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                                                                             [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 15-13961
                             ________________________

                         D.C. Docket No. 0:12-cv-62406-WJZ



JEFFREY STANLEY,

                                                      Plaintiff - Appellant,

versus

BROWARD COUNTY SHERIFF,
Scott Israel, in his official capacity,

                                                      Defendant - Appellee.

                             ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                  (December 14, 2016)

Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG, * Judge.



         *
          Honorable Richard W. Goldberg, Judge for the United States Court of International
Trade, sitting by designation.
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MARCUS, Circuit Judge:

       Florida law requires the counties of the state to designate a chief correctional

officer (CCO), but it gives counties broad discretion to decide who that officer may

be. Thus, for example, a county may (but need not) choose to designate its sheriff

as its CCO, so long as it selects someone for that position. The sheriff as CCO

may then hire and fire deputies to assist him with his responsibilities, and he may

therefore face liability for personnel decisions that violate an employee’s

constitutional rights. However, if the sheriff was acting as an arm of the state, he

will be immune from suit in federal court on account of the Eleventh Amendment.

Whether a sheriff acts as an arm of the state is a function-specific determination

that is based heavily on a detailed analysis of state law, and is often a difficult

question, as it is here.

       This case arises from the Broward County Sheriff’s potential liability under

§ 1983 for failing to rehire a former deputy allegedly due to his political loyalties

and in violation of his First Amendment rights. Broward County has expressly

designated its sheriff as its CCO; thus, at issue in this case is the basic question

whether a Florida county sheriff, acting in his capacity as chief correctional officer

in the hiring and firing of his deputies, is an arm of the state entitled to the benefit



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of the state’s Eleventh Amendment immunity from suit in federal court. After

careful review, and having the benefit of oral argument, we conclude that a Florida

sheriff is not an arm of the state when acting in this capacity. We, therefore,

reverse the district court’s grant of summary judgment for the Sheriff and remand

to the district court for further proceedings consistent with this opinion.

                                           I.

      The plaintiff, Jeffrey Stanley, worked for the Broward County Sherriff’s

Office (BSO) as a cross-certified detention deputy -- a deputy sheriff who is also

certified to partake in specific law enforcement duties such as maintaining

perimeter posts and transporting certain prisoners. Stanley worked for the BSO for

six years before voluntarily resigning in December 2007 to take a position as

director of security at a new hospital in Miami Beach. The hospital was scheduled

to open in January 2008, but it failed to open as planned, and, in May 2008,

Stanley applied to be rehired at his same position with the BSO.

      When a former employee is rehired, BSO policy sets his pay grade lower

than it was at the time he left. This policy was apparently designed to deter law

enforcement officers from moving to other law enforcement agencies and then

returning if they failed their training or certification requirements. Stanley found

out about this policy upon reapplication, but he believed that the policy should not

have applied to him since he did not leave BSO for a different law enforcement

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agency. He expressed his dissatisfaction with the policy and contacted union

representatives, BSO Human Resources, and then-Sheriff Al Lamberti himself to

voice his concerns. Nonetheless, Stanley was extended and then accepted a

conditional offer of employment as a detention deputy at the lower pay grade on

September 25, 2008. This offer was contingent on successful mental and physical

evaluations and a final review of his file.

      At the time of Stanley’s application for rehire, Sheriff Lamberti was running

for reelection against his political adversary, Scott Israel. The Federation of Public

and Private Employees, Stanley’s union, chose to endorse Israel. Stanley openly

supported Israel’s campaign, allegedly due in part to his disappointment with the

rehire pay policy. Stanley attended an informal union picket in front of the BSO

with approximately five hundred union members while wearing a “Cops for Israel”

t-shirt. Later that evening, he attended a televised debate between Lamberti and

Israel while wearing a different “Cops for Israel” t-shirt. At both events, BSO

photographers took pictures of the attendees; Stanley appeared in some of these

photographs. Stanley also volunteered for the Israel campaign in the weeks

leading up to the election.

