                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    April 28, 2015
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 GLENN R. SMITH,

              Plaintiff - Appellant,
                                                        No. 14-2027
 v.                                         (D.C. No. 1:13-CV-00168-JAP-GBW)
                                                        (D. of N.M.)
 SUSANA MARTINEZ; in her
 individual capacity, STATE OF NEW
 MEXICO,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **


      Glenn Smith appeals from the district court’s order granting summary

judgment to New Mexico Governor Susana Martinez, in her individual capacity,

and to the State of New Mexico. Smith sued claiming that Governor Martinez

unlawfully terminated him from his position as director of the state Workers’


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Compensation Administration (WCA) in retaliation for his political affiliation.

He alleged violations of the First Amendment, the Due Process Clause of the

Fourteenth Amendment, the Takings Clause of the Fifth Amendment, and breach

of contract.

      We agree with the district court that the director position was terminable by

the Governor under state law and that no federal law violation occurred.

                                 I. Background

      Smith was appointed director of the WCA in 2007 by then-Governor Bill

Richardson, a Democrat. A statute provides that the director shall serve for five

years and continue to serve until a successor is appointed and qualified. N.M.

Stat. § 52–5–2(A). Nonetheless, when Governor Richardson asked the state

Senate to confirm Smith’s appointment, his message to the President Pro Tempore

mentioned that Smith’s term was “to be served at the pleasure of the Governor.”

R., Doc. 56 at 000145.

      Smith supported Governor Richardson’s presidential campaign in 2008, and

he later supported the Democratic candidate in the 2010 New Mexico

gubernatorial election. Governor Martinez, a Republican, won the election.

Shortly after her election, she circulated a memo explaining that “exempt

employees 1 who serve[d] at the pleasure of the Governor [we]re expected to


      1
          As the head of an agency or department appointed by the Governor, the
                                                                    (continued...)

                                        -2-
submit their letters of resignation to the Governor who appointed them effective

December 31, 2010.” Id. at 000114. Smith did not resign, but Governor Martinez

terminated him on January 1, 2011.

      Smith filed a petition for writ of mandamus in the Supreme Court of New

Mexico, asking the court to prevent Governor Martinez from terminating him

because he was entitled to a five-year term under § 52–5–2(A). The court denied

the petition without discussion, and Smith’s successor assumed the directorship

on February 1, 2011. Smith then brought this action, alleging violations of his

First Amendment right to freedom of political affiliation, his Fourteenth

Amendment right to due process, his Fifth Amendment right against a taking

without just compensation, and breach of contract.

      The district court granted summary judgment to the defendants for all

claims.

                                  II. Analysis

      Smith contends the district court erred in concluding he served at the

pleasure of the Governor, arguing that he is not an at-will employee of the state,

but rather an independent officer immune from the rules that apply to exempt



      1
       (...continued)
director is considered an “exempt” employee for purposes of New Mexico’s
Personnel Act, meaning his salary range is prepared by the Department of Finance
and Administration and approved by the Governor. See N.M. Stat. §§ 10–9–4,
10–9–5.

                                        -3-
employees. He argues that his termination violated the United States

Constitution’s First Amendment, Due Process Clause, and Takings Clause

guarantees.

      Summary judgment is appropriate where “the movant shows that 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). We “view the facts and draw reasonable

inferences in the light most favorable” to the nonmovant. Scott v. Harris, 550

U.S. 372, 378 (2007) (citing United States v. Diebold, Inc., 369 U.S. 654, 655

(1962)).

      We conclude the district court did not err in granting summary judgment.

      A. Constitutional Claims Against the State of New Mexico

      Smith does not specify the source of his constitutional causes of action, but

he appears to raise his claims under 42 U.S.C. § 1983, which provides a cause of

action against persons acting under the color of state law for the deprivation of a

constitutional right. But “§ 1983 actions do not lie against a State.” Arizonans

for Official English v. Arizona, 520 U.S. 43, 69 (1997). Thus, the district court

properly granted summary judgment to the State of New Mexico on Smith’s

constitutional claims.

