Harter v. Vernon

• Citation: 101 F.3d 334
• Decision Date: 22 November 1996
• Docket Number: No. 96-1434,96-1434
• Parties: Wayne HARTER; Robert Payne, Plaintiffs-Appellees, v. C.D. VERNON, individually and in his official capacity as Sheriff of Rockingham County; Rockingham County, Defendants-Appellants, Guilford County, Movant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 334

101 F.3d 334

65 USLW 2370

Wayne HARTER; Robert Payne, Plaintiffs-Appellees, v. C.D. VERNON, individually and in his official capacity as

Sheriff of Rockingham County; Rockingham County,

Defendants-Appellants,

Guilford County, Movant.

No. 96-1434.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 25, 1996.

Decided Nov. 22, 1996.

ARGUED: James Redform Morgan, Jr., Womble, Carlyle, Sandridge & Rice, P.L.L.C., Winston-Salem, NC, for Appellants. Martha Anne Geer, Patterson, Harkavy & Lawrence, L.L.P., Raleigh, NC, for Appellees. ON BRIEF: Melinda Lawrence, Patterson, Harkavy & Lawrence, L.L.P., Raleigh, NC, for Appellees.

Before RUSSELL, NIEMEYER and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge NIEMEYER joined. Judge RUSSELL concurred only in the judgment.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The district court concluded that a sheriff in North Carolina is not a state official for purposes of Eleventh Amendment immunity. Because the state treasury would not pay any judgment against a sheriff and because the state would suffer no indignity to its sovereign integrity if immunity were not accorded to a sheriff, we affirm.

I.

The sheriff of Rockingham County, North Carolina, C.D. Vernon, hired Wayne Harter as a dispatcher in 1988; Vernon hired Robert Payne as a deputy sheriff in 1989. Five years later, in 1994, Vernon faced competition from a former deputy, Sam Page, for the Democratic nomination for sheriff. According to Harter and Payne, Vernon directly pressured his employees to campaign actively on his behalf, and to donate funds to his re-election. Sheriff's department employees were solicited for campaign contributions during shift meetings, and were told to post signs supporting Sheriff Vernon in their yards. Vernon assertedly threatened to discharge deputies after the primary if they failed to support him. Payne and Harter minimally supported Vernon's campaign. Payne donated ten dollars to the campaign, and did not vote. Harter told Sheriff Vernon that he supported him, but preferred not to campaign for him. Nonetheless, Vernon defeated his challenger in the primary election.

At approximately the time of the primary election, Sheriff Vernon began to investigate alleged wrongdoings by certain deputies. Vernon's investigation revealed that five members of Payne's work shift repeatedly failed to check-out with the dispatcher before taking their breaks. Vernon spoke to three of these deputies about their behavior, and fired the other two--Payne and Richard Lintecum--without speaking to them. Payne and Lintecum were the only two of the five who did not support Vernon's campaign. The same investigation also assertedly unearthed difficulties with Harter's work, and Vernon discharged him as well. In all, Vernon fired Harter and Payne, and seven other employees. Harter and Payne allege that all of these employees failed to support Vernon's campaign. Harter and Payne also assert that they were never told that their job performance was "in any way inadequate."

On January 31, 1995, Harter and Payne filed suit against Rockingham County and Sheriff Vernon, in his individual and official capacities. Harter and Payne alleged violations of the United States and North Carolina Constitutions. The County and Vernon moved for summary judgment on all counts.

The district court granted summary judgment to the County on all claims, explaining that in its view, Vernon "was not acting pursuant to a policy of the County," and "under state law the sheriff is not an agent of the County in employment decisions." In addition, the court granted Vernon summary judgment on the constitutional claims asserted against him in his personal capacity. The court, however, held that the Eleventh Amendment did not bar claims against Vernon in his official capacity. The court reasoned that since it was uncontroverted that a judgment against the sheriff would not affect the state treasury, this factor "largely, if not wholly" disposed of any claim to immunity, and that other relevant factors also indicated that a North Carolina sheriff is not a state officer.

Vernon appealed; Harter and Payne did not cross appeal. Accordingly, the Eleventh Amendment ruling is the only issue presented for our review. We do not address, and express no opinion as to the correctness of, any of the district court's other holdings.

II.