      Lamberti was reelected on November 4, 2008. On December 4, 2008,

Stanley spoke with his former supervisor to inform her that he had satisfied his end

of the conditions of his employment offer. Later that day, Stanley received a

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phone call from then-Lieutenant David Benjamin, Lamberti’s executive officer,

informing him that BSO was not going to rehire him because they had seen

photographs of Stanley wearing a t-shirt in support of Israel. Stanley testified that

during this conversation, Benjamin told him “that the sheriff stated that since

[Stanley] didn’t support him, he was not going to support [Stanley] in rehiring

him.” The decision was made final in a letter from BSO dated December 8, 2008,

which rescinded Stanley’s employment offer because “areas of concern arose

during the selection process.”

      Stanley filed a formal complaint against BSO with the Public Employees

Relations Commission on May 7, 2009; the hearing officer found for Stanley. That

decision was later reversed by Florida’s First District Court of Appeals. See Sheriff

of Broward Cty. v. Stanley, 50 So. 3d 640 (Fla. Dist. Ct. App. 2010). Stanley then

commenced this lawsuit in the United States District Court for the Southern District

of Florida against Lamberti in his official capacity, alleging violations of his First

Amendment rights pursuant to 42 U.S.C. § 1983.

      Meanwhile, Israel again challenged Lamberti at the ballot box in 2012, and

this time he won; he took office in January 2013. In August 2013, Stanley’s

complaint survived a motion to dismiss. On September 9, 2013, Stanley substituted

Sheriff Israel as the defendant because Lamberti had been sued in his official

capacity and was no longer Sheriff. See Fed. R. Civ. P. 25(d). Following

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discovery, BSO’s motion for summary judgment was denied. The case then

proceeded to trial; a jury was selected on January 14, 2015, and the trial was

scheduled to begin the next day. However, on January 13, 2015, this Court issued

an opinion in Pellitteri v. Prine, 776 F.3d 777 (11th Cir. 2015), which held that a

Georgia sheriff is an “arm of the State” for Eleventh Amendment purposes when

exercising his power to hire and fire deputies. Id. at 779. BSO first learned about

this holding on the evening of January 14, and it brought the case to the district

court’s attention on the morning of January 15. The court postponed the trial and

ordered additional briefing regarding the question of Eleventh Amendment

immunity in light of Pellitteri. After this briefing, BSO again moved for summary

judgment. The court granted BSO’s motion on September 1, 2015, and Stanley

appealed that decision.

      Stanley’s complaint originally included five prayers for relief: (1) a

declaratory judgment that Lamberti’s actions violated Stanley’s First Amendment

rights; (2) an injunction against Lamberti, his successors, or his coworkers from

retaliating against Stanley; (3) damages against Lamberti in his official capacity;

(4) costs and fees against Lamberti in his official capacity; and (5) other relief as is

just. Stanley later conceded that the third item, damages in Lamberti’s official

capacity, was a “typographical-error relic” from before the decision to sue




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Lamberti in only his official capacity, and he withdrew that claim. Thus, his

remaining claims are for declaratory and injunctive relief, plus costs and fees.

                                          II.

      “We review a district court’s grant of summary judgment de novo, viewing

all of the facts in the record in the light most favorable to the non-movant.”

Haynes v. McCalla Raymer, LLC, 793 F.3d 1246, 1249 (11th Cir. 2015)

(quotations omitted). Summary judgment is proper if “there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). District court decisions regarding Eleventh Amendment

immunity are also reviewed de novo. See Pellitteri, 776 F.3d at 779.

                                          A.

      The Eleventh Amendment to the Constitution protects states from being

subjected to suit in federal court. The Amendment provides:

      The 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. The Supreme Court has extended this protection to also

bar suits against a state in federal court brought by the state’s own citizens. See

generally Hans v. Louisiana, 134 U.S. 1 (1890). However, “the Eleventh

Amendment does not immunize municipalities from suit.” Abusaid v.

Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1301 (11th Cir. 2005); see
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also Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690 n.54 (1978)

(noting the absence of “any basis for concluding that the Eleventh Amendment is a

bar to municipal liability”). An officer, therefore, is entitled to Eleventh

Amendment immunity if he is acting as an arm of the state but not if he is acting as

an arm of the county.

      The Supreme Court has clarified that in making an arm-of-the-state

determination, the question is not whether the officer acts for the state or the

county “in some categorical, ‘all or nothing’ manner.” McMillian v. Monroe Cty.,

Ala., 520 U.S. 781, 785 (1997). Rather, we “ask whether governmental officials

are final policymakers for the local government in a particular area, or on a

particular issue.” Id. The result is a function-specific determination -- “we are not

seeking to make a characterization of [ ] sheriffs that will hold true for every type

of official action they engage in.” Id.

      Following the Supreme Court’s guidance in McMillian, this Court adopted a

function-specific approach to the arm-of-the-state analysis. See Manders v. Lee,

338 F.3d 1304, 1308 (11th Cir. 2003) (en banc) (“Whether a defendant is an ‘arm

of the State’ must be assessed in light of the particular function in which the

defendant was engaged when taking the actions out of which liability is asserted to

rise.”). Manders solidified a four-factor test to be used in making such

determinations: “(1) how state law defines the entity; (2) what degree of control the

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State maintains over the entity; (3) where the entity derives its funds; and (4) who

is responsible for judgments against the entity.” Id. at 1309. These factors are

evaluated in light of the specific function at issue. Id. at 1308.

      We have never addressed the precise question at issue in this case, but a trio

of cases -- Manders, Abusaid, and Pellitteri -- bears heavily on our decision.

Because the analysis in each case is peculiarly dependent on facts and on state law,

we detail these precedents at some length.

      Although it addressed neither the function nor the state law at issue today,

Manders is important because it established the four-factor test in light of the

Supreme Court’s decision in McMillian. Manders involved a determination of

whether a Georgia sheriff was acting as an arm of the state in establishing a use-of-

force policy at a jail and training his deputies accordingly. Manders, 338 F.3d at

1305–06. In concluding that the sheriff was an arm of the state, the Manders Court

first emphasized that Georgia’s sheriffs are defined as separate constitutional

offices independent from their counties and that “counties delegate no power or

authority to sheriffs.” Id. at 1319. Specifically, “[t]he sheriff’s authority to use

force . . . and the sheriff’s obligation to administer the jail are directly derived from

the State and not delegated through the county entity.” Id. Second, there was a

high degree of state control because Georgia required annual specialized training

of sheriffs in all counties, and we found it “reasonable to assume that such training

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includes instruction on force policy.” Id. at 1320. In contrast, the counties had “no

authority, control over, or involvement in” the sheriff’s force policy at the jail. Id.

at 1322. Third, although the county bore “the major burden of funding [the

sheriff’s] office and the jail,” this characteristic was not dispositive because the

state had mandated that structure and because the state funded sheriffs’ training

programs. Id. at 1323. The fourth and final factor -- the payment of adverse

judgments -- was not clearly in favor of either side. But with three of the four

factors pointing decidedly toward immunity, the Court concluded that, “at a

minimum, the liability-for-adverse-judgment factor [did] not defeat” the Sheriff’s

immunity claim. Id. at 1328.

      Manders is informative but not dispositive in this case because it addressed a

Georgia sheriff. Given the weight of state law in this analysis, cases involving

Florida sheriffs are more instructive. See Manders, 338 F.3d at 1309 n.10

(“[S]tates have extremely wide latitude in determining their forms of government

and how state functions are performed.”); McMillian, 520 U.S. at 786 (“[O]ur

understanding of the actual function of a governmental official, in a particular area,

will necessarily be dependent on the definition of the official’s functions under

relevant state law.”). In Hufford v. Rodgers, 912 F.2d 1338 (11th Cir. 1990), a

panel of this Court held that “the Eleventh Amendment does not protect Florida

sheriffs from liability under section 1983.” Id. at 1342. Cases involving Florida

