William Hunt v. County of Orange , 672 F.3d 606 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM J. HUNT, 
Plaintiff-Appellant, No. 10-55163
v. D.C. No.
COUNTY OF ORANGE; MICHAEL S.  8:07-cv-00705-
CORONA, Sheriff-Coroner for the MMM-MLG
County of Orange, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
October 11, 2011—Pasadena, California
Filed February 13, 2012
Before: Edward Leavy and Kim McLane Wardlaw,
Circuit Judges, and James C. Mahan, District Judge.*
Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Leavy
*The Honorable James C. Mahan, District Judge for the United States
District Court for Nevada, sitting by designation.
1701
HUNT v. COUNTY OF ORANGE 1705
COUNSEL
Stephen H. Silver and Richard A. Levine, Silver, Hadden, Sil-
ver, Wexler, & Levine for plaintiff-appellant William J. Hunt.
Norman J. Watkins and S. Frank Harrell, Lynberg & Watkins
for defendants-appellees County of Orange and Michael S.
Carona.
OPINION
WARDLAW, Circuit Judge:
The day after his scandal-ridden third election to the posi-
tion of Orange County Sheriff-Coroner, Michael Carona
1706 HUNT v. COUNTY OF ORANGE
placed on administrative leave William Hunt, a former lieu-
tenant officer with the Orange County Sheriff’s Department
(OCSD), who had dared to enter the race and campaign
against Carona’s alleged culture of corruption. Carona then
demoted Hunt, an action that prompted Hunt to file this 42
U.S.C. § 1983 suit claiming that his placement on administra-
tive leave and subsequent demotion were in unconstitutional
retaliation for the exercise of his First Amendment rights. The
district court concluded that Hunt’s campaign speech was not
protected by the First Amendment because, based upon spe-
cial factual findings by a jury, Hunt fell into the narrow “poli-
cymaker” exception to the general rule against politically-
motivated dismissals. Although we determine that the district
court erred in this conclusion, we agree with the district
court’s alternative holding that Carona is entitled to qualified
immunity because a government official in his position “rea-
sonably but mistakenly” could have believed that political
loyalty was required by someone with Hunt’s job responsibili-
ties at the time he ran against Carona. We therefore affirm the
judgment of the district court.
I.
A lieutenant in the OCSD, Hunt was the Chief of Police
Services for the City of San Clemente, which contracted with
the OCSD for police services. In May 2005, Hunt announced
that he would challenge Carona, the incumbent Orange
County sheriff, in the upcoming June 6, 2006 election. During
the campaign, Hunt issued public statements, radio addresses,
press releases, and campaign literature critical of Carona’s
performance as sheriff, including allegations of corruption in
the department. Carona defeated Hunt in the June 6 election
and, on June 7, placed Hunt on administrative leave pending
a personnel investigation regarding his speech and conduct
during the campaign. Hunt was served with a notice of pend-
ing demotion on October 31, 2006 for “failing to perform
[his] duties and responsibilities as a member of the Depart-
ment’s management team” and for violation of department
HUNT v. COUNTY OF ORANGE 1707
rules prohibiting, among other things, bringing discredit upon
the department. The notice catalogued Hunt’s critical cam-
paign communications and concluded that “[t]he Department
lacks the confidence in [Hunt’s] abilities to further the mis-
sion of this agency.” Hunt was then demoted three ranks. Car-
ona does not dispute that Hunt was demoted based on his
campaign communications.
Hunt filed a complaint against Carona, Orange County, and
other unnamed defendants alleging the violation of his First
and Fourteenth Amendment rights under § 1983, as well as
several causes of action under state law that were dismissed
and are not at issue here. Before trial, the district court dis-
missed Orange County as a defendant on the ground that Hunt
had abandoned his Monell municipal liability claim, and there
was thus no longer a cognizable claim against the county.
Because the question of whether Hunt’s position required
political loyalty was critical to whether he fell into the policy-
maker liability exception to the First Amendment, the parties
tried the nature of Hunt’s responsibilities and OCSD position
to a jury. The district court instructed the jury to answer
thirty-seven special interrogatories related to Hunt’s position.