      B. First Amendment Claim Against Governor Martinez

      Smith also argues that Governor Martinez violated his First Amendment

right to freedom of affiliation by terminating him based on his connection to the

                                         -4-
Democratic Party. The district court found Smith’s position was a policymaking

role that commanded political allegiance and was therefore dischargeable. More

so, the court concluded that the termination did not violate clearly established

federal law and the Governor was therefore entitled to qualified immunity. We

agree.

         “The First Amendment protects public employees from discrimination

based upon their political beliefs, affiliation, or non-affiliation unless their work

requires political allegiance.” Snyder v. City of Moab, 354 F.3d 1179, 1184 (10th

Cir. 2003) (internal quotation marks omitted). Thus, a public employee who has

been “discharged because of his or her position regarding a particular candidate

for office” may assert a valid § 1983 claim for a First Amendment violation

“except where the public employee is in a position requiring political allegiance.”

Id. at 1184–85. But if the employer shows that “party affiliation is an appropriate

requirement for the effective performance of the public office involved,” then the

employer has not violated the First Amendment. Id. at 1185 (citing Branti v.

Finkel, 445 U.S. 507, 518 (1980)). Accordingly, to survive a motion for summary

judgment, employees must show a “genuine dispute of fact that (1) political

affiliation and/or beliefs were ‘substantial’ or ‘motivating’ factors behind their

dismissals and (2) [their] respective employment positions did not require

political allegiance.” Jantzen v. Hawkins, 188 F.3d 1247, 1251 (10th Cir. 1999).




                                          -5-
      Although often questions of fact, allegations of this sort may be “resolved

as a matter of law if the facts as to the nature of the duties of the position are

undisputed.” Snyder, 354 F.3d at 1185. Determining whether a position requires

political allegiance calls for an “analysis of the whole picture.” Id. In particular,

“we must focus on the inherent powers of the positions and the actual duties

performed.” Jantzen, 188 F.3d at 1253. There is no “one specific factor” that

must be proven and no “clear line” between “positions that require political

allegiance and those that do not.” Snyder, 354 F.3d at 1185. We have

recognized, however, that although not all policymaking positions necessarily

require political loyalty, “the fact that a particular position has policy making

authority does support the conclusion that political loyalty is an appropriate

requirement.” Id. at 1186 (citing Elrod v. Burns, 427 U.S. 347, 367–68 (1976)

(plurality opinion)).

      An instructive application of these principles is found in Poindexter v.

Board of County Commissioners, 548 F.3d 916, 919–21 (10th Cir. 2008). In that

case, we concluded that the county road supervisor position required political

allegiance where his responsibilities included supervising employees and

assignments, terminating employees, addressing safety issues, using county funds

to buy supplies, enforcing the County Commissioner’s policies and serving as his

“ambassador to the community,” acting in the Commissioner’s place if the

Commissioner was unavailable, and reporting directly to the Commissioner. Id.

                                           -6-
at 920. We held that “a reasonable jury would be forced to conclude that the

office of Road Foreman has a significant political dimension and sufficient

discretionary authority” that the Commissioner could fire him for his political

allegiance. Id. Similarly, in another case, Green v. Henley, 924 F.2d 185, 187

(10th Cir. 1991), we held that assisting in “policy development” was evidence of

a position requiring political allegiance.

      As the district court concluded, the same is true here. First off, the

statutory language alone evidences that Smith’s position required political

allegiance. The director is the chief administrative officer of a significant state

agency regulating workers’ compensation and disability programs. This position

confers rule-making authority and the responsibility to “effect[] the purposes” of

state statutes. N.M. Stat. § 52–5–4(A). In addition, the director appoints

workers’ compensation judges, reviews their performance, and has the option to

reappoint them. He or she can “promulgate and enforce schedules of

reimbursement” to healthcare providers for some services “as he deems

appropriate and necessary in the administration of the Workers’ Compensation

Act or the New Mexico Occupational Disease Disablement Law.” N.M. Stat.