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sheriffs after Hufford have uniformly followed that decision and have entertained

§ 1983 suits against sheriffs in various situations. See, e.g., Hutton v. Strickland,

919 F.2d 1531, 1542 (11th Cir. 1990) (repossessing property); Ortega v. Schramm,

922 F.2d 684, 694 (11th Cir. 1991) (searching and arresting); Rivas v. Freeman,

940 F.2d 1491, 1495 (11th Cir. 1991) (arresting and detaining suspects); Schmelz

v. Monroe Cty., 954 F.2d 1540, 1543 (11th Cir. 1992) (supervising inmates);

Edwards v. Okaloosa Cty., 5 F.3d 1431, 1432 (11th Cir. 1993) (supervising

inmates); Gordan v. Cochran, 116 F.3d 1438, 1439 n.1 (11th Cir. 1997)

(discharging administrative employees). 1

       Hufford and its pre-Manders progeny did not undertake the function-by-

function analysis mandated by McMillian and Manders. This Court’s lone post-

Manders case addressing Florida sheriffs is Abusaid, which determined that a

Florida county sheriff does not act as an arm of the state when enforcing a county

ordinance. Abusaid, 405 F.3d at 1304. The Court marched through the Manders

factors, starting with the state law definition: Florida’s constitution labels sheriffs

“county officers” and “expressly authorizes counties to abolish the office of the

sheriff altogether.” Id. at 1305 (citing Fla. Const. art. VIII, § 1(d)). The degree-of-



1
  In Gordon, former employees of the Broward County Sheriff’s office brought a § 1983 action
against the sheriff, alleging that they were discharged by the new sheriff because they had
opposed his candidacy. Gordon, 116 F.3d at 1439. However, the analysis in that case focused
on whether political loyalty was an appropriate requirement for the plaintiffs’ various jobs. See
id. at 1440–41. Gordon ultimately offers us little help in this case, despite its factual similarities.
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control factor, while “arguably mixed,” weighed against immunity because

individual counties had “substantial discretion over how to utilize” the sheriff. Id.

at 1306. In this particular case, the Sheriff was acting “pursuant to [an] express

grant of authority by the County” and “acting on behalf of the County” to enforce

its ordinance. Id. at 1310. The source of funds also weighed against immunity

because even some residual state control left “unaltered the fundamental fact that

the sheriffs’ funds are derived entirely from their respective counties.” Id. at 1311.

Finally, the Court concluded that the adverse-judgment factor also weighed against

immunity, because no state statute provided funds for payment but “counties

certainly may be—and have been—held liable for a judgment against a sheriff.”

Id. at 1313.

      Abusaid did not address the function at issue in this case -- the hiring and

firing of deputies while acting in the capacity of chief correctional officer. The

closest we have come to addressing that precise function is in Pellitteri. In that

case, this Court determined that a Georgia sheriff acts as an arm of the state when

hiring and firing his deputies. Pellitteri, 776 F.3d at 778. As for the first factor,

the Court emphasized that “sheriffs in Georgia derive their power and duties from

the State, are controlled by the State, and counties cannot, and do not, delegate any

law enforcement power or duties to sheriffs.” Id. at 780 (quoting Manders, 338

F.3d at 1313). Specifically, “the authority of sheriffs to employ personnel is also

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derived from the State.” Id. The state maintained control over hiring and firing by

regulating the certification process for peace officers, disciplining peace officers

for misconduct, and giving the Governor broad investigative and suspension

powers. See id. at 781. Any deputies hired would “assist [sheriffs] in executing

their own duties, which have been delegated to them by the State.” Id. at 782.

Funding was also controlled by the state because state law required counties to set

budgets for their sheriffs. See id. While the adverse-judgment factor “weigh[ed]

in favor of denying immunity,” it was outweighed by the first three factors and

immunity was proper. Id. at 783.

                                          B.