The jury concluded, among other things, that:
Hunt did not have policymaking authority over any
area of policy;
Hunt did not formulate, substantially influence, or
substantially influence modifications to any
department-wide policy;
Hunt did not formulate or substantially influence
plans to implement the broad goals of the OCSD
department-wide;
Hunt did not formulate policy that affected San Cle-
mente;
1708 HUNT v. COUNTY OF ORANGE
Hunt did not exercise discretion in setting policy for
the OCSD in San Clemente; Hunt did not directly
and regularly communicate with Carona;
Hunt did not usually speak with Carona, as Hunt
generally approached his supervisor or other depart-
ment officials when confronted with policy-related
decisions;
Hunt did not act as an advisor to Carona or the
Assistant Sheriffs;
Hunt did not have authority to speak to the media
without prior approval of higher-ranking officials;
Hunt did not have a vaguely worded job description;
and
Neither Carona’s, the Captains’, nor the Assistant
Sheriffs’ trust and confidence was necessary for
Hunt to adequately perform his duties.
The jury did conclude that although Hunt did not formulate
policy, he substantially influenced department policy affect-
ing San Clemente and had discretion in how to implement
policy in San Clemente within the general framework pro-
vided by the department.
The district court granted judgment as a matter of law to
Carona after concluding that Hunt occupied a policymaking
position for which political loyalty was an appropriate
requirement based on the jury’s special findings, and thus his
demotion for political reasons did not violate the First
Amendment, Elrod v. Burns, 427 U.S. 347 (1976). The dis-
trict court relied heavily on the nine factors we set forth as rel-
evant to a “policymaker” determination in Fazio v. City and
County of San Francisco, 125 F.3d 1328, 1334 n.5 (9th Cir.
1997). Concluding that the Fazio factors suggested that Hunt
HUNT v. COUNTY OF ORANGE 1709
was a “policymaker,” the district court ruled that political loy-
alty was an appropriate requirement of Hunt’s job because he
“had sufficient authority to thwart or interfere with the Sher-
iff’s implementation of the policies he set for OCSD in [San
Clemente].” Alternatively, the district court held that even if
Hunt was not deemed a policymaker, Carona was entitled to
qualified immunity for concluding that Hunt was.
II.
We review de novo a district court’s grant of judgment as
a matter of law. Summers v. Delta Air Lines, Inc., 508 F.3d
923, 926 (9th Cir. 2007). In so doing, we “must draw all rea-
sonable inferences in favor of the nonmoving party.” Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000).
A.
The question before us is whether Hunt falls within the
“policymaker” exception to the First Amendment, and thus
cannot avail himself of any constitutional protection against
his demotion on the basis of his political speech.
[1] The First Amendment ordinarily prohibits an elected
official from firing or retaliating against an employee for his
political opinions, memberships, or activities. See Branti v.
Finkel, 445 U.S. 507, 515-16 (1980) (“[U]nless the govern-
ment can demonstrate an overriding interest of vital impor-
tance requiring that a person’s private beliefs conform to
those of the hiring authority, his beliefs cannot be the sole
basis for depriving him of continued public employment.”)
(citations and quotation marks omitted); Elrod, 427 U.S. at
357 (noting that the practice of patronage dismissals “un-
avoidably confronts decisions by this Court either invalidating
or recognizing as invalid government action that inhibits
belief and association through the conditioning of public
employment on political faith”).
1710 HUNT v. COUNTY OF ORANGE
[2] The Supreme Court carved out an exception to this
general prohibition in Elrod, permitting dismissals on the
basis of political beliefs of those employees in “policymaking
positions” so that “representative government not be undercut
by tactics obstructing the implementation of policies of the
new administration, policies presumably sanctioned by the
electorate.” 427 U.S. at 367. Because such dismissals and
demotions potentially infringe upon constitutional rights, we
have held that the exception is “narrow” and should be
applied with caution. DiRuzza v. County of Tehamma, 206
F.3d 1304, 1308 (9th Cir. 2000) (reading Elrod and Branti as
carving out a “narrow exception”).
B.
We disagree with the district court’s conclusion that Hunt
fell within the Elrod “policymaker” exception and was thus
permissibly terminated on the basis of his campaign speech.
The district court’s application of the “policymaker” excep-
tion misinterprets both the Supreme Court’s and our own doc-
trine establishing the contours of the exception. Although the
factors set forth in Fazio, 125 F.3d at 1334 n.5, are relevant
considerations in determining whether Hunt is a policymaker,
they should not be considered in a vacuum, but rather in light
of the underlying purpose of the “policymaker” exception.