§ 52–5–4(C).

      Moreover, the director may “institute in his own name an action” against

employers who do not comply with certain laws regarding insurance coverage.

N.M. Stat. § 52–1–62(A). The director also serves as a nonvoting member on an

                                             -7-
advisory council that recommends new legislation, N.M. Stat. § 52–1–1.2(A)–(C),

and has the power to investigate allegations of unfair claims processing, N.M.

Stat. § 52–1–28.1(A). Finally, the director can enter reciprocal agreements with

workers’ compensation agencies in other states, subject to the Governor’s

approval. N.M. Stat. § 52–1–68. Smith argues that no evidence was presented

that he actually performed some of these duties, but this is irrelevant because we

consider both the actual duties performed and “the inherent powers of the

positions.” Jantzen, 188 F.3d at 1253. The director’s duties and responsibilities

therefore demonstrate a substantial policymaking role that commands political

allegiance within New Mexico’s political system.

      Smith argues against this conclusion, pointing out that the WCA and its

director serve quasi-judicial functions. He notes that WCA judges, rather than

state district courts, adjudicate workers’ compensation disputes. He adds that

WCA judges must be licensed to practice law, that their decisions are appealed

directly to the Court of Appeals of New Mexico, and that independence and

impartiality are essential to their performance. Furthermore, Smith asserts that

the director himself reviews complaints regarding WCA judges. He also claims

that the director designates mediators who give non-binding recommendations as




                                         -8-
to how opposing parties should resolve their workers’ compensation disputes. 2

See N.M. Stat. § 52–5–5(C).

      But the director’s involvement with some quasi-judicial functions does not

negate statutory powers that require political alignment with the Governor. The

director is not a judge, but an administrator. There is no question that the

director’s responsibilities in “effecting the purposes” of state statutes, crafting

new rules and regulations, serving on an advisory council that recommends new

legislation, appointing new WCA judges, suing to enforce statutory provisions,

and entering interstate agreements subject to the Governor’s approval, to name

just a few, are strictly political functions that demand coordination with the

state’s executive branch. The director has a great deal of discretion in carrying

out these duties, such that he could easily frustrate the policy goals of an adverse

administration.

      Smith’s argument that the directorship’s five-year statutory term evinces an

intent to insulate it from the Governor, whose term is shorter than five years, is

also unpersuasive. The state Constitution provides that “[t]he governor shall

nominate and, by and with the consent of the senate, appoint all officers whose

appointment or election is not otherwise provided for and may remove any officer

appointed by him unless otherwise provided by law.” N.M. Const. art. V., § 5


      2
         Both parties are free to reject the mediator’s recommendation, at which
point the claim would be assigned to a WCA judge. N.M. Stat. § 52–5–5(C).

                                          -9-
(emphasis added). A law barring the removal of an officer “must come from the

Constitution or legislation.” State ex rel. N.M. Jud. Standards Comm’n v.

Espinosa, 73 P.3d 197, 204 (N.M. 2003).

      The Supreme Court of New Mexico in Espinosa rejected Smith’s argument

that “implied terms . . . negate the Governor’s express removal authority,” absent

“a compelling reason to hold otherwise.” Id. The court accordingly denied a

claim that staggering appointees’ five-year terms “impliedly limits the Governor’s

removal power” where the Governor attempted to remove members of the state

Judicial Standards Commission before their terms expired. Id. at 202. It is

therefore clear that because § 52–5–2(A) merely creates a five-year term, rather

than expressly barring the Governor from terminating the director, Smith’s

termination was lawful under New Mexico law and did not undermine a

legislative intent to insulate him from politics. The Supreme Court’s denial of

Smith’s petition for writ of mandamus further supports this conclusion.

      Viewing the facts as a whole and in the light most favorable to Smith, there

is no genuine issue of material fact as to whether the directorship requires

political allegiance. Therefore, the district court properly dismissed Smith’s First

Amendment claim on summary judgment.

