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                                                                         [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-13628
                           ________________________

                       D.C. Docket No. 5:11-cv-00497-MTT

DOCTOR AWANNA LESLIE,
BETTYE RICHARDSON,

                                                               Plaintiffs - Appellees,

                                       versus

HANCOCK COUNTY BOARD OF EDUCATION,
GWENDOLYN REEVES,
in her individual and official capacity as Superintendent of
Hancock County Schools,
ANTHONY GILCHRIST,
DENISE RANSOM,
ANNIE INGRAM,
AZZALEE WILLIAMS-ASKEW,
PAMELA LAWRENCE-INGRAM,
in their individual and official capacity as members of
the Hancock County Board of Education,

                                                           Defendants - Appellants.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                         ________________________
                                 (July 12, 2013)
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Before PRYOR and JORDAN, Circuit Judges, and PRO, * District Judge.

PRYOR, Circuit Judge:

       This appeal requires us to decide whether we have jurisdiction over an

appeal of a newly elected local school board and whether its individual members

violated the clearly established right to free speech of the superintendent of

education and her assistant superintendent when the board terminated or demoted

them for public comments about local tax policy. While Awanna Leslie served as

the Superintendent of the Hancock County School System and Bettye Richardson

served as Assistant Superintendent, they came to believe that the Hancock County

Tax Commissioner collected taxes at a deficient rate and failed to provide adequate

revenue projections, and they publicly complained about these matters. In

November 2010, a new Board of Education was elected, and the new Board

terminated Leslie and demoted Richardson for their comments about the Tax

Commissioner. Leslie and Richardson filed a complaint against the Board and its

members in both their official and individual capacities alleging that they had been

removed in retaliation for exercising their right to free speech under the First and

Fourteenth Amendments, U.S. Const. Amends. I, XIV; 42 U.S.C. § 1983. The

Board and its officials moved to dismiss for failure to state a claim and asserted the

defense of qualified immunity for the individual members. The defendants argued

*
 Honorable Philip M. Pro, United States District Judge for the District of Nevada, sitting by
designation.
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that the plaintiffs’ speech was not protected by the First Amendment because it

was uttered as part of an employment duty, that the balance of interests outlined in

Pickering v. Board of Education of Township High School District 205, Will

County, Illinois, 391 U.S. 563, 88 S. Ct. 1731 (1968), favored the Board because

the plaintiffs were policymaking or confidential employees, and that qualified

immunity protected the individual members of the Board because any right that

Leslie and Richardson had was not clearly established. The district court denied

the motion to dismiss. The individual members of the Board appealed the denial of

qualified immunity, and the Board and its officials appealed the denial of their

motion to dismiss for failure to state a claim as inextricably intertwined with the

appeal of the individual members. We dismiss the appeal of the Board and its

officials for lack of jurisdiction, and we reverse the denial of qualified immunity

for the individual Board members because it is not clearly established that a

policymaking or confidential employee who speaks about policy, as Leslie and

Richardson did, can prevail under the balancing test of Pickering.

                                I. BACKGROUND

      Awanna Leslie and Bettye Richardson served as the Superintendent and

Assistant Superintendent of the Hancock County School District, respectively. In

early 2009, Leslie and Richardson determined that the Hancock County Tax

Commissioner had been collecting taxes at a deficient rate. Leslie and Richardson

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believed that this deficient collection of taxes led to the underfunding of the School

District. They also believed that the Tax Commissioner failed to provide adequate

projections of tax revenue, which they believed made it impossible for them to

prepare a budget for the school district.

      Leslie and Richardson publicly commented about the failure of the Tax

Commissioner to perform his duties. Leslie commented about deficient property

tax collection at three meetings of the Board of Education and at hearings of the

Hancock County Tax Commission. Her comments also appeared in the Atlanta

Journal-Constitution. In November and December 2009, Leslie also visited the

office of the Tax Commissioner to determine the reason for the deficient collection

of taxes, and Richardson, a member of Leslie’s leadership team, accompanied

Leslie on those trips.