[3] The essential inquiry in determining whether the Elrod
“policymaker” exception applies is not whether the nine Fazio
factors mechanically apply, or “whether the label ‘policy-
maker’ 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; id. at 517 (“[I]f an employee’s private political beliefs
would interfere with the discharge of his public duties, his
First Amendment rights may be required to yield . . . .”)
(quoting Elrod, 427 U.S. at 366); Fazio, 125 F.3d at 1332(“[A] public employee need not literally make policy in order
HUNT v. COUNTY OF ORANGE 1711
to fit within the Elrod policymaker exception. Rather, an
employer may fire a public employee for purely political rea-
sons if the employer can demonstrate that political consider-
ations are ‘appropriate requirement[s] for the effective
performance’ of the job.”) (quoting Branti, 445 U.S. at 518);
Fazio, 125 F.3d at 1333 (“[T]he term policymaker as used in
this context does not mean ‘one who makes policy.’ Rather,
the term refers to a position in which political considerations
are ‘appropriate requirement[s] for the effective performance
of the public office involved.’ ”) (quoting Branti, 445 U.S. at
519); Thomas v. Carpenter, 881 F.2d 828, 832 (9th Cir. 1989)
(holding that the exception applies only where the govern-
ment has shown that the employee’s political loyalty is essen-
tial to the effective performance of the tasks).
[4] Here, the record fails to establish that Hunt’s party
affiliation or political outlook were relevant to the effective
discharge of his professional duties. Indeed, the jury — in its
special findings of fact — explicitly found to the contrary.
The jury found that neither Carona’s, the Captains’, nor the
Assistant Sheriffs’ trust and confidence was necessary for
Hunt to perform his job. The jury also found that Hunt’s polit-
ical statements — which were the basis of his demotion —
did not cause, and could not have been reasonably predicted
to cause, a disruption in the efficient operation of the depart-
ment.
[5] These findings establish that political considerations
were not appropriate requirements for the effective perfor-
mance of Hunt’s job and are sufficient to end the “policy-
maker” inquiry. Indeed, if Hunt clearly falls outside of the
intended purpose and scope of the Elrod exception on the
basis of the jury’s factual findings, then we need not necessar-
ily examine the Fazio factors in order to determine whether
Hunt’s position carried certain attributes of a “policymaking”
position. The binding factual findings of the jury indicate that
Hunt was not — under the Supreme Court’s and our own doc-
trine — a “policymaker” for the purposes of the Elrod excep-
1712 HUNT v. COUNTY OF ORANGE
tion to the First Amendment. To set aside those facts in order
to rely on an equivocal balancing of the Fazio factors is to
lose sight of the forest for the trees.
[6] Moreover, dismissals on the basis of political consider-
ations must further a “vital government end” because they
infringe upon a constitutional right. Elrod, 427 U.S. at 363(“[Such dismissals] must further some vital government end
by a means that is least restrictive of freedom of belief and
association in achieving that end, and the benefit gained must
outweigh the loss of constitutionally protected rights.”). Cru-
cially, “since . . . it is the government’s burden to demonstrate
an overriding interest in order to validate an encroachment on
protected interests, the burden of establishing this [policy-
maker] justification as to any particular respondent will rest
on the [government].” Id. at 368 (emphasis added).
[7] Here, the government has not sufficiently established
the interest at stake, and has thus failed to meet its burden.
Indeed, expanding the legal protection accorded to politically-
motivated dismissals and demotions could very well under-
mine vital government interests. For example, an expansion of
the exception could discourage some of the most capable and
qualified people from running for higher office, and may also
have a chilling effect on whistleblowing. Most persuasively,
the jury, in its answers to the special interrogatories, found as
a matter of fact that Hunt’s actions did not disrupt the effi-
cient operation of the OCSD, nor could anyone have reason-
ably thought they would. Cf. Thomas, 881 F.2d at 831(“[E]ven in a police department, the complained-of disruption
must be real, and not imagined.”) (internal quotation marks
and citation omitted). Therefore, we conclude that the govern-
ment has failed to establish that Hunt’s dismissal furthered a
vital government interest.
