Melanie Lawson v. Union County Clerk of Court

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2360
MELANIE LAWSON,
Plaintiff – Appellant,
v.
UNION COUNTY CLERK OF COURT, William F. "Freddie" Gault;
WILLIAM F. GAULT, a/k/a Freddie Gault, Individually,
Defendants – Appellees.
-------------------------------------
BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW;
PENNSYLVANIA CENTER FOR THE FIRST AMENDMENT,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Timothy M. Cain, District
Judge. (7:13-cv-01050-TMC)
Argued: September 17, 2015 Decided: July 7, 2016
Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by published opinion. Judge Duncan wrote
the majority opinion, in which Judge Diaz joined. Senior Judge
Davis wrote a dissenting opinion.
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
DUNCAN, Circuit Judge:
Appellee William Gault (“Gault”) terminated Appellant
Melanie Lawson (“Lawson”) from her position as a deputy clerk in
the Clerk of Court’s Office of Union County, South Carolina.
Lawson filed suit, challenging her termination on First
Amendment grounds. Gault moved for summary judgment, and the
district court granted the motion, holding that Lawson occupied
a confidential or policymaking position and was subject to
termination for campaigning against her boss. We disagree that
Gault has established as a matter of law that Lawson held a
position for which political loyalty was required, and we are
unable to affirm on any other grounds based on the record as
currently presented. We therefore vacate the judgment below and
remand for further proceedings consistent with this opinion.
The dissent is so hyperbolic that it seems necessary to
stress exactly what is at issue in this appeal. The majority
simply reverses the grant of summary judgment to Gault and
remands. What the dissent is so exercised about is that the
majority does not grant summary judgment to Lawson, who never
moved for summary judgment nor otherwise sought such relief. To
the extent there is anything remarkable about this opinion,
either jurisprudentially or otherwise, it is the dissent’s
determination to overleap precedent and procedure, and preclude
the development of any record evidence, solely to grant Lawson
3
relief she did not ask for and which Gault had no notice of. As
we explain below, the issue before this court on appeal is
narrow: whether Gault’s motion for summary judgment had merit.
We conclude that it did not, and our opinion steps beyond that
simple question only insofar as we must address the dissent’s
gratuitous overreach.
I.
A.
This action arises out of Union County, South Carolina’s
2012 election for Clerk of Court. Because of the unique
statutory characteristics of that position, we begin by
describing it briefly.
The South Carolina Constitution creates the position of
Clerk of Court for each county. S.C. Const. art. V, § 24. The
Clerk is elected to a four-year term through partisan elections,
with the Governor empowered to fill any vacancies that arise
between elections. S.C. Code Ann. § 14-17-30. The General
Assembly prescribes the Clerk’s duties. S.C. Const. art. V,
§ 24. The Supreme Court of South Carolina approves guidelines
for the Clerk in connection with the court’s responsibility to
make rules of court administration. Id. art. V, § 4; see, e.g.,
Administrative Order Adopting Clerk of Court Manual Revision,
S.C. Sup. Ct. Administrative Order No. 2014-05-21-01, dated
4
May 21, 2014, http://www.judicial.state.sc.us/courtOrders/
displayOrder.cfm?orderNo=2014-05-21-01. The Clerk is
essentially responsible for all the duties typically associated
with court administration. See S.C. Code Ann. §§ 14-17-210 to
14-17-760.
South Carolina law authorizes the Clerk to appoint deputy
clerks to aid in executing the Clerk’s statutory duties. Id.
§ 14-17-60. Once sworn into office, a deputy clerk is
authorized to carry out any of the Clerk’s statutory duties.
See id. A deputy clerk serves at the pleasure of the Clerk.
See id.
The Supreme Court of South Carolina has issued a Clerk
Manual, which emphasizes the Clerk’s “public relations” role as
the sole face of the state court system for many individuals.
See Clerk of Court Manual § 1.21 “Public Relations,”
http://www.judicial.state.sc.us/ClerkOfCourtManual/displaychapte
r.cfm?chapter=1#1.21. In the Family Court/Child Support
Division, where Lawson worked, the sensitive nature of the
proceedings gives the Clerk’s public relations role greater
importance. See id. § 7.18, “Confidentiality in the Family
Court,” http://www.judicial.state.sc.us/clerkOfCourtManual/
displaychapter.cfm?chapter=7#7.18.
Because all Family Court filings are submitted through the
Clerk, the Family Court/Child Support Division of the Clerk’s
5
Office routinely handles sensitive filings. Cases concerning
legal infractions by minors, child neglect and abuse, child
custody, divorce, adoption, termination of parental rights, and
spousal and child support all originate in Family Court. S.C.
Code Ann. §§ 63-3-510, 63-3-530. Further, many Family Court
filings, unlike most court documents, are strictly confidential.
See, e.g., id. § 44-41-32 (unemancipated minors seeking
abortions without parental consent); id. § 63-19-2040 (alleged
state law violations by minors); id. § 63-9-780(B) (adoptions).
In addition, South Carolina law protects the integrity of
filings related to adoptions by making it a misdemeanor,
punishable by fine and imprisonment, to disseminate or allow the
unauthorized dissemination of such records. Id. § 63-9-
780(F)(2). The Family Court/Child Support Division of the
Clerk’s Office is also responsible for managing the child
support account and working with other staff in the Clerk’s
Office to process the account’s monthly statements. See
J.A. 96.
6
B.
Lawson was an employee in the Union County Clerk’s Office
from 1992 until 2012, beginning as a child-support clerk under
June Miller (“Miller”), who at that time was the Clerk of Court.
Miller named Lawson the Family Court coordinator before Miller
retired from her position as Clerk in 2003.
Lawson continued to work in the Family Court/Child Support
Division under Miller’s successor, Brad Morris (“Morris”).
Morris served as Clerk from 2003 until October of 2009, when he
resigned after pleading guilty to embezzling more than $200,000
in public funds from the Clerk’s Office. During his term in
office, Morris stole cash receivables and falsified deposit
slips, beginning with funds from child support receivables and
eventually including accounts across the Clerk’s Office. Lawson
applied for appointment to the vacant position after Morris
resigned, but the Governor appointed William F. Gault to serve
as Clerk through the next election cycle instead.
At the time Gault took over as Clerk, the office had ten
full-time staff members. Gault thereafter received approval and
funding from the Judicial 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
Clerk of Court, as a part-time employee for six months. The
parties have stipulated that Gault hired Miller “to perform bank
reconciliations in an effort to prevent another lapse like the
one that had allowed Mr. Morris to embezzle hundreds of
thousands of dollars from the Clerk’s Office.” J.A. 20.
Gault retained Miller after the six-month period ended,
paying her with funds from the child support account. He also
selected Lawson to supervise the Family Court/Child Support
Division of the Clerk’s Office as his deputy. In their
respective capacities, Lawson and Miller would interact when
Miller had questions about the monthly child support account
statements.
C.
Gault opted to run for a full term as Clerk in the November
2012 election, entering the race as a Republican. On March 30,
2012, Lawson declared her candidacy for the Democratic primary, 2
with plans to oppose Gault in the general election. After
Lawson informed Gault of her action, Gault placed her on unpaid
leave for the duration of her campaign.
Lawson acknowledges that, as her campaign progressed, June
Miller became a campaign issue. According to Lawson, she “made
2
Because of a 2012 South Carolina Supreme Court decision
unrelated to the present case, Lawson was ineligible to run in
the Democratic primary. She ultimately ran as a Petition
candidate in the general election.
8
statements concerning June Miller’s employment with the Clerk’s
Office.” J.A. 186. Specifically, Lawson expressed concern over
“where the funds were coming from to pay Ms. Miller,” given that
Miller continued working after her six-month authorization
expired. Id. Lawson explained that she “had a heightened sense
of alertness, especially when it involved funds of the Clerk’s
Office” given Morris’s embezzlement scandal. J.A. 187.
Shortly after his election, Gault set up a meeting with
Lawson. At that November 14, 2012, meeting, Gault terminated
Lawson, telling her that “he had to do what was in the best
interest of the office.” J.A. 21. Gault would later testify
that he terminated Lawson in part for making statements during
her campaign regarding Miller’s employment at the Clerk’s
Office, and in part because he was concerned that her continued
employment would undermine his authority as Clerk.
Gault explained that, on numerous occasions during the
campaign, it was brought to his attention that Lawson was making
statements identifying Miller by name. These statements
questioned Gault’s decision to continue to employ Miller given
that the “county council doesn’t want June Miller there.”
J.A. 88. Moreover, Gault was told that Lawson was making
statements to the effect that “June Miller should not be in the
clerk of court’s office” and “June Miller is already drawing her
social security and her retirement.” Id. According to Gault,
9
he “couldn’t very well bring [Lawson] back in and expect her to
sit beside June Miller” and interact with the other employees in
such a small office under these circumstances. J.A. 92.
D.
Following her termination, Lawson sued Gault in both his
individual and official capacities, seeking monetary damages and
an injunction ordering her reinstatement. In her complaint, she
alleged that Gault fired her “because of her exercise of her
right to run for public office thereby violating her First
Amendment rights.” J.A. 3.
At the conclusion of discovery, Gault moved for summary
judgment. In addition to asserting immunity defenses, Gault
argued that the First Amendment did not prohibit him from firing
one of his deputy clerks for “perceived political disloyalty.”
J.A. 31. In making this argument, Gault relied on case law
analyzing the Elrod-Branti doctrine, discussed infra, which
addresses the First Amendment’s limitations on political
patronage dismissals.
Lawson opposed the motion, asserting that the Elrod-Branti
doctrine was inapplicable, and that “[w]hen a government
employer retaliates against a government employee for exercising
their First Amendment right to speech the appropriate analysis
falls under the Pickering balancing test.” J.A. 115. Thus,
10
Lawson urged the district court to apply Pickering, and not
Elrod-Branti.
The district court agreed with Gault, and found that Lawson
could not establish that she had a First Amendment right not to
be terminated after she challenged Gault in her election
campaign. Lawson v. Gault, 63 F. Supp. 3d 584, 591 (D.S.C.
2014). Specifically, the district court held that, although
Lawson’s candidacy implicated her First Amendment rights, she
was terminated legally because she occupied a confidential or
policymaking position. Id. at 590. The district court noted
Lawson’s Pickering argument, but centered its analysis on
Lawson’s position as a “public employee in a confidential,
policymaking, or public contact role,” which is a factor drawn
from the Elrod-Branti doctrine. Id. In other words, the
district court resolved Gault’s motion based on the grounds
Gault raised, and not on the alternative First Amendment
doctrine that Lawson raised.
Having concluded that Lawson failed to establish a First
Amendment violation, the district court granted summary judgment
and declined to address the qualified immunity and Eleventh
Amendment immunity defenses that Gault had asserted in his
motion. Id. at 591 n.7, 592. This timely appeal followed.
II.
11
A.
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). We review de novo the district court’s grant of
summary judgment. T-Mobile Ne. LLC v. City Council of Newport
News, 674 F.3d 380, 384 (4th Cir. 2012). We apply “the same
legal standards as the district court” while “viewing all facts
and reasonable inferences therefrom in the light most favorable
to the nonmoving party.” Id. at 385 (quoting Pueschel v.
Peters, 577 F.3d 558, 563 (4th Cir. 2009)). Our review is not
limited to the grounds the district court relied upon, and we
may affirm “on any basis fairly supported by the record.”
Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir.
2002) (citing Korb v. Lehman, 919 F.2d 243, 246 (4th Cir.
1990)).
B.
This appeal implicates two lines of cases that grapple with
the limitations on a public employee’s First Amendment rights.
The first doctrine is the “Elrod-Branti” exception, upon which
the district court relied. This exception flows from Elrod v.
Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507
(1980), which held that policymaking employees may be terminated
for their political beliefs if “party affiliation is an
12
appropriate requirement for the effective performance of the
public office involved.” Branti, 445 U.S. at 518. The second
doctrine, based on Pickering v. Board of Education, 391 U.S. 563
(1968), and Connick v. Myers, 461 U.S. 138 (1983), provides that
the First Amendment does not protect public employees when their
speech interests are outweighed by the government’s interest in
providing efficient and effective services to the public.
The district court held that Gault was entitled to fire
Lawson under the Elrod-Branti exception, because she held a
confidential, policymaking position that required political
loyalty. For the reasons set forth below, we vacate the order
granting summary judgment to Gault and remand for further
proceedings. First, we conclude that the district court erred
in granting summary judgment to Gault based on the Elrod-Branti
exception. Second, we conclude that Gault has not demonstrated
an entitlement to qualified immunity or Eleventh Amendment
immunity. Third, we decline to resolve the Pickering balancing
test on the present record. We address each of these issues
below.
C.
We begin with the Elrod-Branti exception, which was at the
heart of Gault’s motion for summary judgment and the district
court’s order granting the motion. As we explain, Gault has not
13
satisfied the criteria of the exception, because he has not
demonstrated that Lawson’s position required political loyalty.
Elrod v. Burns and Branti v. Finkel held that “[t]he First
Amendment forbids government officials to discharge or threaten
to discharge public employees solely for not being supporters of
the political party in power, unless party affiliation is an
appropriate requirement for the position involved.” Smith v.
Frye, 488 F.3d 263, 268 (4th Cir. 2007) (quoting Rutan v.
Republican Party of Ill., 497 U.S. 62, 64-65 (1990)). This
narrow exception to the First Amendment permits patronage
dismissals of public employees in policymaking positions in
order “to give effect to the democratic process.” Jenkins v.
Medford, 119 F.3d 1156, 1161 (4th Cir. 1997) (en banc). To
determine whether the exception applies, “the ultimate inquiry
is not whether the label ‘policymaker’ or ‘confidential’ fits a
particular position; rather, the question is whether the hiring
authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the
public office involved.” Branti, 445 U.S. at 518.