Denial of summary judgment on the basis of Eleventh Amendment immunity is immediately appealable. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-47, 113 S.Ct. 684, 687-89, 121 L.Ed.2d 605 (1993). We review questions of the applicability of Eleventh Amendment immunity de novo. Ristow v. South Carolina Ports Auth., 27 F.3d 84, 86 (1994), vacated on other grounds, 513 U.S. 1011, 115 S.Ct. 567, 130 L.Ed.2d 485 (1994).

The Eleventh Amendment provides: "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Although by its terms the Amendment applies only to suits brought against a state by "Citizens of another State," it is well established that "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Puerto Rico Aqueduct, 506 U.S. at 144, 113 S.Ct. at 687. This immunity applies to state agencies that may be properly characterized as "arm[s] of the State," Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572-73, 50 L.Ed.2d 471 (1977), as well as to state employees acting in their official capacity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989).

The Eleventh Amendment, however, affords no protection to local government entities and employees. Id. at 70, 109 S.Ct. at 2311-12. The crucial question, therefore, in many Eleventh Amendment cases is whether an agency or official is properly characterized as an arm of the state, or of the local government.

Vernon makes two principal arguments as to why the district court erred in holding that a North Carolina sheriff is not a state official for Eleventh Amendment purposes. First, he claims that the court followed the wrong test in determining whether a sheriff is an arm of the state because the court did not properly weigh the state's "sovereign integrity and dignity." Alternatively, Vernon asserts that even if the district court articulated the proper test, it applied that test incorrectly. We consider each argument in turn.

III.

The test employed in the Fourth Circuit for determining whether an agency or employee constitutes an arm of the state was first stated in Ram Ditta v. Maryland Nat'l Capital Park and Planning Comm., 822 F.2d 456 (4th Cir.1987). That case set forth a four-part, nonexclusive test for determining whether an entity is an alter ego of the state. The first, and "most important consideration is whether the state treasury will be responsible for paying any judgment that might be awarded." Ram Ditta, 822 F.2d at 457. The other three inquiries include, but are "not necessarily limited to, whether the entity exercises a significant degree of autonomy from the state, whether it is involved with local versus statewide concerns, and how it is treated as a matter of state law." Id. at 457-58. (internal citations omitted). Ram Ditta made clear that "[a]lthough a federal court may consider how an entity is treated under state law, 'the question of whether an agency is an alter ego of the state ... is a question of federal, not state, law.' " Id. at 458 n. 5 (quoting Blake v. Kline, 612 F.2d 718, 722 (3rd Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980)).

This court continued to apply the Ram Ditta test until the Supreme Court's most recent Eleventh Amendment "arm of the state" case, Hess v. Port Auth. Trans-Hudson, 513 U.S. 30, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). Hess announced that Eleventh Amendment inquiries should be guided by the Eleventh Amendment's twin reasons for being: preventing judgments from depleting state treasuries, and maintaining "the integrity retained by each State in our federal system." Hess, 513 U.S. 30, ----, 115 S.Ct. at 400, 404.

In Hess, the Court proceeded in two steps to find that the New York/New Jersey Port Authority was not to be regarded as a state entity entitled to Eleventh Amendment immunity. First, the Court considered "indicators" of state entities: whether local or state governance controlled the entity, whether the implementing legislation characterized the entity as a state agency and how state courts have ruled on the issue, whether the entity's functions have traditionally been regarded as state or local, and whether a state has financial responsibility for the entity. Id. at ---- - ----, 115 S.Ct. at 402-03.

The Court found that these factors, which echo the factors articulated in Ram Ditta, pointed in opposite directions for purposes of determining the Eleventh Amendment immunity of the Port Authority. The Hess Court reasoned that when this is the case, a court must focus on "the impetus for the Eleventh Amendment: the prevention of federal court judgments that must be paid out of a State's treasury.... Accordingly, Courts of Appeals have recognized the vulnerability of the State's purse as the most salient factor in Eleventh Amendment determinations." Hess, 513 U.S. at ----, 115 S.Ct. at 404. Thus, Hess established that in making a determination as to entitlement to Eleventh Amendment immunity a number of factors must be considered, but that Ram Ditta was correct that the state treasury factor is the most important.

We recognized this in Gray v. Laws, 51 F.3d 426, 434 (4th Cir.1995), holding that Hess had not "materially altered ...