Nunnery v. Barber, 73-2502

• Citation: 503 F.2d 1349
• Decision Date: 18 September 1974
• Docket Number: No. 73-2502,73-2502
• Parties: Janice C. NUNNERY, an Individual, Appellant, v. J. Richard BARBER, as an Individual, and in his official capacity as the WestVirginia Alcohol Beverage Control Commissioner, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1349

503 F.2d 1349

Janice C. NUNNERY, an Individual, Appellant, v. J. Richard BARBER, as an Individual, and in his official

capacity as the WestVirginia Alcohol Beverage

Control Commissioner, Appellee.

No. 73-2502.

United States Court of Appeals, Fourth Circuit.

Argued April 4, 1974.

Decided Sept. 18, 1974.

John Boettner, Jr., Charleston, W.Va., for appellant.

William R. Wooton, Asst. Atty. Gen. (Chauncey H. Browning, Jr., Atty. Gen., of West Virginia, on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and BUTZNER and RUSSELL, circuit judges.

DONALD RUSSELL, Circuit Judge:

Plaintiff is a discharged manager of a state-operated liquor store in West Virginia. Contending her discharge was for patronage purposes and thereby violated her First Amendment rights, and was without due process, she sued the West Virginia Alcohol Beverage Control Commissioner both individually and officially for affirmative injunctive relief restoring her to her former position and for actual and punitive damages. She based federal jurisdiction on 1983, 42 U.S.C., and 1343, 28 U.S.C. The Commissioner moved to dismiss the action for want of jurisdiction under the Eleventh Amendment and for failure to state claim upon which relief could be granted. The District Court granted the motion on the second ground without considering the application of the Eleventh Amendment. Nunnery v. Barber (D.C.W.Va.1973), 365 F.Supp. 691. ¹ The plaintiff has appealed. We affirm.

The plaintiff's action represents a challenge to the 'patronage' or 'spoils' system of public employment. ² Such an attack is not novel. For more than a century, the system has been under attack. ³ Generally the attack has been directed toward legislative action as the proper source of relief. And both federal and state governments have responded with civil service laws providing a merit system for public employment and giving public employees in certain classifications protection against discharge for patronage reasons. ⁴ West Virginia has enacted such a law. ⁵ When, however, resort has been had by public employees to the courts for relief independently of the legislated civil service laws or regulations, (i.e., by employees not within 'the classified service') the claim has received scant consideration; and this has been true whether the claim was premised on the constitutional right of free speech, equal protection or due process. ⁶ As the District Court in its opinion observed, the reason generally assigned for this denial of judicial relief is that the proper forum for relief is considered to be the legislature and not the courts. A recent case, expressive of this viewpoint and representing what until that time had been the uniform answer to this claim, is Alomar v. Dwyer, supra. In dismissing a claim of invalidity of a discharge of a non-policy-making public employee ⁷ for patronage reasons on constitutional grounds, the Court said (pp. 483-484 of 447 F.2d):

'The spoils system has been entrenched in American history for almost two hundred years. The devastating effect that such a system can wreak upon the orderly administration of government has been ameliorated to a large extent by the introduction of the various Civil Service laws. However, it is well understood that the victors will reap the harvest of those public positions still exempt from such laws. Indeed many such positions are exempt because a new administration taking office can only carry out its policies by replacing certain officeholders. If and when additional exempt positions are to be subject to civil service protection is a matter for action by the appropriate municipal and state authorities and not by a federal court.' ⁸