In this circuit, our Elrod-Branti analysis follows a two-
part test adopted from the First Circuit. Stott v. Haworth, 916
F.2d 134, 141-42 (4th Cir. 1990) (citing Jimenez Fuentes v.
Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986) (en
banc)). Prong one of the inquiry asks, at a general level,
14
whether the employee’s position requires “government
decisionmaking on issues where there is room for political
disagreement on goals or their implementation.” Id. at 141
(citation omitted). If this prong is satisfied, we proceed to
the second prong, under which we look at the employee’s specific
responsibilities, and “focus on the powers inherent in a given
office, as opposed to the functions performed by a particular
occupant of that office.” Id. at 142 (citation omitted). The
government must satisfy both prongs of Stott to establish the
Elrod-Branti defense.
We turn now to the attributes of Lawson’s position as a
deputy clerk, according to the evidence before us. Upon review
of the general duties of deputies in the Union County Clerk’s
Office, we conclude that none of the duties Gault has pointed to
satisfy the first prong of Stott. Deputy clerks are generally
responsible for administrative and ministerial tasks, such as
keeping records and managing court accounts. We see no evidence
the deputy clerks perform tasks that relate to “partisan
political interests or concerns,” and thus we cannot conclude
that party affiliation is relevant to an employee’s
qualification to serve as a deputy clerk. Nader v. Blair, 549
F.3d 953, 960 (4th Cir. 2008); see also Stott, 916 F.2d at 141
(noting the Elrod-Branti analysis requires that the position,
“no matter how policy-influencing or confidential it may be,
15
relates to partisan political interests . . . or concerns.”
(internal quotations omitted)). Put another way, there is no
evidence before us that a deputy clerk’s political ideology
would affect the manner in which she performed her role as a
deputy clerk. Critically, Gault has failed to show that his
deputies were required to make decisions “on issues where there
is room for political disagreement.” Stott, 916 F.2d at 141.
Therefore, under the first prong of Stott, Gault has not
demonstrated his entitlement to summary judgment.
Gault has also failed to point to evidence that would
satisfy the second prong of Stott, under which we consider the
specific attributes of Lawson’s position, as a matter of law.
The deputy clerk overseeing the Family Court/Child Support
Division is responsible for overseeing case intake, receiving
filing fees, collecting and disbursing funds from the child
support account, and tracking and reporting court data. Gault
has not argued that a deputy clerk would be better suited to
carry out these specific tasks if she espoused a particular
political philosophy. Nor has he pointed to any specific
policies that Lawson was responsible for setting.
Gault has emphasized Lawson’s supervisory title, but that
role, standing alone, does not tell us that Lawson was a
policymaking employee. Though Lawson may have set internal
agendas as a supervisor, our decision in Fields v. Prater makes
16
clear that a supervisory employee does not automatically hold a
position that is subject to the Elrod-Branti exception. 566
F.3d 381 (4th Cir. 2009). In Fields, we explained that an
employee with supervisory power does not necessarily have broad
policy setting power. Id. at 387. “If having power over
subordinates were a sufficient condition for exemption from the
requirements of the First Amendment, only the most low-level
government employees would be protected from politically-based
hiring and firing.” Id. Thus, the mere fact that Lawson was a
supervisor did not make her a policymaker.
Citing this court’s en banc decision in Jenkins, Gault
contends that the Elrod-Branti exception applies because Lawson,
as a deputy, was Gault’s “alter-ego,” authorized by statute to
perform all the functions of a Clerk of Court. Contrary to
Gault’s view, Lawson’s statutory authority does not compel the
application of the Elrod-Branti exception, and Gault’s reliance
upon Jenkins in that regard is misplaced. In Jenkins, we held
that several deputy sheriffs in North Carolina were lawfully
terminated for political disloyalty. Jenkins, 119 F.3d at 1164.
Our analysis focused on the fact that deputy sheriffs held a
special position under North Carolina law, in that they “act[ed]
in the name of and with powers conterminous with [their]
principal, the elected sheriff.” Id. at 1163 (quoting N.C. Gen.
Stat. § 17E-1). At the same time, we emphasized that the
17
“principal” for whom the deputies acted was a political figure
responsible for establishing a law enforcement agenda; it was
therefore critical to our decision that the sheriff’s deputies
played a role in implementing these policies. Id. at 1162-63.
Based on the current record, we cannot say the same for Lawson’s
role as a deputy to Gault. Though Gault was an elected
official, and Lawson did have the statutory authority to act on
his behalf, Gault has not demonstrated that any of the duties
Lawson carried out in his stead involved setting or implementing
a policy agenda.
For the foregoing reasons, we cannot conclude, as a matter
of law, that “party affiliation is an appropriate requirement
for the effective performance” of Lawson’s former position as a
deputy clerk. 3 Branti, 445 U.S. at 518. Accordingly, we reverse
the district court’s decision to grant summary judgment to Gault
based on the Elrod-Branti exception.
D.
Gault next argues that, even if he has not established the
Elrod-Branti defense, he is entitled to qualified immunity from
suit for money damages in his individual capacity. According to
3
We are, of course, limited in our analysis to the evidence
before us on appeal. For this reason, we make no broad
proclamations about the roles of deputy clerks generally, for
there may well be attributes of those positions--or Lawson’s
specific position--of which we are not aware.
18
Gault, the contours of the Elrod-Branti exception were not
sufficiently clear when he fired Lawson in 2012.
Qualified immunity “shields government officials from
liability for civil damages, provided that their conduct does
not violate clearly established statutory or constitutional
rights within the knowledge of a reasonable person.” Meyers v.
Baltimore Cty., 713 F.3d 723, 731 (4th Cir. 2013) (citing Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). “This is not to say
that an official action is protected by qualified immunity
unless the very action in question has previously been held
unlawful, but it is to say that in the light of pre-existing law
the unlawfulness must be apparent.” Estate of Armstrong ex rel.
Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 907 (4th Cir.
2016) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)).
As our analysis of the Elrod-Branti defense illustrates,
Gault has not demonstrated, as he must, that Lawson was a
policymaking employee for whom political association was an
appropriate job requirement. We have repeatedly limited the
Elrod-Branti exception to employees who occupy policymaking
positions for which political association is relevant, and we
think our precedent made this requirement sufficiently clear at
the time Gault terminated Lawson. See, e.g., Nader, 549 F.3d at
959; Fields, 566 F.3d at 386; Jenkins, 119 F.3d at 1163-64.
19
In an effort to demonstrate that the law in this area is
muddled, Gault cites a 1996 decision in which we held, in an
unpublished opinion, that qualified immunity shielded a clerk of
court who fired his chief deputy for disloyalty. Appellee’s Br.
at 36 (citing Conner v. McGraw, 104 F.3d 358 (4th Cir. 1996)
(unpublished)). This does not advance Gault’s argument,
however, because the fact that the law was unsettled in 1996
tells us nothing about the state of the law nearly sixteen years
later. As we have explained, the state of the law in 2012 would
have put Gault on notice that political affiliation was not an
appropriate requirement for administrative employees.
Thus, we conclude that Gault has not established the
defense of qualified immunity, and we cannot affirm the district
court’s judgment on that basis.
E.
Gault next contends that the Eleventh Amendment immunizes
him from suit for monetary damages in his official capacity. We
find this argument unpersuasive.
The Eleventh Amendment protects the states from suit in
federal court, as well as “arm[s] of the State and State
officials.” Bland v. Roberts, 730 F.3d 368, 390 (4th Cir. 2013)
(internal quotations omitted). Our Eleventh Amendment
jurisprudence differentiates “arms or alter egos of the state
from ‘mere political subdivisions of [the] State such as
20
counties or municipalities,’ which, though created by the state,
operate independently and do not share the state’s immunity.”
United States ex rel. Oberg v. Pa. Higher Educ. Assistance
Agency, 804 F.3d 646, 651 (4th Cir. 2015) (alteration in
original) (quoting Kitchen v. Upshaw, 286 F.3d 179, 184 (4th
Cir. 2002)). To determine whether an entity is an arm of the
state, we consider four nonexclusive factors:
(1) whether any judgment against the entity as
defendant will be paid by the State or whether any
recovery by the entity as plaintiff will inure to the
benefit of the State; (2) the degree of autonomy
exercised by the entity, including such circumstances
as who appoints the entity's directors or officers,
who funds the entity, and whether the State retains a
veto over the entity's actions; (3) whether the entity
is involved with state concerns as distinct from non-
state concerns, including local concerns; and (4) how
the entity is treated under state law, such as whether
the entity's relationship with the State [is]
sufficiently close to make the entity an arm of the
State.
S.C. Dep’t of Disabilities & Special Needs v. Hoover Universal,
Inc., 535 F.3d 300, 303 (4th Cir. 2008) (alteration in original)
(internal quotation omitted).
Applying the Hoover factors to the record before us, we see
no evidence that the Clerk’s Office is anything but a county
agency that operates locally as an independent subdivision of
the state. Significantly, Gault has not argued that a judgment
against Gault would be paid from the state treasury.
Additionally, the “Handbook for County Government in South
21
Carolina” indicates that the clerk of court and his office draw
their funding from the county, and not the state, which suggests
that the Clerk’s Office operates autonomously from the state.
J.A. 198. 4 Further, Gault’s authority as Clerk of Court was
limited to Union County, suggesting that he dealt with only
local, and not state, concerns. Based on this evidence, we
cannot conclude that the Clerk’s Office is an arm of the state
of South Carolina.
In support of his Eleventh Amendment defense, Gault points
to nothing more than a paragraph of Lawson’s complaint that
calls the Clerk’s Office a “state office” and an 1883 decision
from the Supreme Court of South Carolina that characterizes a
clerk of court as “State officer” for electoral purposes, State
ex rel. Anderson v. Sims, 18 S.C. 460, 463 (1883). See
Appellee’s Br. at 41. Neither the 1883 case nor Lawson’s
complaint resolve the Eleventh Amendment question before us,
because Gault must do more than simply establish a link between
the state and his office. Instead, Gault must demonstrate that
the Union County Clerk’s Office is an arm of the state, and not
an independent subdivision of the state. Gault’s conclusory
assertion that the Clerk of Court is a “state officer” does not
satisfy his burden to establish Eleventh Amendment immunity.
4 The state does, however, provide “an annual salary
supplement” to the Clerk of Court. J.A. 198.
22
In the absence of any evidence tying the Clerk’s Office to
the state of South Carolina, we conclude that Gault has failed
to demonstrate that the Eleventh Amendment immunizes him from
Lawson’s monetary damages claim.
F.
We next consider the Pickering issue that Lawson has
raised. Simply put, the history of this case does not present
us with an adequate Pickering record to review. Gault moved for
summary judgment based on Elrod-Branti, the district court
granted the motion based on Elrod-Branti, Gault urged us to
affirm the order based solely on Elrod-Branti, and we now hold
that Gault failed to establish the Elrod-Branti defense. This
resolves the appeal, and we need not go any further. Although
we can affirm on any basis apparent from the record, we conclude
that we cannot resolve the Pickering question on this record.
To provide context, we begin with an overview of the
Pickering balancing test. As we explained in Smith v.
Gilchrist, “the government, as an employer, ‘is entitled to
maintain discipline and ensure harmony as necessary to the
operation and mission of its agencies,’” and therefore has “an
interest in regulating the speech of its employees.” 749 F.3d
302, 308 (4th Cir. 2014) (quoting McVey v. Stacy, 157 F.3d 271,
277 (4th Cir. 1998)). When these interests conflict with the
free speech rights of public employees, Pickering tells us “to
23
arrive at a balance between the interests of the [employee], as
a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees.” 391 U.S. at 568.
In this balancing test, “the government bears the ‘burden
of justifying the discharge on legitimate grounds.’” Gilchrist,
749 F.3d at 309 (quoting Rankin v. McPherson, 483 U.S. 378, 388
(1987)). 5 However, the government need not “prove that the
employee’s speech actually disrupted efficiency”; rather, its
burden is to show that “an adverse effect was ‘reasonably to be
apprehended.’” Id. (quoting Maciariello v. Sumner, 973 F.2d
295, 300 (4th Cir. 1992)); see also Jurgensen v. Fairfax Cty.,
745 F.2d 868, 879 (4th Cir. 1984) (“In the application of this
test, . . . it is not necessary for the agency to prove that
morale and efficiency in the agency have actually been adversely
affected by the publication; it is sufficient that such damage
to morale and efficiency is reasonably to be apprehended.”).
To assess the government’s interest, we must consider the
context of the employee’s speech. Rankin, 483 U.S. at 388 (“In
performing the balancing, the [employee’s] statement will not be
5 The balancing test is the second of the three elements of
a First Amendment retaliation claim. McVey, 157 F.3d at 277-78.
The other two elements (speech on a matter of public concern and
causation) are not at issue here.
24
considered in a vacuum; the manner, time, and place of the
employee’s expression are relevant, as is the context in which
the dispute arose.”). In Ridpath v. Board of Governors Marshall
University, we listed nine non-exhaustive factors that the
Supreme Court has considered significant:
[W]hether a public employee’s speech (1) impaired the
maintenance of discipline by supervisors; (2) impaired
harmony among coworkers; (3) damaged close personal
relationships; (4) impeded the performance of the
public employee’s duties; (5) interfered with the
operation of the institution; (6) undermined the
mission of the institution; (7) was communicated to
the public or to coworkers in private; (8) conflicted
with the responsibilities of the employee within the
institution; and (9) abused the authority and public
accountability that the employee’s role entailed.
447 F.3d 292, 317 (4th Cir. 2006) (citing McVey, 157 F.3d
at 278). As the sheer number of Ridpath factors demonstrates,
this inquiry is fact-intensive and context-specific, and will
depend on the arguments the government develops and the evidence
it offers.