Nothing in the record persuasively suggests that political
considerations are an appropriate requirement for Hunt’s posi-
tion. Because the jury found that political considerations were
HUNT v. COUNTY OF ORANGE 1713
not an appropriate requirement, we conclude that Hunt does
not fall within the intended scope of the policymaker excep-
tion. That one can marshal colorable arguments to conclude
that a majority of Fazio factors apply in a given case is not
sufficient reason to widen what the Supreme Court has
deemed a narrow exception to the First Amendment, particu-
larly where, as here, such an expansion is at odds with the
underlying purpose of that exception. See Elrod, 427 U.S. at
366; Branti, 445 U.S. at 518.
C.
[8] Moreover, the district court’s analysis of the Fazio fac-
tors led it to wrongly conclude that Hunt’s position was that
of a policymaker. Although the Fazio factors are not necessar-
ily dispositive, they suggest Hunt was not a policymaker, and
was thus entitled to constitutional protection against his retal-
iatory demotion.
A sheriff’s lieutenant is not automatically a policymaker.
Thomas, 881F.2d at 832 (reversing dismissal of lieutenant’s
First Amendment retaliation claim). Therefore, the district
court properly considered Hunt’s actual job requirements and
responsibilities in applying the Fazio factors. In Fazio, we set
forth “[s]ome factors to be considered when determining
whether a job is a policymaking position,” including “vague
or broad responsibilities, relative pay, technical competence,
power to control others, authority to speak in the name of
policymakers, public perception, influence on programs, con-
tact with elected officials, and responsiveness to partisan poli-
tics and political leaders.” 125 F.3d at 1334 n.5. These factors
are intended to guide the “policymaker” analysis, but not sup-
plant what we have called “the essential inquiry” — whether
“party affiliation is an appropriate requirement for the effec-
tive performance of the public office involved.” Id. at 1331.
Because the parties agreed the court should not propound spe-
cial jury interrogatories regarding relative pay and stipulated
1714 HUNT v. COUNTY OF ORANGE
that Hunt’s position required technical competence, only
seven of the nine Fazio factors are at issue.
[9] Although the district court, by using as many as thirty-
seven special interrogatories, adopted a novel approach to
resolving the question of Hunt’s status, its conclusion that
Hunt was a policymaker was directly contradicted by the
jury’s response to those interrogatories. The jury’s findings of
fact suggest that at least three Fazio factors—vague or broad
responsibilities, authority to speak in the name of policy-
makers, and influence on programs—strongly indicate that
Hunt was not a policymaker. Indeed, the jury found that: Hunt
did not have a vaguely worded job description; Hunt did not
have authority to speak to the media without prior approval of
higher-ranking officials; Hunt did not have policymaking
authority over any area of policy; Hunt did not formulate,
substantially influence, or substantially influence modifica-
tions to any department-wide policy; Hunt did not formulate
or substantially influence plans to implement the broad goals
of the OCSD department-wide; Hunt did not formulate policy
that affected San Clemente; and Hunt did not exercise discre-
tion in setting policy for the OCSD in San Clemente.
Hunt’s power to control others, another Fazio factor, was
severely limited. Hunt lacked any power to hire or promote
the officers that worked under him in San Clemente. Cf.
McCloud v. Testa, 227 F.3d 424, 429 (6th Cir. 2000) (holding
that employee did not fall within the “policymaker” exception
where he supervised employees “but did not hire or fire them
[and] was not responsible for their raises or granting leaves”).
Hunt did have limited ability to impose discipline and manage
deployments, but only within the contours of the department
policy that was set by his superiors. This authority is both lim-
ited and largely operational. We agree that “merely being a
supervisor/administrator . . . is not sufficient to show that
political affiliation is an appropriate requirement for the job
in question.” Milazzo v. O’Connell, 108 F.3d 129, 133 n.1
(7th Cir. 1997).
HUNT v. COUNTY OF ORANGE 1715
The three remaining factors — contact with elected offi-
cials, public perception, and responsiveness to partisan poli-
tics and leaders — weigh in favor of classifying Hunt as a
policymaker. However, despite his interactions with the San
Clemente City Council and its citizenry, Hunt was at all times
bound by department policy that was set by his superiors and
over which he had little, if any, control or influence. His inter-
actions with San Clemente politicians and public are insuffi-
cient to elevate his administrative role into a political role.
Indeed, the jury found that, despite his responsibilities, Hunt
had no regular interaction with the OCSD’s political leader-
ship. The jury found that Hunt did not directly and regularly
communicate with Carona, and that it was, in fact, unusual for
the two to speak, as Hunt would commonly speak with his
supervisor or other department officials when confronted with
San Clemente policy-related decisions.
