Powe v. May ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30802
Summary Calendar
JERRY DOUGLAS POWE, JR.,
Plaintiff-Appellant,
versus
STEVEN E. MAY, in his official capacity
as Sheriff of Caldwell Parish,
Defendant-Appellee.
Appeal from the United States District Court for
the Western District of Louisiana
(USDC No. 00-CV-2035)
_______________________________________________________
March 3, 2003
Before REAVLEY, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
Jerry Douglas Powe, Jr., former deputy sheriff of Caldwell Parish, Louisiana,
sued Steven E. May, current Sheriff, for violations of the Fair Labor Standards Act,
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
29 U.S.C. § 201 et seq. The alleged violations occurred during the tenure of former
Sheriff Charles Thompson. The sole issue presented by this appeal is whether the
district court correctly determined Sheriff May cannot be held liable for the acts of
his predecessor under the successorship doctrine. We affirm for the following
reasons:
1. A sheriff in Louisiana must pay the salary debts of his predecessor if, upon
taking office, he (1) receives a balance in the Sheriff’s Salary Fund (also
known as the “General Fund”) or (2) makes collections which are properly
due to the former sheriff. Asadie v. Hebert, 15 So. 2d 392, 395 (La.Ct.App.,
Orleans 1943). May provided summary judgment evidence, which Powe has
failed to rebut, that the General Fund’s liabilities exceeded its assets when
May took office, and that he does not expect to collect any other funds due
Sheriff Thompson. Thus, the Louisiana successorship doctrine does not
create liability on the part of Sheriff May.
2. Because we find that liability under the federal successorship doctrine is
inappropriate in this case, we assume without deciding that the doctrine
applies to the FLSA. There are three main criteria for imposing successor
liability: (1) a substantial continuity of business operations from the previous
entity to its successor; (2) notice to the successor; and (3) the successor’s
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ability to provide relief. Rojas v. TK Communs., 87 F.3d 745, 750 (5th Cir.
1996). There is insufficient continuity between Sheriff Thompson’s
administration and Sheriff May’s administration to justify the imposition of
successor liability. Under the Louisiana Constitution, the office of Sheriff is
created by the election of each individual Sheriff, and it expires once that
individual’s term expires. See LA. CONST. art. 5, § 27. Moreover, every
sheriff in Louisiana is a political subdivision unto himself, and there is no
such thing as a “Parish Sheriff’s Department” or “Parish Sheriff’s Office”.
First Nat’l Bank v. Bailey, 625 So. 2d 588, 589 (La.Ct.App. 3 Cir. 1993)
(citing LA. REV. STAT. § 13:5102(B)), rev’d on other grounds, 633 So. 2d 159(La. 1994); Liberty Mut. Ins. Co. v. Grant Parish Sheriff’s Dep’t, 350 So. 2d
236, 238 (La.Ct.App. 3 Cir. 1977). Finally, although an incoming Sheriff
may spend whatever unallocated assets were left by his predecessor, under
Louisiana law his liability for his predecessors debts is limited by the amount
of those assets. There is no continuity of assets, because each Sheriff is
responsible for raising and spending his own funds. Considering the above
factors, we cannot conclude there is continuity between the two Sheriffs’
administrations sufficient to trigger successor liability under federal law.
3. We find no fault with the district court’s balance of the equities in this case.
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Imposing successor liability would hinder Sheriff May’s ability to police
Caldwell Parish. Sheriff May cannot levy taxes to satisfy a judgment without
voter approval, forcing him to make budget cuts. The interests of the people
of Caldwell Parish are best served by holding each sheriff responsible for his
own debts. The policies underlying the FLSA are also best served by not
imposing successor liability. Sheriffs will be deterred from violating the
FLSA because they will remain liable after their term of office expires.
Additionally, imposing liability on a succeeding sheriff will not deter FLSA
violations because responsibility for the misconduct would be passed on to
his successor. Therefore, we agree with the district court that the
successorship doctrine should not apply. As Powe may not sue Sheriff May
for the misconduct of Sheriff Thompson, summary judgment was appropriate.
AFFIRMED.
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