Turning to the case at hand, we conclude that Gault has not
developed a Pickering argument for us to analyze. When Gault
moved for summary judgment, he did not raise Pickering as a
basis for the motion. Even after Lawson raised Pickering in her
opposition brief, 6 Gault dismissed Pickering and urged the
6This 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)
25
district court to decide the case based on Elrod-Branti. See
J.A. 220. Gault argued that it made no difference whether the
court analyzed the complaint as a free speech claim, or a claim
of retaliation for disloyal candidacy, because Elrod-Branti
governed both theories. See J.A. 225 (“[B]ecause, under South
Carolina law, Plaintiff was regarded as the alter ego of
Mr. Gault, he could terminate her for political disloyalty
and/or ‘for speech displaying that political disloyalty.’”
(quoting Bland, 730 F.3d at 394)).
It is unsurprising, then, that the district court resolved
the case on Elrod-Branti grounds. The district court’s opinion
decided the motion based on its view of Lawson’s position as a
“confidential, policymaking” employee, a consideration rooted in
the Elrod-Branti doctrine. In doing so, the decision tracked
the grounds under which Gault moved, because those were the only
arguments the motion required the court to resolve. 7
This pattern continued on appeal. Before us, Gault
defended the district court’s order exclusively on Elrod-Branti
grounds. Gault’s brief makes only a passing reference to
lawsuit under two different doctrines. Importantly, however,
she chose not to move for summary judgment.
7 Because Gault did not assert Pickering arguments in his
motion, it certainly was not error for the district court to
decline to analyze that doctrine.
26
Pickering, in which he declined to adopt the application of
Pickering to this case:
Lawson insists that the fact that her First
Amendment claim rests not merely on her candidacy but
also on her speaking out in support of her candidacy
somehow gives added heft to her First Amendment claim
that must and can be overcome only by Gault’s making
an evidentiary showing, under a Pickering-Connick
balancing of interests, that her campaign speech
actually disrupted the efficient operation of the
clerk’s office. . . . She is mistaken.
Appellee’s Br. at 30-31. Further, Gault’s substantive analysis
of the balancing test consists of no more than one sentence.
See Appellee’s Br. at 30-31. Without additional development,
this is too slender a reed on which to base an analysis as fact-
specific as Pickering requires.
For example, it is unclear whether Gault means to argue
that Lawson’s specific comments about June Miller threatened
office efficiency, or whether Lawson’s failed campaign alone was
a source of office disruption. We do not mean to say that Gault
has failed to justify his actions under Pickering. As we
discuss below, the limited record before us indicates that Gault
may have colorable Pickering arguments. We simply hold that we
cannot resolve the issue based on what the parties have
presented to us. 8
8
For the same reason, we decline to decide whether Gault
would be entitled to qualified immunity under a Pickering
theory.
(Continued)
27
G.
We turn now to the dissent’s contention that Lawson is
entitled to summary judgment. This assertion is unusual to say
the least, because, as we have noted, Lawson never moved for
summary judgment. We should certainly exercise caution before
granting a party relief she did not seek. And neither party has
asserted Pickering as the ground for a motion, which hinders a
meaningful Pickering analysis, and makes it premature to
evaluate the issue in the context of this appeal. Additionally,
we disagree that there is no evidence that Lawson’s conduct
interfered with the operations of the Clerk’s Office. In view
of the Ridpath factors, as we discuss below, we cannot conclude
that Pickering compels a judgment in Lawson’s favor at this
stage of the case, because the record indicates that Gault may
have colorable Pickering arguments. 9
In the course of her campaign, Lawson made a variety of
statements about the Clerk’s Office and her colleague, June
Miller. Some of her comments questioned “where the funds were
coming from to pay Ms. Miller,” in light of the previous
embezzlement scandal. J.A. 186. Lawson also stated that “June
9To 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.
28
Miller should not be in the clerk of court’s office,” that the
“county council doesn’t want June Miller there,” and “June
Miller is already drawing her social security and retirement.”
J.A. 88.
As we consider the Ridpath factors, we first note that
Lawson held a supervisory position, and therefore her statements
would have a heightened effect within the office. In
particular, Lawson’s negative public comments about an
identified co-worker could affect Lawson’s ability to maintain
discipline in her division. In fact, the record reflects that
Gault expressed concern about this, and noted that he expected
that other co-workers would have difficulty working with Lawson
going forward. J.A. 92.
For similar reasons, Lawson’s comments might have been
expected to impair harmony among co-workers and damage close
personal relationships. It is of particular significance in
this regard that the Clerk’s Office consisted of only ten
employees. And Gault does assert--in the only sentence of his
appellate brief to address Pickering--that the potential for
Lawson’s public comments to sow discord in his office was a
serious concern. See Appellee’s Br. at 31.
Ridpath also counsels us to consider whether Lawson’s
statements would have interfered with the operation and mission
of the Clerk’s Office. Given Lawson’s public-facing role, Gault
29
might argue that her statements would have had this effect. As
the Supreme Court Clerk Manual recognizes, the Clerk and,
statutorily, the Clerk’s deputy, are the public faces of the
Office. See Clerk of Court Manual § 1.21 “Public Relations,”
http://www.judicial.state.sc.us/ClerkOfCourtManual/displaychapte
r.cfm?chapter=1#1.21. In publicly questioning Miller’s presence
in the Office and the provenance of the funds used to compensate
her, Lawson’s comments could have undermined the public’s
confidence in the Office’s integrity and thereby compromised the
Office’s performance. As we have noted, maintaining the
public’s trust is especially important to the operations of the
Family Court/Child Support Division, which Lawson oversaw.
Of all of the factors set out in Ridpath, the question of
whether the speech was communicated to the public or to
co-workers in private is arguably the most significant here.
Lawson’s comments publicly associated a colleague, by name, with
accounting irregularities with respect to the very account that
the two were responsible for jointly overseeing in the Clerk’s
Office. 10 Gault explained at his deposition that after Lawson
10
Lawson’s own affidavit acknowledges that her statement
drew a connection between Miller and alleged accounting
irregularities:
My concerns were where the funds were coming from to
pay Ms. Miller who was there to help clean up the
damage caused by the former Clerk of Court’s
(Continued)
30
made these comments, he “couldn’t very well bring [her] back in
and expect her to sit beside June Miller.” J.A. 92. Although
Lawson and Miller did not literally work side-by-side, it is
undisputed that they did work together to jointly manage the
account in question and would need to continue to do so if
Lawson were to return as deputy. And the fact that Gault and
Lawson maintained a cordial relationship has no bearing on how
Lawson’s comments would have affected Miller, or the Office as a
whole.
Our recent decision in Gilchrist provides useful guidance
here. In Gilchrist, we considered a First Amendment challenge
brought by an assistant district attorney (“ADA”) who was
terminated for making certain public comments while campaigning
for Mecklenburg County district court judge. 749 F.3d at 304-
05. During the campaign, the ADA gave an interview where he
spoke out against a defensive-driving course run by a nonprofit
embezzlement scandal. . . . After having gone through
the Morris scandal and being investigated by SLED, I
had a heightened sense of alertness, especially when
it involved funds of the Clerk’s Office.
J.A. 186-87. From the perspective of the Clerk’s Office staff,
there could be no benign reason for Lawson to mention Miller by
name in connection with these suspicions. Whether Lawson meant
to suggest that Miller might have been embezzling funds, or
whether she merely thought Miller was being paid with embezzled
funds, the statement clearly associated Miller with suspicious
accounting.
31
organization independent of the DA’s office and unrelated to the
ADA’s individual responsibilities. Id. at 305 n.1. The program
allowed those convicted of traffic violations to receive more
lenient punishments, and “substantially reduced the number of
cases that the DA’s office and the courts were required to
handle.” Id. at 305. Evaluating these facts under Pickering,
we held that the defendant failed to justify the ADA’s
termination. Id. at 309, 313.
Importantly, in Gilchrist, we relied on facts that were
markedly different from those here. In that case, it was
central to our decision that “none of the concerns Smith
expressed in the interview had to do with Mecklenburg County
District Attorney Office policy or in any way impugned the
authority or credibility of the DA’s office.” Id. at 309-10
(footnote and internal quotation marks omitted). For the same
reason that the ADA’s commentary did not “pertain[] to
circumstances within [the DA’s] control,” there was also no
basis for concluding that the ADA’s public statements would
create “problems with harmony or discipline in the DA’s office
such that the efficiency of the office would be expected to be
adversely affected.” Id. at 310. Here, the facts are the very
converse of those we relied on in Gilchrist: Lawson’s speech
targeted her own office and her own colleague, whereas the ADA’s
statements in Gilchrist did not.
32
The dissent accepts Lawson’s argument that Gault failed to
adduce evidence of any actual disruption within the Clerk’s
Office. This argument fails for several reasons. First, it
misperceives both the procedural history of this case and the
nature of Gault’s burden. As we have already discussed, the
absence of developed Pickering arguments is unsurprising, given
that Gault never moved for summary judgment based on Pickering,
and had no reason to develop this theory. It would be unfair to
fault him for not doing so. For example, the dissent points to
the absence of testimony in the record from other Clerk’s Office
employees. We cannot know whether other employees were deposed,
or whether Gault would wish to depose them to explore this
issue. If anything, that is a reason to remand the case for
further proceedings, and not a basis for entering judgment for
Lawson.
Moreover, our precedent does not require an employer to
proffer evidence that the employee’s speech caused disharmony or
ill feeling. In Maciariello v. Sumner, we examined a First
Amendment claim brought by two officers who conducted an
unauthorized investigation of their captain. 973 F.2d at 297,
300. We credited the police chief’s interest in departmental
morale, stressing that it was unnecessary to determine
“[w]hether there was any concrete evidence that morale was
disrupted” because “the potential for disruption [was] self-
33
evident.” Id. at 300; see also Gilchrist, 749 F.3d at 309
(emphasizing that, under Maciariello, a public employer need
only show that an adverse effect was “reasonably to be
apprehended”).
Finally, it would be a mistake to analyze Gault’s interests
based on the morale in the Clerk’s Office at the time Lawson was
fired, because the Pickering balance is necessarily forward-
thinking, looking to anticipated harms. All that our precedent
requires is that an employer reasonably anticipate a future
disruption. See Jurgensen, 745 F.2d at 882 n.21 (“[W]e do not
see the necessity for an employer to allow events to unfold to
the extent that the disruption of the office and the destruction
of working relationships is manifest before taking action.”
(quoting Connick, 461 U.S. at 152)).
In sum, based on the current record, Gault could certainly
develop arguments that Lawson’s speech interfered with the
operations of the Clerk’s Office. Therefore, we do not think it
is appropriate for us to direct summary judgment for Lawson.
***
The dissent proposes that we not only reach an undeveloped
issue that was not the subject of Gault’s motion, but that we
take a leap further and grant summary judgment to a party who
neither moved for summary judgment nor requested that relief on
34
appeal. 11 We cannot agree with this proposal. Instead, we have
confined our decision today to the narrow question before us:
whether Gault’s motion for summary judgment had merit. Having
concluded that it did not, we vacate the order granting the
motion and return the case to the district court. If Gault
chooses to pursue a Pickering defense on remand, the merits of
his arguments will be for the district court, in the first
instance, to resolve.
III.
For the foregoing reasons, the judgment of the district
court is vacated and remanded. We leave to the sound discretion
of the district court the decision whether to permit additional
discovery, allow additional motions for summary judgment, or
calendar the case for trial.
VACATED AND REMANDED
11
We note that neither of the cases cited by the dissent--
Sharp Elecs. Corp. v. Deutsche Fin. Servs. Corp., 216 F.3d 388,
398 (4th Cir. 2000), and U.S. Dev. Corp. v. Peoples Fed. Sav. &
Loan Ass’n, 873 F.2d 731, 735–36 (4th Cir. 1989)--expressly held
that a court of appeals may direct summary judgment to a non-
moving 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.
35
DAVIS, Senior Circuit Judge, dissenting:
With respect, I believe that my friends in the majority
misapply and effectively rewrite a portion of First Amendment
jurisprudence in their analysis of this case. First, the
majority opinion declines to render partial summary judgment for
Plaintiff-Appellant Melanie Lawson, despite determining that
Defendant-Appellee William Gault’s affirmative defenses under
the Elrod–Branti exception, 1 qualified immunity, and Eleventh
Amendment immunity fail as a matter of law, and without
identifying any genuine issues of material fact that would
preclude the entry of judgment on liability. Second, the
majority opinion wades into the deep end of a large pool of
obiter dicta with its extensive discussion of how its imagined
facts might inform application of the Pickering balancing test. 2
Remarkably, it actually suggests that Gault could conceivably
satisfy his heavy burden of showing that Lawson’s interest in
1As 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).
2Under 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
speaking upon a matter of public concern in the course of her
candidacy for elective office—surely political speech deserving
of the protective shield afforded by settled First Amendment
principles—did not outweigh the government’s interest in
providing effective and efficient services to the public,
Gilchrist, 749 F.3d at 308 (quoting McVey, 157 F.3d at 277),
simply by asserting that Lawson’s speech would “self-
evident[ly]” cause some disruption in the workplace, see
Appellees’ Br. 2. And finally, the majority opinion contends
that this is the case despite the absence of even a scintilla of
evidence that such a disruption was “reasonably to be
apprehended.” Gilchrist, 749 F.3d at 309 (quoting Maciariello
v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992)); Jurgensen v.
Fairfax Cty., 745 F.2d 868, 879 (4th Cir. 1984). I cannot
agree.
Each of my good friends forming the majority in this case
is a member of the unanimous panel that today decides Brickey v.
Hall, No. 14-1910, slip op. (4th Cir. 2016), which is cited and
discussed at numerous points in this dissenting opinion. Though
assuredly dissimilar in some respects, the two cases share much
in common.