       With these cases in mind, we apply the Manders analysis to a Florida

sheriff acting in his capacity as Chief Correctional Officer (CCO) in the hiring and

firing of deputies. Because the overall weight of the factors tips on the side of

county status, we conclude that a Florida sheriff acting in this capacity is not

entitled to Eleventh Amendment immunity.

                                          1.

      Again, the first factor -- how state law defines the entity -- weighs toward

county status. Notably, state law defines sheriffs as county officers, and it gives

counties the discretion to choose their CCOs. These characteristics are indicative

of county status, and the district court’s opposite conclusion was due in part to its

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reliance on Pellitteri. The Florida constitution names the sheriff as one of several

“county officers,” and provides that a county is free to abolish any county office,

including the sheriff’s office, as long as those duties are assigned to another officer.

See Fla. Const. art. VIII, § 1(d). As we have previously concluded, this definition

“weighs heavily against assigning arm of the state status to a Florida sheriff.”

Abusaid, 405 F.3d at 1305.

      State law creates the position of CCO and requires county commissioners to

“designate a chief correctional officer and such correctional officers as they deem

necessary.” Fla. Stat. § 951.06(1). The Florida constitution does not define “chief

correctional officer.” “Correctional officer” is statutorily defined as “any person

who is appointed or employed full time by the state or any political subdivision

thereof, . . . whose primary responsibility is the supervision, protection, care,

custody, and control, or investigation, of inmates within a correctional institution.”

Id. at § 943.10(2). The CCO’s responsibilities are statutorily defined: he “shall see

that all rules and regulations prescribed by law or the department are fully

observed and complied with; enforce discipline among the prisoners in and about

the camps; and administer punishment to prisoners.” Id. at § 951.06(2).

Importantly, a county may, but need not, choose to designate its sheriff as its CCO

in satisfaction of § 951.06, so long as it selects someone for that position. See id.

at § 951.061(1). This was not the case until § 951.061 was enacted in 1986; before

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then, Florida sheriffs had “no inherent or constitutional duty to maintain a county

jail.” Feldman v. Brescher, 561 So. 2d 1271, 1272–73 & n.3 (Fla. Dist. Ct. App.

1990). Thus, the county may designate its sheriff the CCO if he is to have those

responsibilities at all.

       Broward County has enacted an ordinance designating the Broward County

Sheriff as the CCO of the Broward County Correctional System. See Broward Cty.

Ord. § 18-01(a). That County ordinance instructs the Sheriff, as CCO, to

(1) “appoint such officers as he deems necessary . . . to perform the duties of chief

correctional officer”; (2) “enforce all existing state laws, administrative rules of the

Florida Department of Corrections, and rules of the Broward County

Administrative Code, concerning the operation and maintenance of county jails”;

and (3) “include salaries for county correctional officers in his proposed budget of

expenditures.” Id. at § 18-01(b). The Broward County Administrative Code

specifies that “[t]he Sheriff, as the Chief Correctional Officer, is solely responsible

for the operation of the existing correctional System.” Broward Cty. Admin. Code

§ 18.40(a). The Sheriff exercises this responsibility solely because Broward County

designated him as its CCO.

       The district court construed the county’s ability to choose its CCO as a

characteristic favoring immunity because the state created the CCO position and

charged the CCO with enforcing state laws. This conclusion was based on its

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reading of Pellitteri. But we think there are two powerful differences between

Florida’s and Georgia’s laws. First, the Florida constitution leaves with the county

the choice of whether to have a sheriff’s office at all, while the Georgia

constitution does not. Compare Fla. Const. art. VIII, § 1(d) (“[A]ny county office

may be abolished when all the duties of the office prescribed by general law are

transferred to another office.”), with Ga. Const. art. IX, § 1, ¶ III (providing for the

election, terms, and salaries of county officers but not discussing the ability to

abolish the sheriff’s office). Second, Georgia does not have a separate position

equivalent to CCO. While Georgia statutes occasionally refer to the “chief law

enforcement officer” of a county, that term is nowhere defined in state law.