      In addition, Governor Martinez would be entitled to qualified immunity

even had her actions violated Smith’s First Amendment rights. “The doctrine of

qualified immunity protects government officials from liability for civil damages

                                        -10-
insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson

v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). For a

constitutional violation to be clearly established, “there must be a Supreme Court

or Tenth Circuit decision on point, or the clearly established weight of authority

from other courts must have found the law to be as the plaintiff maintains.”

Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012). Because of the

responsibilities such as (1) “effecting the purposes” of state statutes, (2) making

new rules and regulations, (3) serving on an advisory council that recommends

new legislation, (4) appointing new administrative judges, (5) suing to enforce

statutory provisions, and (6) entering interstate agreements subject to the

Governor’s approval, it is far from clearly established that an agency head may

not be terminated based on political affiliation.

      C. Due Process and Takings Claims Against Governor Martinez

      Smith next contends that Governor Martinez violated his rights under the

Due Process Clause of the Fourteenth Amendment and the Takings Clause of the

Fifth Amendment. It is not clear whether he alleges a violation of substantive due

process, procedural due process, or both. Moreover, although Smith argues at

length that he was deprived of a property right, he does not identify any standards

for evaluating whether the alleged deprivation violated due process or any

suggestions as to what type of process was required.

                                         -11-
       Nor does Smith identify any authority whatsoever for evaluating a Takings

Clause claim. Consequently, these claims are inadequately briefed and we need

not review them. See Craven v. Univ. of Colo. Hosp. Auth., 260 F.3d 1218, 1226

(10th Cir. 2001) (“We will not manufacture arguments for an appellant, and a

bare assertion does not preserve a claim, particularly when, as here, a host of

other issues are presented for review.” (internal quotation marks omitted)); Adler

v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments

inadequately briefed in the opening brief are waived.”); see also Fed. R. App. P.

28(a)(8)(A) (“The appellant’s brief must contain . . . appellant’s contentions and

the reasons for them, with citations to the authorities and parts of the record on

which the appellant relies . . . .”).

       At any rate, Smith’s claims would still not prevail. “[T]o prevail on either

a procedural or substantive due process claim, a plaintiff must first establish that

a defendant’s actions deprived plaintiff of a protectible property interest.” Hyde

Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000). Smith

asserts that an employment position for a term of years is a protected property

interest. In New Mexico, there is a property interest in employment if there is “an

express or implied right to continued employment.” Lovato v. City of

Albuquerque, 742 P.2d 499, 501–02 (N.M. 1987). The question is therefore

whether the five-year term under § 52–5–2(A) created an express or implied right

to Smith’s continued employment as WCA director.

                                         -12-
      In New Mexico, “[a] public office is not property, and the right to hold it is

not a vested one.” State ex rel. Ulrick v. Sanchez, 255 P. 1077, 1087 (N.M.

1926). We have accordingly held, where a New Mexico gubernatorial appointee

was fired before his term expired, that “public office or employment generally is

held not to be a property interest within the meaning of the Fourteenth

Amendment, and particularly so in those circumstances where no right to

continued employment exists.” Mitchell v. King, 537 F.2d 385, 391 (10th Cir.

1976). The New Mexico Supreme Court has added that because “members of

boards and commissions and agency heads” are exempt from the state’s Personnel

Act, 3 “the Legislature acknowledges that such policy-making positions are

different from other types of employment positions and that such category of

persons are not entitled to hearings before removal from their positions.” State ex

rel. Duran v. Anaya, 698 P.2d 882, 885 (N.M. 1985).

       Moreover, as already discussed, § 52–5–2(A) does not create any right of

continued employment. The state Constitution allows the Governor to remove

employees unless “otherwise provided by law,” N.M. Const. art. V., § 5, and the

New Mexico Supreme Court has rejected the argument that the legislature could

use “implied terms to negate the Governor’s express removal authority,” absent “a

compelling reason to hold otherwise.” Espinosa, 73 P.3d at 204. The members of

the Commission in Espinosa had staggered, five-year terms, so that one member’s

      3
          The WCA director is exempt from the Act. See supra, at n.1.

                                        -13-
term would expire each year. Id. at 198. They argued, much as Smith does here,

that a statutory term of years would be meaningless if the Governor had plenary

authority to remove them. The court held that “[t]he removal authority applies

indiscriminately to all gubernatorial appointees” and that any limit on that power

would have to be “expressly stated.” Id. at 204. Thus, the fact that the statute

creates a five-year term cannot by itself bar the Governor from terminating the

director. Any such restriction would have to be expressly stated.