[10] The picture painted by the jury’s factual findings
shows that Hunt was one of sixty department lieutenants, with
no authority to formulate policy, who reported to a supervisor,
and who needed approval from higher-ranking officials to
speak on behalf of the department. He did have heightened
administrative responsibility over San Clemente, which
accounts for a small fraction of Orange County’s population,
where the effective performance of his job was neither com-
promised by his statements during the campaign, nor depen-
dent on Carona’s trust in him. We thus conclude that the
Fazio factors, with all reasonable inferences drawn in favor of
Hunt, Reeves, 530 U.S. at 150, and in light of the jury’s find-
ings of fact, support the conclusion that Hunt was not a poli-
cymaker.
In Bardzik v. County of Orange, 635 F.3d 1138 (9th Cir.
2011), we held that another OCSD lieutenant who was the
Reserve Division Commander, and was also demoted by Car-
ona after supporting Hunt’s candidacy, was a policymaker for
the purposes of the Elrod exception. Although the legal prin-
ciples we applied in Bardzik are applicable here, the result in
1716 HUNT v. COUNTY OF ORANGE
Bardzik is not controlling because the “policymaker” inquiry
is highly fact-specific.
The position at issue in Bardzik—Reserve Division
Commander—is factually quite distinct from Hunt’s position
in the OCSD. Unlike Hunt, Bardzik’s duties went well
beyond the administration of a small division and included
significant programmatic authority. As Reserve Division
Commander, Bardzik was in charge of six hundred reserve
officers, id. at 1141, compared to the fifty-six officers that
Hunt oversaw in San Clemente. Bardzik reported directly to
Carona and would meet with him face-to-face as much as sev-
eral times a week at times, id. at 1142, significantly greater
contact than Hunt’s rare interactions with Carona. While the
jury found that Hunt’s job description was not vaguely
worded, Bardzik was broadly tasked by Carona to “take com-
mand of the Reserve Division, clean it up and bring it back
to responsibility,” “get rid of the dead wood,” and ensure it
was no longer “being led like a badge and gun club.” Id. at
1141-42.
Bardzik also had significant programmatic authority, under
which he initiated “proactive programs,” which included
establishing a high-tech unit and reforming the swift-water
rescue responder program. Id. at 1142. Bardzik further created
department-wide policy, recommending a decentralization of
the division, which was praised by Carona as one of the
“highlights of the year,” as well as a new promotional proto-
col to eliminate favoritism. Id. Under both the stated purpose
for the Elrod exception and the Fazio factors, the position
evaluated in Bardzik is significantly more amenable to classi-
fication as a “policymaking” position than Hunt’s OCSD
position. Thus, our analysis of the lieutenant position in
Bardzik does not control our conclusion here.
D.
[11] We agree with the district court, however, that
although Carona’s demotion of Hunt in retaliation for cam-
HUNT v. COUNTY OF ORANGE 1717
paign speech violated the First Amendment, Carona is entitled
to qualified immunity. “Qualified immunity shields federal
and state officials from money damages unless a plaintiff
pleads facts showing (1) that the official violated a statutory
or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft
v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “A Government offi-
cial’s conduct violates clearly established law when, at the
time of the challenged conduct, ‘the contours of a right are
sufficiently clear’ that every ‘reasonable official would have
understood that what he is doing violates that right.’ ” Id. at
2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)) (internal alterations omitted).
[12] Hunt’s First Amendment right to be free from demo-
tion for campaigning against Carona was clearly established
as of June 2006. As we held in DiRuzza, “[u]nder Elrod and
Branti, decided by the Supreme Court in 1976 and 1980, and
under Ninth Circuit case law decided prior to 1995, it was
clearly established that a non-policymaking public employee
in a sheriff’s office is protected from retaliation for the exer-
cise of First Amendment rights.” 206 F.3d at 1313. However,
the critical question here is whether a reasonable official in
Carona’s position should have known that Hunt was not a
policymaker whose political loyalty was important to the
effective performance of his job. See Lopez-Quinones v.