A little over a year after the decision in Alomar, the Seventh Circuit, in a decision 'without direct precedent', as several commentators have remarked, ⁹ departed from the accepted rule as stated in that case and for the first time granted constitutional protection of political association to patronage employees. Illinois State Employees Union, Council 34, etc. v. Lewis (7th Cir. 1972), 473 F.2d 561, cert. denied, 410 U.S. 928 and 943,93 S.Ct. 1364, 1370, 35 L.Ed.2d 590, 609. ¹⁰ While the Court in this case accepted the premise that only the legislature may impose on the state a civil service system assuring impartiality in either the employment or retention of public employees, it held that such principle did not inhibit a court from prohibiting on constitutional grounds the dismissal of a patronage employee having no civil service status for patronage reasons. ¹¹ Taking a realistic, rather than an abstract, view of the matter however, the Court made it clear that this was not an absolute rule applicable in all cases; it was a rule which the Court expressly held did not extend protection to all public employees. ¹² On the contrary, the constitutional principle was declared to establish a flexible rule that varied in its application with the classification of the employee and the nature of his duties. There were, and of necessity had to be, exceptions to the rule; there were, the Court freely conceded, classes of public employees who were not entitled to invoke the constitutional principle it was enunciating. Thus, it emphasized in its opinion that it did not 'challenge the public executive's right to use political philosophy or affiliation as one criterion in the selection of policy-making officials. Moreover, considerations of personal loyalty, or other factors besides determination of policy, may justify the employment of political associates in certain positions. It is difficult to believe, however, that any such justification would be valid for positions such as janitors, elevator operators or school teachers. Thus, again, jurisdiction is a matter of proof, or at least argument, directed at particular kinds of jobs. The possibility of such valid justification for some positions does not afford a basis for dismissing all of plaintiffs' claims without a trial.' (473 F.2d at p. 574)

The Court stated throughout its opinion that the rule it was expounding related only to the rights of 'maintenance workers, elevator operators, janitors, and comparable employees', or, as it expressed it at another point, of 'janitors, elevator operators or school teachers', (473 F.2d at pp. 574-575) employees who normally cannot in their employment adversely affect the policy-making or implementation functions of government and employees 'performing merely routine functions not requiring the exercise of an informed discretion or the formulation of underlying rationales for government action.' Indiana State Employees Association, Inc. v. Negley, supra (365 F.Supp. at p. 232). In short, Lewis, it seems fair to assume, was intended to extend its mantle of constitutional protection only to those public employees whose duties were 'routine', involving the exercise of no administrative policy or public duties as broadly defined and that is the reach of the decision on this point, as we read it. ¹³

It is true, the opinion in Lewis may be thought to make a vague distinction between what it describes as 'policy-making' employees and 'non-policy-making' employees and does indicate that its rule extends generally to 'non-policy-making' employees. But the Court attempted no authoritative or precise definition of 'policy-making' and 'non-policy-making'; and these terms as used in the opinion, contribute little to determining with exactness or finality those employees who are or are not entitled to the protection of the rule the Court is promulgating. As the editor in 14 Wm. & Mary L.Rev., 720 at 729-30, commenting on this case, phrased it, '(a) related problem is that of defining the protected class. The most common proposal is that persons in policy making positions be excluded. Such a distinction proves simple at either end of the employment spectrum, but would be almost impossible to accomplish where the groups shade together.'

Judge Campbell in his concurring opinion also recognized the 'definitional problem' represented in attempting to fix the application of the rule by the use of such broad, general terms as 'policy-making' and 'non-policy-making'. He stated the problem in these words:

'* * * It is simple enough to say that janitors, clerk-typists and elevator operators are 'non-policy making' employees, but how far up in the bureaucratic echelon can the distinction be judicially drawn? What about a janitorial supervisor, the director of a stenographic pool, a personnel manager, a deputy assistant division head, a deputy director, or even a secretary to a top echelon director or department head who may have access to confidential information? As Judge Stevens so aptly states, there may be instances when political affiliation constitutes a proper qualification for public employment, particularly in the selection and appointment of 'policy-making' officials. Indeed, no one has challenged the right of an elected official to appoint to such positions and for whatever reasons he deems proper, persons in whose loyalty and competence he had the highest confidence. The difficulty arising in attempting to fashion an appropriate and workable judicial standare for distinguishing between 'policy-making' and 'non-making' positions. In my judgment, the constitution would permit a public official to hire or dismiss on the basis of political association any employee engaged directly or indirectly in the formulation or implementation of the policies of the particular governmental office or agency. A more precise standard is difficult to articulate and thus the true impact of today's decision must necessarily await case by case determination.' (473 F.2d at p. 578)

Moreover, the lead opinion was at pains, ¹⁴ it would seem, to indicate it was not using the term 'policy-making' as an absolute criterion in the application of its rule. It unquestionably envisaged a broader basis for immunity from...