IN THE UNITED STATES COURT OF APPEALS

           FOR THE FIFTH CIRCUIT
                     _______________

                       No. 01-31469
                     Summary Calendar
                     _______________




               BRIAN PAUL DESORMEAUX,

                                          Plaintiff-Appellee,

                          VERSUS

      SHERIFF’S OFFICE CAMERON PARISH, ET AL.,

                                          Defendants,

                     JAMES R. SAVOIE,
  IN HIS CAPACITY AS SHERIFF OF CAMERON PARISH LOUISIANA,


                                          Defendant-Appellant.



               _________________________

         Appeal from the United States District Court
            for the Western District of Louisiana
                       m 01-CV-685
               _________________________

                       August 1, 2002
Before JONES, SMITH, and                                   gate whether that was so. Savoie learned that
  EMILIO M. GARZA, Circuit Judges.                         one of Desormeaux’s relatives supported his
                                                           opponent. After Desormeaux’s termination,
JERRY E. SMITH, Circuit Judge:*                            the sheriff informed a staff member that he had
                                                           learned that Desormeaux voted for his op-
   The district court found that Deputy Brian              ponent. Savoie never gave Desormeaux a rea-
Desormeaux had created a fact question as to               son for his discharge. Desormeaux avers that
whether Sheriff James Savoie had fired him in              he did not actually support Savoie or his op-
violation of his “clearly established” First               ponent.
Amendment rights to free expression and as-
sociation. Savoie appeals, arguing that he                     Desormeaux sued under 42 U.S.C. § 1983,
should be able to use political allegiance as an           alleging that the discharge violated his First
employment criterion for hiring investigators.             Amendment rights to freedom of speech and
Because we previously have rejected this ar-               association; he also pleaded related state law
gument, we affirm the denial of Savoie’s mo-               claims. The complaint originally named the
tion for summary judgment on the personal                  “Cameron Parish Sheriff’s Department” as a
capacity claims. Because the district court has            defendant, but the district court found that no
not yet entered a judgment, we lack appellate              such entity existed under Louisiana law and
jurisdiction over the claims against Savoie in             dismissed the department as a defendant.
his official capacity.                                     Desormeaux amended his complaint to clarify
                                                           that he was suing Savoie in his individual and
                       I.                                  official capacities.
    From 1997 to 2000, Desormeaux worked
as one of four investigators for Savoie. Inves-               Savoie moved for summary judgment, seek-
tigators occupy one of the top six positions               ing dismissal of the federal claims on the basis
among the thirty-four deputies; only the sher-             of qualified immunity. He sought dismissal of
iff, chief deputy, and chief investigator are              the claims against him in his official capacity
higher.                                                    because no counterpart governmental entity
                                                           exists. The court denied summary judgment,
   Desormeaux alleges that Savoie refused to               and Savoie appeals.
renew his employment in June 2000 because
he mistakenly believed that Desormeaux had                                        II.
supported his opponent in an election. Desor-                  Savoie argues that Elrod v. Burns, 427
meaux provided summary judgment evidence                   U.S. 347 (1976), and Branti v. Finkel, 445
to support his allegations: In September or                U.S. 507 (1980), set forth the exclusive test
October 1999, Savoie informed a deputy that                for patronage discharges. He avers that the
he suspected Desormeaux was supporting his                 Supreme Court’s public employee expression
opponent, and instructed a deputy to investi-              cases, most notably Connick v. Myers, 461
                                                           U.S. 138 (1983), and Pickering v. Board of
                                                           Educ., 391 U.S. 563 (1968), have no rele-
   *
     Pursuant to 5TH CIR. R. 47.5, the court has           vance. He further claims that Elrod and
determined that this opinion should not be pub-            Branti permit elected officials to use political
lished and is not precedent except under the limited       affiliation and loyalty as employment criteria
circumstances set forth in 5TH CIR. R. 47.5.4.

