Akers v. Caperton
| Decision Date | 29 June 1993 |
| Docket Number | No. 92-2157,92-2157 |
| Citation | 998 F.2d 220 |
| Parties | , 8 IER Cases 991 Donald Hobart AKERS, Jr.; William M. Cayton; Glen S. Hanlin; Jimmy L. Richardson; Alvin Lee Engelke; Larry Pauley, Plaintiffs-Appellees, v. Gaston CAPERTON, Governor, individually and in his official capacity as Governor of the State of West Virginia; Art Gleason, individually and in his official capacity as Secretary of the Department of Transportation, Defendants-Appellants, and Kenneth M. Dunn, individually and in his capacity as Secretary of the Department of Transportation, Defendant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Jon L. Brown, argued (Charles R. Bailey, on brief), Shuman, Annand & Poe, Charleston, WV, for defendants-appellants.
William C. Garrett, Gassaway, WV, argued (Clinton W. Smith, Charleston, WV, on brief), for plaintiffs-appellees.
Before HALL, Circuit Judge, BUTZNER, Senior Circuit Judge, and VOORHEES, Chief United States District Judge for the Western District of North Carolina, sitting by designation.
The plaintiffs, former West Virginia County Maintenance Superintendents transferred because of their political affiliation, filed this 42 U.S.C. § 1983 suit seeking damages and equitable relief. The district court granted the plaintiffs' motion for summary judgment on liability, denied the defendants' defense of qualified immunity, and set the case for trial to determine damages. The defendants appealed.
We affirm the district court's ruling that the plaintiffs' transfers pursuant to W.Va.Code § 29-6-4(d) violated their civil rights, we reverse the district court's ruling that the defendants forfeited their qualified immunity from suits for money damages, and we remand the case for further proceedings on the plaintiffs' equitable claims.
This case stems from the 1988 West Virginia gubernatorial election in which the Democratic challenger, Gaston Caperton, defeated the Republican incumbent, Arch Moore.
In recent years, the Governor's discretion to hire and fire public employees for political reasons has been greatly circumscribed by state civil service laws, see W.Va.Code § 29-6-1 et seq., and United States Supreme Court decisions holding that low-level public employees have a First Amendment right to be free from adverse employment decisions based upon political affiliation. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). Given the long history of political patronage in state and federal politics, see Susan L. Martin, A Decade of Branti Decisions: A Government Official's Guide to Patronage Dismissals, 39 Am.U.L.Rev. 1, 13-16 (1989) [hereinafter, Martin, A Decade of Branti ], it is perhaps unsurprising that state elected officials have occasionally attempted to buck these constraints by continuing to make employment decisions based upon political affiliation. It is equally unsurprising that such practices have frequently led to protracted constitutional litigation. 1
Perhaps as an inaugural present for the new Democratic governor, the Democratically controlled West Virginia Legislature amended § 29-6-4(d) to broaden the group of employees exempt from civil service protection. As amended, the statute reads:
The Legislature finds that the holding of political beliefs and party commitments consistent or compatible with those of the governor contributes in an essential way to the effective performance of and is an appropriate requirement for occupying certain offices or positions in state government, such as the secretaries of departments and the employees within their offices, the heads of agencies appointed by the governor and, for each such head of agency, a private secretary and one principal assistant or deputy, all employees of the office of the governor including all employees assigned to the executive mansion, as well as any persons appointed by the governor to fill policymaking positions and county road supervisors or their successors, in that such offices or positions are confidential in character and/or require their holders to act as advisors to the governor or his appointees, to formulate and implement the policies and goals of the governor or his appointees, or to help the governor or his appointees communicate with and explain their policies and views to the public, the Legislature and the press.
W.Va.Code § 29-6-4(d).