      In November 2010, voters elected new members to all but one of the seats

on the Hancock County Board of Education. The new chair of the Board,

Gwendolyn Reeves, was the sister-in-law of the Tax Commissioner. In January

2011, the Board fired Leslie. The Board did not inform Leslie of the reason for her

termination. Reeves then recommended the demotion of Richardson to Gifted

Coordinator and then to a teaching position in an elementary school. The Board

demoted Richardson in April 2011. Leslie and Richardson both believe that the

Board was sympathetic to the Tax Commissioner and terminated or demoted them

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because of their public criticism of him. Leslie and Richardson filed a complaint

against the Board of Education and its members, in their individual and official

capacities, for retaliation for the exercise of their right to freedom of speech under

the First and Fourteenth Amendments. See 42 U.S.C. § 1983.

      The Board and its members, both as officials and as individuals, filed a

motion to dismiss. Fed. R. Civ. P. 12(b)(6). The defendants argued that Leslie and

Richardson had failed to state a claim upon which relief could be granted because

their speech was not protected by the First Amendment because it was uttered in

the performance of an employment duty, that the balance of interests under

Pickering favored the Board because Leslie and Richardson were policymaking or

confidential employees, and that the individual members of the Board were entitled

to qualified immunity. The district court denied the motion to dismiss. The

members of the Board, as individuals, then appealed the denial of qualified

immunity, and the Board and its officials appealed the denial of their motion as

inextricably intertwined.

                            II. STANDARD OF REVIEW

      “We review questions of subject matter jurisdiction de novo.” Belleri v.

United States, 712 F.3d 543, 547 (11th Cir. 2013) (quoting Yunker v. Allianceone

Receivables Mgmt., Inc., 701 F.3d 369, 372 n.2 (11th Cir. 2012)). “A motion to

dismiss a complaint on qualified immunity grounds will be granted if the

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‘complaint fails to allege the violation of a clearly established constitutional

right.’” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007) (quoting

St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002)). “Whether the

complaint sets forth a violation is a question of law that we review de novo.” Id.

“We are required to accept the facts as set forth in the plaintiff’s complaint as true,

and our consideration is limited to those facts contained in the pleadings and

attached exhibits.” Id.

                                 III. DISCUSSION

      We divide our discussion of this appeal in two parts. First, we explain why

we lack jurisdiction over the appeal of the Board and its officials. Second, we

explain why the individual members of the Board are entitled to qualified

immunity.

A. We Have Jurisdiction Over the Appeal of the Denial of Qualified Immunity, but
      We Lack Jurisdiction Over the Appeal of the Board and Its Officials.
                                        .
     No party has challenged our jurisdiction in this appeal, but we are required

to address our subject matter jurisdiction. Edwards v. Prime, Inc., 602 F.3d 1276,

1287–89 (11th Cir. 2010). “As a general rule, an appeal may be taken . . . only

where the district court has disposed of all claims against all parties.” Hudson v.

Hall, 231 F.3d 1289, 1293 (11th Cir. 2000).

      “[A] public official [sued in her individual capacity] may file an

interlocutory appeal of the denial of qualified immunity where the disputed issue is
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whether the official’s conduct violated clearly established law.” Stanley v. City of

Dalton, Ga., 219 F.3d 1280, 1286 (11th Cir. 2000). The individual members

appeal the denial of qualified immunity, and we have jurisdiction to review their

appeal because “the disputed issue is whether the official[s’] conduct violated

clearly established law.” Id.

      The Board and its officials have also appealed as inextricably intertwined the

denial of their motion to dismiss for failure to state a claim, but we lack

jurisdiction to consider their appeal. “Under the pendent appellate jurisdiction

doctrine, we may address [otherwise] nonappealable orders if they are ‘inextricably

intertwined’ with an appealable decision or if ‘review of the former decision [is]

necessary to ensure meaningful review of the latter.’” Hudson, 231 F.3d at 1294

(internal quotation marks omitted). We have held that we may exercise “pendent

jurisdiction over a party not involved in the main appeal” when “the issues of the

nonappealable decision” meet the requirements for our exercise of pendent

jurisdiction. King v. Cessna Aircraft Co., 562 F.3d 1374, 1379 n.1 (11th Cir.