                                                       2
for employees who make important policy                 position or routinely review confidential in-
decisions or handle confidential information.           formation.    Id. at 374-75 (Stewart, J.,
See Branti, 445 U.S. at 518.                            concurring).

                       A.                                  Four years later, a majority agreed on more
   Determining whether an official should re-           specific standards. In Branti, 445 U.S. at 519,
ceive qualified immunity requires answering             the Court refined Justice Stewart’s hint of an
three questions. First, did the plaintiff allege        exception permitting elected officials to
the violation of a constitutional right? Wilson         discharge public employees for their political
v. Layne, 526 U.S. 603, 609 (1999). Second,             beliefs, explaining that the label “policymaker”
did the public official breach “clearly                 or “confidential” should not determine whether
established statutory or constitutional rights of       political affiliation is a necessary job
which a reasonable person would have                    requirement. Id. “[R]ather the question is
known?” Harlow v. Fitzgerald, 457 U.S. 800,             whether the hiring authority can demonstrate
818 (1982). The applicable law must be clear-           that party affiliation is an appropriate
ly established when the allegedly actionable            requirement for the effective performance of
conduct was taken. Harlow, 457 U.S. at 818.             the public office involved.” Id.
Finally, “we must determine whether . . . the
record shows that the violation occurred, or at            In McBee v. Jim Hogg County, Tex., 730
least gives rise to a genuine issue of material         F.2d 1009 (1984) (en banc), we laid out rules
fact as to whether the defendant actually en-           for deciding political patronage cases in the
gaged in the conduct that violated the clearly-         wake of Elrod and Branti. We explained that
established right.” Kerr v. Lyford, 171 F.3d            the two cases represented a special subset of
330, 339 (5th Cir. 1999) (quotation and                 the Supreme Court cases regulating a public
citation omitted).                                      employee’s discharge for speech on matters of
                                                        public concern. Id. at 1014. We opined that
   For purposes of this appeal, Savoie                  Elrod and Branti were especially easy public
concedes Desormeaux’s factual claims. We                official speech cases that required little or no
review the remaining legal questions de novo.           weighing under the traditional test. Id. The
Geter v. Fortenberry, 882 F.2d 167, 169 (5th            employees were loyal and effective, were dis-
Cir. 1989).                                             charged for private and abstract political
                                                        views, and did not actively campaign. Id.
                      B.
    In a series of three cases, the Supreme                The description of Elrod’s and Branti’s
Court has outlined the proper framework for             implications for pure association cases,
analyzing a public employee’s claim that he             however, was only dictum. In McBee, because
was fired for his political views. In Elrod, a          the deputy sheriffs had actively campaigned
fractured Court held that an Illinois sheriff           against their employer, id. at 1015, we
could not fire non-civil service employees for          explained that we would employ the flexible
failing to support him in a bid for reelection.         Connick-Pickering test laid out for public em-
427 U.S. at 367 (Brennan, J.) (plurality). Jus-         ployee expression cases, id. at 1016. We will
tice Stewart’s concurrence emphasized that              consider whether the speech is on a matter of
the employees did not occupy a policymaking             “public concern,” the need for a close working