Puerto Rico Nat’l Guard, 526 F.3d 23, 27 (1st Cir. 2008)
(“The crucial question here is whether a reasonable official
acting at the time of Lopez’ termination should have known
on what side of the Elrod/Branti line Lopez’ own position
fell.”). If Carona “could . . . have reasonably but mistakenly
believed that his or her conduct did not violate a clearly estab-
lished constitutional right,” he is entitled to qualified immu-
nity. Greene v. Camreta, 588 F.3d 1011, 1031 (9th Cir. 2009)
(citing Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th
Cir. 2001)).
1718 HUNT v. COUNTY OF ORANGE
[13] We conclude, like the district court, that Carona could
have reasonably but mistakenly believed that Hunt’s demo-
tion was not unconstitutional, given the unique nature of his
job as Chief of Police Services for the City of San Clemente.
Although Hunt’s position had no department-wide policy-
making responsibility, influence, or control, as the jury found,
Hunt exercised discretion over the implementation of OCSD
policy within San Clemente, influenced OCSD policy as it
affected San Clemente, and formulated plans to implement
OCSD policy in San Clemente. While Hunt had to secure
authority before speaking with the public, when he did so, it
was on behalf of the OCSD. We have carefully analyzed the
development of the policymaker exception, its underlying
purpose, the high burden on the government to prove that
political fidelity was a necessary requirement of Hunt’s job,
and balanced the nine-factor Fazio analysis that requires a
fact-dependent inquiry. Even if Carona engaged in the appro-
priate analysis and wrongly concluded that Hunt was a policy-
maker such that demoting him was constitutional, we cannot
say that he acted objectively unreasonably in concluding he
could demote Hunt without violating his constitutional rights.
III.
The district court did not abuse its discretion in denying
Hunt’s motion to amend the pretrial conference order. “We
review the district court’s denial of a motion to modify a pre-
trial order for abuse of discretion.” Byrd v. Guess, 137 F.3d
1126, 1131 (9th Cir. 1998), superseded by statute on other
grounds. District courts have “broad discretion to manage dis-
covery and to control the course of litigation under Federal
Rule of Civil Procedure 16.” Avila v. Willits Envtl. Remedia-
tion Trust, 633 F.3d 828, 833 (9th Cir. 2011). Where, as here,
the district court has entered a pretrial order, modifications are
allowed “only to prevent manifest injustice.” Fed. R. Civ. P.
16(e). We have explained:
The district court should consider four factors in
determining whether to modify the parties’ pretrial
HUNT v. COUNTY OF ORANGE 1719
order: (1) the degree of prejudice or surprise to the
defendants if the order is modified; (2) the ability of
the defendants to cure any prejudice; (3) the impact
of the modification on the orderly and efficient con-
duct of the case; and (4) any degree of willfulness or
bad faith on the part of the party seeking the modifi-
cation.
Byrd, 137 F.3d at 1132.
In light of these factors, we hold that the district court did
not abuse its discretion in denying the motion to amend the
pretrial order. First, amendment would have caused prejudice
or surprise to Carona because Hunt had abandoned any
Monell claim asserted in his complaint by filing two memo-
randa of contentions of fact and law and a proposed pretrial
order that did not include any Monell claim.1 Allowing Hunt
to raise the Monell claim through an amendment to the pre-
trial order would have prejudiced the County because it had
taken no discovery toward defending against a Monell claim.
Second, Hunt’s motion was made less than three weeks before
trial began, which would have left insufficient time to cure
that prejudice. Finally, the amendment would have interfered
with the orderly and efficient conduct of the case because cur-
ing the prejudice would have required reopening discovery,
which, in turn, would have delayed the proceedings.
[14] We have “consistently held that issues not preserved
in the pretrial order have been eliminated from the action.” S.
Cal. Retail Clerks Union and Food Emp’rs Joint Pension
Trust Fund v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984).
1
Hunt argues that his reference to the actions of “Defendants” in the
plural suggest that he preserved a Monell claim. Simply grouping the
County in with Carona is insufficient to establish a Monell claim, which
requires allegations that the County’s “customs or policies caused a viola-
tion of [Hunt’s] constitutional rights.” The pretrial documents do not
reveal any contention that the County’s policies or customs lead to Car-
ona’s action.