The police officer candidate for elective office in Brickey
made statements in a questionnaire published in a local
newspaper (some but not all of which are set forth infra p. 54)
37
that any reasonable person would regard as calling into serious
question his police chief’s overall competence and ability to
manage a small town’s troubled police force. See Brickey, slip
op. at 4–5. Parsing the plaintiff’s numerous statements that
were both directly and indirectly critical of his department and
its newly installed chief, the Brickey panel explicitly agrees
with the district court’s assessment that virtually all of the
statements were entitled to First Amendment protection and could
not support a decision by the chief to terminate the plaintiff.
Id. at 13 n.3 (“We agree with the district court that it was
clearly established that Brickey’s other comments were entitled
to First Amendment protection.”). On interlocutory appeal,
however, the panel reverses the district court’s denial of the
police chief’s motion for summary judgment based on qualified
immunity, solely with regard to the plaintiff’s erroneous, and
indeed, false, allegations in the newspaper questionnaire that
police funds for a drug education program had been “misused.”
Id. at 4 (“I went in to talk to [the chief] about ordering the
supplies for the [drug education program]. I was told there was
no money to place the order. After checking with the accounts
payable clerk to see where the $500 in the police department
budget had been spent, I was shown several invoices that were
charged to [that] account. The items on the invoices had
38
nothing to do with the [drug education] program.” (citation
omitted)).
Thus, Brickey holds, with particular emphasis on the fact
that the erroneous “missing funds” allegations were made in the
context of a small town’s small police department and about its
newly installed chief, that, at the proper level of specificity,
the outcome of Pickering balancing as to those allegations was
not “clearly established” at the time the plaintiff was
terminated in May 2012. Id. at 16 (noting that the dispositive
question facing the police chief was, “[W]hen does a police
chief’s need to maintain discipline and harmony permit him to
infringe on an officer’s right to make public statements as a
political candidate insinuating wrongdoing by a superior
officer?”).
Although (given that Brickey comes to this Court as an
interlocutory appeal) the Brickey panel decides the case on
qualified immunity grounds, the reasoning, language, and
precedents relied on in that case provide powerful support for
the reasoning in, and the gravamen of, this dissent and its
Pickering analysis: First, actual record evidence, not
unadorned and bald speculation, is necessary to support the
assertion by a defendant in a First Amendment retaliation case
that respect for a public employee’s speech would impose too
high a cost on her government employer. Second, the
39
paramilitary character of a law enforcement agency requires
greater restraints on the First Amendment rights of officer-
employees in such agencies, as compared to the rights of those
not so employed. And third, critical to Pickering balancing is
the particularized context in which the plaintiff engages in the
disputed speech. In my judgment, as I show within, faithful
adherence to these longstanding, undisputed, foundational
precepts compels a decision in favor of Lawson under Pickering
balancing on the record in this case.
Correctly discerning no genuine disputes of material fact,
the majority opinion appropriately reverses the district court’s
grant of summary judgment in favor of Gault under the Elrod–
Branti doctrine, and it rules out Gault’s qualified immunity and
Eleventh Amendment immunity defenses, yet it refuses to render
judgment for Lawson. Moreover, the majority opinion declines to
resolve the Pickering balancing test, even though it analyzes
the issue at length and suggests that Gault may have a viable
defense on this ground. I conclude, by contrast, not only that
(1) Gault failed to satisfy his burden under Pickering
balancing; but furthermore, that (2) the narrow Elrod–Branti
exception in First Amendment jurisprudence, invoked by Gault,
plainly did not allow Gault to lawfully terminate Lawson;
(3) qualified immunity did not protect Gault from liability in
his individual capacity; and (4) Eleventh Amendment immunity did
40
not bar suit for damages against Gault in his official capacity.
Accordingly, I would reverse the district court’s decision in
all respects and remand this action with instructions to enter
judgment on liability in Lawson’s favor and for further
proceedings on relief as necessary.
I.
A.
I begin where the majority opinion concludes by addressing
first the Pickering balancing test, as I believe that this
issue’s resolution at this juncture is proper and central to
this case. “Not only does the First Amendment protect freedom
of speech, it also protects ‘the right to be free from
retaliation by a public official for the exercise of that
right.’” Gilchrist, 749 F.3d at 308 (quoting Suarez Corp.
Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000)). An
adverse employment action taken in response to a public
employee’s speech generally violates the employee’s First
Amendment rights when (1) “the employee ‘was speaking as a
citizen upon a matter of public concern’ rather than ‘as an
employee about a matter of personal interest’”; (2) the
employee’s “interest in speaking upon the matter of public
concern outweighed the government’s interest in providing
effective and efficient services to the public”; and (3) the
employee’s “‘speech was a substantial factor’ in the employer’s
41
decision to take action against [her].” Id. (quoting McVey, 157
F.3d at 277–78).
Gault does not dispute that the first and third prongs of
this test are easily satisfied here, so I, like the majority,
focus on the second prong, known as the Pickering balancing
test. The relevant question is thus whether Lawson’s interest
in speaking upon a matter of public concern outweighed Gault’s
interest in providing effective and efficient services to the
public in his operation of the Office of the Clerk of Court.
See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). To
make this determination, “the First Amendment requires a
delicate balancing of the competing interests surrounding the
speech and its consequences.” Garcetti v. Ceballos, 547 U.S.
410, 423 (2006); see also McVey, 157 F.3d at 277 (noting that,
in First Amendment cases, “a sophisticated balancing of
interests is required to determine whether the plaintiff’s
constitutional rights have been violated”).
Importantly, no one disputes that Gault bears the “burden
of justifying the discharge on legitimate grounds.” Gilchrist,
749 F.3d at 309 (quoting Rankin v. McPherson, 483 U.S. 378, 388
(1987)). Although, as the majority opinion emphasizes, the
public employer need not “prove that the employee’s speech
actually disrupted efficiency,” the employer must show (by
adducing actual record evidence) that “an adverse effect was
42
‘reasonably to be apprehended’” in light of the context
surrounding the speech. Id. (quoting Maciariello, 973 F.2d
at 300); accord Durham v. Jones, 737 F.3d 291, 302 (4th Cir.
2013).
This Court’s recent decision in Gilchrist, which two of us
on the present panel joined, demonstrates that the Pickering
balancing test requires a public employer to offer more than a
bald assertion that an employee’s speech could have impaired the
functioning of the workplace to avoid liability. See Gilchrist,
749 F.3d at 310–12. Rather, our precedent requires the employer
to present actual record evidence showing that it was reasonable
to expect the employee’s speech to cause an adverse effect on
the office’s ability to serve the public effectively and
efficiently. See id. In Gilchrist, district attorney (“DA”)
Peter Gilchrist terminated assistant district attorney (“ADA”)
Sean Smith after Smith ran for Mecklenburg County district court
judge and, in the course of his campaign for election,
criticized a defensive-driving program that the DA’s office had
recommended to the public. Id. at 305–06. Gilchrist in fact
conceded before the federal district court that Smith’s interest
in speaking on this public matter outweighed the government’s
interest in providing effective and efficient public services,
and the panel noted unanimously that this concession was “with
43
good reason.” Id. at 309. We held that, as a matter of clearly
established law,
it is the right of an ADA running for public office
not to be fired for speaking publicly in his capacity
as a candidate on matters of public concern when the
speech is critical of a program that substantially
reduces the DA’s office’s caseload but there is no
reason to believe the speech will negatively impact
the DA’s office’s efficiency.
Id. at 312 (emphasis added). Properly understood, that clearly
stated holding controls the result of Pickering balancing in
this case. Or at least, it should.
Indeed, there is no binding or persuasive authority to the
contrary. In previous decisions, the Supreme Court and this
Court have both required a showing of actual record evidence
from which it is reasonable to anticipate a disruption in the
workplace likely to diminish the provision of governmental
services. See, e.g., Rankin, 483 U.S. at 388–89 (“While [the
employee’s] statement was made at the workplace, there is no
evidence that it interfered with the efficient functioning of
the office.” (emphasis added)); Durham, 737 F.3d at 301 (“[W]e
discern no substantial evidence in the trial record supporting
[the employer’s] claim” that its “interest in maintaining an
efficient and effective law enforcement agency outweighed [the
employee’s] rights under the First Amendment.” (emphasis
added)); Bland v. Roberts, 730 F.3d 368, 387 (4th Cir. 2013)
(“[D]espite the Sheriff’s reference to the need for harmony and
44
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)
45
majority opinion provides no support for its assertion that it
“cannot resolve the Pickering question on this record,” ante
at 23, nor does it meaningfully distinguish this case from any
of the prior cases in which this Court has consistently held
that a lack of record evidence of a reasonably anticipated
disruption to the workplace warrants a final decision under
Pickering in favor of the plaintiff, not remand to provide the
defendant another opportunity to meet his burden. 4
tensions that did not impede the functions of the workplace
arose over such protected speech.”).
4
To be sure, in Gilchrist, we reversed the erroneous grant
of summary judgment for Gilchrist and remanded for further
proceedings without explicitly rendering judgment in favor of
Smith. See 749 F.3d at 313. But, unlike the majority opinion
in this case, the Court in Gilchrist conducted the Pickering
balancing test and, upon observing that Gilchrist presented no
evidence of a reasonably anticipated workplace disruption,
reached a final decision on that issue in favor of Smith. See
id. The subsequent trial briefs in Gilchrist reveal that the
parties and the district court fully understood that the sole
issue remaining after remand was that of causation. See Pl.’s
Trial Br. 1, Smith v. Gilchrist, No. 3:10-CV-00636-RJC-DLH
(W.D.N.C. June 22, 2015); Def.’s Trial Br. 1, 5, Gilchrist, No.
3:10-CV-00636-RJC-DLH (W.D.N.C. June 22, 2015). In other words,
there remained in that case a genuine factual issue related to
the First Amendment retaliation claim that warranted further
proceedings before liability could be determined. See Love-Lane
v. Martin, 355 F.3d 766, 776 (4th Cir. 2004) (“The first two
elements involve questions of law. The third element,
causation, can be decided on summary judgment only in those
instances when there are no causal facts in dispute.” (citation
and internal quotation marks omitted)). No such issue exists
here. Accordingly, rendering judgment on liability in this case
is entirely appropriate.
46
Barb.
1.
Although the majority opinion analyzes the issue at length,
it ultimately declines to reach a conclusion regarding Pickering
balancing, declaring that the record has not been sufficiently
developed to allow for a fair analysis. In particular, the
majority opinion seemingly contends that, in the district court,
Gault was not seasonably put on notice that the principles of
Pickering were at play in this case.
The majority opinion’s decision not to reach a conclusion
under Pickering is erroneous for multiple reasons. First,
examination of the proceedings in the district court
demonstrates that the parties presented, and the district court
entertained, both written and oral arguments related to
Pickering balancing. Indeed, in response to Gault’s motion for
summary judgment, Lawson specifically contended that Pickering
balancing, and not the Elrod–Branti exception, provided the
proper doctrinal framework within which this case should be
resolved. And Gault’s highly experienced counsel argued at the
hearing on the motion for summary judgment that “it really
doesn’t matter . . . how [Lawson’s claim is] analyzed.” Hr’g
Tr. 13, Lawson v. Union Cty. Clerk of Court, No. 7:13-CV-
01050(TMC) (D.S.C. May 5, 2014). In fact, at a hearing on
Gault’s motion for reconsideration (of the district court’s
47
original denial of summary judgment as to injunctive relief),
Gault’s counsel made clear that, although for a period the focus
of the case had been on the protected status of Lawson’s
candidacy, he fully understood that the case was also about the
protected status of Lawson’s speech in connection with her
candidacy: “Your honor, I certainly don’t deny bearing some
responsibility for not being as clear as I could have, maybe.
But once this case gravitated into the Pickering thing, we
addressed that in the reply brief and argued that we were
entitled to summary judgment [on that basis as well].” Hr’g Tr.
6–7, Lawson, No. 7:13-CV-01050(TMC) (D.S.C. Oct. 30, 2014).
Thus, Gault had sufficient notice that he bore the burden of
defending his actions under Pickering. That Gault failed to
satisfy this burden, as discussed below, warrants summary
judgment for Lawson; it does not warrant a remand to the
district court to provide him an additional opportunity to do
so.
Further, “[w]hen an issue or claim is properly before [an
appellate] court, the court is not limited to the particular
legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction
of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S.
90, 99 (1991); accord United States ex rel. May v. Purdue Pharma
L.P., 737 F.3d 908, 913 n.3 (4th Cir. 2013). Whether Gault
48
violated Lawson’s First Amendment rights by terminating her
employment is indisputably an issue that is properly before us,
and we may analyze this issue under Pickering or under any other
relevant legal theory raised in the district court.
Moreover, the majority opinion’s reluctance to perform the
Pickering balancing test due to a lack of record evidence
supporting Gault’s position is unwarranted. The majority
opinion suggests that, with proper notice that the district
court or this Court might perform the Pickering balancing test,
Gault might have deposed other individuals or otherwise sought
greater factual support for the proposition that he terminated
Lawson to ensure the continued effective and efficient provision
of governmental services. Yet given that the majority opinion
apparently determined sub silentio that the factual record was
sufficiently developed to assess one of Gault’s legal defenses—
namely, his defense under Elrod–Branti—it is perplexing that the
majority opinion deems the same factual record an insufficient
basis to assess another of Gault’s legal defenses to the same
First Amendment claim—namely, his defense under Pickering.
Indeed, the two legal doctrines require consideration of
the same type of factual evidence. The Elrod–Branti exception
applies where “the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective
performance of the public office involved.” Branti, 445 U.S.