The amendment went into effect on July 1, 1989. On July 20, 1989, Governor Caperton's Secretary of Transportation, Kenneth Dunn, notified all County Maintenance Superintendents ("Superintendents") that they had the option of voluntarily transferring to positions as Area Maintenance Managers or remaining in their Superintendent positions pending a final decision on their status. 2 None of the Superintendents accepted Dunn's offer, and, in October 1989, all Superintendents were involuntarily transferred to the position of Area Maintenance Manager. The defendants stipulate that the transfers were politically motivated.
Six of the Superintendents then filed this suit under 42 U.S.C. § 1983 against Governor Caperton, Secretary of Transportation Dunn, and Dunn's replacement, Arthur L. Gleason. 3 The suit sought reinstatement as well as damages from the defendants in their individual and official capacities.
The parties filed cross-motions for summary judgment. The district court dismissed the claims against Dunn, because he had not been timely served, and the claims for money damages against Caperton and Gleason in their official capacities, as barred by Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (). However, the district court ruled that the transfers violated the plaintiffs' First Amendment rights and that Caperton and Gleason were not entitled to assert qualified immunity from personal liability for money damages. The case was set for trial on the issues of damages and potential injunctive relief. The defendants then filed this interlocutory appeal.
(Scope of review)
Our initial task is to determine what questions are properly before us in this appeal.
The district court's disposition of the parties' summary judgment motions did not adjudicate "all the claims and the rights and liabilities of all the parties," Fed.R.Civ.P. 54(b), and, therefore, was not a final judgment within the meaning of 28 U.S.C. § 1291. However, in Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), the Supreme Court held that a denial of qualified immunity, although not a final order, is immediately appealable. Thus, Mitchell establishes our jurisdiction to review the district court's qualified immunity ruling. The tougher issue is whether we may also review the district court's ruling on the underlying constitutional claim, and, if so, whether it is prudent to do so. See O'Bar v. Pinion, 953 F.2d 74, 79-80 (4th Cir.1991).
Under the doctrine of pendent appellate jurisdiction, an appellate court with jurisdiction over one issue in a case, may consider other, not independently appealable issues, if the issues substantially overlap and "review will advance the litigation or avoid further appeals." Id. at 80. Although pendent appellate jurisdiction must be exercised cautiously, it is frequently appropriate on review of a denial of qualified immunity, because, unless the complaint establishes a violation of clearly established law of which a reasonable person would have known, the defendants are entitled to a dismissal of the federal claims. See Id. ( ) (citations omitted).
The merits of the underlying constitutional claim have been raised by the parties, fully briefed, and argued to this Court. The constitutional claim is substantially related to the immunities issue and its resolution will advance this litigation. Therefore, we exercise pendent appellate jurisdiction and address the district court's ruling on the merits of the plaintiffs' constitutional claim.
(First Amendment analysis )
A. The relationship between the First Amendment and politically motivated decisions affecting government employees.
The broad outlines of this area of the law are established, and we shall not dwell on them. For two centuries the law concerning political patronage could be stated in the brief phrase: "To the victor belong the spoils." The exercise of political patronage was not only legal, it was expected. See Martin, A Decade of Branti at 14-15.
Of course, this practice has been severely restricted. In Elrod, 427 U.S. 347, 96 S.Ct. 2673, the Supreme Court held that patronage dismissals of non-policymaking officials violated the First Amendment. In Branti, 445 U.S. at 518, 100 S.Ct. at 1294, the Court restated its test, holding that the First Amendment barred patronage dismissals unless "party affiliation is an appropriate requirement for the effective performance of the public office involved." In Rutan, 497 U.S. 62, 110 S.Ct. 2729, the Court held that the First Amendment also barred politically motivated employment decisions less severe than outright dismissal, including promotions, transfers, and the decision to recall or rehire. Thus, the law is now restated: "To the victor belong only those spoils that may be constitutionally obtained." Id. at 63, 110 S.Ct. at 2731 (citations omitted).
B. W.Va.Code § 29-6-4(d)'s constitutionality.
We review summary judgments de novo and, like the...
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