Brett v. Jefferson County, Ga., 96-8553

• Decision Date: 03 October 1997
• Docket Number: No. 96-8553,96-8553
• Parties: 11 Fla. L. Weekly Fed. C 600 Herbert E. BRETT; David Hannah; Wayne D. Hattaway; Jerry O. Hudson, Plaintiffs-Appellants, v. JEFFERSON COUNTY, GEORGIA; Charles Gary Hutchins, individually and in his official capacity as Sheriff, Jefferson County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1429

123 F.3d 1429

11 Fla. L. Weekly Fed. C 600

Herbert E. BRETT; David Hannah; Wayne D. Hattaway; Jerry O. Hudson, Plaintiffs-Appellants, v. JEFFERSON COUNTY, GEORGIA; Charles Gary Hutchins individually and in his official capacity as Sheriff, Jefferson County, Defendants-Appellees.

No. 96-8553.

United States Court of Appeals, Eleventh Circuit.

Oct. 3, 1997.

Marcia Borowski, Megan Gideon, Atlanta, GA, for Plaintiffs-Appellants.

Michael O'Quinn, Margaret E. Sanders, Barnhart, O'Quinn & Williams, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before COX and BIRCH, Circuit Judges, and RAFEEDIE ^*, Senior District Judge.

BIRCH, Circuit Judge:

Proceeding under 42 U.S.C. § 1983 and 42 U.S.C. § 300bb-7, four former deputy sheriffs, whom a newly elected sheriff did not reappoint because of their political activities, appeal the district court's grant of summary judgment to the county and sheriff. The deputy sheriffs contend that the sheriff's failure to reappoint them violated their free speech and procedural due process rights under the First, Fifth, and Fourteenth Amendments. They also allege that the district court erroneously denied fines and attorney's fees based on the county's failure to offer the deputy sheriffs continued medical coverage as required under the Public Health Service Act, 42 U.S.C. § 300bb-6. We vacate the summary judgment on the First Amendment claim, affirm the summary judgment on the additional claims, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Herbert E. Brett, David Hannah, Wayne D. Hattaway, and Jerry O. Hudson were deputy sheriffs in Jefferson County, Georgia when Zollie Compton, who had been the sheriff of Jefferson County for more than thirty years, chose not to seek reelection in 1992. Prior to that decision, Compton had taken steps to ensure that his employees fell under the county's civil service system. Specifically, he appeared at a meeting of the Jefferson County Board of Commissioners in 1989 and requested that his employees be subject to the Jefferson County personnel policies, which provide that regular county employees can be terminated only for cause. ¹ Compton subsequently gave the deputy sheriffs documents showing that they were subject to the county personnel policies and procedures.

When Compton announced his plans not to seek reelection in the 1992 election, several candidates entered the race for sheriff. The candidates who ran in the Democratic primary included Charles Gary Hutchins and deputy sheriffs Hudson and Hattaway. ² Because there was no majority winner in the primary, a runoff election between Hudson and Hutchins was held. ³ Hutchins, who prevailed in the runoff election, subsequently was elected sheriff in the general election.

Hannah and Brett supported Hudson's campaign in the primary and runoff elections. While they were off-duty, they talked with voters about Hudson's qualifications and wore clothing endorsing his candidacy. Brett, while off-duty, distributed campaign literature and drove a personal car with signs supporting Hudson. After Hudson's defeat in the runoff election, a deputy that supported Hutchins in the general election told Brett and Hannah that they should place Hutchins' campaign signs in their yards to ensure their continued employment. Neither Brett, Hannah, Hattaway, nor Hudson posted campaign signs in their yards for the general election.