49
at 518 (emphasis added); see also id. at 519–20 (noting that the
doctrine is intended to “promote[] the effective performance of
[the public] office”). Likewise, the Pickering balancing test
assesses whether “the interest in speaking upon the matter of
public concern outweighed the government’s interest in providing
effective and efficient services to the public.” Gilchrist, 749
F.3d at 308 (quoting McVey, 157 F.3d at 277–78). Accordingly,
the factual evidence that a public employer must put forth under
Elrod–Branti—evidence demonstrating that the employee’s
termination based on political affiliation would further the
effective performance of the public office—includes the same
evidence that the employer must present under Pickering—evidence
that the employee’s termination based on her speech was
appropriate to ensure the office’s continued provision of
effective and efficient services to the public. As mentioned
above, when he was before the district court, Gault’s
experienced counsel fully grasped this truism. Thus, if, as the
majority opinion takes for granted, the factual record is
sufficiently developed to consider Lawson’s claims under Elrod–
Branti, there is no reason to suppose that the record is
insufficiently developed to do the same under Pickering.
2.
A thorough examination of the relevant interests in this
case under the Pickering balancing test reveals that the robust
50
interest in Lawson’s core political speech upon a matter of
public concern significantly outweighed Gault’s unwarranted and
speculative belief that Lawson’s speech would undermine his
interest in assuring that the Office of the Clerk would continue
to provide effective and efficient services to the public.
I note first that we must consider Lawson’s speech in the
context of her political campaign for Clerk of Court against
Gault, the incumbent Clerk. 5 See Gilchrist, 749 F.3d at 309;
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 317
(4th Cir. 2006) (“For Pickering balancing, ‘we must take into
account the context of the employee’s speech’ and ‘the extent to
which it disrupts the operation and mission of the
institution.’” (quoting McVey, 157 F.3d at 277)). In doing so,
let’s be clear about the particular speech and context at issue.
This is not a case in which an employee lashed out at her
supervisor or coworker, impugning a colleague’s character in an
unnecessarily public fashion. To the contrary, the comments in
this case consist of Lawson’s statements during her political
5
I strongly believe that, in its lengthy but ultimately
inconclusive discussion of the Pickering balancing test, the
majority opinion unwittingly compounds its erroneous analysis of
Lawson’s claim by viewing Lawson’s speech without regard for its
proper context: that of pure political speech voiced in the
course of a partisan campaign for elective office. See Brickey,
slip op. at 15 (Diaz, J.) (“Brickey spoke as a political
candidate in a public forum. In general terms, speaking as a
political candidate weighs in favor of speech.”).
51
campaign for public office in which she questioned “where the
funds were coming from to pay Ms. Miller.” J.A. 186. Gault
testified that, “around the campaign trail[,] . . . people would
say [Lawson] is saying June Miller should not be in the clerk of
court’s office; June Miller is running the clerk of court’s
office; . . . why does Freddie Gault got [sic] June Miller in
the clerk of court’s office[?]” J.A. 88–90. Although Gault
admitted that he did not hear Lawson make these comments or, in
fact, say anything about Miller throughout the election
campaign, he maintained that his receipt of reports about these
statements prompted him to fire Lawson.
Far from “publicly associat[ing] a colleague, by name, with
accounting irregularities,” ante at 30, in statements for which
“there could be no benign reason,” id. at 30 n.10, as the
majority opinion asserts, Lawson’s comments, at worst, expressed
skepticism regarding the strength of Gault’s management of the
Clerk’s Office and questioned Gault’s reliance on the aid of a
former Clerk. 6 Lawson’s comments concerning the source of funds
for Miller’s salary also showcased for voters Lawson’s
6Gault 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.
52
“heightened sense of alertness” as to the management of public
funds, which she had acquired from her experience in the Clerk’s
Office during the embezzlement scandal. J.A. 187. In other
words, her statements highlighted the need for transparency
regarding the distribution of public funds. Accordingly, her
speech was precisely the kind of core political speech that one
would expect a candidate to make as part of her campaign for
elective office. Compare ante at 30 & n.10 (characterizing
Lawson’s comments during a political campaign in which she asked
“where the funds were coming from to pay Ms. Miller” as
statements “associat[ing] Miller with suspicious accounting” for
“no benign reason” and suggesting that Gault did not violate the
First Amendment by firing Lawson for her speech), with Brickey,
slip op. at 13 n.3 (recognizing that a police officer’s comments
during a political campaign, including “[s]tatements that the
department ‘needs to be more professional,’ ‘needs to be more
[aggressive] on investigations,’ [and] ought to hire an
investigator,” “offer modest criticism of the department and its
chief,” “do not raise a reasonable apprehension of disruption,”
and are “entitled to First Amendment protection” as a matter of
clearly established law (first alteration in original) (citation
omitted)).
Indeed, all parties agree that Lawson “‘was speaking as a
citizen upon a matter of public concern’ rather than ‘as an
53
employee about a matter of personal interest,’” Gilchrist, 749
F.3d at 308 (quoting McVey, 157 F.3d at 277–78), and the
majority opinion appropriately notes that this element of
Lawson’s First Amendment claim is not at issue, ante at 24 n.5.
3.
Bearing in mind the particular speech in question and its
specific context, I examine the interest in Lawson’s speech. As
stated above, it is undisputed that Lawson’s comments
constituted speech upon a matter of public concern, as they
“involve[d] an issue of social, political, or other interest to
the community.” Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir.
2000) (en banc). More to the point, Lawson had a particularly
strong interest in speaking on this matter. She certainly had
an interest in running for Clerk of Court, as she had worked in
the Union County Clerk’s Office for twenty-three years and had
previously sought the position. She also had an interest in
demonstrating to her constituents, as part of her campaign, that
she was mindful of the need for proper management of public
funds and that she was especially vigilant of the use of Clerk’s
Office funds, given her experience working there. Core
political speech like Lawson’s garners “the highest level of
protection” under the First Amendment because of the
particularly strong interests at stake. Bland, 730 F.3d at 387;
see also Meyer v. Grant, 486 U.S. 414, 422, 425 (1988)
54
(recognizing constitutional protection of “core political
speech” as being “at its zenith” (citation omitted)).
Moreover, the public itself had a strong interest in
Lawson’s speech. See City of San Diego v. Roe, 543 U.S. 77, 82
(2004) (per curiam) (“The interest at stake is as much the
public’s interest in receiving informed opinion as it is the
employee’s own right to disseminate it.”); McVey, 157 F.3d
at 279 (Murnaghan, J., concurring) (“Both the Supreme Court and
the Fourth Circuit have explained that the public interest in
the employee’s speech must be considered when weighing his right
to speak against the government-employer’s interest in
controlling the workplace.”). The Supreme Court has
“acknowledged the importance of promoting the public’s interest
in receiving the well-informed views of government employees
engaging in civic discussion.” Garcetti, 547 U.S. at 419; see
also Gilchrist, 749 F.3d at 308 (“Protection of the public
interest in having a debate on matters of public importance is
at the heart of the First Amendment.” (quoting McVey, 157 F.3d
at 277)).
In this case, the public had a considerable interest in
ensuring that the Deputy Clerk—someone with significant
experience working in the Clerk’s Office—would not be deterred
from running for Clerk of Court by the prospect of losing her
current employment. Moreover, members of the public considering
55
who to elect as the next Clerk had a substantial interest in
hearing the comments of one candidate, the Deputy Clerk,
concerning the management of Clerk’s Office finances under the
current Clerk, who was also seeking the position. Indeed, the
public’s interest in Lawson’s speech was especially strong, as
her speech concerned the management and expenditure of public
funds—the same funds that Gault’s predecessor had pled guilty to
embezzling while in office.
4.
Because both Lawson and the public had an interest in
Lawson’s speech upon this matter of public concern, Lawson
“could not be fired for making the statements [s]he made unless
h[er] right to speak was outweighed by h[er] employer’s
legitimate interests.” Gilchrist, 749 F.3d at 309. Gault bore
a particularly heavy burden in identifying legitimate interests
in terminating Lawson, for “[a] stronger showing of public
interest in the speech requires a concomitantly stronger showing
of government-employer interest to overcome it.” McVey, 157
F.3d at 279 (Murnaghan, J. concurring) (citing cases); accord
Connick v. Myers, 461 U.S. 138, 152 (1983); Durham, 737 F.3d
at 302 (“[I]t is not enough that there is some disruption; the
amount of disruption has to outweigh the importance of the
speech and its concern to the public.”); see also Dougherty v.
Sch. Dist. of Phila., 772 F.3d 979, 991 (3d Cir. 2014) (“The
56
more tightly the First Amendment embraces the employee’s speech,
the more vigorous a showing of disruption must be made by the
employer.”).
Nevertheless, in an effort to meet this burden, Gault
merely suggested that he lawfully terminated Lawson’s employment
in response to her political speech because “the potential for
disruption is self-evident.” Appellees’ Br. 32 (quoting
Maciariello, 973 F.2d at 300). Gault asserted that this “‘self-
evident’ ‘potential for disruption’ suffices to strike any
required balancing of interests in favor of Gault.” Id. My
friends in the majority suggest that Gault’s “showing” in this
respect could warrant summary judgment in his favor. I
disagree.
5.
The factual record, which was fully developed in this case
(in accordance with the district court’s scheduling order, whose
deadlines were in fact extended) prior to the motion for summary
judgment, 7 indicates that absolutely no adverse effect on the
7 In declining to render judgment for Lawson, ostensibly
because Lawson did not affirmatively seek summary judgment, the
majority opinion remands to allow for further development of the
factual record even though Gault has not urged this Court to do
so, indicated that the record is currently underdeveloped, or
explained how he might seek to further develop the record. The
majority opinion thus purports to give effect to Lawson’s
intent, emphasizing repeatedly that Lawson has not sought
summary judgment, while ignoring Gault’s express intent to
(Continued)
57
workplace was “reasonably to be apprehended” had Gault
maintained Lawson’s employment and declined to retaliate against
her for her political speech. Lawson’s 2012 campaign for office
was remarkably tame and collegial. Of course, as noted above,
Lawson did make statements as part of her bid for election in
which she asked “where the funds were coming from to pay
Ms. Miller,” J.A. 186, and questioned Gault’s managerial
prerogatives. Lawson did not say anything, however, regarding
Miller’s character or fitness as an employee of the Clerk’s
Office. Likewise, Lawson did not speak negatively about Gault
throughout the campaign or thereafter, aside from making the
relatively benign comments described above. Instead, her
political advertisements and the message that she and her
supporters sought to convey throughout her campaign focused on
her years of experience in the Clerk’s Office.
Moreover, Lawson remained cordial throughout the entire
election period. When Gault instructed Lawson not to involve
resolve the case by summary judgment, without any further
factual discovery. As the majority opinion identifies no
genuine issue of material fact, it is unclear why it remands for
further development of the factual record.
To be sure, in light of the majority opinion’s disposition
of this case, a decision by the district court to allow further
discovery would likely fall within the district court’s
discretion. I am unconvinced, however, that remand for this
purpose is necessary, as there is no genuine issue of material
fact and clearly established law plainly favors Lawson.
58
anyone in the Clerk’s Office in her campaign, she obliged; she
did not campaign at the office or enlist any of the Clerk’s
Office employees to help with her campaign. Gault reciprocated
Lawson’s collegiality, and he attended the visitation for
Lawson’s husband, who passed away a few weeks before the
election and the night before the two candidates were to engage
in their only debate. Gault later indicated that he had
considered Lawson’s husband “a close friend,” and he explained
that he had attended the visitation “out of respect for him and
her.” J.A. 177. In light of her husband’s passing, Lawson did
not attend the debate. When Gault ultimately won the election,
Lawson called to congratulate him.
Further, the record is unmistakably clear that, after
Lawson had previously applied for appointment as Clerk of Court
in 2009 and after the governor appointed Gault to the position
instead, the Clerk’s Office continued to operate effectively and
efficiently while Lawson continued to work there. 8 In fact,
8The 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)
59
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 co-
worker,” 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-three-
year career in that very office should only be whispered in
private conversations with voters.
60
comments. 9 The factual record here stands in sharp contrast to
the factual record bearing on the likely effects of the
statements disseminated by Brickey in the newspaper
questionnaire. See Brickey, slip op. at 15–16 (observing that
“an independent investigation of Brickey’s statements [had]
concluded that they ‘were harmful to the public trust of [the
police chief] as well as his integrity’” (citation omitted)).
In short, nothing in the record suggests that it was
reasonable to anticipate that Lawson’s speech would have caused
9Gault 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.
61
even the slightest hiccup in the Clerk’s Office’s effectiveness
or efficiency, let alone a disruption sufficient to overcome the
highest constitutional protection for Lawson’s core political
speech. To the contrary, the record depicts longstanding
collegiality and professionalism among all involved. The
majority opinion’s indefensible decision to hypothesize future
workplace disruption on the record before us is nothing if not
head-scratchingly inexplicable. In any event, even if, on
remand, Gault’s experienced counsel should ask the district
court to reopen discovery as the majority opinion curiously
contemplates, the district court would act quite reasonably to
demand to know why any employee of the Clerk’s Office (circa
2012) who was not deposed in support of the Elrod-Branti defense
should now be deposed in support of Gault’s ostensible Pickering
defense.
C.
Despite the absence of any actual record evidence of a
potential disruption in the Clerk’s Office, the majority opinion
takes the unprecedented approach of refusing to announce a
decision on Pickering balancing while nonetheless discussing at
length its inclination to credit Gault’s baldly unsupported
statement that he terminated Lawson because he “couldn’t very
well bring [her] back in and expect her to sit beside June
Miller.” J.A. 92. The majority’s reliance on this assertion in
62
particular is troubling because Lawson and Miller—and, indeed,
Lawson and Gault—worked in separate office buildings. 10
Accordingly, Lawson’s return to work would not have required
that she and Miller sit side by side, even if the record had
provided any indication that the two employees would not have
been able to work together effectively under those
circumstances. In the same vein, according to the majority
opinion, “the record reflects that Gault expressed concern about
10
Gault, Miller, and five other Clerk’s Office employees
worked in the Union County courthouse, while Lawson and three
other employees worked in a separate building called the
“annex.” See J.A. 69. Further discrediting the majority
opinion’s reliance on its manufactured propinquity as between
Lawson and Miller, the latter was a part-time employee at all
pertinent times. Indeed, as Gault testified,
[Miller would] work normally two days a week. Some
days it may go three or four weeks where she -- three
weeks where she doesn’t work, and she just comes back
in at the first of the month where our checks are
coming in and the reports, and she reviews reports
that the general sessions and that child support is
doing [sic].
