                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                                                                                 FILED
                                                                        U.S. COURT OF APPEALS
                                                                          ELEVENTH CIRCUIT
                                                                              Nov. 12, 2009
                                          No. 08-14734
                                                                           THOMAS K. KAHN
                                                                                CLERK

                            D. C. Docket No. 08-00041-CV-F-N

ROBBIE AUTERY,
SHANE FULMER,

                                                                     Plaintiffs-Appellants,

                                              versus

KEVIN DAVIS,
in his official capacity as Sheriff of Chilton
County, Alabama, and individually,

                                                                     Defendant-Appellee.



                       Appeal from the United States District Court
                           for the Middle District of Alabama


                                     (November 12, 2009)

Before DUBINA, Chief Judge, BIRCH and SILER,* Circuit Judges.


       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
PER CURIAM:

      Appellants Robbie Autery (“Autery”) and Shane Fulmer (“Fulmer”) appeal

the district court’s grant of summary judgment in favor of Appellee Kevin Davis,

Sheriff of Chilton County, Alabama, (“Sheriff Davis”) arising out of their

terminations as deputy sheriffs. They claim that their firings deprived them of

substantive and procedural due process, freedom of association, and freedom of

speech.

      The issues presented on appeal are:

      1. Whether termination of public service employment can give rise to a

substantive due process claim?

      2. Whether the absence of a pre-termination hearing by a state merit review

board created but not constituted is a violation of procedural due process if there is

post-termination state-court review?

      3. Whether free speech rights are violated when a sheriff terminates

employees after they complain to colleagues about the sheriff and report alleged

misconduct to the state Attorney General?

      4. Whether termination of a deputy sheriff from employment based on

political affiliation violates freedom of association rights when existing circuit law




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holds that a sheriff has absolute authority to hire and fire deputies, though new

state law suggests otherwise?

      This court reviews de novo a district court’s grant of summary judgment.

Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009).

      After reviewing the record, reading the parties’ briefs, and having the

benefit of oral argument, we conclude that the district court properly granted

summary judgment on all of Autery and Fulmer’s claims. First, this court has

clearly stated that “an employee with a protected interest in his job may not

maintain a substantive due process claim arising out of his termination.”

Bussinger v. City of New Smyrna Beach, 50 F.3d 922, 925 (11th Cir. 1995).

Autery and Fulmer’s claims are procedural in nature, and their claims for

substantive due process protection fail.

      We also conclude from the record that Autery and Fulmer have alleged no

facts that indicate that their procedural due process grievances cannot be remedied

by state-court review. In this circuit, state-court review of employment

termination decisions qualifies as an adequate post-deprivation remedy.

McKinney v. Pate, 20 F.3d 1550, 1563 (11th Cir. 1994) (en banc). In this case, the

failure of local officials to compose the merit board under state law is a decision

properly reviewable and remediable by the state court.

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      Additionally, by engaging in disruptive speech in addition to whistle-

blowing, Autery and Fulmer’s freedom of speech claim fails as a matter of law

because the balance weighs in favor of the state’s interest in the efficiency of its

public services. Cf. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731,

1734-35 (1968). The district court held, and the record supports, that Autery and

Fulmer’s conduct, viewed as a whole, undermined the morale and disrupted the

efficiency of the department. Accordingly, our decision in Bryson v. City of

Waycross compels us to uphold summary judgment in favor of Sheriff Davis on

the freedom of speech claim. 888 F.2d 1562, 1567 (11th Cir. 1989) (balancing

free speech rights of police officer against department’s interest in promoting

efficient public services and ultimately denying officer’s claims arising out of his

termination).

      We emphasize that, standing alone, Autery and Fulmer’s decision to contact

the state Attorney General with concerns about their superior’s activities is not a

valid basis for their termination. See Stanley v. City of Dalton, 219 F.3d 1280,

1290 (11th Cir. 2000) (holding that private accusations made by police officer

about superior’s misconduct are not a permissible basis for termination). The

record in this case establishes, however, that Autery and Fulmer’s communication

with the Attorney General was not the only instance in which they voiced their

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displeasure with Sheriff Davis. Autery and Fulmer admitted to the district court

that “they continued to complain about Sheriff Davis’s decisions with regard to

their employment” to colleagues and, as a result, the deputy in charge of

evaluating department employees “reported their conduct to Sheriff Davis.” (R.

25 at 4.)

      Autery and Fulmer’s private and public complaints fit squarely within the

confines of Bryson. The formal complaint made in this case must be weighed in

context with other complaints and statements made to co-workers in the

department. Moreover, there is ample evidence that other disputes with Sheriff

Davis, personal and professional, motivated their speech in this case. Sheriff

Davis has demonstrated that this misconduct was at least a substantial factor in

their dismissal. Accordingly, Autery and Fulmer’s freedom of speech claim fails

as a matter of law.

      Finally, we conclude that summary judgment was proper on the political

patronage claim. Public officials are entitled to qualified immunity so long as

their discretionary actions do not violate clearly established statutory or

constitutional rights. Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291

(11th Cir. 2009). It is “not mandated that the Court examine the potential

constitutional violation . . . prior to analyzing whether the right was clearly

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established.” Id. In Terry v. Cook, 866 F.2d 373, 375 (11th Cir. 1989), we held

that an Alabama County Sheriff could constitutionally base employment decisions

affecting deputy sheriffs on party affiliation. Even if the rationale in Terry is

somehow weakened by the applicable local law in this case, the clearly established

constitutional law at the time of the firings permitted Sheriff Davis’s conduct even

if it was based upon Autery and Fulmer’s political opposition to Sheriff Davis.

Because Terry holds that an Alabama Sheriff may lawfully terminate an officer

who does not support him politically, we need not determine whether Sheriff

Davis had some other lawful motive.

      Even in the absence of Terry, Sheriff Davis would still be entitled to

qualified immunity. In Foy v. Holston, 94 F.3d 1528, 1536 (11th Cir. 1996), we

held that a public official is entitled to qualified immunity when the record

establishes at least some lawful motivation for his conduct, in spite of opposing

inferences. See also Stanley, 219 F.3d at 1296. Again, the record reveals

evidence of Autery and Fulmer’s conduct permitting a conclusion that Sheriff

Davis’s decision to terminate Appellants was objectively reasonable. Because

Sheriff Davis’s conduct did not violate clearly established law, he is qualifiedly

immune from Autery and Fulmer’s freedom of association claim.




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      For the above-stated reasons, we affirm the district court’s grant of summary

judgment in favor of Sheriff Davis and against Autery and Fulmer.

      AFFIRMED.




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