2009). But “we [have] interpreted” the decision of the Supreme Court in Swint v.

Chambers County Commission, 514 U.S. 35, 115 S. Ct. 1203 (1995), “to bar

pendent party jurisdiction” in “an official immunity appeal in which there was an

appeal by another party who could not assert official immunity,” King, 562 F.3d at

1379 n.1; see also Hudson, 231 F.3d at 1292 n.1 (“[T]he district court’s grant of

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summary judgment to the county and the official capacity defendants does not fall

within our pendent appellate jurisdiction.”); Harris v. Bd. of Educ. of the City of

Atlanta, 105 F.3d 591, 595 (11th Cir. 1997) (“In more recent decisions, the court

has [] concluded that we have no pendent party appellate jurisdiction.” (internal

quotation marks omitted)); Pickens v. Hollowell, 59 F.3d 1203, 1208 (11th Cir.

1995) (“Deputies Wilson and Hollowell request that we review the district court’s

denial of Rockdale County’s motion for summary judgment, but we are foreclosed

from doing so by [Swint], which held that we have no pendent party appellate

jurisdiction.”). And we have held that “we lack jurisdiction to review the Board’s

appeal on any issue,” when a local school board tried to piggy-back on an appeal

of the denial of qualified immunity by the individual members of that board.

Harris, 105 F.3d at 595.

      B. The Individual Board Members Are Entitled to Qualified Immunity.

      “Qualified immunity offers complete protection for individual public

officials performing discretionary functions insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th

Cir. 2012) (quoting Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012)

(internal quotation marks omitted)). “[T]o obtain qualified immunity, an official

must first establish that he acted within his discretionary authority.” Morton v.

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Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013). Because it is undisputed that the

individual board members acted within their discretionary authority, Leslie and

Richardson bear the burden to “establish that the [individual board members]

violated [their] constitutional rights[] and . . . that the right involved was ‘clearly

established’ at the time of the putative misconduct.” Terrell v. Smith, 668 F.3d

1244, 1250 (11th Cir. 2012). “We are ‘permitted to exercise [our] sound discretion

in deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.’”

Loftus, 690 F.3d at 1204 (quoting Pearson v. Callahan, 555 U.S. 223, 236, 129 S.

Ct. 808, 818 (2009)).

      The inquiry whether a constitutional violation is clearly established “is

‘undertaken in light of the specific context of the case, not as a broad general

proposition.’” Terrell, 668 F.3d at 1250 (quoting Lee v. Ferraro, 284 F.3d 1188,

1194 (11th Cir. 2002)). “The relevant, dispositive inquiry in determining whether

a right is clearly established is whether it would be clear to a reasonable [state

official] that his conduct was unlawful in the situation he confronted.” Loftus, 690

F.3d at 1204 (quoting Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002)).

“To answer this question, we look to law as decided by the Supreme Court, the

Eleventh Circuit, or the Supreme Court of [Georgia].” See id. (quoting Barnes v.

Zaccari, 669 F.3d 1295, 1307 (11th Cir. 2012)). “[T]he salient question . . . is

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whether the state of the law . . . gave [the individual board members] fair warning

that their alleged treatment of [Leslie and Richardson] was unconstitutional.”

Vinyard, 311 F.3d at 1350 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct.

2508, 2516 (2002)).

      Leslie and Richardson “must ‘demonstrate that the contours of the right were

clearly established in [one of three] ways.’” Loftus, 690 F.3d at 1204 (quoting

Terrell, 668 F.3d at 1255). First, if judicial precedents in an area are tied to

particular facts, Leslie and Richardson must “show that a materially similar case

has already been decided.” Id. (quoting Terrell, 668 F.3d at 1255). Second, if

judicial precedents are not tied to particular facts, Leslie and Richardson may

“point to a broader, clearly established principle [that] should control the novel

facts [of the] situation.” Id. (quoting Terrell, 668 F.3d at 1255). To succeed under

this approach, “the principle must be established with obvious clarity by the case

law so that every objectively reasonable government official facing the

circumstances would know that the official’s conduct did violate federal law when

the official acted.” Id. at 1205 (quoting Terrell, 668 F.3d at 1256) (alteration

omitted). Third, in a narrow category of matters, “the conduct involved in the case

may so obviously violate [] th[e] constitution that prior case law is unnecessary.”

