against the government’s interest in
providing effective and efficient services.
at 277.
See McVey, 157 F.3d
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
Jurgensen, 745 F.2d at 879.
offers
no
reasonably
evidence
have
to
reasonably
to
be
apprehended,”
Where, as here, the public employer
demonstrate
expected
the
that
the
office’s
employer
effectiveness
could
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
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that
Doc: 55
Filed: 07/08/2016
employee
Accordingly,
based
I
on
Pg: 91 of 97
political
would
hold
affiliation
that
Gault
was
unlawful.
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
official
The
immunity.
his
capacity
Eleventh
due
Amendment
to
bars
Eleventh
suit
Amendment
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
Eleventh
Educ.,
officials,
Amendment
242
F.3d
however,
immunity.
219,
222
Cash
(4th
generally
v.
Cir.
do
Granville
2001).
not
Cty.
The
enjoy
Bd.
of
government
official asserting Eleventh Amendment immunity therefore bears
the burden of proving that he is a state official.
S.C. Ret. Sys., 773 F.3d 536, 542 (4th Cir. 2014).
Hutto v.
“Whether an
action is barred by the Eleventh Amendment is a question of law
that we review de novo.”
In
making
this
Id.
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
91
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entity,
entity.”
state
then
Eleventh
Pg: 92 of 97
Amendment
immunity
applies
Id. (quoting Cash, 242 F.3d at 223).
treasury
immunity
Filed: 07/08/2016
will
applies
not
only
be
where
liable
the
for
a
to
that
If, however, the
judgment,
“governmental
sovereign
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.
92
See Appellees’ Br. 41.
None
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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’
unpersuasive.
Br.
41
(citation
omitted),
is
wholly
Not only does the case date back to 1882, before
the evolution of Eleventh Amendment jurisprudence, but it also
presented no Eleventh Amendment issue.
463.
See Sims, 18 S.C. at
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.
district
court
unavailing.
See id.
decisions
Likewise, the unpublished federal
that
Gault
cites
are
similarly
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.
93
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Oct. 21, 2009);
Pg: 94 of 97
Muqit v. Kitchens, No. 2:08-3959-CMC-RSC, 2009
WL 87429, at *3 (D.S.C. Jan. 13, 2009)).
failed
to
show
that
he
is
entitled
to
Gault has therefore
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
is
that
limited;
the
for
state’s
control
instance,
South
over
the
Carolina’s
Clerk
of
Judicial
Court
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.
94
See S.C. Code Ann.
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§§ 14-17-10, 14-17-20.
Amendment
immunity
Pg: 95 of 97
Accordingly, I would hold that Eleventh
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
Pickering
Gault
without
balancing.
even
a
I
Instead,
reaching
hold
would
conclusion
that
under
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
balancing—before the district court.
under
Pickering
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].”).
no
genuine
dispute
as
to
any
Most assuredly, there is
material
fact,
entitled to judgment as a matter of law.
P. 56;
Celotex
Corp.
v.
Catrett,
477
U.S.
and
Lawson
is
See Fed. R. Civ.
317,
326
(1986)
(“[D]istrict courts are widely acknowledged to possess the power
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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
appropriate
Cir.
where
1985)
one
(“[S]ua
party
moves
sponte
for
summary
summary
judgment
judgment
is
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
96
in
favor
of
Appellant
Appeal: 14-2360
Doc: 55
Filed: 07/08/2016
Pg: 97 of 97
Melanie Lawson and (2) conduct such proceedings as to remedy
that the district court finds necessary and appropriate.
97
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