J.A. 98.
The notion that Lawson’s speech or her continued employment
would have disrupted the work of the Clerk’s Office in any
legally cognizable manner is fantastical on this record. Unlike
the majority opinion, the district court recognized that it was
Gault’s view of Lawson as his “political enem[y]” that arguably
justified her termination. See Lawson v. Gault, 63 F. Supp. 3d
584, 590 n.4 (D.S.C. 2014) (quoting Jenkins v. Medford, 119 F.3d
1156, 1163 n.47 (4th Cir. 1997) (en banc)). For the reasons
stated infra pp. 75–85, this dissent (together with the majority
opinion) disagrees with that alternative justification for
denying Lawson protection for the exercise of her First
Amendment rights.
63
[how Lawson’s comments could affect her ability to maintain
discipline in her division], and noted that he expected that
other co-workers would have difficulty working with Lawson going
forward.” Ante at 29. Yet no record evidence demonstrates that
Gault’s subjective concerns were objectively reasonable. Cf.
Durham, 737 F.3d at 302 (“[The employer] paid lip service to
ostensible damage to office morale, relationships between
colleagues, and the function of the office generally, but he was
unable to articulate any way in which the office would have been
different or was actually different due to [the employee’s]
statements.”).
The majority also speculates that Lawson’s employment in a
“supervisory position” and “public-facing role” enabled her to
have a greater impact on office morale through her speech. See
ante at 29–30. Yet once again, this suggestion has no basis in
the record—and Gault, who bears the burden at this juncture, did
not raise this argument himself. Likewise, although the
majority highlights the public nature of Lawson’s speech, that
it occurred during her campaign for public office is simply not
evidence that her speech would damage the Clerk’s Office’s
continued productivity.
Further, in presenting one of the primary bases for its
apparent inclination to resolve the Pickering balancing test in
Gault’s favor, the majority opinion emphasizes that the Clerk’s
64
Office comprised only ten full-time employees, and it thus
suggests that “[t]he potential for Lawson’s public comments to
sow discord in his office was a serious concern.” Id. at 29
(citing Appellees’ Br. 31). The notion that, as Gault asserts,
the potential disruption to the Clerk’s Office’s operation could
be “self-evident” is fundamentally at odds with the legal rule
firmly entrenched in Supreme Court and Fourth Circuit precedent
that a public employer must provide actual record evidence to
demonstrate that a disruption is “reasonably to be apprehended,”
Gilchrist, 749 F.3d at 309 (quoting Maciariello, 973 F.2d
at 300). See, e.g., Rankin, 483 U.S. at 388–89; Gilchrist, 749
F.3d at 310, 312; Durham, 737 F.3d at 301; Bland, 730 F.3d
at 387; Robinson, 160 F.3d at 189. Yet the majority opinion
essentially suggests that Lawson’s employment in a small office
is sufficient to establish that her speech would inherently
cause disharmony in the workplace—and not just any disharmony,
but disharmony sufficient to outweigh the robust countervailing
interest in Lawson’s core political speech—despite all actual
record evidence to the contrary. With this reasoning, the
majority effectively invokes a new, per se presumption that a
public employee who works in a small office and who speaks
critically about a matter involving the workplace, no matter the
circumstances, is not protected by the First Amendment “right to
be free from retaliation by a public official for the exercise
65
of [one’s freedom of speech].” Gilchrist, 749 F.3d at 308
(quoting Suarez Corp. Indus., 202 F.3d at 685). Such an
acontextual analysis flies in the teeth of controlling
precedent.
Perhaps most troubling, the majority opinion’s analysis
rests on an apparent disapproval of the content of Lawson’s
speech without regard for its context, as the majority suggests
that, at least in part because Lawson “publicly associated a
colleague, by name, with accounting irregularities,” ante at 30,
“Lawson’s comments might have been expected to impair harmony
among co-workers and damage close personal relationships,” id.
at 29. In fact, none of the parties or individuals involved in
this case suggested that any “accounting irregularities”
existed; nor did anyone contend that Lawson’s speech might have
implied that such irregularities existed. 11 Lawson merely
questioned “where the funds were coming from to pay Ms. Miller,”
J.A. 186—or how Clerk’s Office funds were being distributed—in
the context of a campaign for Clerk of Court against the
incumbent Clerk. Contrary to the image of Lawson painted by the
majority opinion, Lawson actually expressed warm personal regard
11
It is useful to recall that, in assessing Gault’s motion
for summary judgment, the majority opinion acknowledges that it
must construe all facts and draw all reasonable inferences in
the light most favorable to Lawson. See T-Mobile Ne. LLC v.
City Council of Newport News, 674 F.3d 380, 385 (4th Cir. 2012).
66
for Miller during the campaign for the positive role Miller had
played in her development and career. 12 See J.A. 169.
In any event, even if Lawson’s comments could have had a
negative effect on workplace operation under certain
circumstances, there is simply no evidence that it was
reasonable to anticipate such an effect in the context of this
case. Cf. Robinson, 160 F.3d at 189–90 (holding that the
district court erred in resolving the Pickering balancing test
in the employer’s favor where the employees “allege[d]
corruption in the use of public funds” but the employer “failed
to present any evidence that . . . [the employees’] speech . . .
12 Lawson stated in an autobiographical “open letter” to
voters,
My involvement with Union County began in 1983 working
part - time for former Clerk of Court Pearl S. Kirby.
This position was approved for six months and during
this time I worked with Uniform Commercial Codes,
Judgements [sic] and Child Support Services. Later,
in 1989, I became employed by the Union County
Sheriff’s Department as a dispatcher and worked 12
hour shifts. I remained there for three years until
former Clerk of Court June H. Miller hired me to work
in the Family Court and Child Support Division of the
clerk’s office. I was so thankful to her for this
opportunity because at the time, I had a young son and
needed a 9 to 5 job.
J.A. 169 (emphasis added). The majority opinion is willing to
blink at this affirmative record evidence, as it blinks at other
evidence discussed herein, of no likelihood of a substantial
disruption had Lawson’s employment continued.
67
interfered with the effective functioning of the [office]”
(emphasis added)).
D.
While the majority opinion attempts to distinguish this
case from Gilchrist by identifying differences between the
comments that ADA Smith made about the defensive-driving program
and those Lawson made about the source of Miller’s salary, the
two cases are identical in at least one critically important
respect: in both cases, “[t]here simply was no evidence that
[the employee’s] public statements would cause problems with
harmony or discipline in the . . . office such that the
efficiency of the office would be expected to be adversely
affected.” Gilchrist, 749 F.3d at 310 (emphasis added). This
Court in Gilchrist repeated this determination again and again:
“Nor was there any evidence that Gilchrist had any reason to
believe that Smith’s interview would negatively affect the
efficiency or effectiveness of the DA’s office”—even though the
content of the speech was “critical of a program that
substantially reduces the DA’s office’s caseload.” Id.
(emphases added); see also id. at 312 (“Gilchrist certainly was
correct to concede that there were no relevant facts upon which
he could base an argument that Smith’s interest . . . was
outweighed by the government’s interest . . . .” (emphasis
added)).
68
Moreover, my friends in the majority rely too heavily on
the case from which Gault gleaned the phrase “self-evident.” In
Maciariello, two police officers were demoted after performing
an unofficial internal investigation of their captain. 973 F.2d
at 296–97. This Court weighed the limited interest of the two
investigating officers in their purported speech against the
interest of the police department in providing effective and
efficient public services. See id. at 299–300. As part of its
careful balancing, the Court recognized that a police department
is “paramilitary” and has a greater interest than most employers
in minimizing “dissension in [its] ranks” as well as “an
undeniable interest in discouraging unofficial internal
investigations” that could be “very disrupting.” Id. at 300;
accord Brickey, slip op. at 13 (“It was clearly established in
2012 that police officials are entitled to impose more
restrictions on speech than other public employers because a
police force is paramilitary—discipline is demanded, and freedom
must be correspondingly denied.” (internal quotation marks
omitted) (quoting Maciariello, 973 F.2d at 300)). The Court
also acknowledged that “we do not require the public employer to
prove that the employee’s speech actually disrupted efficiency,
but only that an adverse effect was ‘reasonably to be
apprehended.’” Maciariello, 973 F.2d at 300 (emphasis added)
(quoting Jurgensen, 745 F.2d at 879). Accordingly, the Court
69
indicated that, “[w]hether there was any concrete evidence that
morale was disrupted or not, the potential for disruption is
self-evident.” Id.
To the extent that Maciariello might suggest that a public
employer need not present actual record evidence from which one
could reasonably expect an obstruction of the office’s
operation, two important points bear mentioning. First, the
Court in Maciariello discussed several bases upon which one
could reasonably anticipate that the specific type of “speech”
at issue—performing an unauthorized investigation of the police
officers’ captain—would prove highly disruptive to a police
department in particular, a workplace in which “discipline is
demanded.” Id. That is, even though the Court did not strictly
require the public employer to present actual record evidence of
a likely disruption, it nevertheless carefully considered
whether “an adverse effect was ‘reasonably to be apprehended’”
under the specific circumstances of that case. See id. (quoting
Jurgensen, 745 F.2d at 879). The majority in this case, by
contrast, identifies no basis in the record upon which one could
reasonably expect that a Clerk’s Office employee’s political
speech about the source of funds for another employee, made in
the context of a campaign for political office, would hinder the
operation of the Clerk’s Office. Cf. Brickey, slip op. at 21
(emphasizing that “a core abuse of the mission of a police
70
department is reasonably distinguishable from vague allegations
of mismanagement or even misuse of funds”).
Second, and perhaps of greater salience, the Court’s
balancing of competing interests in Maciariello and its
suggestion that a disruption to the workplace may be “self-
evident” were dicta. The Court in Maciariello first determined
that the two officers’ statements of their suspicions about
their captain constituted “speech,” but the Court concluded that
this speech was not a “but for” cause of their demotions. 973
F.2d at 299. Next, the Court concluded that the larger
investigation itself may have been a “but for” cause of the
demotions, but the investigation was not “speech.” Id.
Accordingly, summary judgment for the defendants was
appropriate. Only after reaching this holding did the Court
offer an alternative basis for its decision, explaining that
“[e]ven if these defects were repaired, plaintiffs would lose if
their interest as a citizen in the ‘speech’ is outweighed by the
government’s interest as an employer.” Id. At this point, the
Court applied the Pickering balancing test. Accordingly, the
Court’s analysis under Pickering was merely dicta and did not
constitute binding law. See Alexander v. Sandoval, 532 U.S.
275, 282 (2001) (“[T]his Court is bound by holdings, not
language.”); United States v. Pasquantino, 336 F.3d 321, 329
(4th Cir. 2003) (en banc) (“The first significant problem is
71
that the statements [the defendants] rely upon . . . are pure
and simple dicta, and, therefore, cannot serve as a source of
binding authority in American jurisprudence.”).
* * * * *
To conclude on Pickering balancing, the majority opinion
forges an unprecedented path in refusing to consider the legal
issue outright, even though the matter is properly before us and
the majority identifies no genuine issue of material fact
preluding summary judgment. Yet the majority opinion
nonetheless contains a lengthy hypothetical Pickering analysis,
during which it constructs its own palette, rather than relying
on the record coming to us from the district court, on which to
paint its narrative suggesting a likely denial of Lawson’s right
to the enjoyment of her First Amendment freedoms. The reasons
offered by the majority opinion for painting what it paints are
barren of actual evidentiary support in the record. Further,
the majority opinion eschews affirmative evidence in the
existing record of a strong likelihood of the Clerk’s Office’s
continued provision of effective and efficient public services
despite Lawson’s speech. The majority opinion asserts that
Lawson’s political speech:
“could affect Lawson’s ability to maintain discipline
in her division,” ante at 29, but there is no actual
record evidence to support that speculation; and that
72
“Gault expressed concern about [Lawson’s ability to
maintain discipline], and noted that he expected that
other co-workers would have difficulty working with
Lawson going forward,” id., but there is no actual
record evidence to support that speculation; and that
“Lawson’s comments might have been expected to impair
harmony among co-workers and damage close personal
relationships,” id., but there is no actual record
evidence to support that speculation; and that
“Given Lawson’s public-facing role, . . . Lawson’s
comments could have undermined the public’s confidence
in the Office’s integrity and thereby compromised the
Office’s performance,” id. at 29–30, but there is no
actual record evidence to support that speculation.
In light of the clearly established law set forth in
binding precedent regarding the need for actual record evidence
demonstrating that it is reasonable to anticipate an adverse
impact on workplace effectiveness and efficiency, it is
confounding that Gault argues, and the majority appears to
credit, that such a disruption could be “self-evident”—and that
this assertion by a public employer alone could be sufficient to
outweigh the substantial interest in Lawson’s core political
speech.
One would have thought, before today (and even as of today,
in light of the excellent opinion in Brickey), that the
reasonableness requirement inherent in the “reasonable
apprehension of disruption” metric draws its meaning from actual
record evidence. After today in the Fourth Circuit, if the
majority opinion’s dicta is given full effect, such
73
“reasonableness” determinations will more often be a function of
whatever can be conjured in the fertile imaginations of federal
judges. This distortion of settled First Amendment doctrine is
unwarranted, unwise, and unsupportable. I regret this
development.
