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

                                                                            FILED
                                                                        December 15, 2008

                                     No. 08-60285                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DAVID JAMES

                                                  Plaintiff - Appellant
v.

LAURENCE MELLEN, Individually and In his Official Capacity as District
Attorney, Circuit Court District 11; THE STATE OF MISSISSIPPI, Haley
Barbour, Governor

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 2:07-CV-92


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       David James filed this 42 U.S.C. § 1983 action against his former
employer, Laurence Mellen, who was at all relevant times the district attorney
for District 11 of the Circuit Court of Mississippi.1 Mellen terminated James


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
        James also sued the State of Mississippi, but subsequently voluntarily dismissed his
claims against it.
                                   No. 08-60285

from his position as a criminal investigator in the district attorney’s Bolivar
County office after James informed him that he intended to run for sheriff of
Bolivar County against the long-time incumbent sheriff. Mellen believed that
James’s candidacy would undermine the good working relationship between the
district attorney’s office and the sheriff’s office. In his complaint, James alleges,
among other things, that Mellen violated his First Amendment right to run for
office. The district court granted summary judgment in favor of Mellen, holding
that Mellen was entitled to qualified immunity on James’s First Amendment
claim.   We review de novo the sole issue raised in this appeal—whether
summary judgment based on qualified immunity was proper. See Mack v. City
of Abilene, 461 F.3d 547, 555 (5th Cir. 2006).
      This court employs a two-step analysis to determine whether a
government official is entitled to qualified immunity.          First, we examine
“whether a plaintiff’s allegation, if true, establishes a violation of a clearly
established right.”   Alexander v. Eeds, 392 F.3d 138, 144 (5th Cir. 2004)
(quotation omitted). Second, if the plaintiff has adequately alleged a violation
of a clearly established right, we “decide whether the conduct was objectively
reasonable in light of clearly established law at the time of the incident.” Id.
(quotation omitted). Because we conclude that Mellen did not violate a clearly
established right, we need not reach the issue of whether his conduct was
objectively reasonable.
      In order for a constitutional right to be deemed “clearly established,”
      [t]he contours of the right must be sufficiently clear that a
      reasonable official would understand that what he is doing violates
      that right. This is not to say that an official action is protected by
      qualified immunity unless the very action in question has previously
      been held unlawful, . . . but it is to say that in the light of
      preexisting law the unlawfulness must be apparent.




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Noyola v. Tex. Dep’t of Human Res., 846 F.2d 1021, 1025 (5th Cir. 1988) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). James contends that he had
a clearly established First Amendment right to run for public office without
retaliation by his public employer.          However, the Supreme Court “has
acknowledged that public employees’ exercise of certain First Amendment rights
may legitimately be restrained where it could lead to an inability of elected
officials to get their jobs done on behalf of the public.” Gentry v. Lowndes
County, 337 F.3d 481, 485 (5th Cir. 2003). To determine the constitutionality of
an adverse employment action in this context, this court balances the public and
individual interests at stake, “consider[ing] among other things the policy
sensitivity of the employment, the nature and content of the employee’s speech
or political activity, the extent of public concern implicated by the speech, and
whether close confidential working relations with elected officials are necessary.”
Id. One consequence of this case-specific balancing inquiry is that “[t]here will
rarely be a basis for a priori judgment that the termination or discipline of a
public employee violated ‘clearly established’ constitutional rights.” Noyola, 846
F.2d at 1025.
      After weighing James and Mellen’s interests, we conclude that this is not
one of those rare cases where a public employer violated a clearly established
constitutional right. We recognize that James’s interest in running for office is
significant because “[p]olitical speech regarding a public election lies at the core
of matters of public concern protected by the First Amendment.” Wiggins v.
Lowndes County, 363 F.3d 387, 390 (5th Cir. 2004). James argues that there is
no public interest to weigh against his individual interest in running for office
because the ability of the district attorney’s office to provide services was not in
any way affected by his candidacy. See Vojvodich v. Lopez, 48 F.3d 879, 885–86
(5th Cir. 1995) (holding that an adverse employment action is unconstitutional
unless the public employer shows a “disruption” in its ability to provide services).

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                                         No. 08-60285

We disagree. Mellen has presented evidence that the district attorney’s Bolivar
County office only employed five individuals, including two criminal
investigators who occupied confidential positions and were expected to work
closely with deputies and investigators in the sheriff’s office.2 A relationship of
trust and confidence between the two agencies was crucial to the good
functioning of the district attorney’s office. Therefore, the district court’s finding
that Mellen terminated James because he feared disruptive tension between the
sheriff’s office and the district attorney’s office is well supported by the evidence.
       James claims that Mellen cannot possibly show any actual disruption
because he was terminated on the day he announced he had qualified to run for
sheriff. This argument is entirely meritless. The Supreme Court has made clear
that a public employer is not required “to allow events to unfold to the extent
that the disruption of the office and the destruction of working relationships is
manifest before taking action.” Connick v. Myers, 461 U.S. 138, 152 (1983); see
also Vojvodich, 48 F.3d at 886 (the public employer must allege that the
employee’s activities “actually or potentially affected” its ability to provide
services (emphasis added)).            Therefore, Mellen did not violate a “clearly
established” constitutional right when he terminated James to avoid potential
disruptions in the operations of the district attorney’s office.
       Accordingly, Mellen is entitled to qualified immunity and the judgment of
the district court is AFFIRMED.




       2
         James does not contest that, as a criminal investigator, he occupied a confidential
position in the district attorney’s office. It is well-settled in this circuit that “where a public
employee . . . occupies a confidential or policymaking role, the employer’s interests more easily
outweigh the employee’s First Amendment rights.” Gentry, 337 F.3d at 486.

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