                                                                               [PUBLISH]
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE ELEVENTH CIRCUIT
                             ________________________
                                Nos. 95-4982 & 95-5176
                               _______________________
                          D.C. Docket No. 93-6099-CIV-WDF

RICHARD MARK CUTCLIFFE,
VICKI CUTCLIFFE, GEORGE RAGGIO, JR.,
CAROLE RAGGIO,
                                                        Plaintiffs-Counter-
                                                        Defendants-Appellants,
       versus

RONALD COCHRAN, as Sheriff of Broward
County, Florida, NORMAN BOTSFORD,
individually,

                                                        Defendants-Counter-
                                                        Claimants-Appellees.



                               _______________________
                      Appeals from the United States District Court
                          for the Southern District of Florida
                              _______________________
                              (November 14, 1997)
                     ON PETITION FOR REHEARING EN BANC

               (Opinion July 29, 1997, 11th Cir., 117 F.3d 1353)
Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX,
BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
       The Court having been polled at the request of one of the members of the Court

and a majority of the Circuit Judges who are in regular active service not having voted in
favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5),

the Suggestion of Rehearing En Banc is DENIED.


BARKETT, Circuit Judge, dissenting:



       I respectfully dissent from the court’s denial of en banc rehearing in this case. For

the reasons articulated in the majority opinion, I believe that this court’s opinion in Terry
v. Cook, 866 F.2d 373 (11th Cir. 1989), is at odds with Supreme Court precedent. I also

believe that en banc consideration is necessary to clarify the law in this circuit as to the

permissibility of political patronage dismissals of any and all deputy sheriffs under the
First Amendment in light of Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel,

445 U.S. 507 (1980). Our confusion on this issue is apparent from our opinions in Terry

and, most recently, Brett v. Jefferson County, 123 F.3d 1429 (11th Cir. 1997).

       The Terry court concluded that a sheriff possesses “absolute authority” to decline
to reinstate any deputy sheriffs who did not support him politically because “loyalty to the
individual sheriff and the goals and policies he seeks to implement . . . is an appropriate

requirement for the effective performance of a deputy sheriff.” Terry, 866 F.2d at 377.

Thus, Terry appears to conflict with the Supreme Court’s directive in Branti that in
determining whether political affiliation is a legitimate requirement for a particular type

of government employment,
       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 party affiliation is an appropriate
       requirement for the effective performance of the public office involved.

Branti, 445 U.S. at 518.

       Nonetheless, the majority opinion in Cutcliffe applied Terry to preclude an
                                               2
identical political patronage dismissal claim, as only the en banc court can reverse a prior
panel decision. Shortly after Cutcliffe was decided, however, this court decided Brett v.

Jefferson County. In Brett, as in Cutcliffe, upon taking office, a newly elected sheriff
declined to reappoint four deputy sheriffs who failed to support him in the primary

election and who actively supported his opponent. The sheriff conceded that his decision
not to reappoint the deputies “was based on their speech and actions during the election,”

Brett, 123 F.3d at 1431, and the deputy sheriffs filed a complaint alleging, inter alia, that

the denial of reappointment for political patronage reasons violated their First

Amendment rights. Finding that the district court erred in disposing of the deputy
sheriffs’ First Amendment claim on summary judgment without applying either the

Elrod-Branti or the Pickering balancing test, the court remanded the case “for additional

fact finding so that the district court can decide which test properly to apply in the First
Amendment analysis.” Id. at 1433. Significantly, the court did not view the deputy

sheriffs’ patronage dismissal claim as precluded by this court’s prior opinions in
Terry and Cutcliffe, although the claim raised by the plaintiffs in Brett is virtually
identical to the claim raised in Cutcliffe.

       Although, as Judge Harris observed in his special concurrence in Cutcliffe, recent
statutory changes in Florida law make it unlikely that this issue will recur in that state,1


       1
           Since 1995, Chapter 30.078 of the Florida Statutes has provided:
       When a newly elected or appointed sheriff assumes office, the incoming
       sheriff may not terminate the employment of any deputy sheriff covered by
       §§ 30.071 - 30.079 for lawful off-duty political activity or for a
       discriminatory reason. The incoming sheriff may replace deputy sheriffs
       assigned to managerial, confidential, or policymaking positions or part-time
       deputy sheriffs.
Fla. Stat. ch. 30.078.
                                               3
that this issue will likely recur in this circuit is evidenced by the fact that Terry was an

Alabama case, while Brett arose in Georgia. Accordingly, because I regard our precedent
in this area as both in conflict with Supreme Court precedent and internally inconsistent, I

believe that this is precisely the kind of case that merits en banc consideration.




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