                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                         ______________________

                              No. 99-30765
                        Civil Docket #97-CV-761
                        _______________________

PATRICK DIX; EVELYN VIVIAN SEARCY, personal representative
and surviving spouse and widow, substituted in place and stead
of Robert Searcy, deceased; MICHAEL RAY WILLIAMS; CARL BELAIRE,

                               Plaintiffs-Appellees-Cross-Appellants,

                                  versus

TONY MANCUSO, Etc.; ET AL,

                                                               Defendants,

TONY MANCUSO, Individually and in his capacity as Ward Three
Marshal, CITY OF LAKE CHARLES,

                               Defendants-Appellants-Cross-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
_________________________________________________________________

                               July 2, 2001

Before KENNEDY*, JONES, and DeMOSS, Circuit Judges.**

EDITH H. JONES, Circuit Judge:

           In this lawsuit for politically-motivated failure to

rehire four deputy marshals of the city courts in Lake Charles,


     *
           Circuit Judge of the Sixth Circuit, sitting by designation.
     **
            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opinion should not be published and is not precedent except under the limited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.
Louisiana, a jury rendered awards for the plaintiffs, the court

imposed liability on the City as well as the marshal, and the court

reduced parts of the verdict.        All parties have appealed.          Finding

no reversible error, we affirm.

            Some of the issues are easily resolved.                  Appellant

Marshal     Mancuso   challenges     the    sufficiency     of    evidence    of

liability, the jury instructions on retaliatory failure to rehire,

and appellees’ attorneys’ fees.            Despite his protestations, the

record reveals sufficient testimony – some of it from his testimony

on cross-examination – from which the jury could infer that the

Marshal refused to retain the four, admittedly qualified appellees

because they had supported his election opponent, the previous

Marshal.       Circumstantial      evidence     of   Mancuso’s     intent     was

probative.    Tanner v. McCall, 625 F.2d 1183, 1192 (5th Cir. 1980).

Viewing the evidence with the deference due a jury verdict, we

cannot     conclude   that    no   reasonable    jury     could   have      found

unconstitutional retaliation against appellees for their political

activity.     Mancuso’s motion for judgment as a matter of law was

correctly overruled.         Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th

Cir. 1995).

            The jury instruction with which Mancuso quarrels was

patterned after that in the very similar case of Brady v. Fort Bend

County, 145 F.3d 691 (5th Cir. 1998).         In Brady, the instruction on

causation of the appellees’ termination was specifically approved

                                      2
by this court.       Mancuso nevertheless asserts legal error because

part of the instruction might suggest that the marshal must have

had,   contrary    to   Louisiana’s    doctrine      of   at-will   employment,

“legitimate reasons” for refusing to retain the appellees.                    We

disagree.     The instruction principally required the jury to find

that the deputies’ political activities were “a substantial or

motivating factor” in their terminations and that retaliation was

“the real reason” for Mancuso’s decision.             Considered as a whole,

the    instruction      was    not   substantially        misleading   and   was

fundamentally accurate.         Davis v. Avondale Industries, Inc., 975

F.2d 169, 173-74 (5th Cir. 1992).

            Mancuso’s challenge to the award of attorneys’ fees,

based on the deputies’ partial success at trial, is unpersuasive.

Mancuso does not contest the amount claimed under an unadjusted

lodestar calculation, nor does he deny that the district court

considered his argument for a downward adjustment. Under the abuse

of discretion standard, the district court did not err in assessing

or awarding an appropriate § 1988 fee.          Louisiana Power & Light Co.

v. Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995) (reviewing court

should “inspect the district court’s lodestar analysis only to

determine if the court sufficiently considered the appropriate

criteria.”)

            The City of Lake Charles appeals the district court’s

imposition    of   §    1983   liability   on   it   for    Marshal    Mancuso’s

                                       3
unconstitutional employment decisions, contending that while he is

a   final     policymaker    in    that     arena,    he    was   not   a   municipal

policymaker for the city.           Pembaur v. City of Cincinnati, 475 U.S.

469, 106 S.Ct. 1292 (1986).           We have carefully reviewed Louisiana

law and cannot agree with the City’s disavowal of responsibility.

It is true that the office of Marshal was statutorily created by

the state legislature.            LSA R.S. 13:1951 and 1952.            The City can

neither abolish it nor interfere with the Marshal’s decisions, and

the City is not vicariously liable for acts of the Marshal.