1720 HUNT v. COUNTY OF ORANGE
Because the pretrial order did not include a claim against the
County, the district court was within its power to sua sponte
dismiss the County from the action. See Fed. R. Civ. P. 21
(“On motion or on its own, the court may at any time, on just
terms, add or drop a party.”). Cf. Trujillo v. Crescent Jewel-
ers, 243 F.3d 550 (9th Cir. 2000) (“Federal courts may, in
fact, dismiss sua sponte pursuant to F.R.C.P. 12(b)(6) when
it is clear that the plaintiff has not stated a claim upon which
relief may be granted.”).
IV.
We affirm the district court’s judgment as a matter of law
in favor of Defendant Sheriff Michael Carona.2
AFFIRMED.
LEAVY, Circuit Judge, concurring in part and dissenting in
part:
Pursuant to the Supreme Court’s decision in Pearson v.
Callahan, 555 U.S. 223, 236-37 (2009), we need not decide
whether a constitutional violation exists before we reach the
question of qualified immunity. Because the majority has cho-
sen to reach the issue whether Carona’s conduct violated
Hunt’s constitutional rights, I am compelled to concur in only
Sections II. D., III and IV of the opinion. I dissent from the
majority’s holding that Hunt was not a “policymaker.”
2
We also affirm the denial of Hunt’s motion to vacate and for a new
trial pursuant to Federal Rules of Civil Procedure 59(e) and 60(b)(1), (6).
Hunt fails to make any legal arguments that would satisfy the standards
set forth in Rules 59(e) and 60(b)(1), (6). Hunt merely reiterates his merits
arguments related to the “policymaking,” qualified immunity, and Monell
issues discussed above.
HUNT v. COUNTY OF ORANGE 1721
In determining whether an employee is a policy maker, the
“ultimate inquiry is whether the hiring authority can demon-
strate that party affiliation is an appropriate requirement for
the effective performance of the public office involved.”
Branti v. Finkel, 445 U.S. 507, 518 (1980). Following Branti,
we have explained that the policymaker exception is not lim-
ited to “party affiliation,” but includes termination based on
“political affiliation, which includes commonality of political
purpose and support.” Walker v. City of Lakewood, 272 F.3d
1114, 1132 (9th Cir. 2001) (citation and internal quotation
omitted).
Because “[t]he nature of the responsibilities is critical” to
a determination whether a particular employee holds a policy-
making position, Elrod v. Burns, 427 U.S. 347, 367 (1976),
we have set forth nine factors that should be taken into
account in the analysis: “vague or broad responsibilities, rela-
tive pay, technical competence, power to control others,
authority to speak in the name of policymakers, public per-
ception, influence on programs, contact with elected officials,
and responsiveness to partisan politics and political leaders.”
Bardzik v. County of Orange, 635 F.3d 1138, 1145 (9th Cir.
2011) (citing Fazio v. City and County of San Francisco, 125
F.3d 1328, 1334 n.5 (9th Cir. 1997). Contrary to the majori-
ty’s opinion, the district court did not consider these factors
in a vacuum, but applied them in light of the overarching
question, whether effective performance of the Chief of
Police Services for the City of San Clemente required a com-
monality of political purpose with the Orange County Sheriff.
As is discussed below, the district court’s affirmative answer
to this question is amply supported both by the jury’s answers
to the special interrogatories and Hunt’s testimony.
Job Responsibilities. The jury found that Hunt’s job
responsibilities were “restricted to implementing the Depart-
ment’s goals within a general framework provided by the
Department,” and “restricted to implementing the City of San
Clemente’s goals within a general framework provided by the
1722 HUNT v. COUNTY OF ORANGE
Department.” However, the jury also found that Hunt was
responsible for “formulat[ing] plans to implement the broad
goals of the OCSD in the City of San Clemente, and had “dis-
cretionary authority regarding the deployment of deputy sher-
iffs within” the City. Hunt’s responsibilities were remarkably
similar to those described in Bardzik, where the police lieu-
tenant/policymaker was “in effect running the Reserves,” but
was restricted by Carona’s instruction to “run the Reserves
like every other division.” Bardzik, 635 F.3d at 1146. Thus
Hunt’s job responsibilities, like Bardzik’s, were broad enough
to support policymaker status.
Relative Pay and Technical Competence. As noted by the
majority, the parties agreed the court should not propound
special jury interrogatories regarding relative pay and stipu-
lated that Hunt’s position required technical competence.