Georgia sheriffs are, “[b]y virtue of their offices,” the jailers of their counties and

have the authority to appoint other jailers. Ga. Code Ann. § 42-4-1(a). In sharp

contrast, Florida creates a separate position of CCO that is responsible for

overseeing county jails. See Fla. Stat. § 951.06. Florida then gives to the county

the additional choice whether to assign that position to a person who functions

solely as the CCO, to the sheriff pursuant to § 951.061, or even to a private entity

under § 951.062. Only if the county designates the sheriff as CCO is he tasked

with the responsibility of running the county’s correctional facilities. Thus,

Florida’s laws (unlike Georgia’s) define the CCO role in a way that affords great




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discretion to the counties, and this weighs heavily against Eleventh Amendment

immunity.

                                           2.

      The second Manders factor -- degree of state control -- presents a closer call.

While sheriffs may appoint deputies free from state or county interference, the

state sets minimum hiring qualifications that deputies must satisfy. This is a strong

indicia of state control, and our recent opinion in Pellitteri addressed a similar

situation in Georgia and reached the same conclusion. In this case, however, we

find this power counterbalanced by a county’s unilateral ability to designate its

CCO and by a county’s involvement in the removal of deputies.

      Of importance in this case is the sheriff’s capacity as CCO. The state exerts

some control over the various capacities in which a sheriff acts by codifying a set

of responsibilities in Fla. Stat. § 30.15. But, as we noted in Abusaid, “this list does

not alter the ability of a county to assign its sheriff whatever additional duties it

sees fit”; and “many of the functions assigned to the sheriff are carried out either at

the sole discretion of the county or on behalf of the county.” Abusaid, 405 F.3d at

1309–10. And as we have noted, Florida sheriffs receive those responsibilities only

if the county makes the designation; control over that critical decision is vested

solely in the county.




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      An examination of control over the hiring and firing of the CCO’s deputies

is more mixed. Florida’s sheriffs have the power to appoint deputies as they wish.

See Fla. Stat. § 30.07. The sheriffs’ decisions in this regard are protected from

state or county interference by statute: “The independence of the sheriffs shall be

preserved concerning the purchase of supplies and equipment, selection of

personnel, and [ ] hiring, firing, and setting of salaries of such personnel.” Id. at

§ 30.53. This independence extends to sheriffs acting in their capacity as CCO,

because state law allows a sheriff as CCO to “appoint such officers as he or she

deems necessary.” Id. at § 951.061(1). A sheriff acting as CCO can thus appoint

deputies without state or county interference.

      State law gives the Governor some control over removal of the sheriff: he

may suspend county officers “for malfeasance, misfeasance, neglect of duty,

drunkenness, incompetence, permanent inability to perform official duties, or

commission of a felony.” Fla. Const. art. IV, § 7(a). However, the state has little

involvement in the removal of deputies, be they deputy sheriffs or deputy

correctional officers. The state allows sheriffs to remove deputies with written

notice, see Fla. Stat. § 30.073(3), and state law lists one instance in which the

county must remove a misbehaving correctional officer. See id. at § 951.06(3)

(“All boards of county commissioners shall immediately discharge any

correctional officer who shall be guilty of gross negligence or cruel and inhuman

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treatment of prisoners under their control.”). These provisions leave the counties

free to implement additional removal procedures, as Broward County has done. In

fact, Broward County’s removal ordinance is more detailed than the state statutes:

it allows the county sheriff to remove full-time deputy sheriffs of rank lieutenant

and below for cause after notice and a hearing, while other employees are

removable at will. See Broward Cty. Ord. § 18-6(b)(2), (d)(2)–(3). Although a

county’s removal decisions have to be reported to the state, see Fla. Stat.

§ 943.139(2), merely reporting such decisions does not automatically impose state

control over the decision.