                                                    3
relationship, the disruptiveness of the activity,         or affiliation claim, Elrod and Branti control.
and the appearance of insubordination or                  The Court ruled, however, that in mixed cases
hostility. Id. at 1017.1                                  of retaliation based on both affiliation and
                                                          expression, courts will almost inevitably have
    In O’Hare Truck Serv., Inc. v. City of                to apply the test for public employees’
Northlake, 518 U.S. 712, 726 (1996), the                  expression. Id.
Court tracked the distinction between mere
affiliation and political expression and held that            Savoie argues that O’Hare supplanted the
a mayor could not constitutionally terminate              test we described in McBee. Savoie, however,
the city’s referrals to a private towing com-             fails to explain why any minor theoretical
pany because the company had refused to                   differences between McBee’s and O’Hare’s
donate to his campaign and actively supported             respective dictum describing the requirements
his opponent. For the first time, the Court ad-           for pure association claims should affect the
dressed the complex relationship between the              outcome in this case. Desormeaux presented
tests outlined for firing a public employee               summary judgment evidence that Savoie be-
based on political affiliation and political ex-          lieved him to be actively supporting the
pression. Id. at 719. The Court explained that            opponent. Savoie discriminated against Des-
where the case solely involves an association             ormeaux on the basis of his perceived
                                                          associations and expressions.2 We apply the
                                                          Connick-Pickering balancing test to mixed
   1
                                                          cases. O’Hare, 518 U.S. at 719; supra note 1.
     We have consistently performed the Connick-          Savoie concedes that, at this stage in the
Pickering balancing where public employees have
                                                          proceedings, Desormeaux has created a fact
both belonged to opposing political parties and
                                                          question about the unconstitutionality of his
actively expressed their support for opposing can-
didates. Kinsey v. Salado Indep. Sch. Dist., 950          discharge under the Connick-Pickering
F.2d 988, 990, 995-96 (5th Cir. 1992) (en banc)           balancing test.
(explaining that public employee had published
letter in support of candidate and spoken to many                              C.
citizens about his support, and describing Elrod-            Savoie argues that he lawfully fired De-
Branti’s exception as interrelated with Connick-          sormeaux because investigators fall within the
Pickering analysis); Anderson v. Pasadena Indep.          Elrod-Branti exception for public employees
Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999)             in policymaking positions. In Matherne v.
(“When a plaintiff’s claims arise under both              Wilson, 851 F.2d 752, 761 (5th Cir. 1988), we
freedom of speech and freedom of association . . .        held that Louisiana sheriffs could not
the freedom of association cases are analyzed un-         constitutionally discharge investigators for
der the same Pickering balancing test used to de-
termine the success of the freedom of speech
claims.”); Brady v. Fort Bend County, 145 F.3d
                                                             2
691, 704-05 (5th Cir. 1998) (campaigning by dep-                Precedent supports classifying the case ac-
uty sheriffs placed case in the middle of the spec-       cording to the elected official’s perceptions rather
trum and required explicit Connick-Pickering bal-         than to the plaintiff’s actual activity. Branti, 445
ancing); Click v. Copeland, 970 F.2d 106, 112-13          U.S. at 509 n.4 (noting that one of the plaintiffs
(5th Cir. 1992) (announcing candidacy for sheriff’s       had changed his political party to coincide with the
office requires application of Connick-Pickering          elected officials but basing decision on the elected
balancing test).                                          officials’ perception).