Power to Control Others. Hunt testified he supervised
approximately 56 employees as Chief of Police Services for
the City of San Clemente. While the parties stipulated Hunt
lacked the power to hire employees under his command or
determine criteria for promoting them, the jury concluded that
“Hunt resolve[d] official complaints from citizens regarding
the conduct of employees under his command” and “in some
instances,” had “the authority to determine the type of disci-
pline to be imposed on any subordinate under his command.”
The majority distinguishes Bardzik based on the greater num-
ber of officers supervised, Bardzik was in charge of only part-
time volunteers. Hunt, by contrast supervised the active police
force for an entire city. Moreover, Bardzik did not supervise
the reserves while they were working in other divisions, he
did not train the reserves, and he referred personnel problems
to the Department’s Personnel Division.” Id. at 1141, 1146.
Hunt, by contrast, was the sole supervisor of his employees,
resolved complaints regarding employee conduct, and was
authorized to make disciplinary decisions.
Authority to Speak in the Name of Policymakers. While the
jury found that Hunt lacked authority to speak with the media
HUNT v. COUNTY OF ORANGE 1723
without the prior approval of either higher ranking OCSD
officers or the OCSD’s Public Information Officer, it also
concluded that Hunt regularly interacted with the San Cle-
mente City Council on behalf of OCSD, made comments to
the media, and regularly interacted with the public as a repre-
sentative of the OCSD concerning law enforcement matters in
San Clemente. Thus, Hunt regularly was authorized to com-
municate on OCSD’s behalf with elected officials and the
public. The majority apparently holds that it doesn’t matter
that Hunt acted as a spokesperson for the OCSD in San Cle-
mente.
Influence on Programs or Policy. The jury found that Hunt
did not formulate or substantially influence policy for the
Orange County Sheriff’s Department (“OCSD”) that applied
department-wide, but that he “substantially influenced” policy
for the OCSD that affected the City of San Clemente, formu-
lated plans to implement the broad goals of OCSD in the City
of San Clemente, and exercised discretion regarding how to
implement the policies of the OCSD in the City. Hunt con-
ceded he was a leader, a decision-maker, and manager in the
OCSD, and made daily decisions on how to run the [law
enforcement] operation in San Clemente. The majority repeat-
edly refers to Hunt’s inability to make policy county-wide as
a basis for concluding his job responsibilities were not those
of a policymaker. The inability to make county-wide policy
does not negate Hunt’s extensive authority to make policy in
San Clemente. There is no case which stands for the proposi-
tion that a “policymaker” within a particular jurisdiction must
have authority to make policy for the entire jurisdiction. In
fact, Hunt’s influence on policy is strikingly similar to the
lieutenant/policymaker in Bardzik, who could not “unilater-
ally create policy,” but “influenced many . . . programs within
the division he supervised.” Id. at 1146.
The majority concedes the three remaining factors, contact
with elected officials, public perceptions, and responsiveness
to partisan politics and leaders, weigh in favor of classifying
1724 HUNT v. COUNTY OF ORANGE
Hunt as a policymaker. The jury’s finding on these factors
was that Hunt regularly interacted with the City Council and
the public, the public perceived Hunt represented the OCSD
in the City of San Clemente and Hunt’s position required him
to be responsive to City Council members and other political
leaders in Orange County.
In sum, the evidence shows that Hunt was responsible for
formulating plans to implement OCSD policy in San Cle-
mente, had the ability substantially to influence OCSD policy
in the City, spoke regularly with city elected officials and citi-
zens on behalf of OCSD, and was perceived by the public as
representing OCSD in San Clemente. Thus, applying the rele-
vant factors, Hunt was in a position for which political loyalty
was an appropriate requirement and the “policymaker” excep-
tion applies.
In addition to these factors, in Bardzik we found persuasive
in the policymaker determination the fact that the lieutenant
actively sought to undermine the Sheriff’s policies. Id. at
1148. Here, this consideration is even more significant.
Bardzik merely supported Hunt in the contested election,
while Hunt campaigned on a platform accusing Carona of
corruption. In Bardzik by a divided court we held that the dis-
trict court erred in finding that the lieutenant who supported
Hunt was not a policymaker. In this case by a divided court
we hold that the district erred in finding that the candidate
was a policymaker. “An elected official need not retain a
high-ranking official in a position to undermine the official’s
credibility and goals when neither the electorate nor an appro-
priate agency has determined that the official has violated the
law.” Id. at 1149. Carona did not violate the Constitution
when he removed Hunt from his position as Chief of Police.