James v. Mellen , 305 F. App'x 192 ( 2008 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    December 15, 2008
    No. 08-60285                     Charles R. Fulbruge III
    Summary Calendar                           Clerk
    DAVID JAMES
    Plaintiff - Appellant
    v.
    LAURENCE MELLEN, Individually and In his Official Capacity as District
    Attorney, Circuit Court District 11; THE STATE OF MISSISSIPPI, Haley
    Barbour, Governor
    Defendants - Appellees
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 2:07-CV-92
    Before WIENER, STEWART, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    David James filed this 42 U.S.C. § 1983 action against his former
    employer, Laurence Mellen, who was at all relevant times the district attorney
    for District 11 of the Circuit Court of Mississippi.1 Mellen terminated James
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    1
    James also sued the State of Mississippi, but subsequently voluntarily dismissed his
    claims against it.
    No. 08-60285
    from his position as a criminal investigator in the district attorney’s Bolivar
    County office after James informed him that he intended to run for sheriff of
    Bolivar County against the long-time incumbent sheriff. Mellen believed that
    James’s candidacy would undermine the good working relationship between the
    district attorney’s office and the sheriff’s office. In his complaint, James alleges,
    among other things, that Mellen violated his First Amendment right to run for
    office. The district court granted summary judgment in favor of Mellen, holding
    that Mellen was entitled to qualified immunity on James’s First Amendment
    claim.   We review de novo the sole issue raised in this appeal—whether
    summary judgment based on qualified immunity was proper. See Mack v. City
    of Abilene, 
    461 F.3d 547
    , 555 (5th Cir. 2006).
    This court employs a two-step analysis to determine whether a
    government official is entitled to qualified immunity.          First, we examine
    “whether a plaintiff’s allegation, if true, establishes a violation of a clearly
    established right.”   Alexander v. Eeds, 
    392 F.3d 138
    , 144 (5th Cir. 2004)
    (quotation omitted). Second, if the plaintiff has adequately alleged a violation
    of a clearly established right, we “decide whether the conduct was objectively
    reasonable in light of clearly established law at the time of the incident.” 
    Id. (quotation omitted).
    Because we conclude that Mellen did not violate a clearly
    established right, we need not reach the issue of whether his conduct was
    objectively reasonable.
    In order for a constitutional right to be deemed “clearly established,”
    [t]he contours of the right must be sufficiently clear that a
    reasonable official would understand that what he is doing violates
    that right. 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
    preexisting law the unlawfulness must be apparent.
    2
    No. 08-60285
    Noyola v. Tex. Dep’t of Human Res., 
    846 F.2d 1021
    , 1025 (5th Cir. 1988) (quoting
    Anderson v. Creighton, 
    483 U.S. 635
    , 640 (1987)). James contends that he had
    a clearly established First Amendment right to run for public office without
    retaliation by his public employer.          However, the Supreme Court “has
    acknowledged that public employees’ exercise of certain First Amendment rights
    may legitimately be restrained where it could lead to an inability of elected
    officials to get their jobs done on behalf of the public.” Gentry v. Lowndes
    County, 
    337 F.3d 481
    , 485 (5th Cir. 2003). To determine the constitutionality of
    an adverse employment action in this context, this court balances the public and
    individual interests at stake, “consider[ing] among other things the policy
    sensitivity of the employment, the nature and content of the employee’s speech
    or political activity, the extent of public concern implicated by the speech, and
    whether close confidential working relations with elected officials are necessary.”
    
    Id. One consequence
    of this case-specific balancing inquiry is that “[t]here will
    rarely be a basis for a priori judgment that the termination or discipline of a
    public employee violated ‘clearly established’ constitutional rights.” 
    Noyola, 846 F.2d at 1025
    .
    After weighing James and Mellen’s interests, we conclude that this is not
    one of those rare cases where a public employer violated a clearly established
    constitutional right. We recognize that James’s interest in running for office is
    significant because “[p]olitical speech regarding a public election lies at the core
    of matters of public concern protected by the First Amendment.” Wiggins v.
    Lowndes County, 
    363 F.3d 387
    , 390 (5th Cir. 2004). James argues that there is
    no public interest to weigh against his individual interest in running for office
    because the ability of the district attorney’s office to provide services was not in
    any way affected by his candidacy. See Vojvodich v. Lopez, 
    48 F.3d 879
    , 885–86
    (5th Cir. 1995) (holding that an adverse employment action is unconstitutional
    unless the public employer shows a “disruption” in its ability to provide services).
    3
    No. 08-60285
    We disagree. Mellen has presented evidence that the district attorney’s Bolivar
    County office only employed five individuals, including two criminal
    investigators who occupied confidential positions and were expected to work
    closely with deputies and investigators in the sheriff’s office.2 A relationship of
    trust and confidence between the two agencies was crucial to the good
    functioning of the district attorney’s office. Therefore, the district court’s finding
    that Mellen terminated James because he feared disruptive tension between the
    sheriff’s office and the district attorney’s office is well supported by the evidence.
    James claims that Mellen cannot possibly show any actual disruption
    because he was terminated on the day he announced he had qualified to run for
    sheriff. This argument is entirely meritless. The Supreme Court has made clear
    that a public employer is not required “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.” Connick v. Myers, 
    461 U.S. 138
    , 152 (1983); see
    also 
    Vojvodich, 48 F.3d at 886
    (the public employer must allege that the
    employee’s activities “actually or potentially affected” its ability to provide
    services (emphasis added)).            Therefore, Mellen did not violate a “clearly
    established” constitutional right when he terminated James to avoid potential
    disruptions in the operations of the district attorney’s office.
    Accordingly, Mellen is entitled to qualified immunity and the judgment of
    the district court is AFFIRMED.
    2
    James does not contest that, as a criminal investigator, he occupied a confidential
    position in the district attorney’s office. It is well-settled in this circuit that “where a public
    employee . . . occupies a confidential or policymaking role, the employer’s interests more easily
    outweigh the employee’s First Amendment rights.” 
    Gentry, 337 F.3d at 486
    .
    4