II.
Having determined that the Pickering balancing test weighed
in Lawson’s favor, I next consider whether her termination may
nevertheless have been lawful under the Elrod–Branti exception.
While the district court granted summary judgment for Gault
based on its determination that this exception applied, de novo
review of this matter is appropriate. See T-Mobile, 674 F.3d at
384. Like the majority opinion, I would hold that the Elrod–
Branti exception is inapplicable to this case, and, as such,
summary judgment for Gault was improper on this basis as well.
A.
In Elrod v. Burns, 427 U.S. 347 (1976), and Branti v.
Finkel, 445 U.S. 507 (1980), the Supreme Court established a
narrow exception to the general rule that terminating a
government official on the basis of political affiliation is
presumptively unconstitutional. See id. at 515–16; Bland, 730
F.3d at 374. Under this exception, dismissal on the basis of
political affiliation may be lawful where the public employee
occupies a policymaking or confidential position for which
74
effective job performance requires allegiance to a particular
party. See Branti, 445 U.S. at 518. Thus, an individual
employed in such a position who “speaks out in a manner that
interferes with or undermines the operation of the agency, its
mission, or its public confidence, enjoys substantially less
First Amendment protection than does a lower level employee.”
Bland, 730 F.3d at 374 (quoting McVey, 157 F.3d at 278).
The Supreme Court has made clear, however, that this
exception is narrow, see id., and it has emphasized that “party
affiliation is not necessarily relevant to every policymaking or
confidential position,” Branti, 445 U.S. at 518. For example,
“[t]he coach of a state university’s football team formulates
policy, but no one could seriously claim that Republicans make
better coaches than Democrats, or vice versa, no matter which
party is in control of the state government.” Id. Likewise,
“although an assistant is bound to obtain access to confidential
information arising out of various attorney–client
relationships, that information has no bearing whatsoever on
partisan political concerns.” Id. at 519. Thus, “the ultimate
inquiry is not whether the label ‘policymaker’ or ‘confidential’
fits a particular position; rather, the question is whether the
hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the
public office involved.” Id. at 518.
75
In Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990), this
Court developed a two-part test to determine whether the Elrod–
Branti exception applies. Bland, 730 F.3d at 375 (citing Stott,
916 F.2d at 134). First, we consider whether “the position at
issue, no matter how policy-influencing or confidential it may
be, relates to ‘partisan political interests . . . [or]
concerns.’” Stott, 916 F.2d at 141 (alterations in original)
(quoting Branti, 445 U.S. at 519). In other words, we examine
whether “the position involve[s] government decisionmaking on
issues where there is room for political disagreement on goals
or their implementation.” Id. This inquiry requires an
exploration of the public employee’s position “at a very high
level of generality.” Bland, 730 F.3d at 375 (quoting Fields v.
Prater, 566 F.3d 381, 386 (4th Cir. 2009)).
If the first prong is satisfied, we proceed to the second
step, where we “examine the particular responsibilities of the
position to determine whether it resembles a policymaker, a
privy to confidential information, a communicator, or some other
office holder whose function is such that party affiliation [or
political allegiance] is an equally appropriate requirement.”
Id. (alteration in original) (quoting Stott, 916 F.2d at 142).
This step “requires a much more concrete analysis of the
specific position at issue.” Id. (quoting Fields, 566 F.3d
at 386). Even at the second step, however, we examine only “the
76
job description for the position in question,” rather than
considering the “functions performed by a particular occupant of
that office.” Id. (quoting Stott, 916 F.2d at 142). We thus
must determine whether “political loyalty was an appropriate
requirement for the effective performance of the public
employment of the [plaintiff] before us in light of the duties
of [her] particular position[].” Id. at 377.
B.
Gault argues that Lawson’s position as Union County Family
Court Deputy Clerk fits under the Elrod–Branti exception. He
has failed, however, to make this showing, and, based on the
record evidence, I would hold that the Elrod–Branti exception is
inapposite to this case.
1.
Under the first prong of the Stott two-part test, Gault has
not shown, at a high level of generality, that the position of
Deputy Clerk of Court relates to partisan political interests or
that “the position involve[s] government decisionmaking on
issues where there is room for political disagreement.” See
Stott, 916 F.2d at 142. The responsibilities of Deputy Clerks
are generally limited to ministerial and administrative tasks,
and such responsibilities do not afford the Deputy Clerks any
discretion for which political affiliation might be relevant.
77
Gault has therefore failed to satisfy the first prong of Stott,
and the Elrod–Branti exception is inapplicable to this case.
2.
Even if I were to conclude otherwise and proceed to the
second prong of Stott, I would nevertheless hold that Lawson’s
particular responsibilities as the Union County Family Court
Deputy Clerk did not transform her position into one for which
“party affiliation [or political allegiance] is an . . .
appropriate requirement.” Bland, 730 F.3d at 375 (first
alteration in original) (quoting Stott, 916 F.2d at 142).
Under South Carolina Law, a Deputy Clerk of Court may
perform all duties of the Clerk of Court, see S.C. Ann. § 14-17-
60, so I begin by exploring these responsibilities. The Clerk
of Court “keeps records of the proceedings,” “is charged with
managing the juries and the county grand jury,” and is
responsible for “[t]he custody of the courthouse,” including
“the assignment of office space within the courthouse.” J.A.
198. With regard to Family Court in particular, the Clerk of
Court’s duties include “recouping the costs of public assistance
from parents with legal obligations for child support” and, in
some cases, “charg[ing] a fee of five percent of the delinquent
amount.” Id. In addition, the Clerk “performs duties relating
to the recording of land titles, liens and other documents
affecting land titles.” Id.
78
The obligations of a Deputy Clerk in particular include
similarly administrative tasks, such as “setting up accounts and
refunding payments when cases were closed,” issuing judges’
orders, aggregating and reporting court data, and collecting
receipts. J.A. 165, 167, 169. Based on these perfunctory
responsibilities, I see no indication that “party affiliation is
an appropriate requirement for the effective performance of the
public office.” See Branti, 445 U.S. at 518.
Gault argues that the Clerk of Court, as well as a Deputy
Clerk serving as the Clerk’s alter ego, may also perform a
number of tasks that involve policymaking. For instance, a
Deputy Clerk may “refer cases to a master in equity or special
referee for final disposition; order that, under specified
circumstances, personal property be seized and sold; suspend
income withholding for spousal or child support in Family Court
cases; and even declare drainage districts within the[] county
and make and enter final orders regarding the same.” Appellees’
Br. 25 (citations omitted). Yet even if these tasks did involve
some amount of policymaking discretion—which remains unclear—
Gault has failed to show that these responsibilities require the
Deputy Clerk to hold a particular partisan affiliation. Like
the hypothetical football coach discussed in Branti, the Deputy
Clerk of Court does not appear to hold a position for which
“party affiliation is an appropriate requirement for the
79
effective performance of the public office,” Branti, 445 U.S.
at 518, for surely a Republican and a Democrat would be equally
suited to refer cases to a master in equity (when instructed to
do so by a judge) or to declare a drainage district. Cf.
Fields, 566 F.3d at 387 (“It is not enough for defendants to
show merely that local directors make some policy; the ultimate
question under Branti is whether local directors make policy
about matters to which political ideology is relevant, and we
conclude that they do not.”).
Further, Lawson’s duty to supervise three other staff
members did not vest her with the kind of “significant
discretion” that requires political party allegiance. Knight v.
Vernon, 214 F.3d 544, 551 (4th Cir. 2000) (quoting Jenkins, 119
F.3d at 1162); see also Fields, 566 F.3d at 387 (“If having
power over subordinates were a sufficient condition for
exemption from the requirements of the First Amendment, only the
most low-level government employees would be protected from
politically-based hiring and firing.”).
In the same vein, that Lawson’s position made her privy to
confidential information or that the position required her to
communicate with the public is insufficient to warrant
application of the Elrod–Branti exception without an additional
showing that “party affiliation is an appropriate requirement
for the effective performance of the public office.” See
80
Branti, 445 U.S. at 518. In Fields, for instance, an applicant
for the position of local director of the Buchanan County
Department of Social Services brought suit against members of
the Buchanan County Board of Supervisors for allegedly denying
her the position because of her party affiliation. 566 F.3d
at 384. The defendants in that case asserted that, “because a
local director’s duties involve confidential information,
political affiliation is a relevant consideration under Stott.”
Id. at 387. We rejected this argument, however, as “many social
services workers deal with confidential information. Yet it
cannot be the case that party affiliation is an appropriate
criterion for the effective performance of their jobs.” Id.
at 388. This Court held that the Elrod–Branti exception was
inapplicable and noted that “defendants attempt[ed] to fit the
local director position into the labeled category ‘confidential’
without explaining how it proves that political affiliation is
actually relevant to a local director’s duties.” Id. Here too,
Gault emphasizes the confidential nature of Lawson’s position
and Lawson’s role as a communicator without establishing that
political affiliation was actually relevant to the Deputy
Clerk’s duties.
3.
Further, this case differs significantly from Jenkins, in
which this Court held that North Carolina deputy sheriffs were
81
policymakers who may be lawfully terminated for political
reasons under the Elrod–Branti exception. 119 F.3d at 1164 (en
banc). In reaching its decision, this Court considered that
“deputy sheriffs are the alter ego of the sheriff generally, for
whose conduct he is liable,” and that a deputy sheriff “hold[s]
an office of special trust and confidence, acting in the name of
and with powers coterminous with his principal, the elected
sheriff.” Id. at 1163. Similarly, because “the sheriff can be
held liable for the misbehavior of the deputies,” a deputy
sheriff “serve[s] at the pleasure of the appointing officer.”
Id. at 1163–64.
Although much of the same is true for Deputy Clerks
relative to the Clerk of Court, this case differs from Jenkins
in one key respect: the Court in Jenkins relied on the North
Carolina legislature’s determination that the sheriff is “an
important political figure.” Id. at 1163 (emphasis added); see
also id. at 1164 n.52 (“The sheriff’s position in government
vests in him and his deputies ‘substantial responsibility for or
control over the conduct of governmental affairs.’” (quoting
Cline v. Brown, 210 S.E.2d 446, 449 (N.C. Ct. App. 1974))). The
Court in Jenkins thus emphasized that deputy sheriffs “play a
special role in implementing the sheriff’s policies and goals,”
that deputy sheriffs exercise “significant discretion in
performing their jobs,” and that, “[i]n the course of their
82
duties, deputies will make some decisions that actually create
policy.” Id. at 1162 (citation and internal quotation marks
omitted). Accordingly, a deputy sheriff, who is the alter ego
of the sheriff and serves at the sheriff’s pleasure, also
occupies a political position covered by Elrod–Branti.
The Union County Clerk of Court, by contrast, is limited to
ministerial, administrative duties such that a Deputy Clerk, who
is the alter ego of the Clerk and serves at the Clerk’s
pleasure, occupies an equally apolitical position. The limited
policymaking that the Clerk of Court and his Deputy Clerk might
perform does not allow for “significant discretion” of any kind.
Thus, Gault has failed to show that the position of Deputy Clerk
requires political allegiance to the Clerk.
4.
Most tellingly, the facts in this case clearly demonstrate
both that political party allegiance was not a requirement of
the Deputy Clerk position and that a lack of political
allegiance would in no way hinder the operation of the public
office. Gault indicated that he was “never asked” about his
political affiliation when he applied for the vacant position of
Clerk of Court in 2009. J.A. 75. After Gault’s appointment,
Lawson, a Democrat, served as Deputy Clerk under Gault, a
Republican, for nearly a year before Lawson announced her
83
candidacy. In fact, as discussed above, Gault had actually
promoted Lawson to that position.
As one might expect, given that the Clerk and his Deputy
Clerks perform largely administrative tasks, the record contains
no indication that the bipartisan composition of the Clerk’s
Office affected the office’s operation. I therefore cannot
conclude that Lawson’s political beliefs, which had differed
from Gault’s for a significant period of time, somehow became
sufficiently relevant to her position as Deputy Clerk after the
2012 election to provide lawful grounds for Lawson’s
termination. Cf. Fields, 566 F.3d at 387 (“Defendants make
conclusory assertions about the local director’s policymaking
power, but they cannot show ‘a rational connection between
shared ideology and job performance.’” (quoting Stott, 916 F.2d
at 142)). Accordingly, I would hold that the Elrod–Branti
exception is inapposite to this case. I would reverse the
district court’s grant of summary judgment for Gault on this
basis.
III.
Gault next argues that he is entitled to qualified immunity
with respect to Lawson’s claims against him in his personal
84
capacity. 13 “The doctrine of qualified immunity protects
government officials from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Gilchrist, 749 F.3d at 307 (quoting Stanton v. Sims,
134 S. Ct. 3, 4 (2013) (per curiam)). To defeat a claim of
qualified immunity, a plaintiff must demonstrate that “(1) the
allegations underlying the claim, if true, substantiate [a]
violation of a federal statutory or constitutional right” and
that “(2) this violation was of a clearly established right of
which a reasonable person would have known” at the time of the
violation. Id. at 308 (alteration in original) (quoting
Ridpath, 447 F.3d at 306); see McVey, 157 F.3d at 276. That
said, “[t]he burden of proof and persuasion with respect to a
defense of qualified immunity rests on the official asserting
that defense.” Meyers v. Balt. Cty., 713 F.3d 723, 731 (4th
Cir. 2013).
In assessing whether the governing law was clearly
established, “[w]e do not require a case directly on point”;
13 The majority opinion only addresses Gault’s qualified
immunity defense in conjunction with the Elrod–Branti exception
and declines to examine this defense with respect to Pickering
balancing. For the reasons expressed above regarding the
propriety of performing the Pickering balancing test on the
current record, I consider Gault’s qualified immunity defense
under both legal theories.