Id. (quoting Terrell, 668 F.3d at 1255).




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      We divide our discussion of qualified immunity in three parts. First, we

discuss whether the law was clearly established that a public employer can be held

liable for retaliation against a policymaking or confidential employee for speech

related to policy or politics. Second, we discuss whether Leslie and Richardson

were policymaking or confidential employees. Third, we discuss whether Leslie

and Richardson’s speech concerned policy or politics.

     1. The Law Is Not Clearly Established that a Government Employer Can Be
          Held Liable for Retaliation Against a Policymaking or Confidential
                          Employee for Speech About Policy.

      “The law is well established that a state employee may not be discharged for

speech protected under the First Amendment,” Vila v. Padron, 484 F.3d 1334,

1339 (11th Cir. 2007), but “a public employee’s right to freedom of speech is not

absolute,” id. “To set forth a claim of retaliation, a public employee must show:

(1) she was speaking as a citizen on a matter of public concern; (2) her interests as

a citizen outweighed the interests of the State as an employer; and (3) the speech

played a substantial or motivating role in the adverse employment action.” Id. “If

the plaintiff establishes these elements, the burden shifts to the defendant to prove

it would have made the same adverse employment decision absent the employee’s

speech.” Id.

      To determine whether an employee’s interest as a citizen outweighed the

interests of the state as an employer, we apply the balancing test defined by the

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Supreme Court in Pickering. This test seeks “to arrive at a balance between the

interests of the [public 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 public services it performs through its employees.” Pickering, 391

U.S. at 568, 88 S. Ct. at 1734–35. The Supreme Court has instructed that “the

manner, time, and place of the employee’s expression” and “the context in which

the dispute arose” are relevant to the Pickering balance. Rankin v. McPherson,

483 U.S. 378, 388, 107 S. Ct. 2891, 2899 (1987). The Court has also “recognized

as pertinent considerations whether the statement impairs discipline by superiors or

harmony among co-workers, has a detrimental impact on close working

relationships for which personal loyalty and confidence are necessary, or impedes

the performance of the speaker’s duties or interferes with the regular operation of

the enterprise.” Id.

      The Supreme Court has developed a different, but related, approach to

resolve complaints of retaliation in violation of the First Amendment based on

political affiliation or belief in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673 (1976),

and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287 (1980). See O’Hare Truck

Serv., Inc. v. City of Northlake, 518 U.S. 712, 719, 116 S. Ct. 2353, 2357–58

(1996); Brett v. Jefferson Cnty., Ga., 123 F.3d 1429, 1432–33 (11th Cir. 1997). In

Elrod, the Court held that a “nonpolicymaking, nonconfidential government

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employee” cannot “be discharged or threatened with discharge from a job that he is

satisfactorily performing upon the sole ground of his political beliefs.” 427 U.S. at

375, 96 S. Ct. at 2691 (Stewart, J., joined by Blackmun, J., concurring). The

Supreme Court later clarified, in Branti, that “the ultimate inquiry is not whether

the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the

question is whether the hiring authority can demonstrate that [political] affiliation

is an appropriate requirement for the effective performance of the public office

involved.” 445 U.S. at 518, 100 S. Ct. at 1295. But the Court has continued to

consider whether an employee holds a policymaking or confidential position to

determine whether the employee may be dismissed or demoted because of his

political beliefs. Id. at 519–20, 100 S. Ct. at 1295. Employees who serve in these

positions can be terminated on the basis of political affiliation or belief because the

government has “a compelling interest in infringing [their] First Amendment

rights.” Rutan v. Republican Party of Ill., 497 U.S. 62, 71 n.5, 110 S. Ct. 2729,

2735 n.5 (1990).