       The strongest indicia of state control over personnel decisions is found in

state law that requires sheriffs and their deputies to meet certain statutory

qualifications and baseline requirements before they may be hired. See id. at

§§ 30.073, 943.13. Florida created the Criminal Justice Standards and Training

Commission (CJSTC) to monitor compliance with those standards and to govern

the training and certification of correctional officers. See id. at §§ 943.11, 943.12.2

Counties have no control over the CJSTC’s actions, but they are free to impose

additional or more-stringent requirements on top of the statutory minimums. See

       2
         The CJSTC has nineteen members, including three state officers (Secretary of
Corrections, Attorney General, and Director of the Division of Florida Highway Patrol) and
sixteen members appointed by the Governor. Fla. Stat. § 943.11(1)(a). Each of the sixteen
members appointed by the Governor is “accountable to the Governor for the proper performance
of the duties of his or her office” and is removable by the Governor for “malfeasance,
misfeasance, neglect of duty, incompetence, or permanent inability to perform official duties,” or
for pleading guilty to or being found guilty of a felony. Id. at § 943.11(1)(d).
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id. at § 943.137(1). If a county sets higher standards, the CJSTC will recognize

and uphold those standards. See id. at § 943.137(2).

      In Pellitteri, a structure like the one Florida has devised with the CJSTC was

treated as a strong indication of state control. The Georgia legislature created a

similar committee -- the Peace Officer Standards and Training Council -- and set

similar minimum qualifications. See Ga. Code Ann. §§ 35-8-3, 35-8-7.1. The

Pellitteri panel concluded that “[t]hese threshold requirements for serving as a

peace officer in Georgia significantly limit a sheriff’s discretion when hiring

potential deputies.” Pellitteri, 776 F.3d at 781. We agree that the state exerts

greater power than the county in this regard.

      While this factor is close, we conclude that it ultimately weighs toward

county status and against immunity. Of primary importance is the fact that in

Florida, the county controls whether the sheriff will act as CCO at all or whether

those responsibilities will be assigned elsewhere. This characteristic, along with a

county’s ability to regulate the removal of deputies, sufficiently counterbalances

the state-controlled nature of the CJSTC.

                                          3.

      The third factor -- the source of funding -- also points toward county status.

The fact that a sheriff’s budget is funded entirely by the county, even when he acts




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as CCO, is a strong indicator of county control that is not outweighed by the fact

that the state maintains some control over the budget review process.

      While state law sets sheriffs’ salaries and requires that sheriffs’ budgets

include their deputies’ salaries, see Fla. Stat. §§ 30.49(4), 145.071, this Court has

previously found “nothing in Florida law to suggest that the state contributes any

money at all to its sheriffs.” Abusaid, 405 F.3d at 1310. The sheriff is “financially

accountable to his county and only to his county, since he must pay any money his

office earns into the county treasury.” Id. at 1312. The sheriff’s budget must be

approved by the county, and the salaries of correctional officers are funded from

the general revenue of the county. See Fla. Stat. §§ 30.49, 951.06(5); Broward

Cty. Ord. § 18-01(c). And while the sheriff’s salary is set by state legislature,

correctional officers’ salaries are fixed by the board of county commissioners.

Compare Fla. Stat. § 145.071, with id. at § 951.06(4).

      Even more telling is the fact that the decision to designate the sheriff as

CCO rests solely within the county’s discretion. If the county does not want to

provide its sheriff with extra funds to fulfill the obligations of CCO, it can choose

to designate a private entity as its CCO. See id. at § 951.062(1). That entity would

enter into a contract with the county for the operation and maintenance of county

jails, the terms of which would be determined by contract between the county and

the entity without state involvement. See id. at § 951.062(1)–(2). Perhaps

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recognizing that sheriffs are good candidates for CCO, the state legislature has

merely simplified the budget process for sheriffs who are so designated and has

allowed them to submit one budget instead of two.