85
rather, “existing precedent must have placed the statutory or
constitutional question beyond debate.” Gilchrist, 749 F.3d
at 307–08 (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083
(2011)). Thus, “officials can still be on notice that their
conduct violates established law even in novel factual
circumstances.” Meyers, 713 F.3d at 734 (quoting Hope v.
Pelzer, 536 U.S. 730, 741 (2002)). This Court has indicated
that, “particularly in First Amendment cases, where a
sophisticated balancing of interests is required to determine
whether the plaintiff’s constitutional rights have been
violated, ‘only infrequently will it be “clearly established”
that a public employee’s speech on a matter of public concern is
constitutionally protected.’” McVey, 157 F.3d at 277 (quoting
DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995)).
A.
Nevertheless, this Court has repeatedly recognized that the
employer is certainly not entitled to qualified immunity in all
public employee speech cases. Indeed, in Robinson, 160 F.3d
at 189, in Durham, 737 F.3d at 303–04, and most recently in
Gilchrist, 749 F.3d at 313, this Court rejected the employer’s
assertion of qualified immunity. In each case, this Court based
its “decision to deny qualified immunity in large part on ‘the
lack of evidence supporting the [government’s] interest in
disciplining [the employees] for their speech.’” Brickey, slip
86
op. at 21 n.6 (alterations in original) (quoting Robinson, 160
F.3d at 189); see also Ridpath, 447 F.3d at 321 (holding that an
employer was not entitled to qualified immunity for terminating
an employee “for making protected statements that [the employer]
did not like” and noting that “a clearer violation of
constitutionally protected free speech would be difficult to
fathom”). The case before us most closely mirrors Gilchrist in
this manner.
In Gilchrist, we began by defining Smith’s First Amendment
right at issue, at the appropriate level of specificity:
[I]t is the right of an ADA running for public office
not to be fired for speaking publicly in his capacity
as a candidate on matters of public concern when the
speech is critical of a program that substantially
reduces the DA’s office’s caseload but there is no
reason to believe the speech will negatively impact
the DA’s office’s efficiency.
749 F.3d at 312.
We next concluded that “[a]ny reasonable official in
Gilchrist’s position would have been aware of that right on the
day of Smith’s termination” in July 2010. Id. In reaching this
conclusion, the Court explained that, by July 2010, “it was well
established that a government employee’s speech made as a
private citizen on a matter of public concern is balanced
against the adverse effect that the government reasonably
anticipates the speech will have on its ability to operate
efficiently.” Id. The Court emphasized that, under the
87
circumstances in Gilchrist, “there was no evidence forecasted in
the summary judgment record” that Gilchrist might reasonably
expect Smith’s speech to have any particular effect on the
workplace. Id. at 312–13. Accordingly, the Court explained
that “the general complexity of the balancing test is of no
consequence in this case since there is nothing on the
employer’s side of the ledger to weigh.” Id. at 313. We held
that Gilchrist had violated Smith’s clearly established right
and was therefore not entitled to qualified immunity. Id.
B.
1.
Much like the constitutional right at issue in Gilchrist,
the First Amendment right implicated in this case is the right
of a Deputy Clerk of Court running for public office not to be
fired for speaking publicly in her capacity as a candidate on
matters of public concern when the speech is critical of the
source of funding for a coworker’s salary but there is no reason
to believe the speech will negatively impact the Clerk’s
Office’s efficiency. Cf. id. at 312. As I have already
determined that Gault’s termination of Lawson violated Lawson’s
right in this manner, the only remaining question is whether
this “right was ‘clearly established’ at the time of the acts
complained of such that an objectively reasonable official in
[Gault’s] position would have known of the right.” McVey, 157
88
F.3d at 276 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).
As was true of the right at issue in Gilchrist, any
reasonable official in Gault’s position would have been aware of
Lawson’s right, as defined above, on the day of Lawson’s
termination. Cf. 749 F.3d at 312. Indeed, the Court in
Gilchrist determined that a nearly identical right had been
clearly established at the time of Smith’s termination in July
2010. See id. It naturally follows that the right at issue
here was clearly established at the time that Gault terminated
Lawson’s employment in November 2012. No Supreme Court or
Fourth Circuit case muddled this area of law in the interim. 14
Moreover, the Court’s reasoning in Gilchrist holds true
here as well. That is, it was clearly established in November
2012 that a court must balance a public employee’s speech on a
14 Gault argues that Underwood v. Harkins, 698 F.3d 1335
(11th Cir. 2012), which was decided one month before Lawson’s
termination, demonstrates that Gault did not violate clearly
established law. In Underwood, the Eleventh Circuit affirmed a
grant of summary judgment in favor of a Georgia superior court
clerk who had terminated a deputy clerk’s employment after both
had run for the superior court clerk position. Id. at 1337–38,
1345–46. As the right at issue was clearly established under
binding Fourth Circuit case law in November 2012, however, the
decision of another circuit did not affect the clarity of
governing precedent in this Circuit. See Hill v. Crum, 727 F.3d
312, 322 (4th Cir. 2013) (“[W]e have long held that it is case
law from this Circuit and the Supreme Court that provide[s]
notice of whether a right is clearly established.” (first
alteration in original) (citation omitted)).
89
matter of public concern against the government’s interest in
providing effective and efficient services. See McVey, 157 F.3d
at 277. It was also clearly established at the time that the
public employer bears the burden of justifying the employee’s
discharge on legitimate grounds, Rankin, 483 U.S. at 388 (citing
Connick, 461 U.S. at 150), such as by demonstrating that “damage
to morale and efficiency is reasonably to be apprehended,”
Jurgensen, 745 F.2d at 879. Where, as here, the public employer
offers no evidence to demonstrate that the employer could
reasonably have expected the office’s effectiveness and
efficiency to suffer as a result of the employee’s speech, it
was clearly established that the balance would tip in favor of
the employee. See Gilchrist, 749 F.3d at 313.
2.
Further, as the majority opinion concludes as well, it was
clearly established in November 2012 that an employment position
that does not “relate[] to ‘partisan political interests . . .
[or] concerns,’” Stott, 916 F.2d at 141 (second and third
alterations in original) (quoting Branti, 445 U.S. at 519), is
not a position from which an employee may be terminated based on
political affiliation under Elrod–Branti. Thus, where there is
no indication that political party allegiance was relevant to
the effective performance of an employee’s duties, a reasonable
person would have known in November 2012 that termination of
90
that employee based on political affiliation was unlawful.
Accordingly, I would hold that Gault violated clearly
established law by terminating Lawson’s employment, and he is
therefore not entitled to qualified immunity.
IV.
Finally, Gault argues that he is not subject to suit for
damages in his official capacity due to Eleventh Amendment
immunity. The Eleventh Amendment bars suit against state
officials in their official capacity for damages under 42 U.S.C.
§ 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989). Local officials, however, generally do not enjoy
Eleventh Amendment immunity. Cash v. Granville Cty. Bd. of
Educ., 242 F.3d 219, 222 (4th Cir. 2001). The government
official asserting Eleventh Amendment immunity therefore bears
the burden of proving that he is a state official. Hutto v.
S.C. Ret. Sys., 773 F.3d 536, 542 (4th Cir. 2014). “Whether an
action is barred by the Eleventh Amendment is a question of law
that we review de novo.” Id.
In making this determination, “the most important
consideration is whether the state treasury will be responsible
for paying any judgment that might be awarded.” Id. at 543
(quoting Ram Ditta v. Md. Nat’l Capital Park & Planning Comm’n,
822 F.2d 456, 457 (4th Cir. 1987)). “[I]f the State treasury
will be called upon to pay a judgment against a governmental
91
entity, then Eleventh Amendment immunity applies to that
entity.” Id. (quoting Cash, 242 F.3d at 223). If, however, the
state treasury will not be liable for a judgment, sovereign
immunity applies only where the “governmental entity is so
connected to the State that the legal action against the entity
would . . . amount to ‘the indignity of subjecting a State to
the coercive process of judicial tribunals at the instance of
private parties.’” Id. (quoting Cash, 242 F.3d at 224). In
assessing whether allowing suit would offend a state’s dignity,
this Court considers “(1) the degree of control that the State
exercises over the entity or the degree of autonomy from the
State that the entity enjoys; (2) the scope of the entity’s
concerns—whether local or statewide[;] . . . and (3) the manner
in which State law treats the entity.” Id. at 546 (quoting
Cash, 242 F.3d at 224).
A.
I agree with the majority opinion that Gault has not met
his burden of demonstrating that he is a state official for
purposes of Eleventh Amendment immunity. Gault relies solely on
Lawson’s allegation in the second amended complaint that “the
Union County Clerk of Court is a state office, existing and
operating under the laws of the State of South Carolina” and on
a South Carolina Supreme Court decision and several unpublished
federal district court decisions. See Appellees’ Br. 41. None
92
of these sources demonstrates that the state treasury would be
liable for any judgment against Gault or that South Carolina
would suffer any indignity from such a judgment.
Gault’s reference to the South Carolina Supreme Court case
State v. Sims, 18 S.C. 460 (1883), for the proposition that the
court has “long held that the clerk of court . . . is a state
officer,” Appellees’ Br. 41 (citation omitted), is wholly
unpersuasive. Not only does the case date back to 1882, before
the evolution of Eleventh Amendment jurisprudence, but it also
presented no Eleventh Amendment issue. See Sims, 18 S.C. at
463. Although the court did refer to the Clerk of Court as a
“state officer,” it did not address whether a Clerk of Court’s
liability would affect the state treasury or state dignity such
that the Clerk might be a state officer for purposes of the
Eleventh Amendment. See id. Likewise, the unpublished federal
district court decisions that Gault cites are similarly
unavailing. None of the decisions analyzed whether the Clerk of
Court was a state or local official under the relevant legal
standard, and each merely presumed that the Clerk of Court is a
state official for purposes of the Eleventh Amendment. See
Appellees’ Br. 41 (citing Green v. Hyatt, No. 4:09-2573-TLW-TER,
2010 WL 597203, at *4 (D.S.C. Feb. 16, 2010), aff’d, 385 F.
App’x 318 (4th Cir. 2010) (unpublished) (per curiam); Harden v.
Bodiford, No. 6:09-2362-HFF-WMC, 2009 WL 3417780, at *3 (D.S.C.
93
Oct. 21, 2009); Muqit v. Kitchens, No. 2:08-3959-CMC-RSC, 2009
WL 87429, at *3 (D.S.C. Jan. 13, 2009)). Gault has therefore
failed to show that he is entitled to Eleventh Amendment
immunity.
B.
Indeed, evidence on the record indicates that South
Carolina’s treasury would not be liable for a judgment against
Gault. A Handbook for County Government in South Carolina,
which includes a description of the role of Clerk of Court,
provides that “individual county employees and officials” who
are sued pursuant to § 1983 are “generally . . . covered by the
county’s insurance policy.” J.A. 198, 200. It appears that the
phrase “individual county employees and officials” includes the
Clerk of Court, as “[a]ll of the funding for the clerk of court
and the clerk’s office is the responsibility of the county.”
Id. at 198.
Moreover, the record contains no indication that judgment
against Gault would offend the dignity of South Carolina. It
seems that the state’s control over the Clerk of Court is
limited; for instance, South Carolina’s Judicial Council
indicated that it had no authority to overrule Gault’s decision
to place Lawson on unpaid leave. In addition, the Clerk of
Court is elected by the voters of a particular county and is the
Clerk only of courts within that county. See S.C. Code Ann.
94
§§ 14-17-10, 14-17-20. Accordingly, I would hold that Eleventh
Amendment immunity does not bar Lawson’s § 1983 claim for
damages against Gault in his official capacity.
V.
For the foregoing reasons, I cannot join the majority’s
opinion merely reversing the district court’s grant of summary
judgment for Gault without even reaching a conclusion under
Pickering balancing. Instead, I would hold that summary
judgment for Lawson is appropriate, as the Pickering balancing
test—which this Court has every reason (and duty) to conduct on
this record—weighs conclusively in Lawson’s favor, the Elrod–
Branti exception does not apply, and Gault is not entitled to
qualified or Eleventh Amendment immunity. Gault had ample
notice and opportunity to present his arguments on the legal
issues in this case—including any arguments under Pickering
balancing—before the district court. See Hr’g Tr. 6–7, Lawson,
No. 7:13-CV-01050(TMC) (D.S.C. Oct. 30, 2014) (“But once this
case gravitated into the Pickering thing, we addressed that in
the reply brief and argued that we were entitled to summary
judgment [on that basis as well].”). Most assuredly, there is
no genuine dispute as to any material fact, and Lawson is
entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)
(“[D]istrict courts are widely acknowledged to possess the power
95
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 ten-
day notice requirement prior to a sua sponte grant of summary
judgment—“the presence of a fully developed record, the lack of
prejudice, or a decision based on a purely legal issue”—and
holding that any of the three would justify a sua sponte grant
of summary judgment in that case); Sharp Elecs. Corp. v.
Deutsche Fin. Servs. Corp., 216 F.3d 388, 398 (4th Cir. 2000)
(reversing summary judgment against appellant and ordering entry
of summary judgment in favor of appellant despite the fact that
appellant never sought summary judgment in the district court);
Portsmouth Square Inc. v. S’holders Protective Comm., 770 F.2d
866, 869 (9th Cir. 1985) (“[S]ua sponte summary judgment is
appropriate where one party moves for summary judgment and,
after the hearing, it appears from all the evidence presented
that there is no genuine issue of material fact and the non-
moving party is entitled to judgment as a matter of law.”).
* * * * *
I would reverse the judgment and remand with instructions
to: (1) enter judgment of liability in favor of Appellant
96
Melanie Lawson and (2) conduct such proceedings as to remedy
that the district court finds necessary and appropriate.
97