       Smith counters that American Federation of State, County and Municipal

Employees v. Martinez, 257 P.3d 952 (N.M. 2011), controls. In that case, the

Supreme Court of New Mexico distinguished Espinosa in holding the Governor

could not terminate members of the Public Employee Labor Relations Board

consistent with the Due Process Clause. Allowing the Governor to terminate

board members conflicted with the “careful balance” envisioned by the state

legislature when it promulgated the statute that created the board. Id. at 956.

Specifically, one of the statute’s purposes was to create a “balanced and,

therefore, neutral body” to “promote harmonious and cooperative relationships”

between public employers and employees and to adjudicate labor disputes

involving the Governor. Id. at 955. Smith claims the statute creating the WCA

similarly requires balance and neutrality.

      But reliance on this holding is misplaced, as the court’s departure from

Espinosa was predicated on the fact that the Governor did not have “absolute

                                        -14-
appointment authority” over these positions in the first place. Id. at 957. Rather,

the Governor was limited to “one member recommended by organized labor, one

member recommended by public employers, and one neutral member jointly

recommended by these two appointees.” Id. at 953. It was this very process that

evinced a legislative desire for balance and neutrality. See id. at 955–56. Here,

Governor Richardson was not similarly limited in his choice of director when he

appointed Smith. Thus, we see no reason why Espinosa would not apply.

      Finally, Smith argues that Espinosa is not on point because it involved lay

Commission members, rather than salaried employees. This fact is irrelevant.

For Smith to succeed, there must be a genuine issue of material fact as to whether

he had an express or implied statutory right to continued employment. Such a

right does not exist if the state Constitution allows the Governor to remove him at

will, and the Governor’s removal power applies to “all officers whose

appointment or election is not otherwise provided for.” N.M. Const. art. V., § 5.

The text does not distinguish between salaried and unsalaried appointees. Nor

does the relevant case law draw such a distinction. To the contrary, “[t]he

removal authority applies indiscriminately to all gubernatorial appointees.”

Espinosa, 73 P.3d at 204.

      In sum, we hold there is no genuine issue of material fact as to whether

Smith’s termination violated his rights under the Due Process and Takings

Clauses.

                                        -15-
      In addition, Governor Martinez is entitled to qualified immunity on the Due

Process and Takings claims. New Mexico law has not clearly established that a

gubernatorial appointee has a property right to his office simply because a statute

defines a term of years. In fact, it has suggested the opposite. Anaya, 698 P.2d at

885 (“[N]othing in the U.S. Constitution, statutes, regulations, judicial opinions

or custom relating to ‘political apparatus’ contains any clear statement that the

petitioners have or that gubernatorial appointees to boards and commissions have

any property interest in their appointment. Moreover, the Legislature is silent on

this as to property interest.”).

      D. Breach of Contract Claim

      Lastly, Smith argues that New Mexico breached an employment contract

when Governor Martinez removed him before the five-year term ended. He

makes the same argument we have already rejected: that § 52–5–2(A) entitled him

to continued employment. We deny this claim for the reasons described above.

We also note that the Supreme Court has explicitly held that a statute is presumed

not to “tender[] a contract to a citizen” where it merely “fix[es] the term or tenure

of a public officer or an employe [sic] of a state agency.” Dodge v. Bd. of Educ.,

302 U.S. 74, 78–79 (1937).




                                        -16-
                             III. Conclusion

     For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment to Governor Martinez and the State of New Mexico.



                                            ENTERED FOR THE COURT

                                            Timothy M. Tymkovich
                                            Circuit Judge




                                     -17-