      The individual board members argue that it is not clearly established that the

Pickering balance does not favor the government employer as a matter of law when

a policymaking employee speaks about policy, and we agree. Neither the Supreme

Court, this Court, nor the Supreme Court of Georgia has answered the question

whether the Pickering balance of interests favors the government employer when

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an employee who serves in a policymaking or confidential role can be dismissed

based on political affiliation or belief.

      The Supreme Court has not addressed the effect on the Pickering balance of

determining that an employee holds a policymaking or confidential position under

Elrod and Branti. The Supreme Court has explained, in dicta, only that these

inquiries are “different, though related,” and that, “where specific instances of the

employee’s speech or expression . . . are intermixed with a political affiliation

requirement[,] . . . the balancing Pickering mandates will be inevitable.” O’Hare

Truck Serv., 518 U.S. at 719, 116 S. Ct. at 2357–58.

      Although we have addressed whether the Pickering balance or the

Elrod/Branti analysis applies in several decisions, see, e.g., McKinley v. Kaplan,

262 F.3d 1146, 1149 n.4 (11th Cir. 2001); Brett, 123 F.3d at 1432–33; Morris v.

Crow, 117 F.3d 449, 455–56 (11th Cir. 1997); McCabe v. Sharrett, 12 F.3d 1558,

1561–1570 (11th Cir. 1994); Stough v. Gallagher, 967 F.2d 1523, 1526–28 (11th

Cir. 1992), we have not decided the effect on the Pickering balance when an

employee is a policymaking or confidential employee, see McKinley, 262 F.3d at

1149 n.4 (applying Pickering in an appeal based primarily on the exercise of an

employee’s right to free speech); Brett, 123 F.3d at 1433 (remanding for the

district court to decide which test to apply); Morris, 117 F.3d at 449, 457–58

(expressing doubts about the merits of a political patronage theory before

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determining that the Pickering balance favored the employer); McCabe, 12 F.3d at

1569–74 (concluding that a claim based on a right to intimate association failed

under either the Pickering balance or the Elrod/Branti analysis); Stough, 967 F.2d

at 1526–29 (applying the Pickering balance to an employee’s speech and

concluding that the employer was not entitled to qualified immunity because the

employer had “decided that the [employee’s position was] not so closely identified

with the [employer] that personal loyalty is required, and that a political dispute

between the [employer] and a [person in the employee’s position] may not

necessarily disrupt normal working conditions”). “We have held that the Elrod-

Branti line of cases applies when a public employee suffers an adverse

employment action based on party affiliation or political beliefs rather than the

content of the employee’s speech or expressions,” but that “[t]he Pickering

analysis . . . applies when a public employee suffers an adverse employment action

based on the employee’s expressive conduct or speech.” McKinley, 262 F.3d at

1149 n.4. But we have not decided their interrelationship when an employer

retaliates against a policymaking or confidential employee for speech about policy.

      No party has cited any decision of the Supreme Court of Georgia that

addresses whether a policymaking or confidential employer has a right not to be

retaliated against for speech about policy, and we have not found any decision of

the Supreme Court of Georgia on this issue. The only decision of the Supreme

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Court of Georgia that cites both Pickering and Elrod does not discuss the

relationship between those decisions. See Galer v. Bd. of Regents of the Univ.

Sys., 236 S.E.2d 617, 619 (Ga. 1977).

         In the absence of precedent of the Supreme Court, this Court, or the

Supreme Court of Georgia that holds that a policymaking or confidential employee

has a right not to be dismissed for speech about policy, Leslie and Richardson

cannot “show that a materially similar case has already been decided.” Loftus, 690

F.3d at 1204 (quoting Terrell, 668 F.3d at 1255). And Leslie and Richardson must

either “point to a broader, clearly established principle [that] should control the

novel facts [of the] situation” or prove that “the conduct involved in the case [] so

obviously violate[s] [] th[e] constitution that prior case law is unnecessary.” Id. at

1204–05 (quoting Terrell, 668 F.3d at 1255). Leslie and Richardson argue that the

decision of the Supreme Court in Pickering clearly established that they had a right

not to be retaliated against for their speech, but other courts are divided about this

issue.