Hannah and Hudson approached Hutchins after the runoff election and asked whether Hutchins would reappoint them if he were elected. Based on this conversation, Brett, Hannah, Hattaway, and Hudson believed that any further attempts to apply for positions under Hutchins would be futile. Hutchins retained several deputy sheriffs who served under Compton and supported Hudson in the primary and runoff elections. ⁴ After the general election, however, Hutchins informed Brett, Hannah, Hattaway, and Hudson that they would no longer be employed as deputy sheriffs when he took office. ⁵ Hutchins concedes that his decision not to reappoint them was based on their speech and actions during the election. ⁶

When Brett, Hannah, Hattaway, and Hudson were terminated from county employment, they were not informed of their right to continued coverage under the group health care plan. The county concedes that it was required to notify timely in writing the former deputy sheriffs of their rights to continued coverage upon payment of the proper premiums. The county, however, did not inform them that they were eligible for coverage, retroactive to the date of their termination, until after the former deputy sheriffs filed this action. Only Hudson chose to pay the premiums and continue the health insurance coverage. ⁷

The former deputy sheriffs filed this action and alleged that Jefferson County and Hutchins violated their rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution. They also sought fines and attorney's fees incurred when the county failed to offer, as required by 42 U.S.C. § 300bb-6, extended health care coverage after their employment termination. Jefferson County and Hutchins moved for summary judgment. The district court, in a deferred ruling, granted the motion for summary judgment because it determined that the former deputy sheriffs had no property rights in their jobs, which terminated automatically at the end of Compton's term, and that the county's delay in notifying them of their rights to extended health care coverage did not cause harm to the former deputy sheriffs. In view of its judgment on the substantive claims, the district court did not reach the issue of qualified immunity as raised by Hutchins. Brett, Hannah, Hattaway, and Hudson appeal the summary judgment.

II. DISCUSSION

On appeal, the former deputy sheriffs argue that the district court erred in granting summary judgment because (1) their First Amendment rights were violated when they were denied reappointment because of political patronage, (2) they were entitled to procedural due process in view of their property interests in their jobs, and (3) they were entitled to fines and attorney's fees because they were injured by the delay in notification of their rights to continued health care coverage. ⁸ We review a grant of summary judgment de novo and view the facts in the light most favorable to the nonmoving party. Jaques v. Kendrick, 43 F.3d 628, 630 (11th Cir.1995). The movant is entitled to summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); United States v. Route 2, Box 472, 136 Acres More or Less, 60 F.3d 1523, 1526 (11th Cir.1995).

A. First Amendment Rights

The district court opined that, because the term of the deputy sheriffs expired when Compton left office, Hutchins could have chosen not to reappoint them for any reason or for no reason at all. Upon finding that the newly elected sheriff had an absolute right to appoint whomever he chose, the district court did not scrutinize the former deputy sheriffs' First Amendment claim. The district court, however, was plainly in error. In Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the Supreme Court stated that

even though a person has no "right" to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in free speech.

Id. at 597, 92 S.Ct. at 2697. Furthermore, the Court noted that the principle applies to denials of public employment, not just terminations, and ruled that the lack of a contractual "right" to re-employment during the next academic year was immaterial to a college professor's free speech claim. Id. at 597-98, 92 S Ct. at 2697-98. Thus, in view of clear Supreme Court precedent, the district court erred in deciding that no First Amendment analysis was warranted because the former deputy sheriffs had no right to re-employment.

Although the parties recognize that Supreme Court precedent clearly establishes that Hutchins could not refuse to reappoint deputy sheriffs for unconstitutional reasons, they disagree on the proper analysis that the court should apply on remand. ⁹ Two related lines of cases have evolved--"those involving employee expression and those involving 'raw political patronage.' " Terry v. Cook, 866 F.2d 373, 375 (11th Cir.1989). In cases involving employee expression, the balancing test stated in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), requires the court to balance "the interest 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." Id. at 568, 88 S.Ct. at 1734-35. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court articulated the standard to be applied in political patronage cases: "[C]onditioning the retention of public employment on the employee's support of the in-party ... 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." Id. at 363, 96 S.Ct. at 2685. Conditioning employment on political patronage, however, may be constitutionally acceptable if the "hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980). Both the Pickering and...