Cosenza v. Aetna Ins. Co., 341 So.2d 1304 (La. App. 1977).                     On the

other hand, Louisiana law repeatedly characterizes the office of

Marshal as a local rather than state office.1                  The marshal, though

an independent officer, is paid and his budget approved by the

City.       LSA R.S. § 13:1883.        Significantly, the deputy marshals’

salaries are also paid by “the city of Lake Charles and the parish

of Calcasieu”.       LSA R.S. § 2079.           For all practical purposes other

than       their   hiring   and    firing       (which     decisions    all   parties




       1
            State law provides that although an office is created by the
Louisiana constitution or law, it is not necessarily a “state office”. LSA R.S.
42:1441.3(D). Marshals are specifically excluded from indemnification by the
state for lawsuits. LSA R.S. § 13:5108.1(E)(3)(b). The office of Marshal is
defined in the “City Courts” chapter of Louisiana’s statutes. LSA R.S. § 13:1881
and 1881(A). Other statutes confirm that the Marshal is a local official. See,
e.g., La. Const. art. 5, § 15(A); LSA R.S. § 13:1952(13) (describing city court
of Lake Charles and the marshal); LSA R.S. § 11:3504 (in small cities, city
marshal, among others, sits on board of trustees for police pension and relief
funds); LSA R.S. § 18:551(B)(1)(e) (locating office of marshal on ballot for
“municipal offices”).

                                            4
acknowledge were committed to the marshal), deputy marshals are

treated as city employees.

            Based on Louisiana law, the marshal must be considered a

local official, not an officer of the state.              Further, in making

employment decisions, he is exercising policymaking, administrative

authority on the local level.         These facts differentiate the case

from the Supreme Court’s decision in McMillan v. Monroe County, 520

U.S. 781, 117 S.Ct. 1734 (1997), where the Court held that when

acting to enforce state law, sheriffs were officers of the state.

Since Mancuso’s employment decisions make local policy with funds

from the local budget, the city should not be startled at its

liability for his constitutional violations in that capacity.

            Moving to the appellees’ issues, Williams, Belaire and

Searcy all challenge the district court’s judgment as a matter of

law on their back pay awards.2             Williams’s and Belaire’s awards

were reduced to the amounts testified to by their expert witness,

while Searcy’s award was reduced to zero because he never sought

alternate employment after being terminated by Marshal Mancuso. As

noted, the standard for reversing a jury verdict is high, but not

insurmountable.        Damages may not be based on speculation and

conjecture    alone,    particularly       where,   as   here,   the   value   of


      2
            Mancuso’s motion for judgment as a matter of law was not untimely
under R. 50, inasmuch as he had no way of knowing before the verdict arrived that
the jury would award more in damages than the plaintiffs’ expert had testified
to.

                                       5
appellees’   lost   fringe    benefits   was   quantifiable   but   wholly

unquantified.   Purcell v. Seguin State Bank & Trust Co., 999 F.2d

950, 960-61 (5th Cir. 1993). Unfortunately for Belaire, he offered

no proof of the value of fee use of an auto, free housing, medical

insurance, pension benefits, etc., and his expert Dr. Rice affixed

no value to those items.          While Williams testified about the

existence of fringe benefits, Dr. Rice included only the value of

moonlighting in his estimate of Williams’s lost earnings, and the

revised judgment included that sum.        As for Searcy, it makes no

sense for him to claim lost earnings when he voluntarily withdrew

from the employment market after his termination, and the district

court properly so held.        In short, the jury may wander freely

within the realm of the evidence when assessing damage verdicts;

they may not roam at large beyond those bounds.

          The last point of error is appellees’ contention that the

trial court abused its discretion in allowing Dr. Peterson, a

vocational expert, to testify concerning the appellees’ lost front

pay on an inadequate methodology.        Dr. Peterson’s evaluation was

adopted by Mancuso’s economist and by the district court for its

findings and judgment.       While they acknowledge that the admission

of expert testimony is reviewed for abuse of discretion by this

court, appellees assert that the district court failed to enforce




                                     6
Daubert3 and Kumho4 by allowing the expert’s testimony despite his

admission that he never interviewed the deputies, nor performed

vocational tests on them, nor employed other customary procedures

to    evaluate   their   future       employment      opportunities.     We     have

carefully    scrutinized        the     record   concerning      Dr.   Peterson’s

testimony and note that the district court was well aware of the

need that such testimony be based on a reliable methodology.                      We

also note that Dr. Peterson explained that he uses the same

methodology as he did in this case – including a review of the

deputies’ employment records and history, their resumes, ages and

depositions, and relevant statistical employment data – when acting

as a vocational expert for the Social Security Administration. Dr.

Peterson sufficiently explained why he used the methodology he

employed in this case and why it is valid here.                 The court did not

misapply governing limits on the admissibility of expert testimony.

            For these reasons, we reject the contentions raised by

all    parties   and   AFFIRM     the    district     court’s    judgment.      The

attorneys’    fee   award   for       services   on    appeal   is   REMANDED    for

consideration by the district court.

            AFFIRMED; FEE AWARD REMANDED.



       3
            Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed. 2d 469 (1993).
      4
            Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143
L.Ed. 2d 238 (1999).

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