                                                      4
political reasons. In Matherne, as in this case,            He argues that the dissenting views of other
the investigator had superiors in the chain of              federal circuits are enough to make a right not
command, the sheriff offered zero evidence                  “clearly established.”
that the investigator’s political opinions
skewed his professional judgment, and the                      Savoie is incorrect; the divergent views of
sheriff did not argue that the investigator’s               the other courts of appeals do not affect
political opinions impaired his working                     established law in this circuit, and a public
relationships. Id.3                                         official cannot use them, standing alone, to
                                                            establish the qualified immunity defense.5 In
   Savoie does not explain how O’Hare would                 June 2000, our cases “clearly established” that
change the outcome in Matherne, and he does                 a Louisiana sheriff could not discharge an in-
not distinguish Matherne. Matherne binds us                 vestigator for political reasons.
and compels the conclusion that Desormeaux
has created a fact question about whether his                                      II.
First Amendment rights to association and                      Savoie argues that the district court erred
expression were violated.                                   by refusing to dismiss the claims asserted
                                                            against him in his official capacity. We have a
                       D.                                   duty to consider our appellate jurisdiction
    Finally, we consider whether Desormeaux’s               before reaching the merits of the district
rights were “clearly established” in June 2000.             court’s refusal to dismiss the official capacity
Savoie argues that although the Fifth Circuit               claims. Steel Co. v. Citizens for a Better
had repeatedly classified deputy sheriffs as                Env’t, 523 U.S. 83, 94-95 (1998).
falling outside the Elrod-Branti exception,
other circuits had divided over the question.4
                                                               4
                                                                 (...continued)
                                                            Burns v. County of Cambria, 971 F.2d 1015, 1023
   3
     See Brady, 145 F.3d at 709 (finding, in mixed          (3d Cir. 1992) (finding deputy sheriffs may not be
case, that Texas deputy sheriffs did not fall within        discharged for political beliefs without some proof
Elrod-Branti exception); Click, 970 F.2d at 112             that they had significant discretion or their political
(finding that Texas deputy sheriffs who ran against         views affected their decisionmaking).
sheriff could not fall within Elrod-Branti exception
                                                               5
because there was no proof candidacy had                         Brady, 58 F.3d at 175 n.11 (“While it seems
interfered with their job); Barrett v. Thomas, 649          peculiar to consider an official action held lawful
F.2d 1193, 1200 (5th Cir. Unit A July 1981)                 by one federal circuit court to be ‘clearly’
(same).                                                     unconstitutional by any ‘objective’ criteria, such a
                                                            result reinforces the finality of circuit law, albeit at
   4
     Compare, e.g., Jenkins v. Medford, 119 F.3d            the expense of immunity in some cases.”); Boddie
1156, 1162 (4th Cir. 1997) (en banc) (classifying           v. City of Columbus, Miss., 989 F.2d 745, 748
political allegiance as an appropriate requirement          (5th Cir. 1993) (“Our inquiry ends, if we find from
because deputies play such a critical role in im-           examining the decisions of the Supreme Court and
plementing sheriff’s policies); and Upton v.                our own decisions that the law was clearly
Thompson, 930 F.2d 1209, 1218 (7th Cir. 1991)               established in this circuit.”). See Click, 970 F.2d
(holding that sheriff may consider politics when            at 110-11 (holding “[t]he law was established
deciding whether to hire or fire chief deputy), with        clearly enough in this circuit” despite a conflict
                                       (continued...)       with two circuits).

                                                        5
    The collateral order doctrine creates                      The denial of summary judgment based on
appellate jurisdiction over a denial of official            official, qualified immunity is AFFIRMED, and
immunity, because the defendant’s immunity to               the appeal in all other respects is DISMISSED
suit is effectively sacrificed if the case goes to          for want of appellate jurisdiction.
trial. Mitchell v. Forsyth, 472 U.S. 511, 526-
28 (1985). To fall within the scope of the
collateral order doctrine the order “must con-
clusively determine the disputed question, re-
solve an important question completely
separate from the merits of the action, and be
effectively unreviewable on appeal from a final
judgment.” Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978).

    The collateral order doctrine does not ex-
tend to official capacity claims. The Supreme
Court has explained that the collateral order
does not encompass the district court’s
rejection of a local government’s defense to
liability. Swint v. Chambers County Comm’n,
514 U.S. 35, 43 (1995). Local governments
do not have immunity from suit, and appellate
courts may adequately review the denial of
summary judgment after a full-blown trial. Id.
Official capacity claims really create liability
for the local government, and, in the wake of
Swint, we have held that we lack jurisdiction
over “official capacity” claims against a
Louisiana sheriff before the district court has
entered a final judgment.6



   6
     Jacobs v. W. Feliciana Sheriff’s Dep’t, 228
F.3d 388, 392 (5th Cir. 2000) (“And since a suit
against Sheriff Daniel in his official capacity is a
suit against the Parish, we may not review the
Magistrate Judge’s denial of summary judgment
regarding Sheriff Daniel in his official capacity.”);
Burge v. Parish of St. Tammany, 187 F.3d 452,
476 (5th Cir. 1999) (“The district court’s order
denying the Sheriff’s motion for summary
judgment in the ‘official capacity’ suit does not
satisfy Cohen’s requirement that the decision be
effectively unreviewable after final judgment.”).

                                                        6