         The circuit courts that have addressed whether a policymaking or

confidential employee may prevail under the Pickering balance have taken three

different approaches. The first approach, taken by the First, Sixth, and Seventh

Circuits, “hold[s] that where an employee is in a policymaking or confidential

position and is terminated for speech related to political or policy views, the

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Pickering balance favors the government as a matter of law.” See Rose v.

Stephens, 291 F.3d 917, 922 (6th Cir. 2002); see also Foote v. Town of Bedford,

642 F.3d 80, 84 (1st Cir. 2011); Bonds v. Milwaukee Cnty., 207 F.3d 969, 978 (7th

Cir. 200) (“[W]e held that the rationale for the policymaking employee exception

also covered [expression of] viewpoints relating to the policymaking employee’s

duties.”). These courts observe that “disagreement between the employer and the

policymaking employee over job-related policy issues causes the same failure of

loyalty and shared political mission between superior and subordinate as

inconsistent political affiliation or viewpoint.” Bonds, 207 F.3d at 978. And

because disagreement can undermine the goals of the employer, the employer’s

interest in effective governance outweighs the employee’s interest in speaking

when an employee in a policymaking position expresses political or policy views.

See Foote, 643 F.3d at 84. These courts also “recognize[] the inherent

inconsistency in a rule that protects a policymaking employee who overtly

expresses his disloyalty while denying that same protection to one who merely

belongs to a different political party.” Rose, 291 F.3d at 922. But these courts

limit the application of this rule to situations where the speech is about political or

policy views because the interest of the employer in having loyal political servants

does not apply outside that context. Id. The second approach, taken by the Ninth

Circuit, first inquires whether the employee serves in a position in which political

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affiliation or patronage is a proper consideration and then treats that inquiry as

“dispositive of any First Amendment retaliation claim.” Biggs v. Best, Best &

Krieger, 189 F.3d 989, 994–95 (9th Cir. 1999). If the court concludes that the

employee is a policymaker or confidential employee, the employer prevails

without applying the Pickering balance. See Fazio v. City & Cnty. of San

Francisco, 125 F.3d 1328, 1332 (9th Cir. 1997). The third approach, taken by the

Second and Eighth Circuits, limits the application of the decisions of the Supreme

Court that address political affiliation. Hinshaw v. Smith, 436 F.3d 997, 1005–07

(8th Cir. 2006); Lewis v. Cowen, 165 F.3d 154, 162–63 (2d Cir 1999). These

courts observe that the Supreme Court “has never stated that the discharged

employee’s position in the employment hierarchy would automatically tilt the

Pickering balance in the employer’s favor.” McEvoy v. Spencer, 124 F.3d 92, 103

(2d Cir. 1997); see also Hinshaw, 436 F.3d at 1006 (“We hesitate to expand the

Elrod-Branti exception to a case where a party affiliation is not alleged as a basis

for the termination.”). But these courts “recognize the necessarily adverse effect

an employee’s speech on a matter related to the employee’s policymaking or

confidential duties would have on the factors enumerated in the Pickering

balancing test,” because the employers have a heightened interest in employee

loyalty and the impression of public loyalty when political affiliation is a

permissible consideration. Hinshaw, 436 F.3d at 1006–08.

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      No clearly established law bars the termination of a policymaking or

confidential employee for speaking about policy. The correct application of the

Pickering balance to a policymaking or confidential employee who speaks about

policy is not “established with [such] obvious clarity by the case law [] that every

objectively reasonable government official facing the circumstances would know

that the official’s conduct did violate federal law when the official acted.” Loftus,

690 F.3d at 1205 (quoting Terrell, 668 F.3d at 1256). The members of the Board

are entitled to qualified immunity in their individual capacities if Leslie and

Richardson were policymaking employees who spoke about policy.

 2. A Local School Superintendent in Georgia Is a Policymaking or Confidential
                                 Employee.

      A local school superintendent under Georgia law is a policymaking or

confidential employee for the purpose of the Elrod/Branti inquiry. Ordinarily the

determination that an employee is a policymaking or confidential employee is a

question of fact. See Underwood v. Harkins, 698 F.3d 1335, 1342 (11th Cir.