      The state does, however, retain some control over how a sheriff spends its

funds, but that is not enough to tip the scale. State law requires sheriffs who are

also CCOs to include their deputies’ salaries in their county budgets, see id. at

§ 951.061(3), but, again, county revenue is the actual source of the funding. More

salient is the state’s involvement in the budget review process. The sheriff is

required to submit a proposed budget to the board of county commissioners each

year, id. at § 30.49(1), and the commissioners “may amend, modify, increase, or

reduce any or all items” in the proposed budget and must approve the final budget.

Id. at § 30.49(4). But if the sheriff disagrees with the commissioners’ actions, he

may appeal to the Administration Commission -- composed of the Governor and

the members of his Cabinet, id. at § 14.202 -- by filing a petition with the

Executive Office of the Governor. Id. at § 30.49(4)(a). The Administration

Commission’s decision is final, and the county may not alter it except on request of

the sheriff. Id. at § 30.49(5), (8).

      The Pellitteri panel relied on this review process in concluding that the

funding factor is indicative of arm-of-the-state status. The district court agreed

with that conclusion, in part because it understood Pellitteri as shifting the third-

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prong analysis from the source of funds to the degree of control the state maintains

over how the entity spends its funds. See Pellitteri, 776 F.3d at 782 (“[A]lthough

each county sets the total budget for the sheriff’s office, it cannot dictate how the

sheriff spends those funds.”). In Abusaid, however, we suggested that control over

budgeting is more properly considered under the second prong. See Abusaid, 405

F.3d at 1311. But “even if state control over the budgeting process were the proper

inquiry, this third factor would still weigh against arm of the state status” for

Florida sheriffs. Id. at 1312. This conclusion is even stronger, we think, for a

sheriff acting as CCO, because the county determines whether the sheriff will act

in that capacity at all and sets correctional officers’ salaries. The third factor thus

weighs against arm-of-the-state status.

                                           4.

      The final factor -- responsibility for adverse judgments -- also weighs

against immunity, as BSO conceded in its motion for summary judgment on the

Eleventh Amendment question. D.E. 145 at 6 (“The Broward Sheriff concedes

that as in Pellitteri, the fourth Manders factor . . . does not weigh in favor of BSO’s

argument of Eleventh Amendment immunity.”). This point was again conceded on

appeal. Appellee’s Brief at 25 (“BSO concedes that the fourth Manders factor . . .

does not weigh in favor of arm of the State status.”). It is enough for us to note

that “no provision of Florida law provides state funds to a Florida sheriff to satisfy

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a judgment against the sheriff,” Hufford, 912 F.2d at 1342, and that “neither the

State nor the County will be required to directly pay for any adverse judgment

against the Sheriff’s office.” Pellitteri, 776 F.3d at 783; see also id. (“[T]o the

extent that the state treasury will be spared here from paying any adverse

judgment, this factor weighs in favor of denying immunity.”). But because the

issue is not contested here, the fourth factor can summarily be taken in favor of

county rather than state status.

       While the issue of state or county control is a close question, and we

commend the district court for the care with which it undertook this analysis, we

conclude that the four Manders factors taken in concert ultimately indicate that a

Florida sheriff is not an arm of the state when he is acting in his capacity of CCO

in the hiring and firing of his deputies.

                                                IV.

       Stanley’s second claim is that even if BSO is an arm of the state, he was still

entitled to declaratory and injunctive relief. However, in entering final judgment

for BSO, the district court did not address equitable relief. We, therefore, decline

to rule on that claim and instead remand the matter in the first instance to the

district court for a decision.3


3
  The district court may also consider whether Stanley’s claims for declaratory and injunctive
relief are moot, since it is unclear on this record whether Stanley has requested reinstatement or
reapplied for his position.
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      State law impacts many aspects of a sheriff’s actions taken in his capacity of

CCO, including personnel decisions. But the designation of the sheriff as the CCO

is a decision that rests solely with the county. Broward County has made that

designation, and its sheriff performs his duties in this function because of the

county’s action. In light of our review of the Manders factors, the district court’s

grant of summary judgment in favor of BSO is REVERSED and the case

REMANDED to the district court.

      REVERSED and REMANDED.




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