     Case: 11-60829      Document: 00511837862        Page: 1      Date Filed: 04/27/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           April 27, 2012
                                     No. 11-60829
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

PATRICIA LEE,

                                                  Plaintiff–Appellant
v.

WASHINGTON COUNTY, A Mississippi corporate body politic and its Board
of Supervisors,

                                                  Defendant–Appellee



                      Appeal from the United States District Court
                        for the Northern District of Mississippi
                                 USDC No. 4:10-CV-16



Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Plaintiff–Appellant Patricia Lee was elected as the Tax Collector for
Washington County, Mississippi in 2003 and was reelected in 2007.                         On
December 15, 2007, a Washington County grand jury indicted Lee for defrauding
the    State     of    Mississippi.       Subsequently,       on    December       19,   the
Defendant–Appellee Washington County Board of Supervisors (“the Board”)
passed a resolution requesting that Mississippi Governor Haley Barbour

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-60829    Document: 00511837862      Page: 2      Date Filed: 04/27/2012



                                  No. 11-20117

suspend Lee from her tax collector position, pending resolution of the criminal
charges, and that he appoint a substitute for the interim. Barbour did so by
executive order on December 26, but appointed an interim tax collector different
from the one requested by the Board. The next day, the Board passed a
resolution accepting Barbour’s suspension of Lee.
      Lee was tried twice for the fraud charges. The first trial resulted in a
mistrial due to a hung jury, and after the second trial, on March 4, 2009, a jury
acquitted Lee of all charges. On March 11, pursuant to a request by the Board,
Barbour reinstated Lee as Washington County Tax Collector.                 Lee then
requested that the Board reimburse her for back wages and benefits from her
period of suspension as well as attorneys’ fees incurred in her criminal defense.
Lee’s request was refused by the Board.
      Lee then filed the present action in the United States District Court for
the Northern District of Mississippi, alleging violations of her procedural due
process rights. Both parties filed for summary judgment, and the district court
held that Lee did not have a property interest in her employment as tax collector
and therefore could not recover. Lee filed a motion for reconsideration. On
reconsideration, the district court held, contrary to its previous decision, that
although Lee did have a property interest in her continued employment, she
failed to establish a violation of her due process rights.
      We review a district court’s judgment on cross-motions for summary
judgment de novo, applying the same standards as the district court. Morgan
v. Plano Indep. Sch. Dist., 589 F.3d 740, 745 (5th Cir. 2009). In so doing, we
address each party’s motion independently, viewing the evidence and inferences
in the light most favorable to the nonmoving party. Id. Summary judgment is
appropriate where the movant shows that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law. Id.; Fed. R.
Civ. P. 56(a). We may affirm summary judgment on any basis supported by the

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                                  No. 11-20117

record. QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 443 (5th Cir.
2009).
      Plaintiffs claiming violations of procedural due process must demonstrate
that the state has deprived them of a liberty or property interest; if such an
interest is established, “we must determine whether the procedures relative to
that deprivation were constitutionally sufficient.” Wilson v. Birnberg, 667 F.3d
591, 601 (5th Cir. 2012) (internal quotation marks omitted). Property interests
protected under the Due Process Clause are not created by the Constitution, but
rather by existing rules or understandings that stem from independent sources,
such as state law. Hampton Nat’l Sur., LLC v. Tunica Cnty., Miss., 543 F.3d
221, 225 (5th Cir. 2008) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 577 (1972)).
      Even assuming, as the district court held on reconsideration, that Lee had
a property interest in her continued employment as tax collector, she cannot
recover because she cannot establish any property interest that the Board
deprived her of. Mississippi law provides: “The salary of assessors and collectors
of the various counties is fixed as full compensation for their services as county
assessors or tax collectors . . . ” Miss. Code § 25-3-3(2). Once Governor Barbour
(a non-party) suspended Lee, she was no longer performing the “services . . . [of
a] tax collector,” which is what is required to receive a salary. Therefore, she
cannot demonstrate any property interest in her salary post-suspension. Cf.
Gilbert v. Homar, 520 U.S. 924, 932 (1997) (“If [her] services to the government
are no longer useful once the felony charge has been filed, the Constitution does
not require the government to bear the added expense of hiring a replacement
while still paying [her].”); see also In re John H. McWilliams, Esq., No. 2003-572,
2003 WL 22536086, at *1 (Op. Miss. Att’y Gen. Oct. 24, 2003).
      Accordingly, we AFFIRM the district court’s grant of summary judgment
to the Board.

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