2012). But we have applied a categorical approach based on the statutory authority

of an employee when the employee is empowered by the relevant state or local law

to act as the alter ego of her employer. At oral argument, counsel for Leslie and

Richardson conceded that Richardson’s complaint rises or falls with Leslie’s

complaint because Richardson served as Assistant Superintendent and as part of

Leslie’s leadership team and her speech was in concert with Leslie’s speech.
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      Our predecessor court first concluded that an employee was a policymaker

or confidential employee based only on the legal definition of that employee’s

duties. Stegmaier v. Trammell, 597 F.2d 1027, 1040 (5th Cir. 1979). In

Stegmaier, a circuit court clerk in Alabama tried to dismiss the deputy clerk

because the deputy clerk had not supported the election of the circuit court clerk.

Id. at 1030–32. The former Fifth Circuit held that the deputy clerk was a

confidential employee without inquiring beyond the statutory authority of the

deputy clerk:

      When, by statute, a deputy clerk is empowered to conduct all business
      which the clerk is authorized to conduct, and when, by statute, the
      clerk is subject to civil liability and fines for failure to perform his
      statutory duties, the Circuit Clerk must be afforded the opportunity to
      select his single deputy clerk; he must be able to select a deputy in
      whom he has total trust and confidence and from whom he can expect,
      without question, undivided loyalty.

Id. at 1040 (citations omitted).

      We reached a similar conclusion in Terry v. Cook, 866 F.2d 373 (11th Cir.

1989), where a county sheriff in Alabama tried to replace all of the employees of

his office who had opposed his election, id. at 374. We held that the sheriff could

dismiss the deputy sheriffs. Id. at 377. We did not rely on the actual duties of the

deputy sheriffs to reach our conclusion in Terry. Instead, we ruled, “Under

Alabama law, a deputy sheriff is the general agent of and empowered to enter into

business transactions for the sheriff. Any transaction within the scope of the

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sheriff’s power may be acted on by his deputy.” Id. We also concluded that “[t]he

deputy sheriff is the alter ego of the sheriff, and the sheriff is civilly liable for

actions committed by a deputy done in the performance of his duty.” Id. (citation

omitted). Based on these factors, we concluded that “[t]he closeness and

cooperation required between sheriffs and their deputies necessitates the sheriff’s

absolute authority over their appointment and/or retention.” Id.

       We recently acknowledged that we apply a categorical approach based on

state law to determine whether an employee is a confidential employee or

policymaker. Underwood, 698 F.3d at 1343–44. In Underwood, a newly-elected

superior court clerk fired a deputy clerk who had run against her in a primary

election. Id. at 1337–38. After a review of Terry and Stegmaier, we held that “an

elected official may dismiss an immediate subordinate for opposing her in an

election without violating the First Amendment if the subordinate, under state or

local law, has the same duties and powers as the elected official.” Id. at 1343. We

treated the deputy clerk as a policymaking or confidential employee because “a

person holding that position is essentially the legal alter ego of the clerk.” Id. We

acknowledged that the authority of the deputy clerk “did not extend to the outer

limits authorized by Georgia law,” but we held that the deputy clerk’s authority

under state law controlled our analysis:

        What matters in a case like this one is not what the subordinate
       actually does on a day-to-day basis, but rather what the subordinate is
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      legally empowered to do under state or local law. In other words, we
      look at the position in the abstract and at what state or local law
      allows a person in that position to do, and not at a snapshot of the
      position as it is being carried out by a given person at a given point in
      time under a given elected official.

Id. at 1344. We also stated that the categorical approach made sense because

“[t]he fact that an elected official has not given a particular immediate subordinate

all of the discretionary or policymaking authority available under state or local law

does not prevent that official (or a future one) from changing her mind, or from

choosing to expand a subordinate’s duties if she is able to hire the subordinate of

her choice.” Id.

      The key factor in our decisions that apply a categorical approach is that the

employee was empowered by law to act as the alter ego of her employer.

Although these decisions have been limited to “the confines of the case before us,”

id. at 1343, the rationale of these decisions applies with even more force when an

official serves as the alter ego who executes the policies of a legislative body

because the official not only “may act” upon matters within the authority of her

superior, Terry, 866 F.2d 377, but must act for the policies adopted by the superior

to have any effect.

      As the superintendent of a local school district, Leslie served in a

policymaking or confidential role under our categorical approach to the

Elrod/Branti inquiry because she was the executive officer on whom the Board

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relied for the enforcement of its policies. Georgia law makes a local school

superintendent the alter ego of the local school board. Georgia law provides that

the superintendent “shall be the executive officer of the local board of education”

and “shall be the agent of the local board in procuring such school equipment and

materials as it may order.” Ga. Code § 20-2-109. The Supreme Court of Georgia

has described the superintendent as the “chief fiscal officer of the board of

education.” Hicks v. Arnall, 368 S.E.2d 733, 735 (Ga. 1988). And Georgia law

provides that “[i]t shall be the local school superintendent’s duty to enforce all

regulations and rules . . . of the local board according to the laws of the state and

the rules and regulations made by the local board that are not in conflict with state

laws.” Ga. Code § 20-2-109. The superintendent is an alter ego of the Board,

which must rely on her not only to enter transactions on behalf of the Board, but

also to enforce its policies. Although Georgia law provides that a local school

superintendent may not bind the local school board when she signs a contract

unless the school board permitted the superintendent to enter the contract, see

Knight v. Troup Cnty. Bd. of Educ., 242 S.E.2d 263, 264 (Ga. App. 1978), the

ability of the Board to limit the authority of a superintendent does not undermine

the conclusion that a superintendent is a policymaking or confidential employee.

We have explained that “we look at the position in the abstract and at what state or

local law allows a person in that position to do, and not a snapshot of the position

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as it is being carried out by a given person at a given point in time under a given

elected official” to determine whether an employee is the legal alter ego of her

employer. See Underwood, 698 F.3d at 1344. “This categorical approach . . .

makes practical sense” because “[t]he fact that an elected [board] has not given a

particular immediate subordinate all of the discretionary or policymaking authority

available under state or local law does not prevent that [board] (or a future one)

from changing [its] mind, or from choosing to expand a subordinate’s duties if [it]

is able to hire the subordinate of [its] choice.” Id.

                   3. Leslie and Richardson Spoke About Policy.

      The facts alleged in Leslie’s complaint make clear that her speech about

policy led to her termination. The complaint alleges that Leslie complained at

public meetings of the School Board, at public hearings of the Tax Commission,

and in an article in the Atlanta-Journal Constitution about the failure of the Tax

Commissioner to collect property taxes at the correct rate and provide accurate

revenue projections to Leslie. The complaint also alleges that the deficient tax

collection “result[ed] in the under-funding of the Hancock County School System”

and “made it impossible for the Plaintiffs to adequately perform their duties as

administrators in the Hancock County School System.” And the complaint alleges

that, because of the failure of the Tax Commissioner to provide accurate revenue

projections, Leslie and Richardson were “routinely unable to prepare a budget for

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the Hancock County School System.” Ga. Comp. R. & Regs. § 160-5-2-.21. The

administration of local taxes and the effect of that administration on the local

school district are quintessential policy matters.

      Leslie has described her speech as being about policy. In her response to the

motion to dismiss, Leslie argued that her “statements actually enhanced [her] daily

functioning by putting pressure on the Tax Commissioner to properly fund

Hancock County Schools” and that, “[w]ith a proper rate of tax collected, the

School District would be able to operate more effectively.”

      Leslie’s complaint against the individual members of the board is barred by

qualified immunity, and because Richardson concedes that her complaint rises or

falls with Leslie’s complaint, Richardson’s complaint is barred too. We reverse

the denial of qualified immunity for the individual members of the Board.

                                IV. CONCLUSION

      We DISMISS the appeal of the Board and its officials for lack of

jurisdiction and REVERSE the denial of qualified immunity for the individual

members of the Board.




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